Exhibit 1.1
$300,000,000
V.F. Corporation
6% Notes due 2033
Purchase Agreement
October 8, 0000
Xxxx xx Xxxxxxx Securities LLC
Citigroup Global Markets Inc.
As Representatives of the Initial Purchasers
named in Schedule I hereto,
c/o Citigroup Global Markets Inc.,
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000.
Ladies and Gentlemen:
V.F. Corporation, a Pennsylvania corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
several parties named in Schedule I hereto (the "Initial Purchasers")
$300,000,000 aggregate principal amount of the Notes specified above (the
"Securities").
1. The Company represents and warrants to, and agrees with, each of the
Initial Purchasers that:
(a) A preliminary offering memorandum, dated October 8, 2003 (the
"Preliminary Offering Memorandum") and an offering memorandum, dated October 8,
2003 (the "Offering Memorandum") have been prepared in connection with the
offering of the Securities. Any reference to the Preliminary Offering
Memorandum or the Offering Memorandum, as the case may be, shall be deemed to
refer to and include the Company's Annual Report on Form 10-K for the fiscal
year ended January 4, 2003, the Company's Quarterly Reports on Form 10-Q for
the quarters ended April 5, 2003 and July 5, 2003, and the Company's Current
Reports on Form 8-K filed on July 7, 2003 and August 27, 2003, and any
reference to the Preliminary Offering Memorandum or the Offering Memorandum, as
the case may be, as amended or supplemented, as of any specified date, shall be
deemed to include (i) any documents filed with the United States Securities and
Exchange Commission (the "Commission") pursuant to Section 13(a), 13(c) or
15(d) of the United States Securities Exchange Act of 1934, as amended (the
"Exchange Act") after the date of the Preliminary Offering Memorandum or the
Offering Memorandum, as the case may be, and prior to such specified date and
(ii) any Additional Issuer Information (as defined in Section 5(e)) furnished
by the Company prior to the completion of the distribution of the Securities;
and all documents filed under the Exchange Act and so deemed to be included in
the Preliminary Offering Memorandum or the Offering Memorandum, as the case may
be, or any amendment or supplement thereto are hereinafter called the "Exchange
Act Reports". The Exchange Act Reports, when they were or are filed with the
Commission, conformed or will conform in all material respects to the
applicable requirements of the Exchange Act and the applicable rules and
regulations of the Commission thereunder. The Preliminary Offering Memorandum
or the Offering Memorandum and any amendments or supplements thereto and the
Exchange Act Reports did not and will not, as of their respective dates,
contain 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; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to the Company by an Initial Purchaser through the Representatives
expressly for use therein;
(b) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included or incorporated by
reference in the Offering Memorandum any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Offering
Memorandum; and, since the respective dates as of which information is given in
the Offering Memorandum, there has not been any material change in the capital
stock or long-term debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Offering
Memorandum;
(c) The Company is a corporation duly incorporated and is validly
subsisting as a corporation in good standing under the laws of Pennsylvania,
with power and authority to own its properties and conduct its business as
described in the Offering Memorandum, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so qualified in
any such jurisdiction; and each material subsidiary of the Company listed on
Schedule II hereto and each material subsidiary organized under the laws of a
jurisdiction outside the United States has been duly organized and is validly
existing as a corporation, partnership or limited liability company, as the
case may be, in good standing under the laws of its jurisdiction of
incorporation of formation;
(d) The Company has an authorized capitalization as set forth in the
Offering Memorandum, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid and
non-assessable; and all of the issued shares of capital stock, partnership
interests and limited liability company interests, as the case may be, of each
subsidiary of the Company have been duly and validly authorized and issued, are
fully paid and non-assessable (where applicable) and (except for directors'
qualifying shares and
- 2 -
except as set forth in the Offering Memorandum) are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(e) The Securities have been duly authorized and, when issued and
delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company, enforceable against the Company and
entitled to the benefits provided by the indenture dated September 29, 2000
(the "Indenture"), between the Company and The Bank of New York (formerly known
as United States Trust Company of New York), as Trustee (the "Trustee"), under
which they are to be issued, and will be substantially in the form previously
delivered to you; the Indenture has been duly authorized, executed and
delivered by the Company, the Indenture constitutes a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent conveyance, reorganization
and other laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Securities and the Indenture
will conform to the descriptions thereof in the Offering Memorandum and will be
in substantially the form previously delivered to you;
(f) This Agreement has been duly authorized, executed and delivered by the
Company;
(g) The issue and sale of the Securities and the compliance by the Company
with all of the provisions of the Securities, the Indenture and this Agreement
and the consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company is
a party or by which the Company is bound or to which any of the property or
assets of the Company is subject, nor will such action result in any violation
of the provisions of the Articles of Incorporation or By-laws of the Company or
any law, statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its properties;
and no consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required for the
issue and sale of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement or, the Indenture, except such as
may be required under federal securities law and state securities laws in
connection with the actions described in Section 5(g) hereof, and except for
such consents, approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Initial Purchasers;
(h) Other than as set forth in the Offering Memorandum, there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of its
subsidiaries is the subject which would, individually or in the aggregate, be
reasonably likely to have a material adverse effect on the consolidated
financial position, shareholders' equity or results of operations of the
Company and its subsidiaries; and, to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by governmental authorities or
threatened by others;
- 3 -
(i) When the Securities are issued and delivered pursuant to this
Agreement, the Securities will not be of the same class (within the meaning of
Rule 144A under the Securities Act) as securities which are listed on a
national securities exchange registered under Section 6 of the Exchange Act or
quoted in a U.S. automated inter-dealer quotation system;
(j) The Company is subject to Section 13 or 15(d) of the Exchange Act;
(k) Neither the Company, nor any person acting on its or their behalf has
offered or sold the Securities by means of any general solicitation or general
advertising within the meaning of Rule 502(c) under the Act or, with respect to
Securities sold outside the United States to non-U.S. persons (as defined in
Rule 902 under the Act), by means of any directed selling efforts within the
meaning of Rule 902 under the Securities Act and the Company, any affiliate of
the Company and any person acting on its or their behalf has complied with and
will implement the "offering restriction" within the meaning of such Rule 902;
(l) Within the preceding six months, neither the Company nor any other
person acting on behalf of the Company has offered or sold to any person any
Securities, or any securities of the same or a similar class as the Securities,
other than Securities offered or sold to the Initial Purchasers hereunder. The
Company will take reasonable precautions designed to insure that any offer or
sale, direct or indirect, in the United States or to any U.S. person (as
defined in Rule 902 under the Act) of any Securities or any substantially
similar security issued by the Company, within six months subsequent to the
date on which the distribution of the Securities has been completed (as
notified to the Company by the Representatives), is made under restrictions and
other circumstances reasonably designed not to affect the status of the offer
and sale of the Securities in the United States and to U.S. persons
contemplated by this Agreement as transactions exempt from the registration
provisions of the Securities Act;
(m) To the best of the Company's knowledge, after reasonable inquiry,
PricewaterhouseCoopers, who have certified certain financial statements of the
Company and its subsidiaries, are independent public accountants as required by
the Act and the rules and regulations of the Commission thereunder.
2. Subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to each of the Initial Purchasers, and each of the
Initial Purchasers agrees, severally and not jointly, to purchase from the
Company, at a purchase price of 96.495% of the principal amount thereof for the
notes due 2033 plus accrued interest, if any, from October 8, 2003 to the Time
of Delivery hereunder, the principal amount of Securities set forth opposite
the name of such Initial Purchaser in Schedule I hereto.
3. Upon the authorization by the Company of the release of the Securities,
the several Initial Purchasers propose to offer the Securities for sale upon
the terms and conditions set forth in this Agreement and the Offering
Memorandum and each Initial Purchaser hereby represents and warrants to, and
agrees with the Company that:
- 4 -
(a) It will offer and sell the Securities only: (i) to persons who it
reasonably believes are "qualified institutional buyers" ("QIBs") within the
meaning of Rule 144A under the Act in transactions meeting the requirements of
Rule 144A and (ii) upon the terms and conditions set forth in Annex I to this
Agreement; and
(b) It will not offer or sell the Securities by any form of general
solicitation or general advertising, including but not limited to the methods
described in Rule 502(c) under the Act.
4. (a) The Securities to be purchased by each Initial Purchaser hereunder
will be represented by one or more definitive global Securities in book-entry
form which will be deposited by or on behalf of the Company with The Depository
Trust Company ("DTC") or its designated custodian. The Company will deliver the
Securities to Citigroup Global Markets Inc. for the account of each Initial
Purchaser, against payment by or on behalf of Citigroup Global Markets Inc. of
the purchase price therefor by wire transfer, payable to the order of the
Company in Federal (same day) funds, by causing DTC to credit the Securities to
the account of Citigroup Global Markets Inc. at DTC. The Company will cause the
certificates representing the Securities to be made available to the
Representatives for checking at least twenty-four hours prior to the Time of
Delivery (as defined below). The time and date of such delivery and payment
shall be 9:30 a.m., New York City time, on October 14, 2003 or such other time
and date as the Representatives and the Company may agree upon in writing. Such
time and date are herein called the "Time of Delivery".
(b) The documents to be delivered at the Time of Delivery by or on behalf
of the parties hereto pursuant to Section 7 hereof, including the cross-receipt
for the Securities and any additional documents requested by the Initial
Purchasers pursuant to Section 7(h) hereof, will be delivered at such time and
date at the offices of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 or such other place as the parties may agree (the "Closing
Location"), and the Securities will be delivered at the office of DTC or its
designated custodian, all at the Time of Delivery. A meeting will be held at
the Closing Location at 4:00 p.m., New York City time, on the New York Business
Day next preceding the Time of Delivery, at which meeting the final drafts of
the documents to be delivered pursuant to the preceding sentence will be
available for review by the parties hereto. For the purposes of this Section 4,
"New York Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Initial Purchasers:
(a) To prepare the Offering Memorandum in a form approved by you; to make
no amendment or any supplement to the Offering Memorandum which shall be
reasonably disapproved by you promptly after reasonable notice thereof.
(b) Promptly from time to time to take such action as you may reasonably
request to qualify the Securities for offering and sale under the securities
laws of such jurisdictions as you may request and to comply with such laws so
as to permit the continuance of sales and dealings
- 5 -
therein in such jurisdictions for as long as may be necessary to complete the
distribution of the Securities, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction;
(c) To furnish the Initial Purchasers with copies of the Offering
Memorandum and each amendment or supplement thereto signed by an authorized
officer of the Company with the independent accountants' report(s) in the
Offering Memorandum, and any amendment or supplement containing amendments to
the financial statements covered by such report(s), signed by the accountants,
and additional copies thereof, in such quantities as you may from time to time
reasonably request, and if, at any time prior to the earlier of (i) the
expiration of nine months after the date of the Offering Memorandum, and (ii)
the completion of the resale of the Securities by the Initial Purchasers, any
event shall have occurred as a result of which the Offering Memorandum as then
amended or supplemented would include an 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 when such
Offering Memorandum is delivered, not misleading, or, if for any other reason
it shall be necessary or desirable during such same period to amend or
supplement the Offering Memorandum, to notify you and upon your request to
prepare and furnish without charge to each Initial Purchaser and to any dealer
in securities as many copies as you may from time to time reasonably request of
an amended Offering Memorandum or a supplement to the Offering Memorandum which
will correct such statement or omission or effect such compliance;
(d) Not to sell, offer for sale or solicit offers to buy, or otherwise
dispose of, any security (as defined in the Securities Act) which would be
integrated with the sale of the Securities in a manner which would require the
registration under the Securities Act of the Securities;
(e) At any time when the Company is not subject to Section 13 or 15(d) of
the Exchange Act, for the benefit of holders from time to time of Securities,
to furnish at its expense, upon request, to holders of Securities and
prospective purchasers of securities information (the "Additional Issuer
Information") satisfying the requirements of subsection (d)(4)(i) of Rule 144A
under the Act;
(f) During the period of two years after the Time of Delivery, the Company
will not, and will not permit any of its "affiliates" (as defined in Rule 144
under the Securities Act) to, resell any of the Securities which constitute
"restricted securities" under Rule 144 that have been reacquired by any of
them;
(g) The Company shall file on or prior to 90 days after the Time of
Delivery, and use its reasonable best efforts to cause to be declared or become
effective under the Securities Act, a registration statement on Form S-4
providing for the registration of (i) another series of debt securities of the
Company, with terms identical to the Securities (the "Exchange Securities"),
and the exchange of the Securities for the Exchange Securities, all in a manner
which will permit persons who acquire the Exchange Securities to resell the
Exchange Securities pursuant to Section 4(1) of the Securities Act; and
- 6 -
(h) To use the net proceeds received by it from the sale of the Securities
pursuant to this Agreement in the manner specified in the Offering Memorandum
under the caption "Summary of the Offering -Use of Proceeds".
6. The Company covenants and agrees with the several Initial Purchasers
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the issuance of the Securities and all other expenses in
connection with the preparation and printing of the Preliminary Offering
Memorandum and the Offering Memorandum and any amendments and supplements
thereto and the mailing and delivering of copies thereof to the Initial
Purchasers and dealers; (ii) the cost of printing or producing any Agreement
among Initial Purchasers, this Agreement, the Indenture, the Blue Sky and Legal
Investment Memoranda, closing documents (including any compilations thereof)
and any other documents in connection with the offering, purchase, sale and
delivery of the Securities; (iii) all expenses in connection with the
qualification of the Securities for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the fees and disbursements
of counsel for the Initial Purchasers in connection with such qualification and
in connection with the Blue Sky and legal investment surveys; (iv) any fees
charged by securities rating services for rating the Securities; (v) the cost
of preparing the Securities; (vi) the fees and expenses of the Trustee and any
agent of the Trustee and the fees and disbursements of counsel for the Trustee
in connection with the Indenture and the Securities; and (vii) all other costs
and expenses incident to the performance of its obligations hereunder which are
not otherwise specifically provided for in this Section. It is understood,
however, that, except as provided in this Section, and Sections 8 and 11
hereof, the Initial Purchasers will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Securities by them, and any advertising expenses connected with any offers they
may make.
7. The obligations of the Initial Purchasers hereunder shall be subject,
in their discretion, to the condition that all representations and warranties
and other statements of the Company herein are, at and as of the Time of
Delivery, true and correct, the condition that the Company shall have performed
all of its obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) Xxxxxxxx & Xxxxxxxx LLP, counsel for the Initial Purchasers, shall
have furnished to you such opinion or opinions, dated the Time of Delivery, in
such form that is satisfactory to you and such counsel shall have received such
papers and information as they may reasonably request to enable them to pass
upon such matters;
(b) Xxxxxxx X. Xxxxxxxx, counsel for the Company, shall have furnished to
you her written opinion, dated the Time of Delivery, substantially in the form
attached as Annex A hereto;
(c) Xxxxx Xxxx & Xxxxxxxx, counsel to the Company, shall have furnished to
you their written opinion dated the Time of Delivery, substantially in the form
attached as Annex B hereto;
- 7 -
(d) On the date of the Offering Memorandum prior to the execution of this
Agreement and also at the Time of Delivery, PricewaterhouseCoopers LLP shall
have furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you, to the effect set
forth in Annex II hereto;
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Offering Memorandum any loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Offering Memorandum, and (ii) since the respective dates as of which
information is given in the Offering Memorandum there shall not have been any
change in the capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective change,
in or affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Offering
Memorandum, the effect of which, in any such case described in clause (i) or
(ii), is in the judgment of the Initial Purchasers so material and adverse as
to make it impracticable or inadvisable to proceed with the offering or the
delivery of the Securities on the terms and in the manner contemplated in this
Agreement and in the Offering Memorandum;
(f) On or after the date hereof (i) no downgrading shall have occurred in
the rating accorded the Company's debt securities by any "nationally recognized
statistical rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt securities;
(g) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a general moratorium on
commercial banking activities declared by either Federal or New York State
authorities; or (iii) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national emergency
or war, if the effect of any such event specified in this clause (iii) in the
judgment of the Initial Purchasers makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Securities on the terms
and in the manner contemplated in the Offering Memorandum;
(h) The Company shall have furnished or caused to be furnished to you at
the Time of Delivery certificates of officers of the Company satisfactory to
you as to the accuracy of the representations and warranties of the Company
herein at and as of such Time of Delivery, as to the performance by the Company
of all of its obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsection (e) of this Section and as
to such other matters as you may reasonably request.
8. (a) The Company will indemnify and hold harmless each Initial Purchaser
against any losses, claims, damages or liabilities, joint or several, to which
such Initial Purchaser may
- 8 -
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Offering Memorandum or the Offering Memorandum, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact necessary to make
the statements therein not misleading, and will reimburse each Initial
Purchaser for any legal or other expenses reasonably incurred by such Initial
Purchaser in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that the Company shall
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 an untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Offering Memorandum or the Offering Memorandum or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by any Initial Purchaser through the Representatives
expressly for use therein.
(b) Each Initial Purchaser will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Offering Memorandum or the Offering Memorandum, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact or necessary to
make the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Offering Memorandum or
the Offering Memorandum or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by such
Initial Purchaser through the Representatives expressly for use therein; and
will reimburse the Company for any legal or other expenses reasonably incurred
by the Company in connection with investigating or defending any such action or
claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
shall not relieve it from any liability which it may have to any indemnified
party otherwise than under such subsection. In case any such action shall be
brought against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not, except with
the consent of the indemnified party, be counsel to the indemnifying party),
and, after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses
of other counsel or any other expenses, in each case subsequently incurred by
such indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the
- 9 -
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to, or an admission of,
fault, culpability or a failure to act, by or on behalf of any indemnified
party.
(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a)
or (b) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Initial Purchasers on the other
from the offering of the Securities. If, however, the allocation provided by
the immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c)
above, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company on the one hand and the Initial Purchasers on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Initial Purchasers on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Initial Purchasers, in each case as set forth in
the Offering Memorandum. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or the Initial
Purchasers on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Initial Purchasers agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by
pro rata allocation (even if the Initial Purchasers were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this subsection
(d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred
to above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Initial Purchaser shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to investors were offered to
investors exceeds the amount of any damages which such Initial Purchaser has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. The Initial Purchasers' obligations
in this subsection (d) to contribute are several in proportion to their
respective underwriting obligations and not joint.
- 10 -
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Initial Purchaser within the meaning of the Act; and the
obligations of the Initial Purchasers under this Section 8 shall be in addition
to any liability which the respective Initial Purchasers may otherwise have and
shall extend, upon the same terms and conditions, to each officer and director
of the Company and to each person, if any, who controls the Company within the
meaning of the Act.
9. (a) If any Initial Purchaser shall default in its obligation to
purchase the Securities which it has agreed to purchase hereunder, you may in
your discretion arrange for you or another party or other parties to purchase
such Securities on the terms contained herein. If within thirty-six hours after
such default by any Initial Purchaser you do not arrange for the purchase of
such Securities, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to you to purchase such Securities on such terms. In the event
that, within the respective prescribed periods, you notify the Company that you
have so arranged for the purchase of such Securities, or the Company notifies
you that it has so arranged for the purchase of such Securities, you or the
Company shall have the right to postpone the Time of Delivery for a period of
not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Offering Memorandum, or in any other documents or
arrangements, and the Company agrees to prepare promptly any amendments to the
Offering Memorandum which in your opinion may thereby be made necessary. The
term "Initial Purchaser" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Initial Purchaser or Initial Purchasers by you and
the Company as provided in subsection (a) above, the aggregate principal amount
of such Securities which remains unpurchased does not exceed one-eleventh of
the aggregate principal amount of all the Securities, then the Company shall
have the right to require each non-defaulting Initial Purchaser to purchase the
principal amount of Securities which such Initial Purchaser agreed to purchase
hereunder and, in addition, to require each non-defaulting Initial Purchaser to
purchase its pro rata share (based on the principal amount of Securities which
such Purchaser agreed to purchase hereunder) of the Securities of such
defaulting Initial Purchaser or Initial Purchasers for which such arrangements
have not been made; but nothing herein shall relieve a defaulting Initial
Purchaser from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Initial Purchaser or Initial Purchasers by you and
the Company as provided in subsection (a) above, the aggregate principal amount
of Securities which remains unpurchased exceeds one-eleventh of the aggregate
principal amount of all the Securities, or if the Company shall not exercise
the right described in subsection (b) above to require non-defaulting Initial
Purchasers to purchase Securities of a defaulting Initial Purchaser or Initial
Purchasers, then this Agreement shall thereupon terminate, without liability on
the part of any non-defaulting Initial Purchaser or the Company, except for the
expenses to be borne by the Company and the Initial Purchasers as provided in
Section 6 hereof and the indemnity and contribution agreements in
- 11 -
Section 8 hereof; but nothing herein shall relieve a defaulting Initial
Purchaser from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the Initial Purchasers, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Initial Purchaser or any controlling person of any Initial Purchaser, or
the Company, or any officer or director or controlling person of the Company,
and shall survive delivery of and payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company shall not then be under any liability to any Initial Purchaser
except as provided in Sections 6 and 8 hereof; but, if for any other reason,
the Securities are not delivered by or on behalf of the Company as provided
herein, the Company will reimburse the Initial Purchasers through you for all
out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Initial Purchasers in
making preparations for the purchase, sale and delivery of the Securities, but
the Company shall then be under no further liability to any Initial Purchaser
except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Initial Purchasers, and the parties hereto shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of any Initial
Purchaser made or given by you jointly or by the Representatives on behalf of
you.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Initial Purchasers shall be delivered or sent by mail or
facsimile transmission to you in care of Citigroup Global Markets Inc., 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel
(facsimile number: (000) 000-0000); and if to the Company shall be delivered or
sent by mail or facsimile transmission to the address of the Company set forth
in the Offering Memorandum, Attention: Corporate Secretary (facsimile number:
(000) 000-0000); provided, however, that any notice to an Initial Purchaser
pursuant to Section 8(c) hereof shall be delivered or sent by mail or facsimile
transmission to such Initial Purchaser at its address set forth in its Initial
Purchasers' Questionnaire, which address will be supplied to the Company by you
upon request. Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Initial Purchasers, the Company and, to the extent provided in Sections
8 and 10 hereof, the officers and directors of the Company and each person who
controls the Company or any Initial Purchaser, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Securities from any Initial Purchaser shall be deemed a successor or
assign by reason merely of such purchase.
- 12 -
14. Time shall be of the essence of this Agreement.
15. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one
and the same instrument.
- 13 -
If the foregoing is in accordance with your understanding, please sign and
return to us counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Initial Purchasers, this letter and such acceptance
hereof shall constitute a binding agreement between each of the Initial
Purchasers and the Company. It is understood that your acceptance of this
letter on behalf of each of the Initial Purchasers is pursuant to the authority
set forth in a form of agreement among Initial Purchasers, the form of which
shall be submitted to the Company for examination upon request, but without
warranty on your part as to the authority of the signers thereof.
Very truly yours,
V.F. Corporation
By: ....................................
Name:
Title:
By: ....................................
Name:
Title:
The foregoing Agreement hereby
Confirmed and accepted as of the
Date first above written.
Banc of America Securities LLC
Citigroup Global Markets Inc.
By: Citigroup Global Markets Inc.
By: __________________________________
Name:
Title:
For themselves and the other several
Initial Purchasers named in Schedule I
to the foregoing Agreement.
SCHEDULE I
Principal
Amount of
Notes to be
Initial Purchaser Purchased
----------------- ---------
Banc of America Securities LLC ................................ $105,000,000.
Citigroup Global Markets Inc................................... 105,000,000
Wachovia Capital Markets, LLC.................................. 27,000,000
ABN AMRO Incorporated ......................................... 9,000,000
Barclays Capital Inc. ......................................... 9,000,000
Fleet Securities, Inc. ........................................ 9,000,000
HSBC Securities (USA) Inc. .................................... 9,000,000
X.X. Xxxxxx Securities Inc. ................................... 9,000,000
PNC Capital Markets, Inc. ..................................... 9,000,000
U.S. Bancorp Xxxxx Xxxxxxx Inc. ............................... 9,000,000
------------
Total................................................ $300,000,000
============
SI-1
SCHEDULE II
-------------------------------------------------------------------------------
JanSport Apparel Corp. Delaware
-------------------------------------------------------------------------------
JanSport, Inc. Delaware
-------------------------------------------------------------------------------
The H. D. Xxx Company, Inc. Delaware
-------------------------------------------------------------------------------
Nautica Enterprises, Inc. Delaware
-------------------------------------------------------------------------------
The North Face Apparel Corp. Delaware
-------------------------------------------------------------------------------
The North Face, Inc. Delaware
-------------------------------------------------------------------------------
Vanity Fair, Inc. Delaware
-------------------------------------------------------------------------------
VF Factory Outlet, Inc. Delaware
-------------------------------------------------------------------------------
VF Imagewear, Inc. Delaware
-------------------------------------------------------------------------------
VF Intimates, LP Delaware
-------------------------------------------------------------------------------
VF Jeanswear Limited Partnership Delaware
-------------------------------------------------------------------------------
VF Playwear, Inc. Delaware
-------------------------------------------------------------------------------
VFJ Credit Corp. Delaware
-------------------------------------------------------------------------------
Wrangler Apparel Corp. Delaware
-------------------------------------------------------------------------------
SII-1
ANNEX I
(1) The Securities have not been and will not be registered under the Act
and may not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except in accordance with Regulation S
under the Act or pursuant to an exemption from the registration requirements of
the Act. Each Initial Purchaser represents that it has offered and sold the
Securities, and will offer and sell the Securities (i) as part of their
distribution at any time and (ii) otherwise until 40 days after the later of
the commencement of the offering and the Time of Delivery, only in accordance
with Rule 903 of Regulation S or Rule 144A under the Act. Accordingly, each
Initial Purchaser agrees that neither it, its affiliates nor any persons acting
on its or their behalf has engaged or will engage in any directed selling
efforts with respect to the Securities, and it and they have complied and will
comply with the offering restrictions requirement of Regulation S. Each Initial
Purchaser agrees that, at or prior to confirmation of sale of Securities (other
than a sale pursuant to Rule 144A), it will have sent to each distributor,
dealer or person receiving a selling concession, fee or other remuneration that
purchases Securities from it during the restricted period a confirmation or
notice to substantially the following effect:
"The Securities covered hereby have not been registered under the
U.S. Securities Act of 1933 (the "Securities Act") and may not be offered
and sold within the United States or to, or for the account or benefit of,
U.S. persons (i) as part of their distribution at any time or (ii)
otherwise until 40 days after the later of the commencement of the
offering and the closing date, except in either case in accordance with
Regulation S (or Rule 144A if available) under the Securities Act. Terms
used above have the meaning given to them by Regulation S."
Terms used in this paragraph have the meanings given to them by Regulation S.
(2) Each Initial Purchaser further represents and agrees that (i) it has
not offered or sold and, prior to the expiry of a period of six months from the
closing date, will not offer or sell any Securities to persons in the United
Kingdom except to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995; (ii) it
has only communicated or caused to be communicated and will only communicate or
cause to be communicated any invitation or inducement to engage in investment
activity (within the meaning of section 21 of the Financial Services and
Markets Xxx 0000, or FSMA) received by it in connection with the issue or sale
of any Securities in circumstances in which section 21(1) of the FSMA does not
apply to the issuer; and (iii) it has complied and will comply with all
applicable provisions of the FSMA with respect to anything done by it in
relation to the Securities in, from or otherwise involving the United Kingdom.
(3) Each Initial Purchaser further represents and agrees the Securities
(including rights representing an interest in a Security in global form) may
only be offered in the Netherlands to persons who trade or invest in securities
in the conduct of their profession or trade (which includes banks, securities
intermediaries (including dealers and brokers), insurance companies, pension
funds, other institutional investors and commercial enterprises which as an
ancillary activity regularly invest in securities.
AI-1
(4) Each Initial Purchaser further represents and agrees that no syndicate
member has offered or sold, or will offer or sell, in Hong Kong, by means of
any document, any Securities other than to persons whose ordinary business it
is to buy or sell shares or debentures, whether as principal or agent, or under
circumstances which do not constitute an offer to the public within the meaning
of the Companies Ordinance (Cap. 32) of Hong Kong, nor has it issued or had in
its possession for the purpose of issue, nor will it issue or have in its
possession for the purpose of issue, any invitation or advertisement relating
to the Securities in Hong Kong (except as permitted by the securities laws of
Hong Kong) other than with respect to Securities which are intended to be
disposed of to persons outside Hong Kong or to be disposed of only to persons
whose business involves the acquisition, disposal, or holding of securities
(whether as principal or as agent).
(5) Each Initial Purchaser further represents and agrees that the Offering
Memorandum and any other document or material in connection with the offer or
sale, or invitation or subscription or purchase, of the Securities may not be
circulated or distributed, nor may the Securities be offered or sold, or be
made the subject of an invitation for subscription or purchase, whether
directly or indirectly, to persons in Singapore other than under circumstances
in which such offer, sale or invitation does not constitute an offer or sale,
or invitation for subscription or purchase, of the Securities to the public in
Singapore.
(6) Each Initial Purchaser further represents and agrees that the
Securities have not been registered under the Securities and Exchange Law of
Japan and are not being offered or sold and may not be offered or sold,
directly or indirectly, in Japan or to or for the account of any resident of
Japan, except (1) pursuant to an exemption from the registration requirements
of the Securities and Exchange Law of Japan and (ii) in compliance with any
other applicable requirements of Japanese law.
(7) Each Initial Purchaser agrees that it will not offer, sell or deliver
any of the Securities in any jurisdiction outside the United States except
under circumstances that will result in compliance with the applicable laws
thereof, and that it will take at its own expense whatever action is required
to permit its purchase and resale of the Securities in such jurisdictions. Each
Initial Purchaser understands that no action has been taken to permit a public
offering in any jurisdiction outside the United States where action would be
required for such purpose. Each Initial Purchaser agrees not to cause any
advertisement of the Securities to be published in any newspaper or periodical
or posted in any public place and not to issue any memorandum relating to the
Securities, except in any such case with the Company's and the Representatives
express written consent and then only at its own risk and expense.
AII-2
ANNEX II
Pursuant to Section 7(d) of the Purchase Agreement, the accountants shall
furnish letters to the Initial Purchasers to the effect that:
(i) They are independent certified public accountants within the meaning
of the Act and the applicable rules and regulations thereunder adopted by the
SEC;
(ii) In their opinion, the consolidated financial statements of the
Company and its subsidiaries audited by them and included or incorporated by
reference in the Offering Memorandum comply as to form in all material respects
with the applicable accounting requirements of the Act and the related rules
and regulations adopted by the SEC;
(iii) On the basis of procedures (but not an audit in accordance with
generally accepted auditing standards) consisting of:
a) Reading the minutes of meetings of the stockholders and the Board of
Directors of the Company and its consolidated subsidiaries since January 4,
2003 as set forth in the minute books through a specified date not more than
five business days prior to the date of delivery of such letter;
b) Performing the procedures specified by the American Institute of
Certified Public Accountants for a review of interim financial information as
described in SAS 100 or SAS 71, as applicable, Interim Financial Information,
on the unaudited condensed interim financial statements of the Company and its
consolidated subsidiaries included or incorporated by reference in the Offering
Memorandum and reading the unaudited interim financial data for the period from
the date of the latest balance sheet included or incorporated by reference in
the Offering Memorandum to the date of the latest available interim financial
data; and
c) Making inquiries of certain officials of the Company who have
responsibility for financial and accounting matters regarding the specific
items for which representations are requested below;
nothing has come to their attention as a result of the foregoing procedures
that caused them to believe that:
(1) the unaudited condensed interim financial statements, included or
incorporated by reference in the Offering Memorandum, do not comply as to form
in all material respects with the applicable accounting requirements of the
Exchange Act as it applies to Form 10-Q and the related rules and regulations
adopted by the SEC;
(2) any material modifications should be made to the unaudited condensed
interim financial statements, included or incorporated by reference in the
Offering Memorandum, for them to be in conformity with generally accepted
accounting principles;
(3) (i) at the date of the latest available interim financial data and at
a specified date not more than five business days prior to the date of delivery
of such letter, there was any change in the capital stock, increase in
long-term debt or any decreases in consolidated net current assets
AII-1
(working capital) or shareholders' equity of the Company and subsidiaries
consolidated as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Offering Memorandum or (ii) for
the period from the date of the latest income statement included or
incorporated by reference in the Offering Memorandum to the date of the latest
available financial data and for the period from the date of the latest income
statement included or incorporated by reference in the Offering Memorandum to a
specified date not more than five business days prior to delivery of such
letter, there were any decreases, as compared with the corresponding period in
the preceding year, in consolidated net sales or in the total or per-share
amounts of net income, except in all instances for changes, increases or
decreases which the Offering Memorandum discloses have occurred or may occur,
or they shall state any specific changes, increases or decreases.
(iv) The letter shall also state that they have:
(a) Read the dollar amounts, percentages, and other financial information
as determined by the Initial Purchasers and agreed such dollar amounts,
percentages, and information, respectively, to appropriate accounts in the
Company's accounting records subject to controls over financial reporting and
to schedules prepared by the Company therefrom;
(b) Read the dollar and per share amounts listed under "Selected Financial
Data" and agreed such amounts to audited financial statements.
AII-2
ANNEX A
Form of Opinion of Xxxxxxx X. Xxxxxxxx
October 14, 0000
Xxxx xx Xxxxxxx Securities LLC
Citigroup Global Markets Inc.
As Representatives of the Initial Purchasers
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
I have acted as counsel to V.F. Corporation, a Pennsylvania corporation
(the "Company"), in connection with (i) the issue and sale to you as Initial
Purchasers pursuant to the Purchase Agreement dated October 8, 2003 (the
"Purchase Agreement") of $300,000,000 aggregate principal amount of the
Company's 6% Notes due 2033 (the "Notes") to be issued pursuant to the
Indenture dated as of September 29, 2000 between the Company and The Bank of
New York (formerly known as United States Trust Company of New York), as
Trustee (the "Trustee"), and (ii) the Exchange and Registration Rights
Agreement dated as of October 14, 2003 between the Company and the Initial
Purchasers (the "Exchange and Registration Rights Agreement"). Capitalized
terms used herein unless otherwise defined shall have the meanings specified in
the Purchase Agreement.
I have examined originals or copies, certified or otherwise identified to
my satisfaction, of such corporate records, certificates of public officials
and other documents and instruments as I have deemed necessary or advisable for
the purpose of rendering this opinion.
For the purposes of this opinion, the Company's Offering Memorandum dated
October 8, 2003, including the documents incorporated by reference therein (the
"Incorporated Documents") relating to the Notes, is hereinafter referred to as
the "Offering Memorandum", and such term shall include the Incorporated
Documents.
Based upon the foregoing and subject to the qualifications and exceptions
set forth herein, it is my opinion that as of the date hereof:
(i) The Company is a corporation duly incorporated and validly subsisting
and in good standing under the laws of the Commonwealth of Pennsylvania and is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its businesses or the ownership or leasing
of property requires such qualification, except to the
A-1
extent that the failure to be so qualified or to be in good standing would not
have a material adverse effect on the business, properties, financial position
or results of operations of the Company and its subsidiaries and affiliates
taken as a whole.
(ii) The Company has an authorized capitalization as set forth in the
Offering Memorandum, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and are fully paid and
non-assessable;
(iii) Each material subsidiary of the Company listed on Schedule II of the
Purchase Agreement and, to the best of my knowledge, material subsidiaries
organized under the laws of a jurisdiction outside the United States, has been
duly organized and is validly existing as a corporation, partnership or limited
liability company, as the case may be, in good standing under the laws of its
jurisdiction of incorporation or formation; all of the issued shares of capital
stock, partnership interests or limited liability company interests, as the
case may be, of each such subsidiary (including, to the best of my knowledge,
material subsidiaries organized under the laws of a jurisdiction outside the
United States) have been duly and validly authorized and issued, are fully paid
and non-assessable (where applicable), and (except for directors' qualifying
shares and except as otherwise set forth in the Offering Memorandum) are owned
directly or indirectly by the Company, to the best of my knowledge, free and
clear of all liens, encumbrances, equities or claims.
(iv) To the best of my knowledge and other than as set forth in the
Offering Memorandum, there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the subject which would,
individually or in the aggregate, be reasonably likely to have a material
adverse effect on the consolidated financial position, shareholders' equity or
results of operations of the Company and its subsidiaries (taken as whole);
and, to the best of my knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(v) The issue and sale of the Notes and the compliance by the Company with
all of the provisions of the Notes, the Indenture and the Purchase Agreement
and the consummation of the transactions therein contemplated will not (i)
conflict with or result in a violation of any provisions of the Articles of
Incorporation or By-laws of the Company, (ii) conflict with or violate in any
aspect any law, statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
properties or (iii) conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company is a party or by which the Company is bound or to which any
of the property or assets of the Company is subject, except, in the case of
clauses (ii) and (iii) above, as would not have a material adverse effect on
the business, properties, financial position or results of operations of the
Company and its subsidiaries and affiliates taken as a whole.
(vi) The Incorporated Documents as amended or supplemented (other than the
financial statements and related schedules therein, as to which I express no
opinion), when they were filed with the Commission, complied as to form in all
material respects with the
A-2
requirements of the Securities Exchange Act of 1934 as amended, and the rules
and regulations of the Commission thereunder; and I have no reason to believe
that any of such documents, when they were so filed, contained an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such documents were filed, not misleading.
(vii) Each of the Purchase Agreement, the Indenture, the Notes and the
Exchange and Registration Rights Agreement has been duly authorized, executed
and delivered by the Company.
I am a member of the Bar of the Commonwealth of Pennsylvania and I do not
express any opinion herein concerning any law other than the laws of the
Commonwealth of Pennsylvania, the federal laws of the United States and the
General Corporation Law of the State of Delaware.
This opinion is rendered to you solely in connection with the Purchase
Agreement in my capacity as counsel for the Company. This opinion may not be
relied upon by you for any other purpose or relied upon by or furnished to any
other person, except Xxxxx Xxxx & Xxxxxxxx and Xxxxxxxx & Xxxxxxxx LLP, which
may rely on this opinion as to matters governed by the laws of the Commonwealth
of Pennsylvania for purposes of their respective opinions, without my prior
written consent.
Very truly yours,
A-3
ANNEX B
Form of Opinion of Xxxxx Xxxx & Xxxxxxxx
212-450-4000
October 14, 0000
Xxxx xx Xxxxxxx Securities LLC
Citigroup Global Markets Inc.
As Representatives of the Initial Purchasers
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We have acted as special counsel to V.F. Corporation, a Pennsylvania
corporation (the "Company") in connection with (i) the issue and sale to you,
as the Initial Purchasers, pursuant to the Purchase Agreement dated October 8,
2003 (the "Purchase Agreement") of $300,000,000 aggregate principal amount of
the Company's 6% Notes due 2033 (the "Notes") to be issued pursuant to the
Indenture, dated as of September 29, 2000 between the Company and The Bank of
New York (formerly known as United States Trust Company of New York), as
Trustee (the "Trustee"), and (ii) the Exchange and Registration Rights
Agreement dated October 14, 2003 between the Company and the Initial Purchasers
(the "Exchange and Registration Rights Agreement"). Capitalized terms used but
not otherwise defined herein are used as defined in the Purchase Agreement.
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of such documents, corporate records, certificates of public
officials and other instruments as we have deemed necessary or advisable for
the purposes of rendering this opinion.
We have also participated in the preparation of the Offering Memorandum
(including the review of, but not participation in the preparation of, the
documents incorporated by reference therein (the "Incorporated Documents"))
dated October 8, 2003 relating to the offering of the Notes (the "Offering
Memorandum").
Based upon the foregoing, we are of the opinion that:
B-1
(1) The Notes have been duly authorized and executed by the Company and
will, when authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Initial Purchasers in accordance with the
terms of the Purchase Agreement, be entitled to the benefits of the Indenture
and the Exchange and Registration Rights Agreement and will be valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, except (i) as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights and remedies generally and (ii) as such enforcement may be limited by
general principles of equity, regardless of whether enforcement is sought in a
proceeding at law or in equity.
(2) Each of the Indenture and the Exchange and Registration Rights
Agreement has been duly authorized, executed and delivered by the Company and
assuming, in the case of the Indenture, the due authorization, execution and
delivery thereof by the Trustee, and, in the case of the Exchange and
Registration Rights Agreement, the due authorization, execution and delivery
thereof by the Initial Purchasers, each of the Indenture and the Exchange and
Registration Rights Agreement constitutes a valid and legally binding agreement
of the Company, enforceable against the Company in accordance with its terms,
except (i) as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights and
remedies generally, (ii) as such enforcement may be limited by general
principles of equity, regardless of whether enforcement is sought in a
proceeding at law or in equity, and (iii) as rights to indemnity and
contribution under the Exchange and Registration Rights Agreement may be
limited by applicable law.
(3) The Notes and the Indenture conform in all material respects to the
descriptions thereof contained in the Offering Memorandum.
(4) The execution and delivery by the Company of, and the performance by
the Company of its obligations under, the Purchase Agreement, the Indenture and
the Exchange and Registration Rights Agreement will not contravene any
provision of applicable law and no consent, approval, authorization or order
of, or qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under the Purchase Agreement, the
Indenture or the Exchange and Registration Rights Agreement (except such as may
be required in connection with the Exchange and Registration Rights Agreement
under federal securities law and state securities laws).
(5) The statements under the captions "Description of the Notes," and
"Notice to Investors" in the Offering Memorandum, insofar as such statements
constitute a summary of the documents or proceedings referred to therein,
fairly summarize the matters referred to therein.
(6) The statements under the caption "Certain U.S. Federal Income Tax
Considerations for Non-United States Holders" in the Offering Memorandum
insofar as such statements constitute a summary of the United States federal
tax laws referred to therein, are accurate and fairly summarize in all material
respects the United States federal tax laws referred to therein.
(7) Assuming the accuracy of the representations and warranties, and
compliance with the agreements and covenants, contained in the Purchase
Agreement and the Indenture, and
B-2
in the Offering Memorandum under the caption "Plan of Distribution", it is not
necessary, in connection with the offer, sale and delivery of the Notes to the
Initial Purchasers under the Purchase Agreement or in connection with the
initial resale of such Notes by the Initial Purchasers in the manner
contemplated by the Purchase Agreement and the Offering Memorandum, to register
the Notes under the Securities Act of 1933, as amended, or to qualify the
Indenture under the Trust Indenture Act of 1939, as amended, it being
understood that no opinion is expressed as to any subsequent resale of any
Note.
We have not ourselves checked the accuracy or completeness of, or
otherwise verified, the information furnished with respect to other matters in
the Offering Memorandum. We have generally reviewed and discussed with certain
officers and employees of the Company, independent public accountants for the
Company and your representatives the information furnished, whether or not
subject to our independent check and verification. On the basis of such
consideration, review and discussion, but without independent check or
verification except as stated, no facts have come to our attention to cause us
to believe that the Offering Memorandum, including the Incorporated Documents
(except for the financial statements and notes thereto and other financial and
statistical data included or incorporated by reference therein or omitted
therefrom, as to which we express no belief), as of its date or as of the date
hereof contained or contains any untrue statement of a material fact or omitted
or omits 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.
We are members of the Bar of the State of New York and our opinion is
limited to the laws of the State of New York and the Federal laws of the United
States at the date hereof. In giving the foregoing opinions, we have, with your
permission, relied on the opinion of Xxxxxxx X. Xxxxxxxx, dated the date
hereof, delivered pursuant to Section 7(b) of the Purchase Agreement, as to all
matters governed by the laws of the Commonwealth of Pennsylvania. Our opinion
is subject in all respects to the assumptions, qualifications and exceptions
contained in such opinion.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by or furnished to any other person without our prior written
consent.
Very truly yours,
B-3
