Exhibit 1.1
THE JONES GROUP INC.
JONES APPAREL GROUP HOLDINGS, INC.
JONES APPAREL GROUP USA, INC.
JAG FOOTWEAR, ACCESSORIES AND RETAIL CORPORATION
JONES APPAREL GROUP HOLDINGS, INC.
JONES APPAREL GROUP USA, INC.
JAG FOOTWEAR, ACCESSORIES AND RETAIL CORPORATION
6.875% Senior Notes Due 2019
UNDERWRITING AGREEMENT
March 2, 2011
Citigroup Global Markets Inc.
J.P. Morgan Securities LLC
As Representatives of the several Underwriters
named in Schedule II hereto
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
J.P. Morgan Securities LLC
As Representatives of the several Underwriters
named in Schedule II hereto
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
The Jones Group Inc., a Pennsylvania corporation (the “Company”), Jones Apparel Group
Holdings, Inc., a Delaware corporation (“Jones Apparel Group Holdings”), Jones Apparel Group USA,
Inc., a Delaware corporation (“Jones Apparel Group USA”), and JAG Footwear, Accessories and Retail
Corporation, a New Jersey corporation (“JAG Footwear” and together with the Company, Jones Apparel
Group Holdings and Jones Apparel Group USA, the “Issuers”), as joint and several obligors, propose
to sell to the several underwriters named in Schedule II hereto (the “Underwriters”), for whom you
(the “Representatives”) are acting as representatives, the principal amount of their securities
identified in Schedule I hereto (the “Securities”), to be issued under an indenture (the
“Indenture”) dated as of the Closing Date, among the Issuers and U.S. Bank National Association, as
trustee (the “Trustee”). Any reference herein to the Registration Statement, the Base Prospectus,
any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under
the Exchange Act on or before the Effective Date of the Registration Statement or the issue date of
the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be; and
any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the
Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus
shall be deemed to refer to and include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of the Base Prospectus, any
Preliminary Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated
therein by reference. Certain terms used herein are defined in Section 21 hereof.
1. Representations and Warranties. The Issuers jointly and severally represent and
warrant to, and agree with, each Underwriter as set forth below in this Section 1.
(a) The Issuers meet the requirements for use of Form S-3 under the Act and have
prepared and filed with the Commission an automatic shelf registration statement, as defined
in Rule 405 (the file number of which is set forth in Schedule I hereto) which has been
filed within the last three years on Form S-3, including a related Base Prospectus, for
registration under the Act of the offering and sale of the Securities; and no notice of
objection of the Commission to the use of such Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by
the Issuers. Such Registration Statement, including any amendments thereto filed prior to
the Execution Time, became effective upon filing; and no order suspending the effectiveness
of the Registration Statement has been issued by the Commission and no proceeding for that
purpose or pursuant to Section 8A of the Act against the Issuers or related to the offering
has been initiated or threatened by the Commission. The Issuers may have filed with the
Commission, as part of an amendment to the Registration Statement or pursuant to Rule
424(b), one or more Preliminary Prospectuses relating to the Securities, each of which has
previously been furnished to you. The Issuers will file with the Commission a Final
Prospectus relating to the Securities in accordance with Rule 424(b). As filed, such Final
Prospectus shall contain all information required by the Act and the rules thereunder, and,
except to the extent the Representatives shall agree in writing to a modification, shall be
in all substantive respects in the form furnished to you prior to the Execution Time or, to
the extent not completed at the Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the Base Prospectus and any
Preliminary Prospectus) as the Issuers have advised you, prior to the Execution Time, will
be included or made therein. The Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x).
(b) On each Effective Date, the Registration Statement did, and when the Final
Prospectus is first filed in accordance with Rule 424(b) and on the Closing Date (as defined
herein), the Final Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act, the Exchange Act and the Trust
Indenture Act and the respective rules thereunder; on each Effective Date and at the
Execution Time, the Registration Statement did not and will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; on the Effective Date and
on the Closing Date the Indenture did or will comply in all material respects with the
applicable requirements of the Trust Indenture Act; and as of its date and on the Closing
Date, the Final Prospectus (together with any supplement thereto) will not include any
untrue statement of a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the Issuers make no representation
or warranty as to (i) that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the
Trustee or (ii) the information contained in or omitted from the Registration Statement or
the Final Prospectus (or any supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Issuers by or on behalf of any Underwriter through
the Representatives specifically for inclusion in the Registration Statement or the Final
Prospectus (or any supplement thereto), it being understood and
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agreed that the only such information furnished by or on behalf of any Underwriter
consists of the information described as such in Section 8 hereof.
(c) (i) The Disclosure Package and (ii) each electronic road show used by the Issuers
in connection with the offering of the Securities, when taken together as a whole with the
Disclosure Package, does not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided that none of the
Issuers make any representation or warranty as to information contained in or omitted from
the Disclosure Package, or any amendment or supplement thereto, in reliance upon and in
conformity with information furnished in writing to the Issuers by or on behalf of the
Underwriters through the Representative specifically for inclusion therein, it being
understood and agreed that the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in Section 8 hereof.
(d) The documents incorporated or deemed to be incorporated by reference in the
Registration Statement, the Preliminary Prospectus and the Final Prospectus (i) at the time
they were or hereafter are filed with the Commission, complied or will comply in all
material respects with the requirements of the Exchange Act and (ii) when read together with
the other information in the Disclosure Package, at the Execution Time, and when read
together with the other information in the Final Prospectus, as of its date and at the
Closing Date, did not or will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(e) Each Issuer is not an Ineligible Issuer (as defined in Rule 405) and is a
Well-Known Seasoned Issuer, in each case at the times specified in the Act in connection
with the offering of the Securities. The Issuers agree to pay the fees required by the
Commission relating to the Securities within the time required by Rule 456(b)(1) without
regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(f) Each Issuer Free Writing Prospectus and the final term sheet prepared and filed
pursuant to Section 5(b) hereto does not include any information that conflicts with the
information contained in the Registration Statement, the Preliminary Prospectus or the Final
Prospectus, including any document incorporated therein by reference and any prospectus
supplement deemed to be a part thereof that has not been superseded or modified. The
foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing
Prospectus based upon and in conformity with written information furnished to the Issuers by
any Underwriter through the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in Section 8 hereof.
(g) Each Issuer and its Significant Subsidiaries has been duly incorporated and is
validly existing as a corporation in good standing under the laws of its jurisdiction of
incorporation, is duly qualified to do business and is in good standing as a foreign
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corporation in each jurisdiction in which its ownership or lease of property or the
conduct of its business requires such qualification and has all power and authority
necessary to own or hold its properties and to conduct the businesses in which it is
engaged, except where the failure to so qualify or have such power or authority would not,
singularly or in the aggregate, have a material adverse effect on the condition, financial
or otherwise, earnings, business affairs or business prospects of the Issuers and their
subsidiaries taken as a whole (a “Material Adverse Effect”).
(h) The Company has the authorized capitalization as set forth in the Disclosure
Package and the Final Prospectus under the heading “Capitalization”; and all of the
outstanding shares of capital stock of each Significant Subsidiary of each of the Issuers
have been duly and validly authorized and issued, are fully paid and non-assessable and,
except as described in the Registration Statement, the Disclosure Package or the Final
Prospectus, are owned directly or indirectly by such Issuer, free and clear of any lien,
charge, encumbrance, security interest, restriction upon voting or transfer or any other
claim of any third party other than “Permitted Liens” as defined in the indenture dated as
of November 22, 2004, among the Issuers and U.S. Bank National Association (as successor in
interest to SunTrust Bank), as amended and supplemented prior to the date hereof.
(i) Each Issuer has full right, power and authority to execute and deliver each of the
following documents to which it is a party: this Agreement, the Indenture and the
Securities (collectively, the “Transaction Documents”), and to perform its obligations
hereunder and thereunder; and all corporate action required to be taken for the due and
proper authorization, execution and delivery of each of the Transaction Documents and the
transactions contemplated thereby will have been duly and validly taken as of the Closing
Date.
(j) This Agreement has been duly authorized, executed and delivered by each of the
Issuers.
(k) As of the Closing Date, the Indenture will have been duly authorized by each of the
Issuers and, when duly executed and delivered in accordance with its terms by each of the
parties thereto, will constitute a valid and legally binding agreement of each of the
Issuers, enforceable against each of them in accordance with its terms, except to the extent
that such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws affecting creditors’ rights
generally from time to time in effect and by general equitable principles, including,
without limitation, concepts of materiality, reasonableness, good faith and fair dealing
(whether considered in a proceeding in equity or at law). As of the Effective Date, the
Indenture was duly qualified under the Trust Indenture Act.
(l) As of the Closing Date, the Securities will have been duly authorized by each of
the Issuers and, when duly executed, authenticated, issued and delivered as provided in the
Indenture and paid for as provided herein, the Securities will each be duly and validly
issued and outstanding and will constitute valid and legally binding obligations of the
Issuers, entitled to the benefits of the Indenture and enforceable against
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the Issuers in accordance with their terms, except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors’ rights generally and
by general equitable principles (whether considered in a proceeding in equity or at law).
(m) None of the Issuers are, and upon the issuance and sale of the Securities as herein
contemplated and the application of the net proceeds therefrom as described in the
Disclosure Package and the Final Prospectus, none of the Issuers will be, an “investment
company” or a company “controlled by” an investment company within the meaning of the
Investment Company Act of 1940, as amended.
(n) The execution, delivery and performance by each Issuer of each of the Transaction
Documents to which it is a party, the issuance, authentication, sale and delivery of the
Securities and compliance by such Issuer with the terms hereof and thereof and the
consummation of the transactions contemplated by the Transaction Documents will not conflict
with or result in a breach or violation of any of the terms or provisions of, or constitute
a default under, or result in the creation or imposition of any lien, charge or encumbrance
which is material to the Issuers and their subsidiaries, taken as a whole, upon any property
or assets of such Issuer or any of its subsidiaries pursuant to, any agreement or instrument
which is material to the Issuers and their subsidiaries, taken as a whole, to which such
Issuer or any of its subsidiaries is a party or by which such Issuer or any of its
subsidiaries is bound or to which any of the property or assets of such Issuer or any of its
subsidiaries is subject, nor will such actions result in any violation of the provisions of
the charter or by-laws of such Issuer or any of its Significant Subsidiaries or any statute
or any judgment, order, decree, rule or regulation which is material to the Issuers and
their subsidiaries, taken as a whole, of any court or arbitrator or governmental agency or
body having jurisdiction over such Issuer or any of its subsidiaries or any of its
properties or assets; and no consent, approval, authorization or order of, or filing or
registration with, any such court or arbitrator or governmental agency or body having
jurisdiction over any Issuer or any of its subsidiaries under any such statute, judgment,
order, decree, rule or regulation is required for the execution, delivery and performance by
such Issuer of any of the Transaction Documents to which it is a party, the issuance,
authentication, sale and delivery of the Securities and compliance by such Issuer with the
terms thereof and the consummation of the transactions contemplated by the Transaction
Documents, except for such consents, approvals, authorizations, filings, registrations or
qualifications (i) which shall have been obtained or made prior to the Closing Date, (ii) as
may be required to be obtained or made under applicable state securities laws and (iii)
which would not, singularly or in the aggregate, have a Material Adverse Effect.
(o) The financial statements and related notes thereto included or incorporated by
reference in the Preliminary Prospectus, the Final Prospectus and the Registration Statement
comply in all material respects with the applicable requirements of the Exchange Act and
Regulation S-X under the Act applicable to registration statements on Form S-3, as
applicable, and present fairly the financial position of the Company and its subsidiaries as
of the dates indicated and the results of their operations and the changes in
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their cash flows for the periods specified; such financial statements have been
prepared in conformity with generally accepted accounting principles applied on a consistent
basis throughout the periods covered thereby, except as disclosed therein; and the other
financial information of the Company and its subsidiaries included or incorporated by
reference in the Preliminary Prospectus, the Final Prospectus and the Registration Statement
have been derived from the accounting records of the Company and its subsidiaries and
presents fairly the information shown thereby in all material respects. The pro forma
financial information and the related notes thereto incorporated by reference in the
Preliminary Prospectus, the Final Prospectus and the Registration Statement have been
prepared in accordance with the applicable requirements of the Act and the Exchange Act, as
applicable, and the assumptions underlying such pro forma financial information are
reasonable.
(p) Since the date of the most recent financial statements of the Company included or
incorporated by reference in the Preliminary Prospectus, the Final Prospectus and the
Registration Statement, except as disclosed in the Preliminary Prospectus, the Final
Prospectus and the Registration Statement (exclusive of any amendment or supplements thereto
subsequent to the Execution Time) (i) there has not been (A) any change in the capital stock
or long-term debt of any of the Issuers or their Significant Subsidiaries, or any dividend
or distribution of any kind (other than regular quarterly dividends) declared, set aside for
payment, paid or made by any of the Issuers on any class of capital stock, or (B) any
material adverse change, or any development involving a prospective material adverse change,
in or affecting the business, properties, management, financial position, or results of
operations of the Issuers and their subsidiaries taken as a whole; (ii) none of the Issuers
or any of their subsidiaries has entered into any transaction or agreement that is material
to the Issuers and their Significant Subsidiaries taken as a whole or incurred any liability
or obligation, direct or contingent, that is material to the Issuers and their Significant
Subsidiaries taken as a whole; and (iii) none of the Issuers or any of their subsidiaries
has sustained any material loss or material interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from any labor
disturbance or dispute or any action, order or decree of any court or arbitrator or
governmental or regulatory authority.
(q) Except as disclosed in the Preliminary Prospectus, the Final Prospectus and the
Registration Statement, there are no legal or governmental proceedings pending to which any
Issuer or any of its subsidiaries is a party or of which any property or assets of any
Issuer, or any of its subsidiaries is the subject which, singularly or in the aggregate, if
determined adversely to such Issuer or any of its subsidiaries, could reasonably be expected
to have a Material Adverse Effect; and to the knowledge of the Issuers, no such proceedings
are threatened or contemplated by governmental authorities or threatened by others.
(r) No action has been taken and no statute, rule, regulation or order has been
enacted, adopted or issued by any governmental agency or body which prevents the issuance of
the Securities or suspends the sale of the Securities in any jurisdiction; no injunction,
restraining order or order of any nature by any Federal or state court of
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competent jurisdiction has been issued with respect to any Issuer or any of its
subsidiaries which would prevent or suspend the issuance and sale of the Securities or the
use of the Preliminary Prospectus, the Final Prospectus and the Registration Statement in
any jurisdiction; no action, suit or proceeding is pending against or, to the knowledge of
each Issuer, threatened against or affecting any Issuer or any of its subsidiaries before
any court or arbitrator or any governmental agency, body or official, domestic or foreign,
which could reasonably be expected to interfere with or materially and adversely affect the
issuance and sale of the Securities or in any manner draw into question the validity,
enforceability or consummation of any of the Transaction Documents or any action taken or to
be taken pursuant thereto.
(s) None of the Issuers or any of their subsidiaries is (i) in violation of its charter
or by-laws, (ii) in default, and no event has occurred which, with notice or lapse of time
or both, would constitute such a default, in the due performance or observance of any term,
covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which it is a party or by which it is bound or to which any
of its property or assets is subject or (iii) in violation of any law, ordinance,
governmental rule, regulation or court decree to which it or its property or assets may be
subject, except in the case of clause (ii) or (iii) for any such violation or default which
would not have a Material Adverse Effect.
(t) BDO USA, LLP are independent public accountants with respect to the Company and its
subsidiaries as required by the Act and the Exchange Act and the rules of the Public Company
Accounting Oversight Board (the “PCAOB”). J.H. Cohn LLP, which expressed its opinion with
respect to the financial statements of Stuart Weitzman Holdings, LLC (“Stuart Weitzman”) and
it subsidiaries, are independent public accountants with respect to the Stuart Weitzman and
its subsidiaries within the meaning of Rule 101 of the Code of Professional Conduct of the
American Institute of Certified Public Accountants and its interpretations and ruling
thereunder.
(u) The Issuers (i) have filed all income tax returns that are required to be filed or
have requested extensions thereof and (ii) have paid all taxes required to be paid by them,
and any other assessment, fine or penalty levied against them, to the extent that any of the
foregoing is due and payable, except, in each of (i) and (ii), (A) for taxes being contested
in good faith for which adequate reserves have been provided in accordance with generally
accepted accounting principles, (B) for any such taxes the failure of which to pay or so
file could not, individually or in the aggregate, reasonably by expected to have a Material
Adverse Effect or (C) as set forth in or contemplated in the Disclosure Package and the
Final Prospectus (exclusive of any amendment or supplement thereto subsequent to the
Execution Time).
(v) No labor problem or dispute with the employees of the Issuers or any of their
subsidiaries exists or is threatened or imminent, and the Issuers are not aware of any
existing or imminent labor disturbance by the employees of any of their or their
subsidiaries’ principal suppliers, contractors or customers, in each case, that could have a
Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package
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and the Final Prospectus (exclusive of any amendment or supplement thereto subsequent
to the Execution Time).
(w) Each of the Issuers and each of their subsidiaries are insured by financially sound
and reputable carriers against such losses and risks and in such amounts as are prudent and
customary in the businesses in which they are engaged; all policies of insurance insuring
the Issuers or any of their subsidiaries or their respective businesses, assets, employees,
officers and directors are in full force and effect. Neither the Issuers nor any such
subsidiary has any reason to believe it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that would not have a
Material Adverse Effect, except as set forth or contemplated in the Disclosure Package and
the Final Prospectus (exclusive of any supplement thereto subsequent to the Execution Time).
(x) No subsidiary of each of the Issuers is currently prohibited, directly or
indirectly, from paying any dividends to the Issuers, from making any other distribution on
such subsidiary’s capital stock, from repaying to the Issuers any loans or advances to such
subsidiary from the Issuers or from transferring any of such subsidiary’s property or assets
to the Issuers or any other subsidiary of the Issuers, except as disclosed in or
contemplated by the Disclosure Package and the Final Prospectus (exclusive of any amendment
or supplement thereto subsequent to the Execution Time).
(y) Each of the Issuers and each of their subsidiaries possess all licenses,
certificates, authorizations and permits which are material to the Issuers and their
subsidiaries, taken as a whole, issued by, and have made all declarations and filings with,
the appropriate Federal, state or foreign regulatory agencies or bodies which are necessary
for the ownership of its properties or the conduct of their businesses as described in the
Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement
thereto subsequent to the Execution Time), except where the failure to possess or make the
same would not, singularly or in the aggregate, have a Material Adverse Effect, and none of
the Issuers or any of their subsidiaries has received notification of any revocation or
modification of any such license, certificate, authorization or permit or has any reason to
believe that any such license, certificate, authorization or permit will not be renewed in
the ordinary course.
(z) The Issuers and each of their subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset accountability; (iii) access
to assets is permitted only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with respect to any
differences. The Issuers and their subsidiaries are not aware of any material weakness in
their internal controls over financial reporting.
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(aa) The Issuers and their subsidiaries maintain “disclosure controls and procedures”
(as such term is defined in Rule 13a-15(e) under the Exchange Act). The Issuers and their
subsidiaries have carried out evaluations of the effectiveness of such disclosure controls
and procedures and such disclosure controls and procedures are effective.
(bb) The Issuers have not taken, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of the price of any security of the
Issuers to facilitate the sale or resale of the Securities.
(cc) The Issuers and their subsidiaries are (i) in compliance with any and all
applicable foreign, federal, state and local laws and regulations relating to the protection
of human health and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (“Environmental Laws”), (ii) have received and are in compliance
with all permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) have not received notice
of any actual or potential liability under any Environmental Law, except where such
non-compliance with Environmental Laws, failure to receive required permits, licenses or
other approvals, or liability would not, individually or in the aggregate, have a Material
Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the
Final Prospectus (exclusive of any amendment or supplement thereto subsequent to the
Execution Time). Except as set forth in the Disclosure Package and the Final Prospectus, or
which would not, individually or in the aggregate, have a Material Adverse Effect, neither
the Issuers nor any of their subsidiaries have been named as a “potentially responsible
party” under the Comprehensive Environmental Response, Compensation, and Liability Act of
1980, as amended.
(dd) In the ordinary course of their business, the Issuers periodically review the
effect of Environmental Laws on the business, operations and properties of the Issuers and
their subsidiaries and on the basis of such review, the Issuers have reasonably concluded
that such associated costs and liabilities would not, singly or in the aggregate, have a
Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package
and the Final Prospectus (exclusive of any amendment or supplement thereto subsequent to the
Execution Time).
(ee) None of the following events has occurred or exists: (i) a failure to fulfill the
obligations, if any, under the minimum funding standards of Section 302 of the United States
Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and the regulations
and published interpretations thereunder with respect to a Plan, determined without regard
to any waiver of such obligations or extension of any amortization period that could have a
Material Adverse Effect; (ii) an audit or investigation by the Internal Revenue Service, the
U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any other federal or
state governmental agency or any foreign regulatory agency with respect to the employment or
compensation of employees by any of the Issuers or any of their subsidiaries that could have
a Material Adverse Effect; (iii) any breach of any contractual obligation, or any violation
of law or applicable
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qualification standards, with respect to the employment or compensation of employees by
the Issuers or any of their subsidiaries that could have a Material Adverse Effect. None of
the following events has occurred or is reasonably likely to occur: (i) an increase in the
aggregate amount of contributions required to be made to all Plans in the current fiscal
year of the Issuers and their subsidiaries compared to the amount of such contributions made
in the most recently completed fiscal year of the Issuers and their subsidiaries that could
have a Material Adverse Effect; (ii) an increase in the “accumulated post-retirement benefit
obligations” (within the meaning of Statement of Financial Accounting Standards 106) of the
Issuers and their subsidiaries compared to the amount of such obligations in the most
recently completed fiscal year of the Issuers and their subsidiaries that could have a
Material Adverse Effect; (iii) any event or condition giving rise to a liability under Title
IV of ERISA that could have a Material Adverse Effect; or (iv) the filing of a claim by one
or more employees or former employees of the Issuers or any of their subsidiaries related to
their employment that could have a Material Adverse Effect. For purposes of this paragraph,
the term “Plan” means a plan (within the meaning of Section 3(3) of ERISA) subject to Title
IV of ERISA with respect to which the Issuers or any of their subsidiaries may have any
material liability.
(ff) There is and has been no failure on the part of the Issuers and any of the
Issuers’ directors or officers, in their capacities as such, to comply in all material
respects with the provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith (the “Sarbanes-Oxley Act”), including Section 402
relating to loans and Sections 302 and 906 relating to certifications.
(gg) The Issuers, their subsidiaries and, to the knowledge of the Issuers, their
affiliates have conducted their businesses in compliance with the Foreign Corrupt Practices
Act of 1977, as amended and the rules and regulations thereunder in all material respects
and have instituted and maintain policies and procedures designed to ensure, and which are
reasonably expected to continue to ensure, continued compliance therewith.
(hh) To the Issuers’ knowledge, the operations of the Issuers and their subsidiaries
are and have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements and the money laundering statutes and the rules and
regulations thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency having jurisdiction over such Issuers or
any of their subsidiaries or any of their properties or assets (collectively, the “Money
Laundering Laws”) and no action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Issuers or any of their
subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of
the Issuers, threatened.
(ii) Neither the Issuers nor any of their subsidiaries nor, to the knowledge of the
Issuers, any director, officer, agent, employee or affiliate of the Issuers or any of their
subsidiaries is currently subject to any sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (“OFAC”); and the Issuers will not directly
or indirectly use the proceeds of the offering, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or other person or
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entity, for the purpose of financing the activities of any person currently
subject to any U.S. sanctions administered by OFAC.
(jj) The subsidiaries listed on Annex A attached hereto are the only significant
subsidiaries of the Issuers as defined by Rule 1-02 of Regulation S-X (the “Significant
Subsidiaries”).
(kk) Except as disclosed in the Preliminary Prospectus and the Final Prospectus, each
of the Issuers and each of their subsidiaries owns or possesses, or can acquire on
reasonable terms, adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations, service mark registrations,
copyrights, licenses and know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures) necessary for
the conduct of their businesses, except where the failure to own, possess or acquire the
same would not, singularly or in the aggregate, have a Material Adverse Effect; and the
conduct of their businesses will not conflict in any material respect with, and none of the
Issuers or their respective subsidiaries has received any notice of any claim (other than
such claims as would not reasonably be expected to have a Material Adverse Effect) of
conflict with, any such rights of others.
(ll) On and immediately after the Closing Date, the Issuers (after giving effect to the
issuance of the Securities and the other transactions related thereto as described in the
Registration Statement, the Disclosure Package and the Final Prospectus) will be Solvent.
As used in this paragraph, the term “Solvent” means, with respect to a particular date, that
on such date (i) the present fair market value of the assets of the Issuers will exceed
their debts and liabilities, subordinated, contingent or otherwise; (ii) the present fair
saleable value of the property of the Issuers will be greater than the amount that will be
required to pay the probable liability of their debts and other liabilities, subordinated,
contingent or otherwise, as such debts and other liabilities become absolute and matured;
(iii) the Issuers will be able to pay their debts and liabilities, subordinated, contingent
or otherwise, as such debts and liabilities mature; and (iv) the Issuers will not have
unreasonably small capital with which to conduct the businesses in which they are engaged as
such businesses are now conducted and are proposed to be conducted after the Closing Date.
Any certificate signed by any officer of an Issuer and delivered to the Representatives or
counsel for the Underwriters in connection with the offering of the Securities shall be deemed a
representation and warranty by such Issuer, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Issuers jointly and severally agree to sell to
each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the
Issuers, at the purchase price set forth in Schedule I hereto the principal amount of the
Securities set forth opposite such Underwriter’s name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Securities shall be made on
the date and at the time specified in Schedule I hereto or at such time on such later
11
date not more
than three Business Days after the foregoing date as the Representatives shall designate, which
date and time may be postponed by agreement between the Representatives and the Issuers or as
provided in Section 9 hereof (such date and time of delivery and payment for the Securities being
herein called the “Closing Date”). Delivery of the Securities shall be made to the Representatives
for the respective accounts of the several Underwriters against payment by the several Underwriters
through the Representatives of the purchase price thereof to or upon the order of the Issuers by
wire transfer payable in same-day funds to an account specified by the Issuers. Delivery of the
Securities shall be made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct. Certificates for the Securities shall be registered in
such names and in such denominations as Citigroup Global Markets Inc. may request not less than two
Business Days in advance of the Closing Date.
The Issuers agree to have the Securities available for inspection by the Representatives in
New York, New York, not later than 1:00 PM on the Business Day prior to the Closing Date.
4. Offering by Underwriters. It is understood that the several Underwriters propose
to offer the Securities for sale to the public as set forth in the Preliminary Prospectus and the
Final Prospectus.
5. Agreements. The Issuers jointly and severally agree with the several Underwriters
that:
(a) Prior to the termination of the offering of the Securities, the Issuers will not
file any amendment of the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Prospectus) to the Base Prospectus unless the Issuers have
furnished you a copy for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably and promptly object. The Issuers will cause
the Final Prospectus, properly completed, and any supplement thereto to be filed in a form
approved by the Representatives with the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Issuers will promptly advise the Representatives
(i) when the Final Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of
the offering of the Securities, any amendment to the Registration Statement shall have been
filed or become effective, (iii) of any request by the Commission or its staff for any
amendment of the Registration Statement prior to the termination of the offering of the
Securities, or for any supplement to the Final Prospectus or for any additional information,
(iv) of the issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any notice objecting to its use or the institution or
threatening of any proceeding for that purpose or pursuant to Section 8A of the Act prior to
the termination of the offering of the Securities, (v) of the receipt by the Issuers of any
notice of objection of the Commission to the use of the Registration Statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act prior to the
termination of the offering of the Securities
or (vi) of the receipt by the Issuers of any notification with respect to the
suspension of the qualification of the Securities for sale in any jurisdiction or the
institution or
12
threatening of any proceeding for such purpose. The Issuers will use their
reasonable best efforts to prevent the issuance of any such stop order or the occurrence of
any such suspension or objection to the use of the Registration Statement and, upon such
issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of
such stop order or relief from such occurrence or objection, including, if necessary, by
filing an amendment to the Registration Statement or a new registration statement and using
their reasonable best efforts to have such amendment or new registration statement declared
effective as soon as practicable.
(b) To prepare a final term sheet, containing solely a description of final terms of
the Securities and the offering thereof, in the form approved by you and attached as
Schedule IV hereto and to file such term sheet pursuant to Rule 433(d) within the time
required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule
424(b), any event occurs as a result of which the Disclosure Package would include any
untrue statement of a material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made or the
circumstances then prevailing not misleading, or if it shall be necessary to amend the
Registration Statement, file a new registration statement or supplement the Final Prospectus
to comply with the Act or the Exchange Act or the respective rules thereunder, including in
connection with use or delivery of the Final Prospectus, the Issuers will (i) notify
promptly the Representatives so that any use of the Disclosure Package may cease until it is
amended or supplemented; (ii) amend or supplement the Disclosure Package, subject to Section
5(a), to correct such statement or omission; and (iii) supply any amendment or supplement to
you in such quantities as you may reasonably request.
(d) If, at any time when a prospectus relating to the Securities is required to be
delivered under the Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then
supplemented would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the circumstances
under which they were made at such time not misleading, or if it shall be necessary to amend
the Registration Statement, file a new registration statement or supplement the Final
Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder,
including in connection with use or delivery of the Final Prospectus, the Issuers promptly
will (i) notify the Representatives of any such event, (ii) prepare and file with the
Commission, subject to Section 5(a), an amendment or supplement or new registration
statement which will correct such statement or omission or effect such compliance, (iii) use
their reasonable best efforts to have any amendment to the Registration Statement or new
registration statement declared effective as soon as practicable in order to avoid any
disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus
to you in such quantities as you may reasonably request.
13
(e) As soon as reasonably practicable, the Issuers will make generally available to
their security holders and to the Representatives an earnings statement or statements of the
Issuers and their subsidiaries which will satisfy the provisions of Section 11(a) of the Act
and Rule 158.
(f) If requested, the Issuers will furnish to the Representatives and counsel for the
Underwriters, without charge, signed copies of the Registration Statement (including
exhibits thereto) and to each other Underwriter a copy of the Registration Statement
(without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act (including in circumstances where such requirement may be
satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final
Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the
Representatives may reasonably request. The Issuers will pay the expenses of printing or
other production of all documents relating to the offering.
(g) The Issuers will arrange, if necessary, for the qualification of the Securities for
sale under the laws of such jurisdictions as the Representatives may designate and will
maintain such qualifications in effect so long as required for the distribution of the
Securities; provided that in no event shall the Issuers be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take any action that
would subject it to service of process in suits, other than those arising out of the
offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) The Issuers jointly and severally agree that, unless they have or shall have
obtained the prior written consent of the Representatives, and each Underwriter, severally
and not jointly, agrees with the Issuers that, unless it has or shall have obtained, as the
case may be, the prior written consent of the Issuers, they have not made and will not make
any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus
or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405)
required to be filed by the Issuers with the Commission or retained by the Issuers under
Rule 433, other than a free writing prospectus containing the information contained in the
final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior
written consent of the parties hereto shall be deemed to have been given in respect of the
Free Writing Prospectuses included in Schedule III hereto and any electronic road show. Any
such free writing prospectus consented to by the Representatives or the Issuers is
hereinafter referred to as a “Permitted Free Writing Prospectus.” The Issuers agree that
(x) they have treated and will treat, as the case may be, each Permitted Free Writing
Prospectus as an Issuer Free Writing Prospectus and (y) they have complied and will comply,
as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted
Free Writing Prospectus, including in respect of timely filing with the Commission,
legending and record keeping.
(i) During the period from the date hereof through and including the later of (i) the
completion of the initial distribution of the Securities by the Underwriters, as notified to
the Issuers by the Representatives and (ii) the Closing Date for such Securities, but in no
event later than 45 days after the date of this Agreement, the Issuers will not, without the
prior written consent of Citigroup Global Markets Inc., offer, sell,
14
contract to sell, or publicly announce an intention to effect any such sale or contract
to sale, or otherwise dispose of any debt securities issued or guaranteed by any of the
Issuers.
(j) The Issuers will not take, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of the price of any security of the
Issuers to facilitate the sale or resale of the Securities.
(k) The Issuers agree to pay the costs and expenses relating to the following matters:
(i) the preparation, printing or reproduction and filing with the Commission of the
Registration Statement (including financial statements and exhibits thereto), each
Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and
each amendment or supplement to any of them; (ii) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for counting and packaging) of
such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus
and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them,
as may, in each case, be reasonably requested for use in connection with the offering and
sale of the Securities; (iii) the preparation, printing, authentication, issuance and
delivery of certificates for the Securities, including any stamp or transfer taxes in
connection with the original issuance and sale of the Securities; (iv) the printing (or
reproduction) and delivery of this Agreement, any blue sky memorandum and all other
agreements or documents printed (or reproduced) and delivered in connection with the
offering of the Securities; (v) the registration of the Securities under the Exchange Act;
(vi) any registration or qualification of the Securities for offer and sale under the
securities or blue sky laws of the several states (including filing fees and the reasonable
fees and expenses of counsel for the Underwriters relating to such registration and
qualification); (vii) any filings required to be made with FINRA (including filing fees and
the reasonable fees and expenses of counsel for the Underwriters relating to such filings);
(viii) the transportation and other expenses incurred by or on behalf of Issuers’
representatives in connection with presentations to prospective purchasers of the
Securities; (ix) the fees and expenses of the Issuers’ accountants and the fees and expenses
of counsel (including local and special counsel) for the Issuers; and (x) all other costs
and expenses incident to the performance by the Issuers of their obligations hereunder;
provided that, except as provided in this Agreement, each party hereto shall pay the fees
and expense of its counsel.
6. Conditions to the Obligations of the Underwriters. The obligations of the
Underwriters to purchase the Securities shall be subject to the accuracy of the representations and
warranties on the part of the Issuers contained herein as of the Execution Time and the Closing
Date, to the accuracy of the statements of the Issuers made in any certificates pursuant to the
provisions hereof, to the performance by the Issuers of their obligations hereunder in all material
respects and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and
within the time period required by Rule 424(b); the final term sheet contemplated by Section
5(b) hereto, and any other material required to be filed by the
15
Issuers pursuant to Rule 433(d) under the Act, shall have been filed with the
Commission within the applicable time periods prescribed for such filings by Rule 433; and
no stop order suspending the effectiveness of the Registration Statement or any notice
objecting to its use shall have been issued and no proceedings for that purpose, pursuant to
Rule 401(g)(2) or pursuant to Section 8A under the Act, shall have been instituted or
threatened.
(b) The Underwriters shall have received the opinion, dated the Closing Date, of
Cravath, Swaine & Moore LLP, in form and substance satisfactory to counsel for the
Underwriters to the effect set forth in Exhibit A-1 hereto.
(c) The Underwriters shall have received the opinions of (i) Schnader, Harrison, Segal
& Lewis LLP, special Pennsylvania counsel for the Company, (ii) Drinker Biddle & Reath LLP,
special New Jersey counsel for JAG Footwear and (iii) Ira M. Dansky, Esq., General Counsel
of the Issuers, each in form and substance satisfactory to counsel for the Underwriters, to
the effect set forth in Exhibits A-2 to A-4.
(d) The Representatives shall have received from Cahill Gordon & Reindel llp,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed
to the Representatives, with respect to the issuance and sale of the Securities, the
Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus
(together with any supplement thereto) and other related matters as the Representatives may
reasonably require, and the Issuers shall have furnished to such counsel such documents as
they reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Issuers shall have furnished to the Representatives a certificate of the
Issuers, signed by, in the case of (i) the Company, its Chief Financial Officer and its
Executive Vice President, Chief Accounting Officer and Controller, (ii) Jones Apparel Group
Holdings, its President and its Treasurer, (iii) Jones Apparel Group USA, its Chief
Financial Officer and its Vice President and Assistant Treasurer and (iv) JAG Footwear, its
Chief Executive Officer and President and its Chief Financial Officer, dated the Closing
Date, to the effect that the signers of such certificate have carefully examined the
Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or
amendments thereto, as well as each electronic road show used in connection with the
offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Issuers in this Agreement that
are qualified by materiality are true and correct, and the representations and
warranties of the Issuers in this Agreement that are not qualified by materiality
are true and correct in all material respects, on and as of the Closing Date with
the same effect as if made on the Closing Date and the Issuers have complied in all
material respects with all the agreements and satisfied all the conditions on their
part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement
or any notice objecting to its use has been issued and no proceedings
16
for that purpose have been instituted or, to the Issuers’ knowledge,
threatened; and
(iii) since the date of the most recent financial statements included in the
Disclosure Package and the Final Prospectus (exclusive of any amendment or
supplement thereto subsequent to the date hereof), there has been no change in the
condition, financial or otherwise, earnings, business affairs or business prospects
of the Issuers and their subsidiaries, taken as a whole, except as set forth in or
contemplated in the Disclosure Package and the Final Prospectus (exclusive of any
amendment or supplement thereto subsequent to the date hereof).
(f) (i) The Issuers shall have requested and caused BDO USA, LLP to have furnished to
the Representatives, at the Execution Time and at the Closing Date, letters, (which may
refer to letters previously delivered to one or more of the Representatives), dated
respectively as of the Execution Time and as of the Closing Date, in form and substance
reasonably satisfactory to the Representatives, confirming that they are independent
accountants within the meaning of the Act and the Exchange Act and the respective applicable
rules and regulations adopted by the Commission thereunder and the PCAOB and confirming
certain matters with respect to the financial statements and other financial and accounting
information of the Company and its subsidiaries contained or incorporated by reference in
the Registration Statement, the Preliminary Prospectus and the Final Prospectus; and (ii)
the Issuers shall have requested and caused J.H. Cohn LLP to have furnished to the
Representatives, at the Execution Time, a letter, dated as of the Execution Time, in form
and substance reasonably satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of Rule 101 of the Code of Professional Conduct
of the American Institute of Certified Public Accountants and its interpretations and
rulings thereunder, and confirming certain matters with respect to the financial statements
and other financial and accounting information of Stuart Weitzman and its subsidiaries
contained or incorporated by reference in the Registration Statement, the Preliminary
Prospectus and the Final Prospectus.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information
is given in the Registration Statement (exclusive of any amendment thereof subsequent to the
Execution Time), the Disclosure Package and the Final Prospectus (exclusive of any amendment
or supplement thereto subsequent to the date hereof), there shall not have been (i) any
material change or decrease specified in the letter or letters referred to in paragraph (f)
of this Section 6 or (ii) any change in the condition, financial or otherwise, earnings,
business affairs or business prospects of the Issuers and their subsidiaries taken as a
whole, except as set forth in or contemplated in the Disclosure Package and the Final
Prospectus (exclusive of any amendment or supplement thereto subsequent to the Execution
Time) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the
sole judgment of the Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering, sale or delivery of the Securities as contemplated
by the Registration Statement (exclusive of any amendment thereof subsequent to the
Execution Time), the Disclosure Package and the Final Prospectus (exclusive of any amendment
or supplement thereto subsequent to the Execution Time).
17
(h) Subsequent to the Execution Time, there shall not have been any decrease in the
rating of any of the Issuers’ debt securities by any “nationally recognized statistical
rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice
given of any intended or potential decrease in any such rating or of a possible change in
any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Issuers shall have furnished to the Representatives
such further information, certificates and documents as the Representatives may reasonably
request.
If any of the conditions specified in this Section 6 shall not have been fulfilled when and as
provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere
in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives
and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Issuers in writing or by telephone or facsimile confirmed
in writing.
The documents required to be delivered by this Section 6 shall be delivered at the office of
Cahill Gordon & Reindel llp, counsel for the Underwriters, at 80 Pine Street, New York,
New York 10005, on the Closing Date.
7. Reimbursement of Underwriters’ Expenses. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 10(i)(x)
hereof or because of any refusal, inability or failure on the part of the Issuers to perform any
material agreement herein or comply with any material provision hereof other than by reason of a
default by any of the Underwriters, the Issuers will reimburse the Underwriters severally through
Citigroup Global Markets Inc. on demand for all reasonable out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Issuers jointly and severally agree to
indemnify and hold harmless each Underwriter, its affiliates, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter within the meaning of
either the Act or the Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the Act, the Exchange Act
or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or in any amendment thereof, or in the Base Prospectus, any Preliminary
Prospectus or any other preliminary prospectus supplement relating to the Securities, the Final
Prospectus, any Issuer Free Writing Prospectus or the information contained in the final term sheet
required to be prepared and filed pursuant to Section 5(b) hereto, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein (in the case of the Registration Statement)
or necessary to make the statements therein not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
18
incurred by them in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Issuers will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to the Issuers by or
on behalf of any Underwriter through the Representatives specifically for inclusion therein. This
indemnity agreement will be in addition to any liability which the Issuers may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless the
Issuers, each of their directors, each of their officers, and each person who controls the Issuers
within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing
indemnity from the Issuers to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Issuers by or on behalf of such Underwriter through
the Representatives specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may
otherwise have. The Issuers acknowledge that the statements set forth (i) in the last paragraph of
the cover page regarding delivery of the Securities and, under the heading “Underwriting”, (ii) the
list of Underwriters and their respective participation in the sale of the Securities, (iii) the
sentences related to concessions and reallowances and (iv) the paragraph related to stabilization,
syndicate covering transactions and penalty bids in any Preliminary Prospectus and the Final
Prospectus constitute the only information furnished in writing by or on behalf of the several
Underwriters for inclusion in any Preliminary Prospectus, the Final Prospectus or any Issuer Free
Writing Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 8, notify the indemnifying party in writing
of the commencement thereof; but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the indemnifying party
of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party
from any obligations to any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party
in any action for which indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel retained by the
indemnified party or parties except as set forth below); provided, however, that
such counsel shall be reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party’s election to appoint counsel to represent the indemnified party in an action,
the indemnified party shall have the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate
counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, (iii) the
19
indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified
party to represent the indemnified party within a reasonable time after notice of the institution
of such action or (iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. It is understood and agreed that the
indemnifying party shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to no
more than one local counsel in any applicable jurisdiction) for all indemnified parties, and that
all such fees and expenses shall be reimbursed as they are incurred. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or compromise or consent
to the entry of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought hereunder (whether or
not the indemnified parties are actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of each indemnified party from
all liability arising out of such claim, action, suit or proceeding and does not include any
statement as to or any finding of fault, culpability or failure to act by or on behalf of any
indemnified party. The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent (which consent shall not be unreasonably withheld or delayed),
but if settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify each indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party for any reason, the Issuers
and the Underwriters severally agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection with investigating
or defending the same) (collectively “Losses”) to which the Issuers and one or more of the
Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits
received by the Issuers on the one hand and by the Underwriters on the other from the offering of
the Securities; provided, however, that in no case shall any Underwriter (except as
may be provided in any agreement among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Issuers and the Underwriters severally shall
contribute in such proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Issuers on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Issuers shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses) received by it, and benefits
received by the Underwriters shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the Final Prospectus. Relative fault
shall be determined by reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact relates
to information provided by the Issuers on the one hand or the Underwriters on the other, the intent
of the parties and their relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Issuers and the Underwriters agree that it would
not be just and equitable if contribution were determined by pro rata allocation or any other
method of allocation which does not take account
20
of the equitable considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act and each director, officer,
employee and agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Issuers within the meaning of either the Act or the
Exchange Act, each officer of the Issuers and each director of the Issuers shall have the same
rights to contribution as the Issuers, subject in each case to the applicable terms and conditions
of this paragraph (d). The Underwriters’ obligations to contribute pursuant to this Section 8 are
several in proportion to their respective purchase obligations hereunder and not joint.
9. Default by an Underwriter. If any one or more Underwriters shall fail to purchase
and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Underwriters shall be obligated severally to
take up and pay for (in the respective proportions which the principal amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate principal amount of
Securities set forth opposite the names of all the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate principal amount of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the
aggregate principal amount of Securities set forth in Schedule II hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any obligation to
purchase any, of the Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting Underwriter or the
Issuers. In the event of a default by any Underwriter as set forth in this Section 9, the Closing
Date shall be postponed for such period, not exceeding five Business Days, as the Representatives
shall determine in order that the required changes in the Registration Statement and the Final
Prospectus or in any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Issuers and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the absolute
discretion of the Representatives, by written notice given to the Issuers prior to delivery of and
payment for the Securities, if at any time prior to such delivery and payment (i) (x) trading in
the Company’s Common Stock shall have been suspended by the Commission or the New York Stock
Exchange (which suspension is not attributable to any of clause (i)(y), (ii) or (iii) of this
Section 10) or (y) trading in securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on such exchange, (ii) a banking
moratorium shall have been declared either by Federal or New York State authorities or (iii) there
shall have occurred any outbreak or escalation of hostilities, declaration by the United States of
a national emergency or war, or other calamity or crisis the effect of which on financial markets
is such as to make it, in the sole judgment of the Representatives, impractical or inadvisable to
proceed with the offering, sale or delivery of the
Securities as contemplated by any Preliminary Prospectus or the Final Prospectus (exclusive of
any amendment or supplement thereto subsequent to the date hereof).
21
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Issuers or their officers and
of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter or its affiliates
or the Issuers or any of the officers, directors, employees, agents or controlling persons referred
to in Section 8 hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 7 and 8 hereof shall survive the termination or cancellation of this
Agreement.
12. Notices. All communications hereunder will be in writing and effective only on
receipt, and, if sent to the Representatives, will be mailed, delivered or telefaxed to the
Citigroup Global Markets Inc. General Counsel (fax no.: (212) 816-7912) and confirmed to the
General Counsel, Citigroup Global Markets Inc., at 388 Greenwich Street, New York, New York 10013,
Attention: General Counsel, with a copy mailed, delivered or telefaxed to William J. Miller, Esq.
(fax no.: (212) 269-5420) at Cahill Gordon & Reindel llp, 80 Pine Street, New York, NY
10005; or, if sent to the Issuers, will be mailed, delivered or telefaxed to (fax no.: (212)
790-9988) and confirmed to it at 1411 Broadway, New York, New York 10018, Attention: General
Counsel, with a copy mailed, delivered or telefaxed to William V. Fogg, Esq. (fax no.: (212)
474-3700) at Cravath, Swaine & Moore LLP, Worldwide Plaza, 825 Eighth Avenue, New York, NY 10019.
13. Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors, employees, agents and
controlling persons referred to in Section 8 hereof, and no other person will have any right or
obligation hereunder.
14. No Fiduciary Duty. The Issuers hereby acknowledge that (a) the purchase and sale
of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the
Issuers, on the one hand, and the Underwriters and any affiliate through which it may be acting, on
the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary of the
Issuers and (c) the Issuers’ engagement of the Underwriters in connection with the
offering and the process leading up to the offering is as independent contractors and not in any
other capacity. Furthermore, the Issuers agree that they are solely responsible for making their
own judgments in connection with the offering (irrespective of whether any of the Underwriters has
advised or is currently advising the Issuers on related or other matters). The Issuers agree that
they will not claim that the Underwriters have rendered advisory services of any nature or respect,
or owe an agency, fiduciary or similar duty to the Issuers, in connection with such transaction or
the process leading thereto.
15. Integration. This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Issuers and the Underwriters, or any of them, with respect to
the subject matter hereof.
16. Applicable Law. This Agreement will be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed within the
State of New York.
22
17. Waiver of Jury Trial. The Issuers hereby irrevocably waive, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby.
18. Counterparts. This Agreement may be signed in one or more counterparts, each of
which shall constitute an original and all of which together shall constitute one and the same
agreement.
19. Headings. The section headings used herein are for convenience only and shall not
affect the construction hereof.
20. Miscellaneous. In accordance with the requirements of the USA Patriot Act (Title
III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain,
verify and record information that identifies their respective clients, including the Issuers,
which information may include the name and address of their respective clients, as well as other
information that will allow the Underwriters to properly identify their respective clients.
21. Definitions. The terms that follow, when used in this Agreement, shall have the
meanings indicated.
“Act” shall mean the Securities Act of 1933, as amended and the rules and regulations of the
Commission promulgated thereunder.
“Base Prospectus” shall mean the base prospectus referred to in paragraph 1(a) above contained
in the Registration Statement at the Effective Date.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day
on which banking institutions or trust companies are authorized or obligated by law to close in New
York City.
“Commission” shall mean the Securities and Exchange Commission.
“Disclosure Package” shall mean (i) the Base Prospectus, (ii) the Preliminary Prospectus used
most recently prior to the Execution Time, (iii) the Issuer Free Writing Prospectuses, if any,
identified in Schedule III hereto, (iv) the final term sheet prepared and filed pursuant to Section
5(b) hereto, if any, and (v) any other Free Writing Prospectus that the parties hereto shall
hereafter expressly agree in writing to treat as part of the Disclosure Package.
“Effective Date” shall mean each date and time that the Registration Statement and any
post-effective amendment or amendments thereto became or becomes effective.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“Execution Time” shall mean 4:15 p.m. on March 2, 2011.
“Final Prospectus” shall mean the prospectus supplement relating to the Securities that was
first filed pursuant to Rule 424(b) after the Execution Time, together with the Base Prospectus.
“FINRA” shall mean the Financial Industry Regulatory Authority.
23
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in
Rule 433.
“Preliminary Prospectus” shall mean any preliminary prospectus supplement to the Base
Prospectus referred to in paragraph 1(a) above which is used prior to the filing of the Final
Prospectus, together with the Base Prospectus.
“Registration Statement” shall mean the registration statement referred to in paragraph 1(a)
above, including exhibits and financial statements and any prospectus supplement relating to the
Securities that is filed with the Commission pursuant to Rule 424(b) and deemed part of such
registration statement pursuant to Rule 430B, as amended on each Effective Date and, in the event
any post-effective amendment thereto becomes effective prior to the Closing Date, shall also mean
such registration statement as so amended.
“Rule 158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”, “Rule 424”, “Rule
430B” and “Rule 433” refer to such rules under the Act.
“Significant Subsidiary” shall have the meaning assigned to such term in Rule 1-02 of
Regulation S-X.
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended and the rules and
regulations of the Commission promulgated thereunder.
“Well-Known Seasoned Issuer” shall mean a well-known seasoned issuer, as defined in Rule 405.
24
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Issuers and the several Underwriters.
| Very truly yours, THE JONES GROUP INC. |
||||
| By: | /s/ Joseph T. Donnalley | |||
| Name: | Joseph T. Donnalley | |||
| Title: | Treasurer and Senior Vice President, Corporation Taxation and Risk Management |
|||
| JONES APPAREL GROUP HOLDINGS, INC. |
||||
| By: | /s/ Joseph T. Donnalley | |||
| Name: | Joseph T. Donnalley | |||
| Title: | Treasurer | |||
| JONES APPAREL GROUP USA, INC. |
||||
| By: | /s/ Joseph T. Donnalley | |||
| Name: | Joseph T. Donnalley | |||
| Title: | Treasurer | |||
| JAG FOOTWEAR, ACCESSORIES AND RETAIL CORPORATION |
||||
| By: | /s/ Joseph T. Donnalley | |||
| Name: | Joseph T. Donnalley | |||
| Title: | Vice President and Treasurer | |||
25
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
| CITIGROUP GLOBAL MARKETS INC. J.P. MORGAN SECURITIES LLC |
||||
| By: | Citigroup Global Markets Inc. | |||
| By: | /s/ David Leland | |||
| Name: | David Leland | |||
| Title: | Director | |||
| By: | J.P. Morgan Securities LLC | |||
| By: | /s/ Cornelius J. Droogan | |||
| Name: | Cornelius J. Droogan | |||
| Title: | Managing Director | |||
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
26
ANNEX A
| Entity | Jurisdiction | |
JAG Footwear, Accessories and Retail Corporation
|
New Jersey | |
Jones Apparel Group Canada ULC
|
Canada | |
Jones Apparel Group Canada, LP
|
Canada | |
Jones Apparel Group Holdings, Inc.
|
Delaware | |
Jones Apparel Group USA, Inc.
|
Delaware | |
Jones Holding Inc.
|
Delaware | |
Jones Investment Co. Inc.
|
Delaware | |
Jones Jeanswear Group, Inc.
|
New York | |
Jones Jewelry Group, Inc.
|
Rhode Island | |
Nine West Development Corporation
|
Delaware |
SCHEDULE I
Underwriting Agreement dated March 2, 2011
Registration Statement No. 333-166566
Representatives: Citigroup Global Markets Inc. and J.P. Morgan Securities LLC
Title, Purchase Price and Description of Securities:
Title: |
6.875% Senior Notes due 2019 | |
Principal amount: |
$300,000,000 | |
Purchase price (include accrued
interest or amortization, if any): |
$294,000,000 | |
Sinking fund provisions: |
None | |
Redemption provisions: |
As set forth in the Disclosure Package | |
Other provisions: |
As set forth in the Disclosure Package |
Closing Date, Time and Location: March 7, 2011 at 10:00 a.m. at Cahill Gordon & Reindel
llp, 80 Pine Street, New York, New York 10005
Type of Offering: Non-delayed
Date referred to in Section 5(i) after which the Issuers may offer or sell debt securities issued
or guaranteed by the Issuers without the consent of the Representative(s): April 18, 2011
Modification of items to be covered by the letters from BDO USA, LLP and J.H. Cohn LLP delivered pursuant to
Section 6(f) at the Execution Time: None
SCHEDULE II
| Principal Amount | ||||
| of Securities to | ||||
| Underwriters | be Purchased | |||
Citigroup Global Markets Inc. |
$ | 120,000,000 | ||
J.P. Morgan Securities LLC |
99,000,000 | |||
Merrill Lynch, Pierce, Fenner & Smith
Incorporated |
24,000,000 | |||
SunTrust Robinson Humphrey, Inc. |
24,000,000 | |||
Wells Fargo Securities, LLC |
24,000,000 | |||
Goldman, Sachs & Co. |
9,000,000 | |||
Total |
$ | 300,000,000 | ||
SCHEDULE III
ISSUER FREE WRITING PROSPECTUS
(RELATING TO PRELIMINARY PROSPECTUS SUPPLEMENT
DATED MARCH 2, 2011)
FILED PURSUANT TO RULE 433
REGISTRATION NUMBER 333-166566
(RELATING TO PRELIMINARY PROSPECTUS SUPPLEMENT
DATED MARCH 2, 2011)
FILED PURSUANT TO RULE 433
REGISTRATION NUMBER 333-166566
THE JONES GROUP INC.
JONES APPAREL GROUP HOLDINGS, INC.
JONES APPAREL GROUP USA, INC.
JAG FOOTWEAR, ACCESSORIES AND RETAIL CORPORATION
JONES APPAREL GROUP HOLDINGS, INC.
JONES APPAREL GROUP USA, INC.
JAG FOOTWEAR, ACCESSORIES AND RETAIL CORPORATION
$300,000,000 6.875% Senior Notes due 2019
Final Pricing Term Sheet
March 2, 2011
This Final Pricing Term Sheet is qualified in its entirety by reference to the Preliminary
Prospectus Supplement. The information in this Final Pricing Term Sheet supplements the
Preliminary Prospectus Supplement and supersedes the information in the Preliminary Prospectus
Supplement to the extent inconsistent with the information in the Preliminary Prospectus
Supplement.
Issuers:
|
The Jones Group Inc.; Jones Apparel Group Holdings, Inc.; Jones Apparel Group USA, Inc.; JAG Footwear, Accessories and Retail Corporation | |
Securities:
|
6.875% Senior Notes due 2019 (“Notes”) | |
Amount:
|
$300,000,000 | |
Coupon (Interest Rate):
|
6.875% | |
Yield:
|
6.875% | |
Spread to Benchmark
Treasury:
|
380 bps | |
Benchmark Treasury:
|
2.750% due February, 2019 | |
Scheduled Maturity Date:
|
March 15, 2019 | |
Public Offering Price:
|
100.00% plus accrued interest, if any, from March 7, 2011 | |
Gross Proceeds:
|
$300,000,000 | |
Underwriting Discount:
|
2.00% of gross proceeds | |
Net Proceeds to Issuer
before Estimated
Expenses:
|
$294,000,000 | |
Net Proceeds to Issuer
after Estimated
Expenses:
|
$293,177,500 | |
Payment Dates:
|
March 15 and September 15 of each year, commencing on September 15, 2011 | |
Record Dates:
|
March 1 and September 1 of each year |
Redemption
|
The Notes will be redeemable in whole at any time or in part from time to time, at the Issuers’ option, at a redemption price equal to the greater of: | |
| (1) 100% of the principal amount of the Notes then outstanding to be redeemed; or | ||
| (2) the sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed discounted to the date of redemption at the applicable treasury rate, plus 50 basis points. | ||
Change of Control
Triggering Event:
|
Upon the occurrence of a change of control triggering event (defined as a rating of lower than investment grade during a change of control trigger period), each holder of Notes will have the right to require the Issuers to purchase all or a portion of such holder’s Notes at a purchase price equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of purchase, subject to the rights of holders of Notes on the relevant record date to receive interest due on the relevant interest payment date. | |
CUSIP:
|
48020U AA6 | |
ISIN:
|
US48020UAA60 | |
Distribution:
|
SEC Registered (Registration No. 333-166566) | |
Listing:
|
None | |
Trade Date:
|
March 2, 2011 | |
Settlement Date:
|
March 7, 2011 (T+3) |
| Underwriting | Principal Amount | |||||||
| Underwriter | of Notes | |||||||
Citigroup Global Markets Inc. |
$ | 120,000,000 | ||||||
J.P. Morgan Securities Inc. |
99,000,000 | |||||||
Merrill Lynch, Pierce, Fenner & Smith Incorporated |
24,000,000 | |||||||
SunTrust Robinson Humphrey, Inc. |
24,000,000 | |||||||
Wells Fargo Securities, LLC |
24,000,000 | |||||||
Goldman, Sachs & Co. |
9,000,000 | |||||||
Total |
$ | 300,000,000 | ||||||
| Notes sold by the underwriters to the public will initially be offered at the initial public offering price set forth above. Any notes sold by the underwriters to securities dealers may be sold at a discount from the initial public offering price of up to 0.375% of the principal amount of the notes. Any such securities dealers may resell any notes purchased from the underwriters to certain other brokers or dealers at a discount from the initial public offering price of up to 0.25% of the principal amount of the notes. If all the notes are not sold at the initial offering price, the underwriters may change the offering price and the other selling terms |
The Issuers have filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the Issuers have filed with the SEC for more
-2-
complete information about the Issuers and this offering. You may get these documents for free by
visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, copies may be obtained from
Citigroup Global Markets Inc. at the following address: Brooklyn Army Terminal, 140 58th Street,
8th Floor, Brooklyn, New York 11220 or by calling toll-free at: 800-831-9146.
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO THIS COMMUNICATION AND
SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES WERE AUTOMATICALLY GENERATED AS A RESULT
OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG OR ANOTHER EMAIL SYSTEM.
-3-
Exhibit A-1
Opinion of Cravath, Swaine & Moore LLP
[l], 2011
The Jones Group Inc.
Jones Apparel Group Holdings, Inc.
Jones Apparel Group USA, Inc.
JAG Footwear, Accessories and Retail Corporation
Jones Apparel Group Holdings, Inc.
Jones Apparel Group USA, Inc.
JAG Footwear, Accessories and Retail Corporation
$300,000,000
Principal Amount of
6.875% Senior Notes due 2019
Principal Amount of
6.875% Senior Notes due 2019
Ladies and Gentlemen:
We have acted as counsel for The Jones Group Inc., a Pennsylvania corporation (“the Jones
Group”) and its subsidiaries Jones Apparel Group Holdings, Inc., a Delaware corporation (“Jones
Holdings”), Jones Apparel Group USA, Inc., a Delaware corporation (“Jones USA” and, together with
Jones Holdings, the “Delaware Issuers”), and JAG Footwear, Accessories and Retail Corporation, a
New Jersey corporation (“JAG Footwear” and, together with the Jones Group and the Delaware Issuers,
the “Issuers”), in connection with the purchase by the several Underwriters (the “Underwriters”)
listed on Schedule II to the Underwriting Agreement dated March 2, 2011 (the “Underwriting
Agreement”), among Citigroup Global Markets Inc. and J.P. Morgan Securities LLC, as representatives
of the Underwriters, and the Issuers, of $300,000,000 principal amount of the Issuers’ 6.875%
Senior Notes due 2019 (the “Notes”) to be issued pursuant to an indenture dated [l], 2011
(the “Indenture”), among the Issuers and U.S. Bank National Association, as trustee.
In that connection, we have examined originals, or copies certified or otherwise identified to
our satisfaction, of such documents, corporate records and other instruments as we have deemed
necessary or appropriate for the purposes of this opinion, including: (a) the Certificate of
Incorporation of each Delaware Issuer, as amended;
(b) the By-laws of each Delaware Issuer; (c)
resolutions adopted by the Board of Directors of each Delaware Issuer on May 6, 2010; (d) the
Registration Statement on Form S-3 (Registration No. 333-166566), filed with the Securities and
Exchange Commission (the “Commission”) on May 6, 2010 (the “Registration Statement”) for
registration under the Securities Act of 1933 (the “Securities Act”), of an indeterminate amount of
debt securities to be issued from time to time by the Issuers; (e) the related prospectus dated May
6, 2010 (together with the documents incorporated therein by reference, the “Basic Prospectus”);
(f) the resolutions adopted by the Board of Directors of each Delaware Issuer on [l], 2011;
(g) the Prospectus Supplement dated [l], 2011, filed with the Commission pursuant to Rule
424(b) of the General Rules and Regulations under the Securities Act (together with the Basic
Prospectus, the “Prospectus”); (h) the documents and other information described in Annex A to this
letter (together, the “Specified Disclosure Package”); (i) the Underwriting Agreement; (j) the
Indenture and the form of the Note; and (k) the agreements specified on Schedule I hereto
(collectively, the “Specified Agreements”). We have relied upon advice from the Commission that
the Registration Statement initially became effective on May 6, 2010. We have also relied, with
respect to certain factual matters, on the representations and warranties of the Issuers and the
Underwriters contained in the Underwriting Agreement, and have assumed compliance by each such
party with the terms of the Underwriting Agreement. In particular, we have relied upon each of the
Issuers’ representations that it has not been notified pursuant to Rule 401(g) of the Securities
Act of any objection by the Commission to the use of the form on which the Registration Statement
was filed.
Our identification of information as part of the Specified Disclosure Package has been at your
request and with your approval. Such identification is for the limited purpose of making the
statements set forth in this opinion regarding the Specified Disclosure Package and is not the
expression of a view by us as to whether any such information has been or should have been conveyed
to investors generally or to any particular investors at any particular time or in any particular
manner.
Based on the foregoing and subject to the qualifications set forth herein, we are of opinion
as follows:
1. Based solely on a certificate from the Secretary of State of the State of Delaware, each
Delaware Issuer is a corporation validly existing and in good standing under the laws of the State
of Delaware, with all necessary corporate power and authority to own, lease and operate its
properties and conduct its businesses as described in the Prospectus.
2. The Notes conform in all material respects to the description thereof contained in the
Prospectus and the Specified Disclosure Package.
3. The Indenture has been duly qualified under the Trust Indenture Act of 1939.
4. The Indenture has been duly authorized, executed and delivered by each Delaware Issuer.
Assuming that the Indenture has been duly authorized, executed and
2
delivered by the Issuers (other
than the Delaware Issuers), the Indenture constitutes a legal, valid and binding obligation of each
of the Issuers enforceable against each of the Issuers in accordance with its terms (subject to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other
similar laws affecting creditors’ rights generally from time to time in effect and to general
principles of equity, including, without limitation, concepts of materiality, reasonableness, good
faith and fair dealing, regardless of whether considered in a proceeding in equity or at law).
5. The Notes have been duly authorized by each Delaware Issuer. Assuming that the Notes have
been duly authorized by the Issuers (other than the Delaware Issuers), when executed and
authenticated in accordance with the provisions of the Indenture and delivered to and paid for by
the Underwriters pursuant to the Underwriting Agreement, the Notes will constitute legal, valid and
binding obligations of each of the Issuers, entitled to the benefits of the Indenture and
enforceable against the Issuers in accordance with their terms (subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting
creditors’ rights generally from time to time in effect and to general principles of equity,
including, without limitation, concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether considered in a proceeding in equity or at law).
6. The Underwriting Agreement has been duly authorized, executed and delivered by each
Delaware Issuer.
7. No authorization, approval or other action by, and no notice to, consent of, order of, or
filing with, any United States Federal, New York State or, to the extent required under the General
Corporation Law of the State of Delaware, Delaware governmental authority is required to be made or
obtained by any Issuer for the consummation of the transactions contemplated by the Underwriting
Agreement, other than (a) those that have been obtained or made under the Securities Act or the
Trust Indenture Act of 1939, (b) those that may be required under the Securities Act in connection
with the use of a “free writing prospectus” and (c) those that may be required under the blue sky
laws of any jurisdiction in connection with the purchase and distribution of the Notes by the
Underwriters.
8. The issue and sale by the Issuers of the Notes, the consummation of the other transactions
contemplated by the Underwriting Agreement and the performance by each Issuer of its obligations
under the Underwriting Agreement (a) do not violate the Certificate of Incorporation or By-laws of
any Delaware Issuer, (b) do not result in a breach of or constitute a default under the express
terms and conditions of any Specified Agreement and (c) will not violate any law, rule or
regulation of the United States of America, the State of New York or the General Corporation Law of
the State of Delaware. Our opinion in clause (b) of the preceding sentence relating to the
Specified Agreements does not extend to compliance with any financial ratio or any limitation in
any contractual restriction expressed as a dollar amount (or an amount expressed in another
currency).
3
9. The statements made in the Prospectus and the Specified Disclosure Package under the
caption “Material United States Federal Income Tax Considerations”, insofar as they purport to
describe the material tax consequences of an investment in the Notes, fairly summarize the matters
therein described.
10. The Registration Statement became effective under the Securities Act on May 6, 2010, and,
assuming prior payment by the Issuers of the pay-as-you-go registration fee for the offering of the
Notes, upon filing of the Prospectus with the Commission the offering of the Notes as contemplated
by the Prospectus became registered under the Securities Act; to our knowledge, no stop order
suspending the effectiveness of the Registration Statement has been issued and no proceedings for
that purpose have been instituted or are pending or contemplated under the Securities Act.
11. Based solely on the certificate dated the date hereof, from an officer of each Issuer,
attached as Exhibit A hereto, no Issuer is required to register as an “investment company” as such
term is defined in the Investment Company Act of 1940, as amended.
The foregoing opinions are qualified as follows:
(a) We express no opinion herein as to any provision of the Indenture or the Notes that (i)
relates to the subject matter jurisdiction of any Federal court of the United States of America, or
any Federal appellate court, to adjudicate any controversy related to the Indenture or the Notes,
(ii) contains a waiver of an inconvenient forum or (iii) relates to the waiver of rights to jury
trial. We also express no opinion as to (x) whether a state court outside the State of New York or
a Federal court of the United States would give effect to the choice of New York law provided for
in the Indenture or the Notes or (y) the effect of any provision in the certificate of
incorporation of Jones Holdings of the type permitted by Section 102(b)(2) of the General
Corporation Law of the State of Delaware.
(b) We understand that you are satisfying yourselves as to the status under Section 548 of the
Bankruptcy Code and applicable state fraudulent conveyance laws of the obligations of the Issuers
under the Indenture and the Notes, and we express no opinion thereon.
(c) We express no opinion with respect to the enforcement of any provision of any agreement
providing for indemnification or contribution to the extent contrary or inconsistent with public
policy.
(d) We express no opinion with respect to compliance with, or the application or effect of,
Federal or state securities laws, except to the extent set forth in paragraphs 3, 7, 8, and 10
above.
We are admitted to practice in the State of New York, and we express no opinion as to matters
governed by any laws other than the laws of the State of New York, the General Corporation Law of
the State of Delaware and the Federal laws of the United States of America. In particular, we
express no opinion as to any matter governed by the laws of the State of New Jersey or the
Commonwealth of Pennsylvania.
4
In rendering this opinion, we have assumed, without independent investigation, the correctness
of, and take no responsibility for, the opinions dated [l], 2011, of (i) Drinker Biddle &
Reath LLP, a copy of which has been delivered to you pursuant to paragraph (c) of Section 6 of the
Underwriting Agreement, as to all matters of law covered therein relating to the laws of the State
of New Jersey and (ii) Schnader, Harrison, Segal & Lewis LLP, a copy of which has been delivered to
you pursuant to paragraph (c) of Section 6 of the Underwriting Agreement, as to all matters of law
covered therein relating to the laws of the Commonwealth of Pennsylvania.
We are furnishing this opinion to you, as representatives of the several Underwriters, solely
for your benefit and the benefit of the several Underwriters. This opinion may not be relied upon
by any other person (including by any person that acquires the Notes from the several Underwriters)
or for any other purpose. It may not be used, circulated, quoted or otherwise referred to for any
other purpose.
Very truly yours,
The several Underwriters listed on
Schedule II to the Underwriting
Agreement, among the Issuers and
Citigroup Global Markets Inc. and
J.P. Morgan Securities LLC, as representatives
for the several Underwriters
Schedule II to the Underwriting
Agreement, among the Issuers and
Citigroup Global Markets Inc. and
J.P. Morgan Securities LLC, as representatives
for the several Underwriters
In care of
Citigroup Global Markets Inc.
| 388 | Greenwich Street |
| New York, New York 10013 |
5
Annex A
Specified Disclosure Package
Capitalized terms used in this Annex A have the meanings given to them in the letter to which
this Annex A is attached.
| 1. | Preliminary Prospectus Supplement dated March 2, 2011 (including the Basic Prospectus therein) | |
| 2. | Final Term Sheet dated March 2, 2011 |
SCHEDULE I
Specified Agreements
| 1. | Indenture, dated as of November 22, 2004, by and among Jones Apparel Group, Inc., Jones Apparel Group Holdings, Inc., Jones Apparel Group USA, Inc., JAG Footwear, Accessories and Retail Corporation, and U.S. Bank National Association, as Trustee. | |
| 2. | First Supplemental Indenture, dated as of December 31, 2006, by and among Jones Apparel Group, Inc., Jones Apparel Group Holdings, Inc., Jones Apparel Group USA, Inc., JAG Footwear, Accessories and Retail Corporation, and U.S. Bank National Association, as Trustee. | |
| 3. | Second Supplemental Indenture, dated as of April 15, 2009, by and among Jones Apparel Group, Inc., Jones Apparel Group Holdings, Inc., Jones Apparel Group USA, Inc., JAG Footwear, Accessories and Retail Corporation, and U.S. Bank National Association, as Trustee. | |
| 4. | Credit Agreement, dated as of May 13, 2009, among Jones Apparel Group, Inc., Jones Apparel Group Holdings, Inc., Jones Apparel Group USA, Inc., JAG Footwear, Accessories and Retail Corporation, Jones Investment Co. Inc., Jones Jeanswear Group, Inc., Nine West Development Corporation, Jones Jewelry Group, Inc., Jones Apparel Group Canada, LP, the lending institutions party thereto and JPMorgan Chase Bank, N.A., as administrative agent, as amended by Amendment No. 1 and Consent to Credit Agreement, dated as of May 5, 2010, as further amended by Amendment No. 2, dated as of June 29, 2010. | |
| 5. | Security Agreement dated as of May 13, 2009, among Jones Apparel Group, Inc. (now named The Jones Group Inc.), Jones Apparel Group Holdings, Inc., Jones Apparel Group USA, Inc., JAG Footwear, Accessories and Retail Corporation, Jones Investment Co. Inc., Jones Jeanswear Group, Inc., Nine West Development Corporation, Jones Jewelry Group, Inc., Apparel Testing Services, Inc., Jones Distribution Corporation, Jones Management Service Company, Jones Holding Inc., Jones Apparel Group Canada, LP and JPMorgan Chase Bank, N.A., as administrative agent. |
EXHIBIT A
OFFICER’S CERTIFICATE
INVESTMENT COMPANY ACT OF 1940
INVESTMENT COMPANY ACT OF 1940
The undersigned hereby certifies as follows:
I am the duly elected officer, holding the office specified below my signature of each of The
Jones Group Inc., Jones Apparel Group Holdings, Inc., Jones Apparel Group USA, Inc., and JAG
Footwear, Accessories and Retail Corporation (collectively, the “Company”), and am
authorized to execute and deliver this Officer’s Certificate on behalf of the Company.
I am executing this Certificate knowing that it will be relied upon by Cravath, Swaine & Moore
LLP in connection with its legal opinions to be delivered on the date hereof in connection with the
Underwriting Agreement dated March 2, 2011.
(a) The Company:
is not and does not hold itself out as being engaged primarily, and does not propose to engage
primarily, in the business of investing, reinvesting or trading in Securities (as such term is
defined in clause (b) of this paragraph 3);
is not and does not propose to engage in the business of issuing Face-Amount Certificates of
the Installment Type (as such term is defined in clause (b) of this paragraph 3), and has not been
engaged in such business or have any such certificate outstanding; and
(iii) is not engaged and does not propose to engage in the business of investing, reinvesting,
owning, holding or trading in Securities, and does not own or propose to acquire Investment
Securities (as such term is defined in clause (b) of this paragraph 3) having a value exceeding 40%
of the value of its total assets, exclusive of Government Securities (as such term is defined in
clause (b) of this paragraph 3) and cash items, on an unconsolidated basis.
For purposes of clause (a), the following terms have the following meanings:
“Face-Amount Certificate of the Installment Type” means any certificate, investment
contract, or other Security which represents an obligation on the part of its issuer to pay a
stated or determinable sum or sums at a fixed or determinable date or dates more than twenty-four
months after the date of issuance, in consideration of the payment of periodic installments of a
stated or determinable amount.
“Government Security” means any Security issued or guaranteed as to principal or
interest by the United States, or by a person controlled or supervised by and acting as an
instrumentality of the Government of the United States pursuant to authority granted by the
Congress of the United States; or any certificate of deposit for any of the foregoing.
“Investment Securities” includes all Securities except (A) Government Securities, (B)
Securities issued by employees’ securities companies, and (C) Securities
issued by majority-owned subsidiaries of the Company which are not themselves investment companies. In considering whether
a majority-owned subsidiary is not an investment company for this purpose, it is understood that
(i) the exemption under Rule 3(c)(1) of the Investment Company Act of 1940, as amended (the
“ICA”), may not be relied upon (such exemption could be available to a company whose
outstanding securities (other than short-term paper) are beneficially owned by less than 100
persons and which is not making and does not presently propose to make a public offering of its
securities) and (ii) the exemption under Rule 3(c)(7) of the ICA may not be relied upon (such
exemption could be available to a company (a) whose outstanding securities are owned exclusively by
“qualified purchasers” (i.e., a natural person, trust or company that, in addition to
other qualifications, owns at least $5 million in investments) or, subject to certain conditions,
whose outstanding securities are beneficially owned by both qualified purchasers and not more than
100 people who are not qualified purchasers and (b) which is not making and does not propose to
make a public offering of its securities).
“Securities” means any note, stock, treasury stock, bond, debenture, evidence of
indebtedness, certificate of interest or participation in any profit-sharing agreement,
collateral-trust certificate, preorganization certificate or subscription, transferable share,
investment contract, voting-trust certificate, certificate of deposit for a security, fractional
undivided interest in oil, gas, or other mineral rights, any put, call, straddle, option or
privilege on any security (including a certificate of deposit) or on any group or index of
securities (including any interest therein or based on the value thereof), or any put, call,
straddle, option, or privilege entered into on a national securities exchange relating to foreign
currency, or, in general, any interest or instrument commonly known as a “security,” or any
certificate of interest or participation in, temporary or interim certificate for, receipt for,
guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing.
[signature page follows]
IN WITNESS WHEREOF, the undersigned has signed this Officer’s Certificate as of the [l]
day of [l], 2011.
| THE JONES GROUP INC.,
JONES APPAREL GROUP
HOLDINGS, INC., JONES
APPAREL GROUP USA, INC.,
JAG FOOTWEAR, ACCESSORIES
AND RETAIL CORPORATION |
||||
| By | ||||
| Name: | ||||
| Title: | ||||
EXHIBIT A-2
Opinion of Schnader, Harrison, Segal & Lewis LLP
Opinion of Schnader, Harrison, Segal & Lewis LLP
_________ ___, 2011
Citigroup Global Markets Inc.
J.P. Morgan Securities LLC
As Representatives of the several Underwriters
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
J.P. Morgan Securities LLC
As Representatives of the several Underwriters
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
| Re: | Purchase of $300,000,000 6.875% Senior Notes Due 2019 of The Jones Group Inc., Jones Apparel Group Holdings, Inc., Jones Apparel Group USA, Inc. and JAG Footwear, Accessories and Retail Corporation |
Dear Ladies and Gentlemen:
As special Pennsylvania counsel to The Jones Group Inc., a Pennsylvania corporation (the
“Company”), we have been requested to render this opinion pursuant to Section 6(c)(i) of
the Underwriting Agreement dated March 2, 2011 (the “Underwriting Agreement”) whereby you have
agreed to act as representatives of the several underwriters named in Schedule II
thereto (“Underwriters”) in connection with a transaction (the”Transaction”) whereby
the Company, Jones Apparel Group Holdings, Inc., a Delaware corporation, Jones Apparel Group
USA, Inc., a Delaware corporation, and JAG Footwear, Accessories and Retail Corporation, a
New Jersey corporation (collectively, the “Issuers”), as joint and several obligors, propose to
sell to the Underwriters, $300,000,000 principal amount at maturity of their 6.875% Senior Notes
Due 2019 (the “Securities”). The Securities are to be issued under an indenture (the “Indenture”),
dated as of _____________, 2011, among the Issuers and U.S. Bank National Association, as trustee
(the “Trustee”). The Underwriting Agreement, the Indenture and the Securities are
collectively referred to herein as the “Transaction Documents.” All initially capitalized terms
not otherwise defined herein shall have the meanings ascribed to them in the Underwriting Agreement
unless the context clearly requires to the contrary.
A Registration Statement on Form S-3 (File No. 333-166566) relating to the offer and sale
from time to time of securities of the Issuers was filed with the Commission and, as thereafter
amended, became effective under the Act on May 6, 2010. Such Registration Statement, as amended at
the time it became effective and including the documents incorporated therein by reference, is
hereinafter referred to as the “Registration Statement.” The Issuers’ prospectus dated May 6, 2010
included in the Registration Statement, including the documents incorporated therein by reference,
is hereinafter referred to as the “Base Prospectus.” The Base Prospectus, as amended or
supplemented by the preliminary prospectus supplement relating to the Securities in the form first
filed with the Commission pursuant to the Act, is hereinafter referred to as the “Preliminary
Prospectus” and such Preliminary Prospectus, as amended or supplemented immediately prior to the
Execution Time, together with any Free Writing
Citigroup Global Markets Inc.
J.P. Morgan Securities LLC
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J.P. Morgan Securities LLC
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Prospectus, taken as a whole, is hereinafter referred to as the “Disclosure Package.” The
Base Prospectus, as supplemented by the prospectus supplement dated [ ], 2011 (the
“Prospectus Supplement”), relating to the Securities in the form first filed with the Commission
pursuant to Rule 424(b) under the Act on [ ], 2011 is hereinafter referred to as the
“Final Prospectus.”
For purposes of this opinion we have examined the Registration Statement; the Transaction
Documents; the Disclosure Package; the Final Prospectus; the Certificate of Ira Dansky,
General Counsel to the Issuers, dated as of the date hereof and attached hereto as Exhibit “A”; the
Subsistence Certificate dated _________ ___, 2011 issued by the Secretary of the Commonwealth of
Pennsylvania with respect to the Company (the “Subsistence Certificate”); and such other documents
as we deem necessary for the purpose of rendering this opinion. As to certain matters of fact
material to this opinion, we have relied upon and assume, without independent investigation, the
accuracy and completeness of originals or conformed copies of corporate records, agreements and
instruments of the Company submitted to us, certificates of public officials and of officers of the
Company and the representations and warranties of the Company contained in each of the Transaction
Documents. In all such examinations, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity to originals of all
documents submitted to us as certified, facsimiled or reproduced copies.
We have also assumed (i) that each of the parties, other than the Issuers, to the Transaction
Documents, has duly executed and delivered the same, with all necessary power and authority
(corporate and otherwise, including, without limitation, due authorization by all necessary
corporate or other action on the part of such party and, as to persons acting on behalf of parties
other than the Issuers, including agents and fiduciaries, due authorization for such action), (ii)
that each such party, other than the Issuers, has complied with all laws, regulations, court orders
and agreements applicable to it that affect the Transaction contemplated by the Transaction
Documents and (iii) that the Transaction Documents are valid as to and binding upon and enforceable
in accordance with their respective terms against all parties thereto, other than the Issuers.
We have not made any investigation as to any matter governed by Federal or state securities
laws and we express no opinion as to the applicability of any such laws to the Transaction.
As special Pennsylvania counsel to the Company, we are not necessarily familiar with all of
the Company’s affairs or all aspects of the Transaction. As a further basis for this opinion, we
have made such inquiry of the Company as we have deemed necessary or appropriate for the purpose of
rendering this opinion.
Whenever a statement herein is qualified by the phrase “to our knowledge”, or similar phrases,
it is intended to indicate that, during the course of our representation of the Company no
information that would give us current actual knowledge of the inaccuracy of such statement has
Citigroup Global Markets Inc.
J.P. Morgan Securities LLC
_________ ___, 2011
Page 3
J.P. Morgan Securities LLC
_________ ___, 2011
Page 3
come to the attention of those attorneys presently in this firm involved in our
current representation of the Company. We have not, however, undertaken any independent
investigation or review to determine the accuracy of any such statement. No inference as to our
knowledge of any matters bearing on the accuracy of any such statement should be drawn from the
fact of our representation of the Company.
Based on the foregoing, we are of the opinion that:
1. The Company (i) is a corporation organized and validly subsisting under the laws of the
Commonwealth of Pennsylvania and (ii) has the requisite corporate power and authority to own and
hold under lease its property and to conduct its business as currently conducted by the Company.
2. The Company has full corporate power and authority to execute and deliver each of the
Transaction Documents to which it is a party and to perform its obligations thereunder; and all
corporate action required to be taken for the due authorization, execution and delivery by the
Company of each of the Transaction Documents to which it is a party and the consummation of the
Transactions contemplated thereby have been duly and validly taken.
3. The execution, delivery and performance by the Company of each of the Transaction Documents
to which it is a party, the issuance, authentication, sale and delivery of the Securities and
compliance by the Company with the terms of the Transaction Documents and the consummation of the
Transaction contemplated by the Transaction Documents will not result in any violation of any
Pennsylvania statute or any published judgment, order or decree issued by a Pennsylvania court
binding on the Company of which we have knowledge, any published rule or regulation of any
Pennsylvania governmental agency or body having jurisdiction over the Company or any of its
respective properties or assets, and no consent, approval, authorization or order of, or filings or
registration with, any such court or governmental agency or body under any such statute, judgment,
order, decree, rule or regulation is required for the execution, delivery and performance by the
Company of each of the Transaction Documents to which it is a party, the issuance, authentication,
sale and delivery of the Securities and compliance by the Company with the terms of the Transaction
Documents and the consummation of the Transaction contemplated by the Transaction Documents, except
for such consents, approvals, authorizations, filings, orders, registrations or qualifications
which have been obtained or made prior to the Closing Date.
4. To our knowledge, there are no pending or overtly threatened actions or suits or judicial,
arbitral, administrative or other proceedings within the Commonwealth of Pennsylvania to which the
Company is a party by which any respective property or assets of the Company is subject which (i)
singularly or in the aggregate, if determined adversely to the Company, could reasonably be
expected to have a Material Adverse Effect, or (ii) questions the validity or enforceability of any
of the Transaction Documents or any action taken or to be taken pursuant thereto.
Citigroup Global Markets Inc.
J.P. Morgan Securities LLC
_________ ___, 2011
Page 4
J.P. Morgan Securities LLC
_________ ___, 2011
Page 4
5. Subject to the discussion below, in any action or proceeding in Pennsylvania arising
out of, or relating to, any one or more of the Transaction Documents, a court sitting in
Pennsylvania would uphold and enforce the provisions of the Transaction Documents requiring that
the laws of the State of New York govern the Transaction Documents in an action brought in such
court with respect thereto.
With respect to the choice of applicable law, Pennsylvania courts consistently hold that they
will honor and enforce the parties’ contractual choice of law, if clearly set forth in a choice of
law clause in a contract; so long as the choice does not seriously impair a plaintiff’s ability to
pursue a cause of action under the contract or violate public policy, or there is no other
compelling reason not to honor the choice. Central Contracting Co. v. C.E. Youngdahl &
Co., 418 Pa. 122, 209 A.2d 810 (1965); Instrumentation Associates, Inc. v. Madsen
Electronics, Ltd., 859 F.2d 4 (3rd Cir. 1988); American Air Filter Co., Inc. v.
McNichol, 527 F.2d 1297 (3rd Cir. 1975); LCI Communications. Inc. v. Wilson, 700
F.Supp. 1390 (W.D.Pa. 1988); Van Muching [sic] & Co., Inc. v. M/V Star Mindanao, 630
F.Supp. 433 (E.D.Pa. 1985).
For purposes of this opinion, we have assumed that the Transaction Documents were negotiated
and will be signed in New York and that all payments under the Transaction Documents will be made
in New York. While we have found no Pennsylvania decision specifically on point, we believe that
such factors constitute a sufficient relation of the State of New York to the Transaction to permit
the application of New York law under Pennsylvania choice of law rules. See Seeman v.
Philadelphia Warehouse Co., 274 U.S. 403 (1927); Aluminum Co. of America v. Essex Group,
Inc., 499 F.Supp. 53 (W.D.Pa. 1980).
We have no actual knowledge of any facts or circumstances by which the choice of New York law
would seriously impair a plaintiff’s ability to pursue a cause of action under the Transaction
Documents or the Transaction to which they relate or which would violate public policy, and we are
similarly not aware of any compelling reason not to honor the choice of New York law under the
Transaction Documents. We note, however, that we are special Pennsylvania counsel only and have
made no independent investigation of facts relating to the Transaction to which the Transaction
Documents relate, and there may be relevant facts or circumstances of which we are not aware.
Also, we call to your attention that matters such as the sufficiency of a cause of action or public
policy involve subjective determinations based on the circumstances at the time that a suit is
brought or that the issue arises, and we cannot give any opinion or assurances on future facts or
circumstances or subjective judgments.
We are attorneys admitted to practice in the Commonwealth of Pennsylvania, and we express no
opinion as to the laws of any other jurisdiction.
The opinion is given as of the date hereof and is limited to the facts, circumstances and
matters set forth herein and to laws currently in effect. No opinion may be inferred or is implied
beyond matters expressly set forth herein, and we do not undertake or assume any obligation to
Citigroup Global Markets Inc.
J.P. Morgan Securities LLC
_________ ___, 2011
Page 5
J.P. Morgan Securities LLC
_________ ___, 2011
Page 5
update or supplement this opinion to reflect any facts or circumstances which may hereafter
come to our attention or any change in law which may hereafter occur.
This opinion is furnished for the benefit of only the Underwriters and U.S. Bank National
Association as Trustee in connection with the Transaction Documents and may not be used or relied
upon by any other person or entity for any other purpose whatsoever without in each instance our
prior written consent.
Sincerely,
EXHIBIT “A”
OPINION CERTIFICATE
Reference is hereby made to the Underwriting Agreement (as such term is defined in the opinion
(the “Opinion”)) of even date herewith addressed to Citigroup Global Markets Inc. and J.P. Morgan
Securities LLC, as representatives of the several underwriters which are parties thereto, and to
which this Exhibit “A” is attached.
The undersigned, General Counsel of The Jones Group Inc. (the “Company”), hereby
acknowledges that, in connection with, and pursuant to, the Underwriting Agreement: (i) Citigroup
Global Markets Inc. and J.P. Morgan Securities LLC, as representatives of the several underwriters
named in the Schedule II thereto, have requested that Schnader Harrison Segal & Lewis LLP (the
“Firm”), deliver the Opinion; (ii) this Certificate is being delivered to induce the Firm to render
the Opinion; and (iii) the Firm has relied, and will rely, upon the certifications, warranties and
representations contained herein in rendering its Opinion. All initially capitalized terms used
herein and not otherwise defined herein shall have the same meaning as ascribed to such terms in
the Opinion.
NOW, THEREFORE, the undersigned hereby certifies, warrants and acknowledges, intending to be
legally bound hereby, for the benefit of the Firm, as follows:
1. The execution and delivery by the Company of the Transaction Documents, and the performance
of the Company’s obligations thereunder do not result in a violation of, or constitute a default
under any provision of the Company’s Articles of Incorporation or Bylaws, as each has been amended
and in effect on the date hereof, or any indenture, agreement or other instrument to which the
Company is a party or by which the Company’s assets may be bound;
2. Attached hereto are true, correct and complete copies of the resolutions of the Company
approved by the Board of Directors of the Company by written consent or duly adopted by such Board
of Directors authorizing the Company’s execution, delivery and performance of the Transaction
Documents, and the performance of the transactions contemplated thereby (collectively, the
“Resolutions”). The Resolutions are currently in full force and effect and have not been amended,
modified or revoked since the date of due adoption thereof by the Company; and
3. Attached hereto are true, correct and complete copies of the Company’s Articles of
Incorporation and Bylaws (collectively, the “Organizational Documents”), as each has from time to
time been amended and each of such Organizational Documents is currently in full force and effect
and has not been further amended, modified, or revoked since the date of adoption thereof by the
Company.
IN WITNESS WHEREOF, intending to be legally bound hereby, the undersigned has executed and
delivered this Certificate to Schnader Harrison Segal & Lewis LLP, as of this ____ day of
_________, 2011.
| THE JONES GROUP INC. |
||||
| By: | ||||
| Ira M. Dansky, General Counsel | ||||
EXHIBIT A-3
Opinion of Drinker, Biddle & Reath LLP
Opinion of Drinker, Biddle & Reath LLP
______, 2011
Citigroup Global Markets Inc.
J.P. Morgan Securities LLC
J.P. Morgan Securities LLC
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
We have acted as special counsel to JAG Footwear, Accessories and Retail Corporation, a New
Jersey corporation (the “Company”), in connection with the sale by the Company, The Jones
Group Inc., a Pennsylvania corporation (“Jones Group”), Jones Apparel Group Holdings, Inc.,
a Delaware corporation (“Jones Apparel Group Holdings”), Jones Apparel Group USA, Inc., a
Delaware corporation (“Jones Apparel Group USA”, and together with Jones Group, Jones
Apparel Group Holdings and the Company, the “Issuers”) to the Underwriters identified in
Schedule II to that certain Underwriting Agreement dated as of March 2, 2011 (the “Underwriting
Agreement”) among the Issuers, Citigroup Global Markets Inc. (“Citigroup”) and J.P.
Morgan Securities LLC (together with Citigroup, the “Representatives”), as representatives
of the Underwriters, of the principal amount of Issuers’ securities identified in Schedule I to
such Underwriting Agreement (the “Securities”).
The Securities will be issued under an indenture dated as of [______], 2011 (the
“Indenture”), among the Issuers and U.S. Bank National Association, as trustee (the
“Trustee”).
We are delivering this opinion of counsel to you at the direction of the Company and pursuant
to Section 6(c)(ii) of the Underwriting Agreement.
All capitalized terms used herein and not otherwise defined herein shall have the meanings
ascribed to such terms in the Transaction Documents (hereafter defined).
1. DOCUMENTS REVIEWED; SCOPE OF KNOWLEDGE
1.1. In connection with this opinion, we have examined executed copies of the following
documents (collectively, the “Transaction Documents”):
| (a) | the Underwriting Agreement; | ||
| (b) | the Indenture; and | ||
| (c) | the Securities. |
Citigroup Global Markets Inc.
J.P. Morgan Securities LLC
[______], 2011
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J.P. Morgan Securities LLC
[______], 2011
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1.2. We have also examined:
(a) a copy of a Certificate of Good Standing for the Company issued by the Department of
Treasury of the State of New Jersey and dated [______], 2011 (the “Good Standing
Certificate”);
(b) a copy of the Company’s Certificate of Incorporation certified on [______], 2011 by
the Department of Treasury of the State of New Jersey (the “Certificate of
Incorporation”);
(c) a copy of the Company’s bylaws as amended and/or restated to date (the
“Bylaws”);
(d) a copy of the Resolution adopted by the Company’s Board of Directors on [______], 2011
(the “Resolutions”);
(e) the General Certificate of the Company which is attached to this opinion and upon
which we have relied as to questions of material fact related to our opinion, including without
limitation the Certificate of Incorporation, Bylaws and Resolutions (the “General
Certificate”); and
(f) such other documents or certificates of public officials and officers of the Company
as we have deemed necessary or appropriate as a basis for the opinions set forth herein.
1.3. Statements made in the opinions set forth herein “to our knowledge” or with respect to
matters “known to us” are based solely on information actually known to those lawyers currently
practicing with this firm and engaged in the representation of the Company in connection with the
Securities, and, signifies that after due inquiry, no facts have come to our attention that would
give us actual knowledge or actual notice that any such opinions or other matters are not accurate.
“Due inquiry” as used herein means, a review of the documents listed in Sections 1.1 and 1.2 of
this opinion.
2. ASSUMPTIONS
2.1. For purposes of this opinion, we have, with your permission, assumed without independent
investigation that:
(a) all Transaction Documents submitted to us as originals are authentic and all
documents, certificates and instruments submitted to us as copies conform to the originals of
such documents, certificates and instruments;
Citigroup Global Markets Inc.
J.P. Morgan Securities LLC
[______], 2011
Page 3
J.P. Morgan Securities LLC
[______], 2011
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(b) the Transaction Documents will be duly authorized, executed and delivered by each of
the parties thereto other than the Company, and the execution, delivery and performance of the
obligations thereunder will not violate or contravene the articles of incorporation, bylaws,
operating agreements, other governance documents or laws governing any such other party or
agreements or restrictions to which any of them, other than the Company, is party or by which
such other party is bound;
(c) the Transaction Documents constitute the valid and binding obligation of each of the
parties thereto other than the Company, enforceable against each such party in accordance with
their terms;
(d) the persons, other than representatives of the Company, who will execute, acknowledge
and deliver the Transaction Documents on behalf of each of the parties thereto, including,
without limitation, the Underwriters, the Representatives and the Trustee will be duly
authorized to do so by each such party;
(e) all parties to the Transaction Documents, other than the Company, have the legal power
and authority to enter into the transactions contemplated by the Transaction Documents;
(f) the representations made by the Company in the Transaction Documents and the General
Certificate are true and correct;
(g) the Company will receive consideration;
(h) all natural persons who will be signing the Transaction Documents have the requisite
legal capacity to do so, and all signatures of all parties, other than the Company’s
signatures, on all Transaction Documents will be genuine;
(i) each of the parties, other than the Company, is duly organized, validly existing and
in good standing under the laws that govern its formation, is duly authorized and qualified to
transact business and has the right, power and legal and corporate authority to enter into and
perform all of its obligations under the Transaction Documents to which it is a party;
(j) all parties to the Transaction Documents, other than the Company, are qualified and/or
licensed to the extent required by applicable law; and
(k) there has been no change in the good standing of the Company since the date of the
Good Standing Certificate.
Citigroup Global Markets Inc.
J.P. Morgan Securities LLC
[______], 2011
Page 4
J.P. Morgan Securities LLC
[______], 2011
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3. OPINIONS
3.1. Based upon the foregoing, we are of the opinion that:
(a) Based solely on the Good Standing Certificate, the Company is a corporation organized,
existing, validly registered and in good standing under the laws of the State of New Jersey.
(b) The Company has the requisite corporate power and authority to execute, deliver and
perform all of its undertakings under the Transaction Documents and, to our knowledge, to
conduct its business as currently conducted.
(c) The execution, delivery and performance by the Company of the Transaction Documents to
which it is a party and the consummation of the transactions contemplated thereby have been
duly authorized by all necessary corporate action on the part of the Company.
(d) The execution, delivery and performance of the Company’s obligations under the
Transaction Documents do not contravene (i) the Bylaws, (ii) any existing provision of law or
any rule or regulation of the State of New Jersey known to us and applicable to the Company, or
(iii) any judgment, writ, injunction, decree, order or ruling known to us of any court or
governmental authority binding on the Company.
(e) To our knowledge, no approval, consent, order or authorization of, or designation,
registration, declaration or filing with, any New Jersey governmental or public body or
authority is required in connection with the valid execution, delivery and performance by the
Company of the Transaction Documents, except for such approvals, consents, orders,
authorizations, designations, registrations, declarations or filings which (i) have been
obtained or made prior to the Closing Date or (ii) may be required to be obtained or made under
applicable state securities laws.
(f) To our knowledge, there is no action, suit, proceeding, inquiry or investigation, at
law or in equity, before or by any New Jersey court, regulatory agency, public board or body
pending or threatened against the Company wherein an unfavorable ruling or finding (a) would
question the validity or enforceability of the
Transaction Documents, or (b) would have a Material Adverse Effect with respect to the
Company.
Citigroup Global Markets Inc.
J.P. Morgan Securities LLC
[______], 2011
Page 5
J.P. Morgan Securities LLC
[______], 2011
Page 5
4. EXCEPTIONS AND QUALIFICATIONS
4.1. All of the opinions set forth above are subject to the following exceptions and
qualifications:
(a) As to any matters of fact material to the opinions expressed herein, we have relied
upon the truth, accuracy and completeness of the representations and warranties of the Company
set forth in the Transaction Documents and the General Certificate attached hereto as
Exhibit A. Except as otherwise expressly indicated herein, we have not undertaken any
independent investigation of factual matters.
(b) Requirements in the Transaction Documents specifying that provisions therein may only
be waived in writing may be unenforceable if an oral agreement modifying such provisions has
been made or an implied agreement by trade practice or course of conduct has been created
modifying any provision of the Transaction Documents.
(c) The validity, binding effect and enforceability of the Transaction Documents are
subject to applicable bankruptcy, insolvency, reorganization, moratorium, receivership,
fraudulent conveyance and similar laws affecting the enforcement of creditors’ rights
generally.
(d) Our opinions relating to the enforceability of the Transaction Documents and the
availability of injunctive relief are subject to the effect of general principles of equity,
including (without limitation) concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether considered in a proceeding in equity or at law).
(e) Our opinions relating to the enforceability of the Transaction Documents are subject
to the effect of applicable law that may limit the enforceability or render ineffective certain
of the provisions of the Transaction Documents, including, without limitation, provisions with
respect to particular remedies such as self-help remedies and appointment of a receiver,
provisions allowing post-judgment interest in excess of that permitted on judgments in the
State of New Jersey, provisions containing waivers, such as waivers of commercial
reasonableness or
provisions limiting or absolving the Underwriter, the Representatives or the Trustee of
liability, choice of law provisions, provisions establishing evidentiary standards or governing
law provisions and provisions granting unlimited power of attorney to act on behalf of another
party.
Citigroup Global Markets Inc.
J.P. Morgan Securities LLC
[______], 2011
Page 6
J.P. Morgan Securities LLC
[______], 2011
Page 6
(f) Except as limited by paragraph 3.1(e), our opinions are limited to (a) authorizations,
approvals, actions, notices and filings by or in respect of governmental authorities pursuant
to the requirements of, and (b) violations of, and the creation and imposition of liens under,
any laws of the State of New Jersey or federal laws, if applicable, which in our experience are
normally applicable to transactions of the type provided for in the Transaction Documents.
(g) Other than as specifically set forth herein, we have not reviewed and give no opinion
as to any documents other than the Transaction Documents.
4.2. Our opinions set forth above are subject to the further qualifications that we express no
opinion as to:
(a) the effect of the law of any jurisdiction other than the State of New Jersey on any
aspect of this transaction, including without limitation, enforceability, qualification to do
business, and usury;
(b) the enforceability of any provisions in the Transaction Documents imposing any
penalties or forfeitures, prepayment compensation, payment of attorney fees, late payment
charges, or an increase in interest rate upon the occurrence of a default or an event or
default;
(c) the enforceability of provisions contained in the Transaction Documents which purport
to constitute or provide for the waiver and release of any rights, claims, defenses, set-offs,
counterclaims or remedies of the Company, including, without limitation, the waiver and release
of (1) the benefit of statutes of limitation or moratoria, (2) the right to a jury trial, (3)
errors, defects and imperfections in proceedings, service of process or the establishment of
jurisdiction or venue, (4) the benefits of any stay of execution, exemption from service of
process or extension of time for payment, (5) the benefits of laws requiring the election of
remedies, (6) the benefits of laws, regulations or judicial decisions exempting certain
property and/or proceeds from execution, attachment, levy or sale, (7) diligence, valuation and
appraisement and (8) stay of execution;
(d) the financial condition or solvency of the Company;
(e) the enforceability of the indemnification provisions of the Transaction Documents
insofar as said provisions contravene public policy or might require indemnification or
payments to the Underwriter, the Representatives or the Trustee with respect to any litigation
determined, in whole or part, adversely to the Underwriter, the Representatives or the Trustee,
or any loss, cost or expense arising
Citigroup Global Markets Inc.
J.P. Morgan Securities LLC
[______], 2011
Page 7
J.P. Morgan Securities LLC
[______], 2011
Page 7
out of the Underwriter’s, the Representatives’ or the Trustee’s negligence, gross negligence or
willful misconduct or any violation by the Underwriter, the Representative or the Trustee of
statutory duties, general principles of equity or public policy;
(f) the enforceability of remedies when no material default on the part of the Company
exists;
(g) any “blue sky” or securities law of any jurisdiction or with regard to the antitrust
laws of any jurisdiction; and
(h) the effect on the opinions expressed herein of (i) the compliance or non-compliance of
any party to the Transaction Documents (other than the Company to the extent set forth herein)
with any state, federal or other laws or regulations applicable to them or (ii) the legal or
regulatory status or the nature of the business of any party to the Transaction Documents
(other than the Company to the extent set forth herein).
The foregoing expresses our legal opinion as to the matters set forth above based upon our
professional knowledge and judgment. No opinion is to be implied or inferred beyond the opinion
expressly stated herein.
We undertake no obligation to inform you of any matters, whether of law or of fact, which may
subsequently come to our attention or subsequently occur which affect in any way the opinion
expressed herein, which is based upon our assumption that any court sitting in the State of New
Jersey will adhere to existing judicial precedents.
This opinion is being furnished only to the Underwriters and their respective successors and
assigns in connection with the Transaction Documents and is solely for each such person’s benefit
in connection with the above transaction. This opinion may not be relied upon by any other person,
firm or corporation for any purpose without our prior written consent.
| Very truly yours, DRINKER BIDDLE & REATH LLP |
||||
EXHIBIT A
GENERAL CERTIFICATE
See attached.
EXHIBIT A-4
Opinion of Ira M. Dansky, Esq.
Opinion of Ira M. Dansky, Esq.
March [•], 2011
Citigroup Global Markets Inc.
J.P. Morgan Securities LLC
Merrill Lynch, Pierce, Fenner & Smith Incorporated
SunTrust Robinson Humphrey, Inc.
Wells Fargo Securities, LLC
Goldman, Sachs & Co.
J.P. Morgan Securities LLC
Merrill Lynch, Pierce, Fenner & Smith Incorporated
SunTrust Robinson Humphrey, Inc.
Wells Fargo Securities, LLC
Goldman, Sachs & Co.
c/o Citigroup Global Markets, Inc.
388 Greenwich Street
New York, NY 10013
388 Greenwich Street
New York, NY 10013
c/o J.P. Morgan Securities LLC
270 Park Avenue
New York, NY 10017
270 Park Avenue
New York, NY 10017
Re: $300,000,000 Principal Amount of 6.875% Senior Notes due 2019
Ladies and Gentlemen:
You have requested my opinion as General Counsel of The Jones Group Inc., a Pennsylvania
corporation (“the Jones Group”) and its subsidiaries Jones Apparel Group Holdings, Inc., a Delaware
corporation (“Jones Holdings”), Jones Apparel Group USA, Inc., a Delaware corporation (“Jones
USA”), and JAG Footwear, Accessories and Retail Corporation, a New Jersey corporation (“JAG
Footwear” and together with the Jones Group, Jones Holdings and Jones USA, the “Issuers”), in
connection with the purchase by the several Underwriters (the “Underwriters”) listed on Schedule II
to the Underwriting Agreement dated March 2, 2011 (the “Underwriting Agreement”), among Citigroup
Global Markets Inc. and J.P. Morgan Securities LLC, as representatives of the Underwriters, and the
Issuers of $300,000,000 principal amount of the Issuers’ 6.875% Senior Notes due 2019 (the
“Securities”), to be issued under an Indenture dated as of the date hereof (the “Indenture”), among
the Issuers and U.S. Bank National Association, as trustee. Capitalized terms used herein but not
defined shall have the meaning ascribed to them in the Underwriting Agreement.
In that connection, I have examined originals, or copies certified or otherwise identified to
my satisfaction, of such documents, corporate records and other instruments as I have deemed
necessary or appropriate for the purposes of this opinion, including (i) the Articles or
Certificate of Incorporation of each Issuer, as amended or restated, (ii) the By-laws of each
Issuer, as amended or restated, (iii) the Underwriting Agreement, (iv) the Registration Statement
on Form S-3 (Registration No. 333-166566), filed with the Securities and Exchange Commission (the
1411 BROADWAY, NEW YORK, NEW YORK 10018
Citigroup Global Markets Inc.
J.P. Morgan Securities LLC
Merrill Lynch, Pierce, Fenner & Smith Incorporated
SunTrust Robinson Humphrey, Inc.
Wells Fargo Securities, LLC
Goldman, Sachs & Co.
J.P. Morgan Securities LLC
Merrill Lynch, Pierce, Fenner & Smith Incorporated
SunTrust Robinson Humphrey, Inc.
Wells Fargo Securities, LLC
Goldman, Sachs & Co.
March [•], 2011
Page 2
Page 2
“Commission”) on May 6, 2010 (the “Registration Statement”) for registration under the
Securities Act of 1933 (the “Securities Act”), of an indeterminate amount of debt securities to be
issued from time to time by the Issuers, (v) the related prospectus dated May 6, 2010 (together
with the documents incorporated therein by reference, the “Basic Prospectus”), (vi) the Prospectus
Supplement dated [•], 2011, filed with the Commission pursuant to Rule 424(b) of the General Rules
and Regulations under the Securities Act (together with the Basic Prospectus, the “Prospectus”),
(vii) the Indenture and the form of the Security attached thereto (together with the Underwriting
Agreement and the Securities, the “Transaction Documents”), (viii) resolutions adopted by the
Boards of Directors of Jones Holdings and Jones USA on [•], 2011, and (ix) the agreements specified
on Schedule I hereto (collectively, the “Specified Agreements”).
Based on the foregoing and subject to the qualifications hereinafter set forth, I am of
opinion as follows:
1. Based solely on a certificate from the Secretary of the State of the State of Delaware,
each of Jones Holdings and Jones USA is a corporation validly existing and in good standing under
the laws of the State of Delaware, with all requisite corporate power and authority to own, lease
and operate its properties and conduct its business as described in the Registration Statement and
the Prospectus.
2. The execution and delivery by Jones Holdings and Jones USA, respectively, of the
Transaction Documents and the performance by Jones Holdings and Jones USA, respectively, of their
obligations thereunder have been duly authorized by all requisite corporate action on the part of
Jones Holdings and Jones USA, respectively.
3. The Transaction Documents have each been duly authorized, executed and delivered by Jones
Holdings and Jones USA, respectively.
4. Each Issuer is qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which the ownership or leasing of its properties or the conduct of
its business requires such qualification, other than jurisdictions in which the failure so to
qualify would not have a Material Adverse Effect on the Jones Group and its subsidiaries taken as a
whole.
5. The issue and sale by the Issuers of the Securities, the consummation of the other
transactions contemplated by the Transaction Documents and the performance by each Issuer of its
obligations under the Transaction Documents (i) do not violate the Articles or Certificate of
Incorporation or By-laws, as amended or restated, of any Issuer, (ii) to my knowledge, do not
result in a breach of, or constitute a default under, the express terms of any Specified Agreement
except as would not have a Material Adverse Effect on the Jones Group and its subsidiaries, taken
as a whole, or (iii) will not violate in any material respect any law, rule or regulation of the
United States of America, the State of New York or the General Corporation Law of the State of
Citigroup Global Markets Inc.
J.P. Morgan Securities LLC
Merrill Lynch, Pierce, Fenner & Smith Incorporated
SunTrust Robinson Humphrey, Inc.
Wells Fargo Securities, LLC
Goldman, Sachs & Co.
J.P. Morgan Securities LLC
Merrill Lynch, Pierce, Fenner & Smith Incorporated
SunTrust Robinson Humphrey, Inc.
Wells Fargo Securities, LLC
Goldman, Sachs & Co.
March [•], 2011
Page 3
Page 3
Delaware or, to my knowledge, any order or decree of any court or government agency or
instrumentality, in each case, applicable to any Issuer.
6. The statements made under the captions “Item 3. Legal Proceedings” in the Jones Group’s
Annual Report on Form 10-K for the year ended December 31, 2010, as incorporated by reference in
the Registration Statement and the Prospectus insofar as they purport to constitute summaries of
the legal proceedings to which the Jones Group is a party, fairly summarized the matters therein
described.
7. To my knowledge, no authorization, approval or other action by, and no notice to, consent
of, order of or filing with, any United States Federal or New York State or, to the extent required
under the General Corporation Law of the State of Delaware, Delaware governmental authority is
required to be made or obtained by any Issuer for the consummation of the transactions contemplated
by the Transaction Documents, other than (i) those that have been obtained or made under the
Securities Act or the Trust Indenture Act of 1939, (ii) those that may be required under the
Securities Act in connection with the use of a “free writing prospectus” and (iii) those that may
be required under the blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters.
8. To my knowledge, there is no pending or threatened action, suit or proceeding before any
court or governmental agency or authority or arbitrator involving the Issuers or the business,
assets or rights of the Issuers (i) that purports to affect the legality, validity or
enforceability of the Transaction Documents or (ii) as to which there is a probability of an
adverse determination and which, if adversely determined, would be likely in my judgment to have a
Material Adverse Effect on the Jones Group and its subsidiaries, taken as a whole, or on the
ability of the Issuers to perform their obligations under the Transaction Documents.
9. To my knowledge, none of the Issuers is (i) in violation of its Articles or Certificate of
Incorporation or By-laws, as amended or restated, (ii) in default, and no event has occurred which,
with notice or lapse of time or both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which it is a party or by which it is bound or
to which any of its property or assets is subject or (iii) in violation of any law, ordinance,
governmental rule, regulation or court decree to which it or its property or assets are subject,
except in case of clause (ii) or (iii) above for any such violation or default which would not have
a Material Adverse Effect.
In connection with the foregoing, I point out that certain of the indentures, agreements and
instruments referred to in clause (ii) above may be governed by laws other than the laws of the
State of New York. For purposes of the opinion expressed in this paragraph, however, I have
assumed that all such indentures, agreements and instruments are governed by and would be
interpreted in accordance with the laws of the State of New York.
Citigroup Global Markets Inc.
J.P. Morgan Securities LLC
Merrill Lynch, Pierce, Fenner & Smith Incorporated
SunTrust Robinson Humphrey, Inc.
Wells Fargo Securities, LLC
Goldman, Sachs & Co.
J.P. Morgan Securities LLC
Merrill Lynch, Pierce, Fenner & Smith Incorporated
SunTrust Robinson Humphrey, Inc.
Wells Fargo Securities, LLC
Goldman, Sachs & Co.
March [•], 2011
Page 4
Page 4
I am admitted to practice in the State of New York, and I express no opinion as to any matters
governed by any laws other than the laws of the State of New York, the General Corporation Law of
the State of Delaware and the Federal laws of the United States of America.
I am furnishing this letter to you, as Underwriters, solely for your benefit. This opinion
may not be relied upon by any other person (including by any person that acquires the Securities
from you) or for any other purpose or used, circulated, quoted or otherwise referred to for any
other purpose.
| Very truly yours, Ira M. Dansky General Counsel |
||||
SCHEDULE I
Specified Agreements
| 1. | Indenture, dated as of November 22, 2004, by and among Jones Apparel Group, Inc. (now named The Jones Group Inc.), Jones Apparel Group Holdings, Inc., Jones Apparel Group USA, Inc., JAG Footwear, Accessories and Retail Corporation, and U.S. Bank National Association, as Trustee. | |
| 2. | First Supplemental Indenture, dated as of December 31, 2006, by and among Jones Apparel Group, Inc. (now named The Jones Group Inc.), Jones Apparel Group Holdings, Inc., Jones Apparel Group USA, Inc., JAG Footwear, Accessories and Retail Corporation, and U.S. Bank National Association, as Trustee. | |
| 3. | Second Supplemental Indenture, dated as of April 15, 2009, by and among Jones Apparel Group, Inc. (now named The Jones Group Inc.), Jones Apparel Group Holdings, Inc., Jones Apparel Group USA, Inc., JAG Footwear, Accessories and Retail Corporation, and U.S. Bank National Association, as Trustee. | |
| 4. | Credit Agreement, dated as of May 13, 2009, among Jones Apparel Group, Inc. (now named The Jones Group Inc.), Jones Apparel Group Holdings, Inc., Jones Apparel Group USA, Inc., JAG Footwear, Accessories and Retail Corporation, Jones Investment Co. Inc., Jones Jeanswear Group, Inc., Nine West Development Corporation, Jones Jewelry Group, Inc., Jones Apparel Group Canada, LP, the lending institutions party thereto and JPMorgan Chase Bank, N.A., as administrative agent, as amended by Amendment No. 1 thereto dated as of May 5, 2010, Amendment No. 2 thereto dated as of June 29, 2010. | |
| 5. | Security Agreement dated as of May 13, 2009, among Jones Apparel Group, Inc. (now named The Jones Group Inc.), Jones Apparel Group Holdings, Inc., Jones Apparel Group USA, Inc., JAG Footwear, Accessories and Retail Corporation, Jones Investment Co. Inc., Jones Jeanswear Group, Inc., Nine West Development Corporation, Jones Jewelry Group, Inc., Apparel Testing Services, Inc., Jones Distribution Corporation, Jones Management Service Company, Jones Holding Inc., Jones Apparel Group Canada, LP and JPMorgan Chase Bank, N.A., as administrative agent. |