Notes Due Underwriting Agreement
EXHIBIT 1.1
V.F. Corporation
% Notes Due
To the Representatives named in
Schedule I hereto of the several
Underwriters named in Schedule
II hereto
Schedule I hereto of the several
Underwriters named in Schedule
II hereto
Ladies and Gentlemen:
V.F. Corporation, a corporation organized under the laws of Pennsylvania (the “Company”),
proposes 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 its
securities identified in Schedule I hereto (the “Securities”), to be issued under an indenture
(together with any supplemental indenture with respect to the terms of the Securities, the
“Indenture”) dated as of [ ],
20 , between the Company and [ ], as trustee (the “Trustee”).
To the extent there are no additional Underwriters listed on Schedule I other than you, the term
Representatives as used herein shall mean you, as Underwriters, and the terms Representatives and
Underwriters shall mean either the singular or plural as the context requires. 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 20 hereof.
1. Representations and Warranties. The Company represents and warrants to, and agrees
with, each Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the Securities Act of
1933, as amended (the “Act”) and has 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) on Form S-3, including a related Base Prospectus, for registration
under the Act of the offering and sale of the Securities. Such Registration Statement,
including any amendments thereto filed prior to the Execution Time, became effective upon
filing. The Company 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 prospectus supplements relating to the Securities, each of which has
previously been furnished to you. The Company will file with the Commission a final
prospectus supplement relating to the Securities in accordance with Rule 424(b). As filed,
such final prospectus supplement 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 Company has 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 the rules thereunder; and on the date
of any filing pursuant to Rule 424(b) 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 Company makes no representations or warranties 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 Company 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 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, 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. The preceding
sentence does not apply to statements in or omissions from the Disclosure Package based upon
and in conformity with written information furnished to the Company 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.
2
(d) (i) At the time of filing the Registration Statement, (ii) at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act
(whether such amendment was by post-effective amendment, incorporated report filed pursuant
to Sections 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the
Company or any person acting on its behalf (within the meaning, for this clause only, of
Rule 163(c)) made any offer relating to the Securities in reliance on the exemption in Rule
163, and (iv) at the Execution Time (with such date being used as the determination date for
purposes of this clause (iv)), the Company was or is (as the case may be) a “well-known
seasoned issuer” as defined in Rule 405. The Company agrees 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).
(e) (i) At the earliest time after the filing of the Registration Statement that the
Company or another offering participant made a bona fide offer (within the meaning of Rule
164(h)(2)) of the Act and (ii) as of the Execution Time (with such date being used as the
determination date for purposes of this clause (ii)), the Company was not and is not an
Ineligible Issuer (as defined in Rule 405), without taking account of any determination by
the Commission pursuant to Rule 405 that it is not necessary that the Company be considered
an Ineligible Issuer.
(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, 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 Company 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) The Securities and the Indenture conform in all material respects to the
descriptions thereof contained in the Disclosure Package and the Prospectus.
(h) The statements (i) in the Base Prospectus under the captions “Description of Debt
Securities” and (ii) in each of the Disclosure Package and the Prospectus under the caption
“Description of Securities”, in each case insofar as such statements constitute a summary of
the legal matters, documents or proceedings referred to therein, fairly present and
summarize, in all material respects, the matters referred to therein.
(i) 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 Disclosure
Package and Prospectus any material loss or interference with its
business from fire, explosion,
3
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 Disclosure Package and Prospectus; and, since the
respective dates as of which information is given in the Disclosure Package and Prospectus,
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 Disclosure Package and
Prospectus;
(j) 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 Disclosure Package and
Prospectus, 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, except in
any jurisdiction where such failure would not have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole (a “Material Adverse Effect”); and each
domestic subsidiary of the Company listed on Schedule V hereto and each material subsidiary
organized under the laws of a jurisdiction outside the United States listed on Schedule V
hereto 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;
(k) The Company has an authorized capitalization as set forth in the Disclosure Package
and the Prospectus, 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 except as set forth in the Disclosure Package and the
Prospectus) are owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(l) 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 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 Disclosure Package and
Prospectus and will be in substantially the form previously delivered to you;
4
(m) There is no franchise, contract or other document of a character required to be
described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto,
which is not described or filed as required (and the Preliminary Prospectus contains in all
material respects the same description of the foregoing matters contained in the
Prospectus); and the statements in the Preliminary Prospectus and the Prospectus under the
heading “Certain U.S. Federal Income Tax Considerations for Non-U.S. Holders” insofar as
such statements summarize legal matters, agreements, documents or proceedings discussed
therein, are accurate and fair summaries of such legal matters, agreements, documents or
proceedings.
(n) This Agreement has been duly authorized, executed and delivered by the Company;
(o) The Company has been advised by its counsel, [ ], of the rules and requirements
under the Investment Company Act of 1940, as amended (the “Investment Company Act”). The
Company is not, and after receipt of payment for the Securities and the application of the
proceeds thereof as contemplated under the caption “Use of Proceeds” in the Preliminary
Prospectus and the Prospectus will not be, required to register as an “investment company”
within the meaning of the Investment Company Act.
(p) 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 or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the Company or any of its
subsidiaries 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 of its subsidiaries 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 subsidiaries or any of their 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 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 Underwriters.
(q) The consolidated historical financial statements and schedules of the Company and
its consolidated subsidiaries included in the Preliminary Prospectus, the Prospectus and the
Registration Statement present fairly the financial condition, results of operations and
cash flows of the Company as of the dates and for the periods
indicated, comply as to form with the applicable accounting requirements of the
5
Act and have been
prepared in conformity with generally accepted accounting principles applied on a consistent
basis throughout the periods involved (except as otherwise noted therein). The selected
financial data set forth under the caption “Selected Financial Information” in the
Preliminary Prospectus, the Prospectus and Registration Statement fairly present, on the
basis stated in the Preliminary Prospectus, the Prospectus and the Registration Statement,
the information included therein.
(r) Other than as set forth in the Disclosure Package and Prospectus, 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 (i) the performance of this Agreement or the consummation of any of the
transactions contemplated hereby or (ii) 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.
(s) [ ], 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.
(t) The Company and each of its material 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 Company and its subsidiaries’ internal controls over
financial reporting are effective and the Company and its subsidiaries are not aware of any
material weakness in their internal controls over financial reporting.
(u) The Company and its subsidiaries maintain “disclosure controls and procedures” (as
such term is defined in Rule 13a-15(e) under the Exchange Act); such disclosure controls and
procedures are effective.
(v) The Company and its 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 change in the condition
6
(financial or otherwise),
prospects, earnings, business or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of
any supplement thereto). Except as set forth in the Disclosure Package and the Prospectus,
neither the Company nor any of the subsidiaries has been named as a “potentially responsible
party” under the Comprehensive Environmental Response, Compensation, and Liability Act of
1980, as amended, except as could not reasonably be expected to have a Material Adverse
Effect.
(w) The Company has reasonably concluded that the costs and liabilities associated with
the effect of Environmental Laws on the business, operations and properties of the Company
and its subsidiaries (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with Environmental Laws, or any
permit, license or approval, any related constraints on operating activities and any
potential liabilities to third parties) would not, singly or in the aggregate, have a
material adverse effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as set forth in or
contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement
thereto).
(x) None of the following events has occurred or exists: (i) a failure to fulfill the
obligations, if any, under the minimum funding standards of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx
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; (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 Company or any of its subsidiaries that could reasonably be expected to have a
Material Adverse Effect; (iii) any breach of any contractual obligation, or any violation of
law or applicable qualification standards, with respect to the employment or compensation of
employees by the Company or any of its subsidiaries that could reasonably be expected to
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 Company and its subsidiaries compared to
the amount of such contributions made in the most recently completed fiscal year of the
Company and its subsidiaries; (ii) an increase in the “accumulated post-retirement benefit
obligations” (within the meaning of Statement of Financial Accounting Standards 106) of the
Company and its subsidiaries compared to the amount of such obligations in the most recently
completed fiscal year of the Company and its subsidiaries; (iii) any event or condition
giving rise to a liability under Title IV of ERISA; or (iv) the filing of a claim by one or
more employees or former employees of the Company or any of its subsidiaries related to
their employment, in each case where such events under
7
subclauses (i)-(iv) could reasonably be expected to 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 Company or any of its
subsidiaries may have any liability.
(y) There is and has been no failure on the part of the Company and any of the
Company’s directors or officers, in their capacities as such, to comply with any provision
of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection
therewith (the “Xxxxxxxx-Xxxxx Act”), including Section 402 relating to loans and Sections
302 and 906 relating to certifications.
(z) Neither the Company nor any of its subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is aware of or has taken any action, directly or indirectly, that would result
in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and
the rules and regulations thereunder (the “FCPA”), including, without limitation, making use
of the mails or any means or instrumentality of interstate commerce corruptly in furtherance
of an offer, payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the FCPA) or any foreign political party or
official thereof or any candidate for foreign political office, in contravention of the
FCPA; and the Company, its subsidiaries and, to the knowledge of the Company, its affiliates
have conducted their businesses in compliance with the FCPA and have instituted and maintain
policies and procedures designed to ensure, and which are reasonably expected to continue to
ensure, continued compliance therewith.
(aa) The operations of the Company and its subsidiaries are and have been conducted at
all times in all material respects 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 (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 Company or any of its subsidiaries with respect to the Money
Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(bb) Neither the Company nor any of its subsidiaries nor, to the knowledge of the
Company, any director, officer or affiliate of the Company or any of its subsidiaries is
currently the subject of any sanctions administered by the Office of Foreign Assets Control
of the U.S. Treasury Department (“OFAC”) (a “Sanctions Target”), and nothing has come to the
attention of the Company that has caused the Company to believe that any agent or employee
of the Company or of any of its subsidiaries is a Sanctions Target; and the Company 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
entity, for the purpose of financing the activities of any person currently the subject of
any U.S. sanctions administered by OFAC.
8
(cc) Except as disclosed in the Disclosure Package and the Prospectus or in any
document incorporated by reference therein, since the end of the Company’s most recent
audited fiscal year, there has been (i) no material weakness in the Company’s internal
control over financial reporting (whether or not remediated) and (ii) no change in the
Company’s internal control over financial reporting that has materially affected, or is
reasonably likely to materially affect, the Company’s internal control over financial
reporting.
(dd) The Company and its subsidiaries own, possess, license or have other rights to use
all patents, trademarks and service marks, trade names, copyrights, inventions, trade
secrets, technology, know-how and other intellectual property, and all other registrations
and applications to register any of the foregoing (collectively, the “Intellectual
Property”) material to the conduct of the Company’s business as now conducted or as proposed
in the Prospectus to be conducted.
(ee) Except as set forth in the Preliminary Prospectus and the Prospectus (i) to the
Company’s best knowledge, there is no material infringement by third parties of any such
Intellectual Property; (ii) there is no pending or, to the Company’s best knowledge,
threatened action, suit, proceeding or claim by others challenging the Company’s rights in
or to any Intellectual Property owned by the Company or any of its Subsidiaries (the
“Company-Owned Intellectual Property”), and the Company is unaware of any facts which would
form a reasonable basis for any such claim, except such as are not reasonably likely to have
a Material Adverse Effect; (iii) to the Company’s best knowledge, there is no pending or
threatened action, suit, proceeding or claim by others challenging the validity or scope of
any Company-Owned Intellectual Property, and the Company is unaware of any facts which would
form a reasonable basis for any such claim, except such as are not reasonably likely to have
a Material Adverse Effect; and (iv) there is no pending or, to the Company’s knowledge,
threatened action, suit, proceeding or claim by others that the Company infringes or
otherwise violates any patent, trademark, copyright, trade secret or other intellectual
property rights of others, and the Company is unaware of any other fact which would form a
reasonable basis for any such claim, except such as are not reasonably likely to have a
Material Adverse Effect.
Any certificate signed by any officer of the Company 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 the Company, 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 Company agrees to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase from the Company, 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 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
Company or as provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the “Closing Date”).
9
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 Company by wire transfer payable in same-day funds to an account specified by the Company.
Delivery of the Securities shall be made through the facilities of The Depository Trust Company
unless the Representatives shall otherwise instruct.
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 Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company 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 Company has
furnished you a copy for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. The Company 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 Company 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, or any Rule 462(b) Registration Statement, 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 and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Securities for sale
in any jurisdiction or the institution or threatening of any proceeding for such purpose.
The Company will use its 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 its 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.
10
(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, the Company 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 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 Company promptly
will (i) notify the Representatives of any such event, (ii) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment
or supplement or new registration statement which will correct such statement or omission or
effect such compliance, (iii) use its 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.
(e) As soon as practicable, the Company will make generally available to its security
holders and to the Representatives an earnings statement or statements of the Company and
its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) The Company 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 Company will pay the expenses of printing or other production of all documents
relating to the offering.
11
(g) The Company 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 Company 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 Company agrees that, unless it has or shall have obtained the prior written
consent of the Representatives, and each Underwriter, severally and not jointly, agrees with
the Company that, unless it has or shall have obtained, as the case may be, the prior
written consent of the Company, it has 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
Company with the Commission or retained by the Company 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 Company is hereinafter
referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has
treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an
Issuer Free Writing Prospectus and (y) it has 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) The Company will not, without the prior written consent of [ ], offer, sell,
contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is
designed to, or might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash settlement or otherwise) by
the Company or any affiliate of the Company or any person in privity with the Company or any
affiliate of the Company), directly or indirectly, including the filing (or participation in
the filing) of a registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the Exchange Act, any debt securities issued or
guaranteed by the Company (other than the Securities) or publicly announce an intention to
effect any such transaction, until the Business Day set forth on Schedule I hereto.
(j) The Company 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
Company to facilitate the sale or resale of the Securities.
12
(k) The Company agrees 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 and the listing of the Securities on any exchange; (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 the NASD, Inc. (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 Company representatives in
connection with presentations to prospective purchasers of the Securities; (ix) the fees and
expenses of the Company’s accountants and the fees and expenses of counsel (including local
and special counsel) for the Company; and (x) all other costs and expenses incident to the
performance by the Company of its obligations hereunder.
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 Company contained herein as of the Execution Time and the Closing
Date, to the accuracy of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations hereunder and to the
following additional conditions:
(a) The Final Prospectus, and any supplement thereto, shall 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 Company 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 shall have been instituted or
threatened.
(b) The Company shall have requested and caused [ ], counsel for the Company, to
have furnished to the Representatives their opinion, dated the Closing Date and addressed to
the Representatives, to the effect that:
13
(i) The Indenture has been duly qualified under the Trust Indenture Act of
1939, as amended, and has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency and similar
laws affecting creditors’ rights generally and equitable principles of general
applicability, provided that we express no opinion as to the enforceability of any
waiver of rights under any usury or stay law.
(ii) The Securities have been duly authorized and, 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, will be
valid and binding obligations of the Company, enforceable in accordance with their
terms, subject to applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights generally and equitable principles of general applicability, and
will be entitled to the benefits of the Indenture pursuant to which such Securities
are to be issued, provided that we express no opinion as to the enforceability of
any waiver of rights under any usury or stay law.
(iii) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(iv) The Company is not, and after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as described in the
Prospectus will not be, required to register as an “investment company” as such term
is defined in the Investment Company Act of 1940, as amended.
(v) The execution and delivery by the Company of, and the performance by the
Company of its obligations under, the Indenture, the Securities and the Underwriting
Agreement (collectively, the “Documents”) will not contravene (i) any provision of
the laws of the State of New York or any federal law of the United States of America
that in our experience is normally applicable to general business corporations in
relation to transactions of the type contemplated by the Documents provided that we
express no opinion as to federal or state securities laws, (ii) the certificate of
incorporation or by-laws of the Company, or (iii) any agreement that is listed in an
annex to such opinion.
(vi) No consent, approval, authorization, or order of, or qualification with,
any state governmental body or agency under the laws of the State of New York or any
federal law of the United States of America is required for the execution, delivery
and performance by the Company of its obligations under the Documents, except such
as may be required under state securities or Blue Sky laws as to which we express no
opinion.
(vii) We have considered the statements included in the Disclosure Package and
the Prospectus under the captions “Description of the Notes,” “Description of the
Debt Securities” and Certain U.S. Federal Income Tax Considerations for Non-U.S.
Holders” insofar as they summarize provisions of the Indenture, the Securities and the federal tax matters referred to therein.
In our opinion, such statements fairly summarize these provisions in all material
respects.
14
In
addition, [ ], counsel for the Company, shall have furnished to the Representatives a
letter dated the Closing Date, to the effect that, on the basis of the information gained in
the course of the performance of certain services rendered but without independent check or
verification (except as stated):
(i) the Registration Statement and the Prospectus appear on their face to be
appropriately responsive in all material respects to the requirements of the Act and
the applicable rules and regulations of the Commission thereunder; and
(ii) nothing has come to the attention of such counsel that causes them to
believe that:
(1) on the date of the Underwriting Agreement or at the time the
Registration Statement became effective, the Registration Statement
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading,
(2) at the Execution Time, the Disclosure Package contained any 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, not misleading, or
(3) the Prospectus as of its date, the date of the Underwriting
Agreement or as of the Closing Date 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.
In providing this letter to you and the other several Underwriters, such counsel may express
no view regarding the financial statements or financial schedules or other financial or
accounting information included in the Registration Statement, the Disclosure Package, the
Prospectus, or the Statement of Eligibility of the Trustee on form T-1. In addition, such
counsel may express no view as to the conveyance of the Disclosure Package or the
information contained therein to investors.
(c) The General Counsel of the Company shall have furnished to the Representatives her
opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Underwriting Agreement, the Indenture and the Securities have
been duly authorized, executed and delivered by the Company;
15
(ii) 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 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;
(iii) the Company has an authorized capitalization as set forth in the
Disclosure Package and the Prospectus, 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;
(iv) each material subsidiary of the Company listed on Schedule V of the
Underwriting Agreement and, to the best of such counsel’s knowledge, each material
subsidiary of the Company 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 such counsel’s
knowledge, material subsidiaries of the Company 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 Disclosure
Package and the Prospectus) are owned directly or indirectly by the Company, to the
best of my knowledge, free and clear of all liens, encumbrances, equities or claims;
(v) to the best of such counsel’s knowledge and other than as set forth in the
Disclosure Package and the Prospectus, 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 such counsel’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(vi) the Registration Statement has become effective under the Act; any
required filing of the Prospectus, any Preliminary Prospectus and any supplements
thereto pursuant to Rule 424 (b) has been made in the manner and within the time
period required by Rule 424(b); that to the best of such counsel’s knowledge, no
stop order suspending the effectiveness of the Registration Statement, or any notice
that would prevent its use, has been issued, and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act;
16
(vii) the issue and sale of the Securities and the compliance by the Company
with all of the provisions of the Securities, the Indenture and the Underwriting
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;
(viii) the documents incorporated by reference in the Registration Statement,
Disclosure Package and the Prospectus, as of the respective dates of their filing
with the SEC, complied as to form in all material respects with the requirements of
the Exchange Act, and the rules and regulations of the Commission thereunder, and
after reasonable inquiry, such counsel has no reason to believe that there are any
material exhibits required to be filed to the incorporated documents that have not
been filed therewith, except with respect to the financial statements and related
notes and schedules therein and other financial data included or incorporated by
reference in such financial statements or excluded therefrom or the exhibits
thereto;
(ix) such counsel has no reason to believe that either the Registration
Statement, as of the Effective Date, contained an untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the Prospectus, as
of the date of the Prospectus Supplement and as of the date hereof, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading (except as to the financial
statements, schedules and other financial data included or incorporated by reference
therein or excluded therefrom or the exhibits to the Registration Statement,
including the Statement of Eligibility on Form T-1); and that such counsel has no
reason to believe that the Disclosure Package, as of the Execution Time, contained
an untrue statement of material fact or omitted to state a material fact necessary
in order to make the statements therein, in light of the circumstances under which
they were made, not misleading (except as to the financial statements, schedules and
other financial data included or incorporated
by reference therein or excluded therefrom or the exhibits to the Registration
Statement, including the Statement of Eligibility on Form T-1).
17
(d) The Representatives shall have received from [ ], 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
Company shall have furnished to such counsel such documents as they request for the purpose
of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the
Company, signed by the Chief Executive Officer, the Chief Operating Officer or a Senior Vice
President of the Company and the principal financial or accounting officer of the Company,
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 Company in this Agreement are
true and correct on and as of the Closing Date with the same effect as if made on
the Closing Date and the Company has complied with all the agreements and satisfied
all the conditions on its 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 for that
purpose have been instituted or, to the Company’s 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 supplement thereto),
there has been no material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Disclosure Package and the
Final Prospectus (exclusive of any supplement thereto).
(f) The Company shall have requested and caused [ ] 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 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 that they have performed a review of the unaudited interim
financial information of the Company for the [ ]-month
period ended [ ], and as at [ ], in accordance with Statement on Auditing
Standards No. 100, and stating in effect that:
18
(i) in their opinion the audited financial statements and financial statement
schedules and any pro forma financial statements included or incorporated by
reference in the Registration Statement, the Preliminary Prospectus and the Final
Prospectus and reported on by them comply as to form with the applicable accounting
requirements of the Act and the Exchange Act and the related rules and regulations
adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements
made available by the Company and its subsidiaries; their limited review, in
accordance with standards established under Statement on Auditing Standards No. 100,
of the unaudited interim financial information for the [ ]-month period ended [
] and as at [ ]; carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing standards) which would
not necessarily reveal matters of significance with respect to the comments set
forth in such letter; a reading of the minutes of the meetings of the stockholders,
directors and audit and finance committees of the Company and the Subsidiaries; and
inquiries of certain officials of the Company who have responsibility for financial
and accounting matters of the Company and its subsidiaries as to transactions and
events subsequent to [ ], nothing came to their attention which caused them to
believe that:
(1) any unaudited financial statements included or incorporated by
reference in the Registration Statement, the Preliminary Prospectus and the
Final Prospectus do not comply as to form with applicable accounting
requirements of the Act and with the related rules and regulations adopted
by the Commission with respect to financial statements included or
incorporated by reference in quarterly reports on Form 10-Q under the
Exchange Act; and said unaudited financial statements are not in conformity
with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial statements
included or incorporated by reference in the Registration Statement, the
Preliminary Prospectus and the Final Prospectus;
(2) with respect to the period subsequent to [ ], there were any
changes, at a specified date not more than five days prior to the date of
the letter, in the long-term debt of the Company and its subsidiaries or
capital stock of the Company or decreases in the stockholders’ equity of the
Company as compared with the amounts shown on the [ ] consolidated
balance sheet included or incorporated by reference in the Registration
Statement, the Preliminary Prospectus and the Final Prospectus, or for the
period from [ ] to such specified date there were any decreases, as
compared with the corresponding period in the preceding year in net revenues
or income before income taxes or in total or per share amounts of net income
of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such
letter, in which case the letter shall be accompanied by an explanation by
the Company as to the significance thereof unless said explanation is not
deemed necessary by the Representatives; or
19
(3) the information included or incorporated by reference in the
Registration Statement, the Preliminary Prospectus and Final Prospectus in
response to Regulation S-K, Item 301 (Selected Financial Data), Item 302
(Supplementary Financial Information), Item 402 (Executive Compensation) and
Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with
the applicable disclosure requirements of Regulation S-K; and
(iii) they have performed certain other specified procedures as a result of
which they determined that certain information of an accounting, financial or
statistical nature (which is limited to accounting, financial or statistical
information derived from the general accounting records of the Company and its
subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus
and the Final Prospectus and in Exhibit 12 to the Registration Statement, including
the information set forth under the captions “[ ]” in the Preliminary Prospectus
and the Final Prospectus, the information included or incorporated by reference in
Items 1, 2, 6, 7 and 8 of the Company’s Annual Report on Form 10-K, incorporated by
reference in the Registration Statement, the Preliminary Prospectus and the Final
Prospectus, and the information included in the “Management’s Discussion and
Analysis of Financial Condition and Results of Operation” included or incorporated
by reference in the Company’s Quarterly Reports on Form 10-Q, incorporated by
reference in the Registration Statement, the Preliminary Prospectus and the Final
Prospectus, agrees with the accounting records of the Company and its subsidiaries,
excluding any questions of legal interpretation.
References
to the Final Prospectus in this paragraph (f) include any supplement thereto
at the date of the letter.
(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) and the Final
Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to
in paragraph (f) of
this Section 6 or (ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or properties of the
Company and its subsidiaries taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any amendment or supplement thereto) 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 or delivery of the Securities as contemplated by
the Registration Statement (exclusive of any amendment
thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment
or supplement thereto).
20
(h) Subsequent to the Execution Time, there shall not have been any decrease in the
rating of any of the Company’s 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 Company 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 Company 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 [
], counsel for the Underwriters, at [ ], 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
hereof or because of any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally through [ ] on demand
for all 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 Company agrees to indemnify and
hold harmless each Underwriter, 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 for the registration of the Securities as originally filed 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 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 incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company 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 Company 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 Company may otherwise have.
21
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of either the Act or
the Exchange Act, to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to written information relating to such Underwriter
furnished to the Company 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 Company acknowledges that the statements set forth in (i) the second and fourth
paragraphs of text under the caption “Underwriting” in the Prospectus Supplement, concerning
the terms of the offering by the Underwriters, and (ii) the sixth paragraph of text under
the caption “Underwriting” in the Prospectus Supplement, concerning possible stabilizing
transactions, syndicate covering transactions and overall allotment activities by the
Underwriters with respect to the Securities.
(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 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 indemnifying party shall not have employed
counsel 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. 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.
22
(d) In the event that the indemnity provided in paragraph (a), (b) or (c) of this
Section 8 is unavailable to or insufficient to hold harmless an indemnified party for any
reason, the Company 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 Company and one or more of the Underwriters may be subject in such proportion as
is appropriate to reflect the relative benefits received by the Company 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 Company 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 Company 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 Company 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 Company 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 Company 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 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 Company within the meaning of either the Act
or the Exchange Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this paragraph (d).
23
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
Company. 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 Company 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 notice given to the Company prior to delivery of and payment
for the Securities, if at any time prior to such delivery and payment (i) trading in the Company’s
Common Stock shall have been suspended by the Commission or the New York Stock Exchange or 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 or delivery of the Securities as contemplated by any
Preliminary Prospectus or the Final Prospectus (exclusive of any amendment or supplement
thereto).
24
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or its 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 the Company 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 (fax no.:
[ ]) and confirmed to [ ], at [ ], Attention: [ ]; or, if sent to the Company, will
be mailed, delivered or telefaxed to the address of the Company set forth in the Registration
Statement, Attention: Corporate Secretary (fax no. (000) 000-0000).
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 Company hereby acknowledges that (a) the purchase and sale
of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the
Company, 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
Company and (c) the Company’s 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 Company agrees that it is solely responsible for making its own
judgments in connection with the offering (irrespective of whether any of the Underwriters has
advised or is currently advising the Company on related or other matters). The Company agrees that
it 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 Company, 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 Company 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.
17. Waiver of Jury Trial. The Company hereby irrevocably waives, 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.
25
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. 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 Execution Time.
“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 the date and time that this Agreement is executed and
delivered by the parties hereto.
“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.
“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.
26
“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.
“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.
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 Company and the several Underwriters.
| Very truly yours, V.F. Corporation |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
27
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
By:
By:
Name:
Title:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
28
SCHEDULE I
Underwriting
Agreement dated [ ], 20
Registration Statement No.
Representative(s):
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Purchase price (include accrued
interest or amortization, if
any):
interest or amortization, if
any):
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location: [ ], 20 at [ ] a.m. at [ ], [ ].
Type of Offering:
Date referred to in Section 5(i) after which the Company may offer or sell debt securities issued
or guaranteed by the Company without the consent of the Representative(s):
Modification of items to be covered by the letter from [ ] delivered pursuant to Section 6(e)
at the Execution Time:
SCHEDULE II
| Principal Amount | ||||
| of Securities to | ||||
| Underwriters | be Purchased | |||
| $ | ||||
| $ | ||||
Total |
$ | |||
SCHEDULE III
Schedule of Free Writing Prospectuses included in the Disclosure Package
SCHEDULE IV
Filed Pursuant to Rule 433
Registration No. 333-__________
•, 2007
Registration No. 333-__________
•, 2007
PRICING TERM SHEETS
•% Notes due___
Issuer:
|
V.F. Corporation | |
Security:
|
•% Notes due ___ | |
Size:
|
$• | |
Maturity Date:
|
•, ___ | |
Coupon:
|
•% | |
Interest Payment Dates:
|
• and •, commencing •, | |
Price to Public:
|
•% | |
Benchmark Treasury:
|
• | |
Benchmark Treasury Yield:
|
•% | |
Spread to Benchmark Treasury:
|
+ • bp | |
Yield:
|
•% | |
Make-Whole Call:
|
• | |
Expected Trade Date:
|
•, 20 | |
Expected Settlement Date:
|
•, 20 | |
Denominations:
|
$• | |
CUSIP:
|
• | |
Anticipated Ratings:
|
[• by Xxxxx’x Investors Service, Inc.] | |
| [• by Standard & Poor’s Ratings Services] | ||
Joint Book-Running Managers: |
||
Co-Managers: |
||
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
The issuer has 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 issuer has filed with the SEC for more complete
information about the issuer and this offering.
You may get these documents for free by visiting XXXXX on the SEC Web site at xxx.xxx.xxx.
Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange
to send you the prospectus if you request it by calling [ ] toll free at [ ] or e-mailing a
request to [ ].
SCHEDULE V
Schedule of Subsidiaries of the Company
