Exhibit 1.1
V.F. Corporation
$400,000,000 Floating Rate Notes Due 2013
$500,000,000 3.50% Notes Due 2021
Underwriting Agreement
New York, New York
August 17, 2011
To the Representatives named in
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 dated October 15, 2007 (together with a supplemental indenture to be
dated as of August 24, 2011 with respect to the terms of the Securities, the
Indenture
),
between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee (the
Trustee
). To the extent there are no additional Underwriters listed on Schedule II 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.
Pursuant to that certain Agreement and Plan of Merger (as amended, the
Merger
Agreement
) by and among the Company, VF Enterprises, Inc., a wholly owned subsidiary of the
Company (
Merger Sub
) and The Timberland Company (
Timberland
), Merger Sub will
merge with and into Timberland, on the terms and conditions set forth therein (such transaction,
the
Merger
). The Company intends to use the proceeds of the sale of the Securities,
along with certain other sources of funds, to finance the Merger. For purposes of the
representations and
warranties of the Company set forth in Section 1 of this Agreement, all representations and
warranties made by the Company that relate to Timberland shall be deemed, notwithstanding
anything
to the contrary contained in any such representation or warranty, to be qualified in their entirety
by the actual knowledge of the Company and by the exceptions and qualifications set forth in the
Merger Agreement (including any disclosure schedules, annexes and appendices thereto).
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 (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
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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.
(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. 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.
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(g) The Securities and the Indenture conform in all material respects to the
descriptions thereof contained in the Disclosure Package and the Final 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 Final 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 Final Prospectus 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 Disclosure Package and Final Prospectus; and, since the respective dates
as of which information is given in the Disclosure Package and Final 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 Final 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 Final
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; each material
domestic subsidiary of the Company is listed on
Schedule V
hereto, and each such
material domestic subsidiary 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 or formation; and
each subsidiary of the Company not listed on Schedule V 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, except where such failure, individually or
in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
(k) Timberland is validly existing as a corporation in good standing under the laws of
Delaware, with power and authority to own its properties and conduct its business as it is
now being conducted, except where any such failure to have such power or authority would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; Timberland has been duly qualified or licensed to do business
and is in good standing under the laws of each other jurisdiction where the character of the
properties owned by it or the nature of its activities makes such qualification or licensing
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necessary, except where any such failure to be so qualified or licensed would not,
individually or in the aggregate, be reasonably expected to have a Material
Adverse Effect.
(l) The Company has an authorized capitalization as set forth in the Disclosure Package
and the Final 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 Final
Prospectus) are owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims.
(m) 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; on the Closing
Date, the Indenture will have been duly authorized, executed and delivered by the Company,
and on the Closing Date the Indenture will constitute 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 the Final Prospectus and will be in substantially the form previously delivered
to you.
(n) There is no franchise, contract or other document of a character required to be
described in the Registration Statement or Final 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 Final
Prospectus); and the statements in the Preliminary Prospectus and the Final 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.
(o) This Agreement has been duly authorized, executed and delivered by the Company.
(p) The Merger Agreement has been duly authorized, executed and delivered by the
Company, and constitutes the valid and binding obligations of the Company, enforceable
against the Company in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent conveyance, reorganization and other laws of general
applicability relating to or affecting creditors rights and to general equity principles.
5
(q) To the knowledge of the Company, no party to the Merger Agreement is in breach of
its representations, warranties or covenants contained therein, except as such breach would
not have (i) a material adverse effect on the completion of the Merger or (ii) a material
adverse effect on the condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries and Timberland, taken as a whole; and there
has been no development that would reasonably be expected to have a material adverse effect
on the consummation of the transactions contemplated by the Merger Agreement.
(r) The Company has been advised by its counsel, Davis Polk & Wardwell LLP, 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 Final Prospectus will not be, required to register as
an investment company within the meaning of the Investment Company Act.
(s) 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, the Merger of Timberland
pursuant to the Merger 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 (i) the consummation by the Company and Timberland of the transactions
contemplated by the Merger Agreement (except as otherwise set forth in the Merger Agreement,
including the schedules thereto), except for any such consents, approvals, authorizations,
registrations or qualifications the failure of which to obtain would not individually or in
the aggregate have a Material Adverse Effect, or (ii) the issue and sale of the Securities by
the Company 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.
(t) The consolidated historical financial statements and schedules of the Company and
its consolidated subsidiaries included in the Preliminary Prospectus, the Final 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 Act and have
been prepared in conformity with generally accepted accounting principles applied
6
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 Final Prospectus and Registration Statement fairly present, on
the basis stated in the Preliminary Prospectus, the Final Prospectus and the Registration
Statement, the information included therein.
(u) Other than as set forth in the Disclosure Package and Final Prospectus, there are no
legal or governmental proceedings pending to which the Company or any of its subsidiaries or
Timberland is a party or of which any property of the Company or any of its subsidiaries or
Timberland is the subject which would, individually or in the aggregate, be reasonably likely
to have a material adverse effect on the performance of this Agreement or have a Material
Adverse Effect; and, to the knowledge of the Company, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(v) PricewaterhouseCoopers LLP, 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.
(w) 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 managements 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 managements
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.
(x) 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.
(y) The Company, its subsidiaries and Timberland 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 as such relates to exposure to hazardous or toxic substances, the
environment or hazardous or toxic substances or wastes, pollutants or contaminants
(
Environmental Laws
), (ii) have received and are in compliance with all permits,
licenses or other approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) have not received notice of any actual or potential
liability under any Environmental Law, except where such non-compliance with Environmental
Laws, failure to receive required permits, licenses or other approvals,
or liability would not, individually or in the aggregate, have a Material Adverse
Effect, 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
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any supplement thereto). Except as set forth in the Disclosure Package and the Final
Prospectus, none of the Company, its subsidiaries or Timberland has been named as a
potentially responsible party under the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended, except as would not reasonably be expected to have a
Material Adverse Effect.
(z) 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, 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).
(aa) None of the following events has occurred or exists with respect to the Company and
its subsidiaries or Timberland: (i) a failure to fulfill the obligations, if any, under the
minimum funding standards of Section 302 of the United States Employee Retirement Income
Security Act of 1974, as amended (
ERISA
), and the regulations and published
interpretations thereunder with respect to a Plan, determined without regard to any waiver of
such obligations or extension of any amortization period; (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 or Timberland 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 or Timberland that could reasonably be
expected to have a Material Adverse Effect. None of the following events has occurred or is
reasonably likely to occur with respect to the Company and its subsidiaries or Timberland:
(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 or Timberland, as the case may
be, compared to the amount of such contributions made in the most recently completed fiscal
year of the Company and its subsidiaries or Timberland, as the case may be; (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 or Timberland, as the
case may be, compared to the amount of such obligations in the most recently completed fiscal
year of the Company and its subsidiaries or Timberland, as the case may be; (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
or Timberland related to their employment, in each case where such events under 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.
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(bb) There is and has been no failure on the part of the Company and any of the
Companys directors or officers, in their capacities as such, to comply with any provision of
the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection
therewith (the
Sarbanes-Oxley Act
), including Section 402 relating to loans and
Sections 302 and 906 relating to certifications.
(cc) 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.
(dd) 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.
(ee) 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.
(ff) Timberland is not in violation of (or threatened to be charged with or given notice
of any violation of) any applicable law, rule, regulation, order, judgment or decree
applicable to Timberland or by which its properties are bound, except for any such violation
which would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, and Timberland has all permits, licenses, authorizations,
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exemptions, orders,
consents, approvals and franchises (collectively,
Licenses
) from any governmental
or regulatory (including stock exchange) authority, agency, court, commission, or other
governmental body, domestic, foreign or supranational required to conduct its business as now
being conducted, except for any such Licenses the absence of which would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect; to the knowledge
of the Company, Timberland has not taken any action which would cause it to be in
violation of the FCPA, or any applicable law of similar effect.
(gg) Except as disclosed in the Disclosure Package and the Final Prospectus or in
any document incorporated by reference therein, since the end of the Companys most recent
audited fiscal year, there has been (i) no material weakness in the Companys internal
control over financial reporting (whether or not remediated) and (ii) no change in the
Companys internal control over financial reporting that has materially affected, or is
reasonably likely to materially affect, the Companys internal control over financial
reporting.
(hh) The Company, its subsidiaries and Timberland 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 business of the Company and
Timberland, as applicable, as now conducted or as proposed in the Final Prospectus to be
conducted.
(ii) Except as set forth in the Preliminary Prospectus and the Final Prospectus, (i) to
the Companys best knowledge, there is no material infringement by third parties of any such
Intellectual Property; (ii) there is no pending or, to the Companys best knowledge,
threatened action, suit, proceeding or claim by others challenging the Companys rights (or
Timberlands rights, as applicable) in or to any Intellectual Property owned by the Company
or any of its subsidiaries or Timberland (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 Companys 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 Companys knowledge, threatened action, suit, proceeding or
claim by others that the Company, any of its subsidiaries or Timberland 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
10
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 Underwriters 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
). 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
11
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) The Company will 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
substantially in the form attached as Schedule IV hereto and to file such term sheet pursuant
to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b),
any event occurs as a result of which the Disclosure Package would include any untrue
statement of a material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made or the
circumstances then prevailing not misleading, 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
12
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.
(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 the Representatives,
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.
13
(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.
(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) the filing fees incident to, and the reasonable fees and disbursements
of counsel to the Underwriters in connection with, the review, if any, by the Financial
Industry Regulatory Authority, Inc. of the terms of the sale of the Securities; (vii) 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);
(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 Companys 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
14
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 Davis Polk & Wardwell LLP, counsel for
the Company, to have furnished to the Representatives opinions substantially in the form of
Exhibit A
and
Exhibit B
hereto, dated the Closing Date and addressed to the
Representatives.
(c) The General Counsel of the Company shall have furnished to the Representatives her
opinion substantially in the form of
Exhibit C
hereto, dated the Closing Date and
addressed to the Representatives.
(d) The Representatives shall have received from Shearman & Sterling LLP, counsel for
the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the
Representatives, with respect to the issuance and sale of the Securities, the Indenture, the
Registration Statement, the Disclosure Package, the Final Prospectus (together with any
supplement thereto) and other related matters as the Representatives may reasonably require,
and the 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 Companys 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).
15
(f) The Company shall have requested and caused PricewaterhouseCoopers LLP to have
furnished to the Representatives, at the Execution Time and at the Closing Date, letters,
(which may refer to letters previously delivered to one or more of the Representatives),
dated respectively as of the Execution Time and as of the Closing Date, in form and substance
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 six-month period ended July 2,
2011, and as at July 2, 2011, in accordance with the Public Company Accounting Oversight
Board (
PCAOB
) AU 722, and stating in effect that:
(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 PCAOB AU 722, of the unaudited interim
financial information for the six-month period ended July 2, 2011 and as at July 2,
2011; 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, Board of
Directors and the Audit, Compensation, Finance and Nominating and Governance
Committees of the Board of Directors of the Company and its 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 January 1, 2011, 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; or
16
(2) with respect to the period subsequent to July 2, 2011, there were
any increases, 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
any changes in the capital stock of the Company or decreases in the
stockholders equity of the Company as compared with the amounts shown on
the July 2, 2011 consolidated balance sheet included or incorporated by
reference in the Registration Statement, the Preliminary Prospectus and the
Final Prospectus, or for the period from July 3, 2011 to such specified date
there were any decreases, as compared with the corresponding period in the
preceding year in net revenues or in total or per share amounts of net
income attributable to 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; 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 Capitalization, and Ratio of
Earnings to Fixed Charges in the Preliminary Prospectus and the Final Prospectus,
the information included or incorporated by reference in Items 1, 6 and 7 of the
Companys 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 Managements Discussion and Analysis of Financial Condition and
Results of Operations included or incorporated by reference in the Companys
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)
17
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).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the
rating of any of the Companys debt securities by any nationally recognized statistical
rating organization (as such term is defined in Section 3(a)(62) of the Exchange 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
Shearman & Sterling LLP, counsel for the Underwriters, at 599 Lexington Avenue, New York, NY 10022,
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 Merrill Lynch, Pierce,
Fenner & Smith Incorporated and J.P. Morgan Securities LLC 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, affiliates 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
18
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.
(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;
provided
, that the
Company acknowledges that the only such information provided by any Underwriter consists of
the statements set forth (i) in the first paragraph under the caption Underwriting
Commissions and Discounts in the Preliminary Prospectus and the Final Prospectus, concerning
the terms of the offering by the Underwriters, and (ii) under the caption
UnderwritingShort Positions in the Preliminary Prospectus and the Final Prospectus,
concerning possible stabilizing transactions, syndicate covering transactions and overall
allotment activities by the Underwriters with respect to the Securities (with respect to
themselves only). This indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have.
(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
partys choice at the indemnifying partys 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
19
indemnified party or parties except as set forth below);
provided
,
however
,
that such counsel shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying partys 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 and does not include any findings of fact or admissions of fault or culpability as
to the indemnified party.
(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
20
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).
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 Companys 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 there shall
have occurred any material disruption in commercial banking, securities settlement or clearance
services in the United States or (iii) there shall have occurred any
21
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).
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 (i) Merrill
Lynch, Pierce, Fenner & Smith Incorporated, at One Bryant Park, NY1-100-18-03, New York, NY 10036,
Attention: High Grade Transaction Management/Legal, and (ii) J.P. Morgan Securities LLC, at 383
Madison Avenue, 3rd Floor, New York, NY 10179, Attention: Investment Grade Syndicate Desk, 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. (336) 424-7696).
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 arms-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 Companys 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.
22
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.
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.
actual knowledge of the Company
means, with respect to representations and
warranties made by the Company that relate to Timberland, the actual knowledge, after
reasonable inquiry, of any of Eric Wiseman, Robert K. Shearer, Franklin L. Terkelsen,
Candace S. Cummings and Laura C. Meagher.
Agreement
shall mean this Underwriting Agreement.
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.
23
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.
Material Adverse Effect
shall mean (i) when used in respect of any matter
relating to the Company or any of its subsidiaries, any material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole, and (ii) when used in respect of any matter
relating to Timberland, any material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and its subsidiaries
and Timberland, taken as a whole.
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.
[Remainder of page intentionally left blank]
24
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company and the several Underwriters.
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Very truly yours,
V.F. Corporation
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By:
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/s/
Robert K. Shearer
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Name:
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Robert K. Shearer
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Title:
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Senior Vice President and
Chief Financial
Officer
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The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
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By:
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/s/
Douglas Fink
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Name:
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Douglas Fink
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Title:
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Managing Director
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J.P. MORGAN SECURITIES LLC
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By:
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/s/
Robert
Bottamedi
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Name:
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Robert
Bottamedi
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Title:
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Vice President
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For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated August 17, 2011
Registration Statement No. 333-175700
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Representative(s):
|
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Merrill Lynch, Pierce, Fenner & Smith
Incorporated
J.P. Morgan Securities LLC
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Title, Purchase Price and Description of Securities:
|
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Title and Principal Amount:
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(1) $400,000,000 Floating Rate Notes Due 2013
|
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(2) $500,000,000 3.50% Notes due 2021
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Purchase price (include accrued
interest or amortization, if
any):
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(1) 99.70%
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(2) 99.04%
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Sinking fund provisions:
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None
|
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Redemption provisions:
|
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(1) Mandatory redemption if the acquisition of The Timberland
Company is not completed on or prior to the Outside Date
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|
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(2) Redemption at the option of the issuer
|
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Other provisions:
|
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Repurchase for 101% of principal amount upon Change of Control
Repurchase Event; Special mandatory redemption for 101% of principal amount if
acquisition of The Timberland Company not completed by March 12, 2012
|
Closing Date, Time and Location: August 24, 2011 at 10:00 a.m. at Shearman & Sterling LLP, 599
Lexington Avenue, New York, NY 10022
Type of Offering: Non-delayed
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): Closing Date
Modification of items to be covered by the letter from
PricewaterhouseCoopers LLC delivered pursuant to
Section 6(f) at the Execution Time: None
SCHEDULE II
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Principal Amount of
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Principal Amount of
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Floating Rate Notes
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3.500% Notes due
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due 2013 to be
|
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2021 to be
|
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Underwriters
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purchased
|
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purchased
|
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Merrill Lynch, Pierce, Fenner & Smith Incorporated
|
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$
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124,000,000
|
|
|
$
|
155,000,000
|
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J.P. Morgan Securities LLC
|
|
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104,000,000
|
|
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130,000,000
|
|
Wells Fargo Securities, LLC
|
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76,000,000
|
|
|
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95,000,000
|
|
Citigroup Global Markets Inc.
|
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16,000,000
|
|
|
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20,000,000
|
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HSBC Securities (USA) Inc.
|
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16,000,000
|
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20,000,000
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Barclays Capital Inc.
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8,000,000
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10,000,000
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BNP Paribas Securities Corp.
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8,000,000
|
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10,000,000
|
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ING Financial Markets LLC
|
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8,000,000
|
|
|
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10,000,000
|
|
Morgan Stanley & Co. LLC
|
|
|
8,000,000
|
|
|
|
10,000,000
|
|
PNC Capital Markets LLC
|
|
|
8,000,000
|
|
|
|
10,000,000
|
|
RBS Securities Inc.
|
|
|
8,000,000
|
|
|
|
10,000,000
|
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Santander Investment Securities Inc.
|
|
|
8,000,000
|
|
|
|
10,000,000
|
|
U.S. Bancorp Investments, Inc.
|
|
|
8,000,000
|
|
|
|
10,000,000
|
|
Total
|
|
$
|
400,000,000
|
|
|
$
|
500,000,000
|
|
|
|
|
|
|
|
|
SCHEDULE III
Schedule of Free Writing Prospectuses included in the Disclosure Package
1.
|
|
Pricing term sheet, dated August 17, 2011, substantially in the form attached as Schedule IV
hereto.
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SCHEDULE IV
V.F. Corporation
Final Term Sheet
August 17, 2011
|
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Floating Rate Notes due 2013
|
|
|
|
Issuer:
|
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V.F. Corporation
|
|
|
|
Security:
|
|
Floating Rate Notes due 2013
|
|
|
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Format:
|
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SEC Registered
|
|
|
|
Size:
|
|
$400,000,000
|
|
|
|
Maturity Date:
|
|
August 23, 2013
|
|
|
|
Trade Date:
|
|
August 17, 2011
|
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|
|
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Expected Settlement Date:
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August 24, 2011; T+5
We expect that delivery of the notes will be
made to investors on or about August 24,
2011, which will be the fifth business day
following the date of this final term sheet
(such settlement being referred to as
T+5). Under Rule 15c6-1 under the
Exchange Act, trades in the secondary market
are required to settle in three business
days, unless the parties to any such trade
expressly agree otherwise. Accordingly,
purchasers who wish to trade notes on the
date of this final term sheet or the next
succeeding business day will be required, by
virtue of the fact that the notes initially
settle in T+5, to specify an alternate
settlement arrangement at the time of any
such trade to prevent a failed settlement.
Purchasers of the notes who wish to trade
the notes on the date of this final term
sheet or the next succeeding business day
should consult their advisors.
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Interest Payment Dates:
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Quarterly in arrears on February 23, May 23, August 23 and November 23, commencing November 23, 2011
|
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Floating Interest Rate:
|
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Three-month LIBOR determined on the Interest Determination Date plus .75%, reset quarterly; interest payable calculated on the basis of a 360 day year
|
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Interest
Determination Date:
|
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Second London Business Day preceding the first day of the applicable interest period
|
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LIBOR:
|
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Reuters Page LIBOR 01 as of approximately 11:00 a.m., London time on the applicable Interest Determination Date
|
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Price to Public:
|
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100%
|
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Voluntary Redemption:
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Not permitted
|
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Special Mandatory Redemption:
|
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If, for any reason, the acquisition of The Timberland Company is not completed on or prior to the Outside Date, Issuer will be required to redeem all outstanding notes on or before the Special Mandatory Redemption Date at a price equal to 101% of the
aggregate principal amount of the notes, together with accrued and unpaid interest to but excluding the Special Mandatory Redemption Date.
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Special Mandatory
Redemption Date:
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The date which is 20 business days after the Outside Date
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Outside Date:
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The earlier of (i) March 12, 2012 and (ii) the date
which the Merger Agreement dated June 12, 2011 among the
Issuer, its wholly-owned subsidiary, VF Enterprises,
Inc., and The Timberland Company is terminated.
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CUSIP:
|
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918204 AU2
|
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Joint Book-Running Managers:
|
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Merrill Lynch, Pierce, Fenner & Smith
Incorporated
J.P. Morgan Securities LLC
Wells Fargo Securities, LLC
|
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Senior Co-Managers:
|
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Citigroup Global Markets Inc.
HSBC Securities (USA) Inc.
|
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Co-Managers:
|
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Barclays Capital Inc.
BNP Paribas Securities Corp.
ING Financial Markets LLC
Morgan Stanley & Co. LLC
PNC Capital Markets LLC
RBS Securities Inc.
Santander Investment Securities Inc.
U.S. Bancorp Investments, Inc.
|
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3.500% Notes due 2021
|
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|
|
Issuer:
|
|
V.F. Corporation
|
|
|
|
Security:
|
|
3.500% Notes due 2021
|
|
|
|
Format:
|
|
SEC Registered
|
|
|
|
Size:
|
|
$500,000,000
|
|
|
|
Maturity Date:
|
|
September 1, 2021
|
|
|
|
Trade Date:
|
|
August 17, 2011
|
|
|
|
|
|
|
Expected Settlement Date:
|
|
August 24, 2011; T+5
We expect that delivery of the notes will be
made to investors on or about August 24, 2011,
which will be the fifth business day following
the date of this final term sheet (such
settlement being referred to as T+5). Under
Rule 15c6-1 under the Exchange Act, trades in
the secondary market are required to settle in
three business days, unless the parties to any
such trade expressly agree otherwise.
Accordingly, purchasers who wish to trade notes
on the date of this final term sheet or the next
succeeding business day will be required, by
virtue of the fact that the notes initially
settle in T+5, to specify an alternate
settlement arrangement at the time of any such
trade to prevent a failed settlement.
Purchasers of the notes who wish to trade the
notes on the date of this final term sheet or
the next succeeding business day should consult
their advisors.
|
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|
Interest Payment Dates:
|
|
Semi-annually in arrears on March 1 and September 1, commencing March 1, 2012
|
|
|
|
Coupon:
|
|
3.500%; interest payable calculated on the basis of a 360 day year
|
|
|
|
Benchmark Treasury:
|
|
U.S. Treasury 2.125% due August 15, 2021
|
|
|
|
Benchmark Treasury Price and
|
|
99 21+; 2.162%
|
Yield:
|
|
|
|
|
|
Spread to Benchmark Treasury:
|
|
+137.5 bps
|
|
|
|
Yield:
|
|
3.537%
|
|
|
|
Price to Public:
|
|
99.690%
|
|
|
|
Voluntary Redemption:
|
|
The notes may be redeemed, at the option of the Issuer, in whole
or in part at any time. Prior to June 1, 2021, (three months prior to the maturity date), the redemption price will be equal
to the greater of (i) 100% of the principal amount of notes being redeemed and (ii) the sum of the present value of the remaining
scheduled payments of principal and interest on the notes to be redeemed, discounted on the redemption date on a semi-annual basis plus a make-whole premium of 20 bps, plus, in each case, accrued and unpaid interest through the redemption
date. On or after June 1, 2021, (three months prior to the maturity date), the redemption price will be equal to 100%
of the principal amount of notes being redeemed, plus accrued and unpaid interest through the redemption date.
|
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Special Mandatory Redemption:
|
|
If, for any reason, the acquisition of The Timberland Company is
not completed on or prior to the Outside Date, Issuer will be required to redeem all outstanding notes on or before the Special Mandatory Redemption Date at a price equal to 101% of the
aggregate principal amount of the notes, together with accrued
and unpaid interest to but excluding the Special Mandatory Redemption Date.
|
|
|
|
Special Mandatory Redemption
|
|
The date which is 20 business days after the Outside Date
|
Date:
|
|
|
|
|
|
Outside Date:
|
|
The earlier of (i) March 12, 2012 and (ii) the date which the
Merger Agreement dated June 12, 2011 among the Issuer, its wholly-owned subsidiary, VF Enterprises, Inc., and The Timberland Company is terminated.
|
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|
|
CUSIP:
|
|
918204 AV0
|
|
|
|
Joint Book-Running Managers:
|
|
Merrill Lynch, Pierce, Fenner & Smith Incorporated
|
|
|
J.P. Morgan Securities LLC
|
|
|
Wells Fargo Securities, LLC
|
|
|
|
Senior
Co-Managers:
|
|
Citigroup Global Markets Inc.
|
|
|
HSBC Securities (USA) Inc.
|
|
|
|
Co-Managers:
|
|
Barclays Capital Inc.
|
|
|
BNP Paribas Securities Corp.
|
|
|
ING Financial Markets LLC
|
|
|
Morgan Stanley & Co. LLC
|
|
|
PNC Capital Markets LLC
|
|
|
RBS Securities Inc.
|
|
|
Santander Investment Securities Inc.
|
|
|
U.S. Bancorp Investments, Inc.
|
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
EDGAR on the SEC Web site at www.sec.gov. 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
Merrill Lynch, Pierce, Fenner & Smith Incorporated at 1-800-294-1322 or e-mailing a request to
dg.prospectus_requests@baml.com or by calling J.P. Morgan Securities LLC at 212-834-4533.
SCHEDULE V
Schedule of Material Domestic Subsidiaries and Limited Partnerships of the Company
Lee Bell, Inc. (DE)
Ring Company (DE)
VF Contemporary Brands, Inc. (DE)
VF Imagewear, Inc. (DE)
VF Jeanswear Limited Partnership (DE)
VF Outdoor, Inc. (DE)
VF Services, Inc. (DE)
VF Sportswear, Inc. (DE)
EXHIBIT A
Form of Davis Polk & Wardwell LLP Legal Opinion
August [], 2011
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
J.P. Morgan Securities LLC
as Representatives of the several Underwriters named in
Schedule II to the Underwriting Agreement referred to below
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
One Bryant Park
New York, New York 10036
Ladies and Gentlemen:
We have acted as special counsel for V.F. Corporation, a Pennsylvania corporation (the
Company), in connection with the Underwriting Agreement dated August 17, 2011 (the Underwriting
Agreement) with you and the other several Underwriters named in Schedule II thereto under which
you and such other Underwriters have severally agreed to purchase from the Company $400,000,000
aggregate principal amount of its Floating Rate Notes due 2013 (the Floating Rate Notes) and
$500,000,000 aggregate principal amount of its 3.500% Notes due 2021 (together with the Floating
Rate Notes, the Securities). The Securities are to be issued pursuant to the provisions of the
Indenture dated as of October 15, 2007 (the Base Indenture), as supplemented by the Second
Supplemental Indenture dated as of August 24, 2011 (together with the Base Indenture, the
Indenture) between the Company and The Bank of New York Mellon Trust Company, N.A., formerly
known as The Bank of New York Trust Company, N.A., as trustee.
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 purpose of rendering this opinion.
We have participated in the preparation of the Companys registration statement on Form S-3
(File No. 333-175700) (other than the documents incorporated by reference therein (the
Incorporated Documents)) filed with the Securities and Exchange Commission (the Commission)
pursuant to the provisions of the Securities Act of 1933, as amended (the Act), relating to the
registration of securities (the Shelf Securities) to be issued from time to time by the Company,
the preliminary prospectus supplement dated August 17, 2011 relating to the Securities (the
Preliminary Prospectus Supplement), the pricing term sheet dated August 17, 2011 relating to the
Securities (together with the Preliminary Prospectus Supplement, the Disclosure Package) and the
prospectus supplement dated August 17, 2011 relating to the Securities (the Prospectus
Supplement), and have reviewed the Incorporated Documents. The registration statement became
effective under the Act and the Indenture qualified under the Trust Indenture Act of 1939, as
amended (the Trust Indenture Act), upon the filing of the registration statement with the
Commission on July 21, 2011 pursuant to Rule 462(e). The registration statement at
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Merrill Lynch, Pierce, Fenner & Smith
Incorporated
|
|
|
|
|
J.P. Morgan Securities LLC
|
|
|
|
August [], 2011
|
the date of the Underwriting Agreement, including the Incorporated Documents and the information
deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430B
under the Act, is hereinafter referred to as the Registration Statement, and the related
prospectus (including the Incorporated Documents) dated July 21, 2011 relating to the Shelf
Securities is hereinafter referred to as the Basic Prospectus. The Basic Prospectus, as
supplemented by the Prospectus Supplement, in the form first used to confirm sales of the
Securities (or in the form first made available by the Company to the Underwriters to meet requests
of purchasers of the Securities under Rule 173 under the Act), is hereinafter referred to as the
Prospectus.
We have assumed the conformity of the documents filed with the Commission via the Electronic
Data Gathering, Analysis and Retrieval System (EDGAR), except for required EDGAR formatting
changes, to physical copies of the documents submitted for our examination.
Based upon the foregoing, we are of the opinion that:
1. The Indenture has been duly qualified under the Trust Indenture Act 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, concepts of reasonableness and equitable
principles of general applicability, provided that we express no opinion as to the (x)
enforceability of any waiver of rights under any usury or stay law, (y) the effect of fraudulent
conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed
above and (z) validity, legally binding effect or enforceability of any provision that permits
holders to collect any portion of stated principal amount upon acceleration of the Securities to
the extent determined to constitute unearned interest.
2. 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, concepts of reasonableness 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 (x) enforceability of
any waiver of rights under any usury or stay law, (y) the effect of fraudulent conveyance,
fraudulent transfer or similar provision of applicable law on the conclusions expressed above and
(z) validity, legally binding effect or enforceability of any provision that permits holders to
collect any portion of stated principal amount upon acceleration of the Securities to the extent
determined to constitute unearned interest.
3. The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
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Merrill Lynch, Pierce, Fenner & Smith Incorporated
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J.P. Morgan Securities LLC
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August [], 2011
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4. The Agreement and Plan of Merger (as amended, the Merger Agreement) by and among the
Company, VF Enterprises, Inc. and The Timberland Company has been duly authorized, executed and
delivered by the Company.
5. 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.
6. The execution and delivery by the Company of, and the performance by the Company of its
obligations under, the Indenture, the Securities, the Merger Agreement 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 specified in Annex A hereto.
7. No consent, approval, authorization, or order of, or qualification with, any governmental
body or agency under 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 is required for the execution, delivery
and performance by the Company of its obligations under the Documents, except such as may be
required under federal or state securities or Blue Sky laws as to which we express no opinion.
8. We have considered the statements included in the Disclosure Package and the Prospectus
under the captions Description of the Notes and Description of Debt Securities insofar as they
summarize provisions of the Indenture and the Securities. In our opinion, such statements fairly
summarize these provisions in all material respects. The statements included in the Disclosure
Package and the Prospectus under the caption Material U.S. Federal Income Tax Consequences,
insofar as they purport to describe provisions of U.S. federal income tax laws or legal conclusions
with respect thereto, in our opinion fairly and accurately summarize the matters referred to
therein in all material respects.
In rendering the opinions in paragraphs (1) through (4) above, we have assumed that each party
to the Documents has been duly incorporated and is validly existing and in good standing under the
laws of the jurisdiction of its organization. In addition, we have assumed that (i) the execution,
delivery and performance by each party thereto of each Document to which it is a party, (a) are
within its corporate powers, (b) do not contravene, or constitute a default under, the certificate
of incorporation or bylaws or other constitutive documents of such party, (c) require no action by
or in respect of, or filing with, any governmental body, agency or official and (d) do not
contravene, or constitute a default under, any provision of applicable law or regulation or any
judgment, injunction, order or decree or any agreement or other
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instrument binding upon such party, provided that we make no such assumption to the extent that we
have specifically opined as to such matters with respect to the Company, and (ii) each Document
(other than the Underwriting Agreement) is a valid, binding and enforceable agreement of each party
thereto (other than as expressly covered above in respect of the Company).
We are members of the Bar of the State of New York, and the foregoing opinion is limited to
the laws of the State of New York and the federal laws of the United States of America, except that
we express no opinion as to any law, rule or regulation that is applicable to the Company, the
Documents or such transactions solely because such law, rule or regulation is part of a regulatory
regime applicable to any party to any of the Documents or any of its affiliates due to the specific
assets or business of such party or such affiliate. Insofar as the foregoing opinion involves
matters governed by the laws of the Commonwealth of Pennsylvania, we have relied, without
independent investigation, on the opinion of Candace S. Cummings, Vice President Administration,
General Counsel and Secretary of the Company, delivered to you today pursuant to the Underwriting
Agreement.
This opinion is rendered solely to you and the other several Underwriters in connection with
the Underwriting Agreement. This opinion may not be relied upon by you for any other purpose or
relied upon by any other person (including any person acquiring Securities from the several
Underwriters) or furnished to any other person without our prior written consent.
4
ANNEX A
1. Credit Agreement dated October 15, 2007, by and among V.F. Corporation, as Borrower, Bank of
America, N.A., as Administrative Agent, Swing Line Lender and a Lender, and the other parties
thereto
2. International Credit Agreement dated October 26, 2007, by and among VF Investments S.a.r.l., VF
Europe BVBA, and VF International S.a.g.l., as Borrowers; VF Corporation, as Guarantor, and the
Lenders party thereto
3. Voting Agreement dated as of June 12, 2011 among V.F. Corporation and the stockholders named
therein
EXHIBIT B
Form of Davis Polk & Wardwell LLP 10b-5 Letter
August [], 2011
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
J.P. Morgan Securities LLC
as Representatives of the several Underwriters named in
Schedule II to the Underwriting Agreement referred to below
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
One Bryant Park
New York, New York 10036
Ladies and Gentlemen:
We have acted as special counsel for V.F. Corporation, a Pennsylvania corporation (the
Company), in connection with the Underwriting Agreement dated August 17, 2011 (the Underwriting
Agreement) with you and the other several Underwriters named in Schedule II thereto under which
you and such other Underwriters have severally agreed to purchase from the Company $400,000,000
aggregate principal amount of its Floating Rate Notes due 2013 (the Floating Rate Notes) and
$500,000,000 aggregate principal amount of its 3.500% Notes due 2021 (together with the Floating
Rate Notes, the Securities). The Securities are to be issued pursuant to the provisions of the
Indenture dated as of October 15, 2007 (the Base Indenture), as supplemented by the Second
Supplemental Indenture dated as of August 24, 2011 (together with the Base Indenture, the
Indenture) between the Company and The Bank of New York Mellon Trust Company, N.A., formerly
known as The Bank of New York Trust Company, N.A., as trustee (the Trustee).
We have participated in the preparation of the Companys registration statement on Form S-3
(File No. 333-175700) (other than the documents incorporated by reference therein (the
Incorporated Documents)) filed with the Securities and Exchange Commission (the Commission)
pursuant to the provisions of the Securities Act of 1933, as amended (the Act), relating to the
registration of securities (the Shelf Securities) to be issued from time to time by the Company,
the preliminary prospectus supplement dated August 17, 2011 (the Preliminary Prospectus
Supplement) relating to the Securities, the pricing term sheet dated August 17, 2011 set forth in
Schedule III to the Underwriting Agreement for the Securities (the Pricing Term Sheet) and the
prospectus supplement dated August 17, 2011 relating to the Securities (the Prospectus
Supplement), and have reviewed the Incorporated Documents. The registration statement at the date
of the Underwriting Agreement, including the Incorporated Documents and the information deemed to
be part of the registration statement at the time of effectiveness pursuant to Rule 430B under the
Act, is hereinafter referred to as the Registration Statement, and the related prospectus
(including the Incorporated Documents) dated July 21, 2011 relating to the Shelf Securities is
hereinafter referred to as the Basic Prospectus. The Basic Prospectus, as supplemented by the
Preliminary Prospectus Supplement, together with the Pricing Term Sheet, are hereinafter referred
to as the Disclosure Package. The Basic Prospectus, as supplemented by the Prospectus
Supplement, in the form first used to confirm sales of the Securities (or in the form first made
available by the Company to the Underwriters to meet requests of purchasers of the Securities under
Rule 173 under the Act), is hereinafter referred to as the Prospectus.
We have assumed the conformity of the documents filed with the Commission via the Electronic
Data Gathering, Analysis and Retrieval System (EDGAR), except for required EDGAR formatting
changes, to physical copies of the documents submitted for our examination.
The primary purpose of our professional engagement was not to establish or confirm factual
matters or financial, accounting or quantitative information. Furthermore, many determinations
involved in the preparation of the Registration Statement, the Disclosure Package and the
Prospectus are of a wholly or partially non-legal character or relate to legal matters outside the
scope of our opinion separately delivered to you today in respect of certain matters under the laws
of the State of New York and the federal laws of the United States of America. As a result, we are
not passing upon, and do not assume any responsibility for, the accuracy, completeness or fairness
of the statements contained in the Registration Statement, the Disclosure Package and the
Prospectus, and we have not ourselves checked the accuracy, completeness or fairness of, or
otherwise verified, the information furnished in such documents (except to the extent expressly set
forth in our opinion letter separately delivered to you today as to statements included in the
Disclosure Package and the Prospectus under the captions Description of the Notes, Description
of Debt Securities and Material U.S. Federal Income Tax Consequences). However, in the course
of our acting as counsel to the Company in connection with the preparation of the Registration
Statement, the Disclosure Package and the Prospectus, we have generally reviewed and discussed with
your representatives and your counsel and with certain officers and employees of, and independent
public accountants for, the Company the information furnished, whether or not subject to our check
and verification. We have also reviewed and relied upon certain corporate records and documents,
letters from counsel and accountants and oral and written statements of officers and other
representatives of the Company and others as to the existence and consequence of certain factual
and other matters.
On the basis of the information gained in the course of the performance of the services
rendered above, but without independent check or verification except as stated above:
(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 our attention that causes us to believe that, insofar as relevant to
the offering of the Securities:
(a) 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,
(b) at 3:30 P.M. New York City time on August 17, 2011, 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
(c) the Prospectus as of the date of the Underwriting Agreement 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.
In providing this letter to you and the other several Underwriters, we have not been called to
pass upon, and we express no view regarding, the financial statements or financial schedules or
other financial or accounting data included in the Registration Statement, the Disclosure Package,
the Prospectus, or the Statement of Eligibility of the Trustee on Form T-1. In addition, we
express no view as to the conveyance of the Disclosure Package or the information contained therein
to investors.
This letter is delivered solely to you and the other several Underwriters in connection with
the Underwriting Agreement. This letter may not be relied upon by you for any other purpose or
relied upon by any other person (including any person acquiring Securities from the several
Underwriters) or furnished to any other person without our prior written consent.
EXHIBIT C
Form of General Counsel Opinion
August [], 2011
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
J.P. Morgan Securities LLC
As Representatives of the Several Underwriters
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
One Bryant Park
New York, New York 10036
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Re: V.F. Corporation
$400,000,000 Floating Rate Notes due 2013 and
$500,000,000 3.500% Notes due 2021
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Ladies and Gentlemen:
I have acted as counsel to V.F. Corporation, a Pennsylvania corporation (the Company), in
connection with the issue and sale to you as representatives of the several underwriters named in
Schedule II to the Underwriting Agreement, dated August 17, 2011 (the Underwriting Agreement), of
$400,000,000 aggregate principal amount of the Companys Floating Rate Notes due 2013 (the
Floating Rate Notes) and $500,000,000 aggregate principal amount of the Companys 3.500% Notes
due 2021 (together with the Floating Rate Notes, the Notes), to be issued pursuant to the
Indenture, dated as of October 15, 2007 (the Base Indenture), as supplemented by the Second
Supplemental Indenture, dated as of August 24, 2011 (together with the Base Indenture, the
Indenture), between the Company and The Bank of New York Mellon Trust Company, N.A., formerly
known as The Bank of New York Trust Company, N.A., as trustee. Capitalized terms used herein
unless otherwise defined shall have the meanings specified in the Underwriting Agreement.
I have examined (a) the Restated Articles of Incorporation of the Company; (b) the By-laws of
the Company; (c) the registration statement on Form S-3 (File No. 333-175700) filed with Securities
and Exchange Commission (the Commission) with respect to the registration under the Securities
Act of 1933, as amended (the Act), of common stock, preferred stock, debt securities, warrants,
purchase contracts and units to be issued from time to time by the Company (such registration
statement in the form in which it became effective under the Act, including all material
incorporated by reference therein, being hereinafter called the Registration Statement); (d) the
prospectus dated July 21, 2011, as supplemented by the prospectus supplement dated August 17, 2011,
in the form filed with the Commission pursuant to Rule 424(b) under the Act (such prospectus,
including all material incorporated by reference therein, and such prospectus supplement being
hereinafter called the Prospectus); (e) the documents constituting the Disclosure Package; (f)
the Underwriting Agreement; (g) the Indenture; (h) the Merger Agreement; (i) the form of Notes
approved by an officer of the
Company duly authorized by the Board of Directors of the Company to approve the terms of such
Notes; (j) certain resolutions adopted by the Board of Directors of the Company at a meeting held
on July 19, 2011; and (k) such other documents and instruments as I have deemed necessary or
advisable for the purpose of rendering this opinion. I am also familiar with the proceedings by
which such instruments and the transactions contemplated thereby were authorized 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.
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) Each of the Underwriting Agreement, the Indenture, the Merger Agreement and the Notes has
been duly authorized, executed and delivered by the Company;
(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
condition (financial or otherwise), prospects, earnings, business or properties of the Company and
its subsidiaries, 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 domestic subsidiary and limited partnership of the Company listed on
Schedule V of the Underwriting Agreement has been duly organized and is validly existing as a
corporation, partnership or limited liability company, as the case may be, is 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 material domestic subsidiary 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 after reasonable investigation, free and clear of all
liens, encumbrances, equities or claims;
(v) To the best of my knowledge after reasonable investigation 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 condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its subsidiaries,
taken as a whole; and, to the best of my knowledge after reasonable investigation, 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); and, to the best of my
knowledge after reasonable investigation, 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;
(vii) The issue and sale of the Notes and the compliance by the Company with all of the
provisions of the Notes, the Indenture, the Merger Agreement 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 Restated 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 condition
(financial or otherwise), prospects, earnings, business or properties of the Company and its
subsidiaries, 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 Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder, and, after reasonable inquiry,
I have 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, schedules and other financial data included or incorporated by reference therein or
excluded therefrom or the exhibits thereto;
(ix) I have 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 I have 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).
This opinion is rendered to you solely in connection with the Underwriting 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 Davis Polk & Wardwell LLP and
Shearman & Sterling 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.
Exhibit 4.2
V.F. CORPORATION
Second Supplemental Indenture
Dated as of August 24, 2011
(Second Supplemental to the Indenture Dated as of October 15, 2007)
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
SECOND SUPPLEMENTAL INDENTURE, dated as of August 24, 2011 (the
Second Supplemental
Indenture
), between V.F. Corporation, a corporation duly organized and existing under the laws of
the Commonwealth of Pennsylvania (herein called the
Company
), and The Bank of New York Mellon
Trust Company, N.A., formerly known as The Bank of New York Trust Company, N.A., a national banking
association, as Trustee (herein called
Trustee
);
RECITALS:
WHEREAS, the Company has heretofore executed and delivered to the Trustee an Indenture, dated
as of October 15, 2007 (the
Base Indenture
), providing for the issuance from time to time of the
Companys unsecured debentures, notes or other evidences of indebtedness (herein and therein called
the
Securities
), to be issued in one or more series as provided in the Base Indenture;
WHEREAS, Section 9.01 of the Base Indenture permits the Company and the Trustee to enter into
an indenture supplemental to the Base Indenture to establish the form and terms of any series of
Securities;
WHEREAS, Section 2.01 of the Base Indenture permits the form of Securities of any series to be
established in an indenture supplemental to the Base Indenture;
WHEREAS, Section 3.01 of the Base Indenture permits certain terms of any series of Securities
to be established pursuant to an indenture supplemental to the Base Indenture;
WHEREAS, pursuant to Sections 2.01 and 3.01 of the Base Indenture, the Company desires to
provide for the establishment of two new series of Securities under the Base Indenture, the form
and substance of such Securities and the terms, provisions and conditions thereof to be set forth
as provided in the Base Indenture and this Second Supplemental Indenture;
WHEREAS, all things necessary to make this Second Supplemental Indenture a valid agreement of
the Company, in accordance with its terns, have been done;
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities of both series
established by this Second Supplemental Indenture by the holders thereof (the
Noteholders
), it is
mutually agreed, for the equal and proportionate benefit of all such Noteholders, as follows:
ARTICLE 1
Definitions and Other Provisions of General Application
Section 1.01.
Relation to Base Indenture.
This Second Supplemental Indenture constitutes a
part of the Base Indenture (the provisions of which, as modified by this Second Supplemental
Indenture, shall apply to the Notes) in respect of the Notes but shall not modify, amend or
otherwise affect the Base Indenture insofar as it relates to any other
series of Securities or modify, amend or otherwise affect in any manner the terms and
conditions of the Securities of any other series.
Section 1.02.
Definitions.
For all purposes of this Second Supplemental Indenture, the
capitalized terms used herein (i) which are defined in this Section 1.02 have the respective
meanings assigned hereto in this Section 1.02 and (ii) which are defined in the Base Indenture (and
which are not defined in this Section 1.02) have the respective meanings assigned thereto in the
Base Indenture. For all purposes of this Second Supplemental Indenture:
(a) Unless the context otherwise requires, any reference to an Article or Section refers to an
Article or Section, as the case may be, of this Second Supplemental Indenture;
(b) The words herein, hereof and hereunder and words of similar import refer to this
Second Supplemental Indenture as a whole and not to any particular Article, Section or other
subdivision; and
(c) The terms defined in this Section 1.02(c) have the meanings assigned to them in this
Section and include the plural as well as the singular:
Below Investment Grade Rating Event
means the Notes are rated below Investment Grade by each
of the Rating Agencies on any date from the date of the public notice of an arrangement that could
result in a Change of Control until the end of the 60-day period following public notice of the
occurrence of a Change of Control (which period shall be extended so long as the rating of the
Floating Rate Notes or the Fixed Rate Notes is under publicly announced consideration for possible
downgrade by any of the Rating Agencies);
provided
, that a Below Investment Grade Rating Event
otherwise arising by virtue of a particular reduction in rating shall not be deemed to have
occurred in respect of a particular Change of Control (and thus shall not be deemed a Below
Investment Grade Rating Event for purposes of the definition of Change of Control Repurchase Event
hereunder) if the Rating Agencies making the reduction in rating to which this definition would
otherwise apply do not announce or publicly confirm or inform the Trustee in writing at its request
that the reduction was the result, in whole or in part, of any event or circumstance composed of or
arising as a result of, or in respect of, the applicable Change of Control (whether or not the
applicable Change of Control shall have occurred at the time of the Below Investment Grade Rating
Event). The Trustee shall not be charged with knowledge of a Below Investment Grade Rating Event
unless it has received actual notice thereof.
2
Business Day
is any day, other than a Saturday, Sunday or other day on which banking
institutions in The City of New York are authorized or required by law or executive order to remain
closed.
Calculation Agent
has the meaning set forth in Section 3.01(d).
Change of Control
means the occurrence of any of the following: (1) the direct or indirect
sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in
one or a series of related transactions, of all or substantially all of the properties or assets of
the Company and its subsidiaries taken as a whole to any person (as that term is used in Section
13(d)(3) of the Exchange Act), other than the
Company or one of its subsidiaries; (2) the consummation of any transaction (including,
without limitation, any merger or consolidation) the result of which is that any person (as that
term is used in Section 13(d)(3) of the Exchange Act) becomes the beneficial owner, directly or
indirectly, of more than 50% of the then outstanding number of shares of the Companys Voting
Stock; (3) the first day on which a majority of the members of the Companys Board of Directors are
not Continuing Directors; (4) the consummation by the Company of a consolidation with, or merger
with or into, any person (as that term is used in Section 13(d)(3) of the Exchange Act) or the
consummation by any person (as that term is used in Section 13(d)(3) of the Exchange Act) of a
consolidation with, or merger with or into, the Company, in any such event pursuant to a
transaction in which any of the outstanding Voting Stock of the Company is converted into or
exchanged for cash, securities or other property, other than any such transaction where the Voting
Stock of the Company outstanding immediately prior to such transaction constitutes, or is converted
into or exchanged for, a majority of the Voting Stock of the surviving person immediately after
giving effect to such transaction; or (5) the adoption of a plan relating to the liquidation or
dissolution of the Company.
Change of Control Notice
has the meaning set forth in Section 5.01.
Change of Control Repurchase Event
means the occurrence of both a Change of Control and a
Below Investment Grade Rating Event.
Continuing Directors
means, as of any date of determination, any member of the Board of
Directors of the Company who (1) was a member of such Board of Directors on the date of the
issuance of the Notes; or (2) was nominated for election or elected to such Board of Directors with
the approval of a majority of the Continuing Directors who were members of such Board of Directors
at the time of such nomination or election (either by a specific vote or by approval of the
Companys proxy statement in which such member was named as a nominee for election as a director).
Daily Interest Amount
has the meaning set forth in Section 3.01(d).
Exchange Act
means the Securities Exchange Act of 1934, as amended.
Fitch
means Fitch, Inc., and any successor thereto.
Fixed Rate Note Interest Payment Date
has the meaning set forth in Section 2.01(d).
3
Fixed Rate Note Interest Period
has the meaning set forth in Section 2.01(d).
Fixed Rate Note Maturity Date
has the meaning set forth in Section 2.01(c).
Fixed Rate Notes
has the meaning set forth in Section 2.01(a).
Floating Rate Note Interest Determination Date
has the meaning set forth in Section 3.01(d).
Floating Rate Note Interest Payment Date
has the meaning set forth in Section 3.01(d).
Floating Rate Note Interest Period
has the meaning set forth in Section 3.01(d).
Floating Rate Note Interest Reset Date
has the meaning set forth in Section 3.01(d).
Floating Rate Note Maturity Date
has the meaning set forth in Section 3.01(c).
Floating Rate Notes
has the meaning set forth in Section 3.01(a).
Initial Floating Rate Note Interest Period
has the meaning set forth in Section 3.01(d).
Investment Grade
means a rating of Baa3 or better by Moodys (or its equivalent under any
successor rating categories of Moodys); a rating of BBB- or better by S&P (or its equivalent under
any successor rating categories of S&P); and a rating of BBB- or better by Fitch (or its equivalent
under any successor rating categories of Fitch); or the equivalent investment grade credit rating
from any additional Rating Agency or Rating Agencies selected by the Company.
London Business Day
has the meaning set forth in Section 3.01(d).
Merger Agreement
means that certain Agreement and Plan of Merger dated as of June 12, 2011
by and among the Company, VF Enterprises, Inc. and The Timberland Company, as amended.
Moodys
means Moodys Investors Service, Inc. and any successor thereto.
Notes
means the Fixed Rate Notes together with the Floating Rate Notes.
Outside Date
has the meaning set forth in Section 4.01.
Rating Agency
means (1) each of Fitch, Moodys and S&P; and (2) if any of Fitch, Moodys or
S&P ceases to rate the Notes or fails to make a rating of the Notes publicly available for reasons
outside of the Companys control, a nationally recognized statistical rating organization within
the meaning of Section 3(a)(62) of the Exchange
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Act, selected by the Company as a replacement
agency for Fitch, Moodys or S&P, as the case may be.
S&P
means Standard & Poors Ratings Services, a division of The McGraw-Hill Companies, Inc.,
and any successor thereto.
Special Mandatory Redemption Date
has the meaning set forth in Section 4.01.
Special Mandatory Redemption Event
has the meaning set forth in Section 4.01.
Special Mandatory Redemption Price
has the meaning set forth in Section 4.01.
three-month LIBOR
, has the meaning set forth in Section 3.01(d).
Voting Stock
means, with respect to any person, capital stock of any class or kind the
holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election
of directors (or persons performing similar functions) of such person, even if the right so to vote
has been suspended by the happening of such a contingency.
ARTICLE 2
General Terms and Conditions of the Fixed Rate Notes
Section 2.01.
Terms of Fixed Rate Notes.
Pursuant to Sections 2.01 and 3.01 of the Base
Indenture, there is hereby established a series of Securities, the terms of which shall be as
follows:
(a)
Designation.
The Securities of this series shall be known and designated as the 3.500%
Notes due 2021 (the
Fixed Rate Notes
) of the Company. The CUSIP number of the Fixed Rate Notes
is 918204 AV0. If Additional Securities are issued pursuant to Section 3.01 of the Base Indenture,
and if such Additional Securities are not fungible with the Fixed Rate Notes for U.S. federal
income tax purposes, such Additional Securities will have a separate CUSIP number.
(b)
Form and Denominations.
The Fixed Rate Notes will be issued only in fully registered
form, and the authorized denominations of the Fixed Rate Notes shall be $2,000 principal amount and
any integral multiple of $1,000 in excess thereof. The Fixed Rate Notes will initially be issued
in the form of one or more Global Securities substantially in the form of Annex A attached hereto,
with such modifications thereto as may be approved by the authorized officer executing the same.
The Fixed Rate Notes will be denominated in U.S. dollars and payments of principal and interest
will be made in U.S. dollars.
(c)
Maturity Date.
The principal amount of, and all accrued and unpaid interest on, the Fixed
Rate Notes shall be payable in full on September 1, 2021, or if such
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day is not a Business Day, the
following Business Day (the
Fixed Rate Note Maturity Date
).
(d)
Interest.
Interest payable on any Fixed Rate Note Interest Payment Date, the Fixed Rate
Note Maturity Date or, if applicable, the Redemption Date (as defined in the Base Indenture) shall
be the amount accrued from, and including, the immediately preceding Fixed Rate Note Interest
Payment Date in respect of which interest has been paid or duly provided for (or from and including
the original issue date of August 24, 2011, if no interest has been paid or duly provided for with
respect to the Fixed Rate Notes) to but excluding such Fixed Rate Note Interest Payment Date, Fixed
Rate Note Maturity Date or, if applicable, Redemption Date, as the case may be (each, a
Fixed Rate
Note Interest Period
). The Fixed Rate Notes will bear interest at the rate of 3.500% per year
from the original issue date thereof to the Fixed Rate Note Maturity Date. Interest on the Fixed
Rate Notes shall be payable semi-annually in arrears on March 1 and September 1 of each year,
beginning on March 1, 2012 (each such date, a
Fixed Rate Note Interest Payment Date
). The amount
of interest payable for any semi-annual Fixed Rate Note Interest Period will be computed on the basis of a 360-day year
consisting of twelve 30-day months.
The amount of interest payable for any period shorter than a full semi-annual Fixed Rate Note
Interest Period for which interest is computed will be computed on the basis of the actual number
of days elapsed per 30-day month. In the event any Fixed Rate Note Interest Payment Date on or
before the Fixed Rate Note Maturity Date falls on a day that is not a Business Day, the interest
payment due on that date will be postponed to the next day that is a Business Day and no interest
shall accrue as a result of such postponement.
In the event the Fixed Rate Note Maturity Date or a Redemption Date for the Fixed Rate Notes
falls on a day that is not a Business Day, then the related payments of principal, premium, if any,
and interest may be made on the next succeeding date that is a Business Day (and no additional
interest will accumulate on the amount payable for the period from and after the Fixed Rate Note
Maturity Date). Interest due on the Fixed Rate Note Maturity Date or a Redemption Date (in each
case, whether or not a Fixed Rate Note Interest Payment Date) will be paid to the Person to whom
principal of such Fixed Rate Notes is payable.
(e)
To Whom Interest is Payable.
Interest shall be payable to the Person in whose name the
Fixed Rate Notes are registered at the close of business on the Business Day next preceding the
Fixed Rate Note Interest Payment Date, or in the event the Fixed Rate Notes cease to be held in the
form of one or more Global Securities, at the close of business on the date 15 days prior to that
Fixed Rate Note Interest Payment Date, whether or not a Business Day.
(f)
Sinking Fund; Noteholder Repurchase Right.
The Fixed Rate Notes shall not be subject to
any sinking fund or analogous provision or be redeemable at the option of the Noteholders.
6
(g)
Forms.
The Fixed Rate Notes shall be substantially in the form of Annex A attached
hereto, with such modifications thereto as may be approved by the authorized officer executing the
same.
(h)
Registrar, Paying Agent, Authenticating Agent and Place of Payment.
The Company hereby
appoints U.S. Bank National Association as Security Registrar, Authenticating Agent and Paying
Agent with respect to the Fixed Rate Notes. The Fixed Rate Notes may be surrendered for
registration of transfer and for exchange at the office or agency of the Company maintained for
such purpose in the City of New York, New York and at any other office or agency maintained by the
Company for such purpose. The Place of Payment for the Fixed Rate Notes shall be the Paying
Agents office in New York, New York.
(i)
Defeasance.
Until the Fixed Rate Note Maturity Date, the Fixed Rate Notes will be subject
to Sections 13.02 and 13.03 of the Base Indenture.
ARTICLE 3
General Terms and Conditions of the Floating Rate Notes
Section 3.01.
Terms of Floating Rate Notes.
Pursuant to Sections 2.01 and 3.01 of the Base
Indenture, there is hereby established a series of Securities, the terms of which shall be as
follows:
(a)
Designation.
The Securities of this series shall be known and designated as the Floating
Rate Notes due 2013 (the
Floating Rate Notes
) of the Company. The CUSIP number of the Floating
Rate Notes is 918204 AU2. If Additional Securities are issued pursuant to Section 3.01 of the Base
Indenture, and if such Additional Securities are not fungible with the Floating Rate Notes for U.S.
federal income tax purposes, such Additional Securities will have a separate CUSIP number.
(b)
Form and Denominations.
The Floating Rate Notes will be issued only in fully registered
form, and the authorized denominations of the Floating Rate Notes shall be $2,000 principal amount
and any integral multiple of $1,000 in excess thereof. The Floating Rate Notes will initially be
issued in the form of one or more Global Securities substantially in the form of Annex B attached
hereto, with such modifications thereto as may be approved by the authorized officer executing the
same. The Floating Rate Notes will be denominated in U.S. dollars and payments of principal and
interest will be made in U.S. dollars.
(c)
Maturity Date.
The principal amount of, and all accrued and unpaid interest on, the
Floating Rate Notes shall be payable in full on August 23, 2013, or if such day is not a Business
Day, the following Business Day (the
Floating Rate Note Maturity Date
).
(d)
Interest.
Interest payable on any Floating Rate Note Interest Payment Date or the
Floating Rate Note Maturity Date shall be the amount accrued from, and including, the immediately
preceding Floating Rate Note Interest Payment Date in respect of which
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interest has been paid or
duly provided for (or from and including the original issue date of August 24, 2011, if no interest
has been paid or duly provided for with respect to the Floating Rate Notes) to but excluding such
Floating Rate Note Interest Payment Date or Floating Rate Note Maturity Date, as the case may be
(each, a
Floating Rate Note Interest Period
). The Floating Rate Notes will bear interest at a
rate equal to the three-month LIBOR rate, as determined on the applicable Floating Rate Note
Interest Determination Date by the Calculation Agent, plus 0.75% (75 basis points) from the
original issue date thereof to the Floating Rate Note Maturity Date. The amount of interest for
each day that the Floating Rate Notes are outstanding (the
Daily Interest Amount
) shall be
calculated by the Calculation Agent by dividing the interest rate in effect during the applicable
Floating Rate Note Interest Period by 360 and multiplying the result by the outstanding principal
amount of the Floating Rate Notes. The amount of interest to be paid on the Floating Rate Notes for
any Floating Rate Note Interest Period will be calculated by adding the Daily Interest Amounts for
each day in such Floating Rate Note Interest Period. Interest on the Floating Rate Notes shall be
payable quarterly in arrears on February 23, May 23, August 23 and November 23 of each year,
beginning on November 23, 2011 (each such date, a
Floating Rate Note Interest Payment Date
). If
any Floating Rate Note Interest Payment Date, other than the Floating Rate Note Maturity Date, is
not a Business Day, the interest payment due on such day shall be made on the next succeeding day
that is a Business Day; provided, that if the next
succeeding day that is a Business Day is in the next succeeding calendar month, the interest
payment due on such Floating Rate Note Interest Payment Date shall be made on the immediately
preceding Business Day. If the Floating Rate Note Maturity Date is not a Business Day, the
principal amount of the Floating Rate Notes plus accrued and unpaid interest thereon shall be paid
on the next succeeding day that is a Business Day and no interest shall accrue for the Floating
Rate Note Maturity Date or any day thereafter. Each payment of interest on the Floating Rate Notes
will include interest to, but excluding, as the case may be, the relevant Floating Rate Note
Interest Payment Date or Floating Rate Note Maturity Date. The rate of interest on the Floating
Rate Notes for the Initial Floating Rate Note Interest Period will be
1.05844% and will be reset on the
next occurring Floating Rate Note Interest Reset Date.
Floating Rate Note Interest Determination Date
means the second London Business Day
immediately preceding the applicable Floating Rate Note Interest Reset Date. The Floating Rate Note
Interest Determination Date for the Initial Floating Rate Interest Period will be August 22, 2011.
Floating Rate Note Interest Reset Date
means the first day of each Floating Rate Note
Interest Period other than the Initial Floating Rate Note Interest Period.
The
Initial Floating Rate Note Interest Period
shall be August 24, 2011 through November 22,
2011.
London Business Day
means a day on which commercial banks are open for business (transacting
dealings in U.S. dollars) in London.
The
three-month LIBOR
, for any Floating Rate Note Interest Determination Date will be the
offered rate for deposits in the London interbank market in U.S. dollars having an index maturity
of three months, as such rate appears on the Reuters (or any
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successor service) Page LIBOR 01 (or
such other page as may replace that page on that service, or any
successor service, for the purpose
of displaying such rates) as of approximately 11:00 a.m., London time, on such Floating Rate Note
Interest Determination Date.
The
Calculation Agent
shall be the agent appointed by the Company to calculate the interest
rate on the Floating Rate Notes and will initially be the Trustee. The Calculation Agent shall
calculate the interest rate in accordance with this Section 3.01(d). On or before each Floating
Rate Note Interest Determination Date, the Calculation Agent will determine the interest rate and
notify the Paying Agent. All calculations made by the Calculation Agent shall in the absence of
manifest error be conclusive for all purposes and binding on the Company and the Noteholders of the
Floating Rate Notes. For so long as three-month LIBOR is required to be determined with respect to
the Floating Rate Notes, the Company shall have a Calculation Agent. In the event that the
Calculation Agent is unable or unwilling to act, the Calculation Agent fails to duly establish
three-month LIBOR for any Interest Period or the Company proposes to remove the Calculation Agent,
the Company shall appoint itself or another person that is a bank, trust company, investment
banking firm or other financial institution to act as the Calculation Agent.
Notwithstanding the foregoing, the interest rate shall in no event be higher than the maximum
rate permitted by New York or other applicable state law, as such law may be modified by United
States law of general application.
(e)
To Whom Interest is Payable
. Interest shall be payable to the Person in whose name the
Floating Rate Notes are registered at the close of business on the Business Day next preceding the
Floating Rate Note Interest Payment Date, or in the event the Floating Rate Notes cease to be held
in the form of one or more Global Securities, at the close of business on the date 15 days prior to
that Floating Rate Note Interest Payment Date, whether or not a Business Day.
(f)
Sinking Fund; Noteholder Repurchase Right
. The Floating Rate Notes shall not be subject
to any sinking fund or analogous provision or be redeemable at the option of the Noteholders.
(g)
Forms
. The Floating Rate Notes shall be substantially in the form of Annex B attached
hereto, with such modifications thereto as may be approved by the authorized officer executing the
same.
(h)
Registrar, Paying Agent, Authenticating Agent and Place of Payment
. The Company hereby
appoints U.S. Bank National Association as Security Registrar, Authenticating Agent and Paying
Agent with respect to the Floating Rate Notes. The Floating Rate Notes may be surrendered for
registration of transfer and for exchange at the office or agency of the Company maintained for
such purpose in the City of New York, New York and at any other office or agency maintained by the
Company for such purpose. The Place of Payment for the Floating Rate Notes shall be the Paying
Agents office in New York, New York.
9
(i)
Defeasance
. Until the Floating Rate Note Maturity Date, the Floating Rate Notes will be
subject to Sections 13.02 and 13.03 of the Base Indenture.
ARTICLE 4
Special Mandatory Redemption
Section 4.01.
Special Mandatory Redemption.
In the event that the closing of the
transactions contemplated by the Merger Agreement has not occurred on or before March 12, 2012 (the
Outside Date
) (such occurrence, the
Special Mandatory Redemption Event
), the Company shall
redeem the Floating Rate Notes and the Fixed Rate Notes, unless, with respect to redemption of the
Fixed Rate Notes only, the Company has exercised its right to redeem all the Fixed Rate Notes on or
before the Outside Date, on the date that is 20 Business Days after the Outside Date (the
Special
Mandatory Redemption Date
), at a cash redemption price equal to 101% of the aggregate principal
amount of Notes redeemed plus any accrued and unpaid interest on the Notes redeemed to but
excluding the Special Mandatory Redemption Date (the
Special Mandatory Redemption Price
);
provided, however
, that if the Merger Agreement is terminated in accordance with its terms prior to
March 12, 2012, the Outside Date shall be deemed to be the date the Merger Agreement is terminated.
Section 4.02.
Notice of Special Mandatory Redemption Event
. On the occurrence of a Special
Mandatory Redemption Event, the Company shall promptly mail a notice to each Noteholder of the
Fixed Rate Notes and the Floating Rate Notes, with a copy to the Trustee. Such notice of
redemption shall state: (a) the Special Mandatory Redemption Date, (b) the Special Mandatory
Redemption Price, (c) that, on the Special Mandatory Redemption Date, the Special Mandatory
Redemption Price will become due and payable upon the Notes and that interest thereon will cease to
accrue on and after said date, and (d) the place or places where the Notes are to be surrendered
for payment of the Special Mandatory Redemption Price. Notice of redemption of the Notes shall be
given by the Company or, at the Companys request, by the Trustee in the name and at the expense of
the Company.
Section 4.03.
Deposit of Special Mandatory Redemption Price; Notes Payable on Special
Mandatory Redemption Date
. For purposes of Section 11.05 and 11.06 of the Base Indenture, the
Special Mandatory Redemption Date shall be a Redemption Date and the Special Mandatory Redemption
Price shall be a Redemption Price.
ARTICLE 5
Change of Control Repurchase Event
Section 5.01.
Change of Control Repurchase Events.
If a Change of Control Repurchase Event
with respect to the Floating Rate Notes or the Fixed Rate Notes occurs, unless, with respect to the
repurchase of the Fixed Rate Notes only, the Company has exercised its right to redeem all the
Fixed Rate Notes, the Company shall make an offer to each Noteholder of the Floating Rate Notes or
the Fixed Rate Notes to repurchase all or any part (in integral multiples of $1,000) of that
Noteholders Notes at a repurchase
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price in cash equal to 101% of the aggregate principal amount of
Notes repurchased plus any accrued and unpaid interest on the Notes repurchased to the date of
repurchase. Within 30 days following any such Change of Control Repurchase Event or, at the
Companys option, prior to any Change of Control, but after the public announcement of an impending
Change of Control, the Company shall mail a notice (a
Change of Control Notice
) to each
Noteholder of the Fixed Rate Notes or the Floating Rate Notes, with a copy to the Trustee,
describing the transaction or transactions that constitute or may constitute the Change of Control
Repurchase Event and offering to repurchase the Fixed Rate Notes or the Floating Rate Notes on the
payment date specified in the Change of Control Notice, which date will be no earlier than 30 days
and no later than 60 days from the date such Change of Control Notice is mailed. The Change of
Control Notice shall, if mailed prior to the date of consummation of the Change of Control, state
that the offer to repurchase is conditioned on the Change of Control Repurchase Event occurring on
or prior to the payment date specified in the Change of Control Notice.
The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder, to the extent those laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a Change of Control
Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict
with the Change of Control Repurchase Event provisions of the Notes, the Company shall comply with
the applicable securities laws and regulations and shall not be deemed to have breached its
obligations under this Section 5.01 by virtue of such conflict.
On the Change of Control Repurchase Event payment date, the Company shall, to the extent
lawful, with respect to the Fixed Rate Notes and the Floating Rate Notes:
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accept for payment all Notes properly tendered pursuant to the Companys offer
(
Tendered Notes
);
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deposit with the Trustee a cash amount in immediately available funds equal to the
aggregate repurchase price in respect of all Tendered Notes; and
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deliver or cause to be delivered to the Trustee the Tendered Notes, together with
an officers certificate stating that such Tendered Notes have been properly accepted
by the Company and stating the aggregate principal amount of Tendered Notes being
purchased by the Company.
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The Trustee shall promptly mail to each Noteholder holding Tendered Notes the repurchase price
for the Tendered Notes, and the Trustee shall, to the extent necessary, promptly authenticate and
mail (or cause to be transferred by book-entry) to each such Noteholder a new security equal in
principal amount to any unpurchased portion of any Tendered Notes; provided, that each new security
will be in a principal amount of $2,000 or any integral multiple of $1,000 in excess thereof.
The Company shall not be required to make an offer to repurchase the Notes upon a Change of
Control Repurchase Event if a third party makes such an offer in the manner, at the times and
otherwise in compliance with the requirements for an offer
11
made by the Company and such third party
purchases all Notes properly tendered and not withdrawn under its offer.
ARTICLE 6
Supplemental Indentures
Section 6.01.
Supplemental Indentures with Consent of Noteholders.
As set forth in Section
9.01 of the Base Indenture, with the consent of the holders of a majority in the aggregate
principal amount of Notes of each series affected by such supplemental indenture at the time
outstanding, the Company and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental to the Base Indenture for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Base Indenture or this
Second Supplemental Indenture or of modifying in any manner the rights of the Noteholders.
ARTICLE 7
Miscellaneous
Section 7.01.
Relationship to Existing Base Indenture.
The Second Supplemental Indenture is
a supplemental indenture within the meaning of the Base Indenture. The Base Indenture, as
supplemented and amended by this Second Supplemental Indenture, is in all respects ratified,
confirmed and approved and, with respect to the Notes, the Base Indenture, as supplemented and
amended by this Second
Supplemental Indenture, shall be read, taken and construed as one and the same instrument.
Section 7.02.
Modification of The Existing Base Indenture.
Except as expressly modified by
this Second Supplemental Indenture, the provisions of the Base Indenture shall govern the terms and
conditions of the Notes.
Section 7.03.
Governing Law.
This instrument shall be governed by and construed in
accordance with the laws of the State of New York.
Section 7.04.
Counterparts.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section 7.05.
Trustee Makes No Representation.
The recitals contained herein are made by
the Company and not by the Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation as to the validity or sufficiency of this Second
Supplemental Indenture (except for its execution thereof and its certificates of authentication of
the Notes).
Section 7.06.
Waiver of Jury Trial.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY
12
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION
CONTEMPLATED HEREBY.
Section 7.07
. Consequential Loss.
In no event shall the Trustee be responsible or liable
for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not
limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form of action.
Section 7.08.
Force Majeure
. In no event shall the Trustee be responsible or liable for any
failure or delay in the performance of its obligations hereunder arising out of or caused by,
directly or indirectly, forces beyond its control, including, without limitation, strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software and hardware) services; it being understood that the Trustee shall use
reasonable efforts which are consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.
13
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be
duly executed and attested all as of the day and year first above written.
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V.F. CORPORATION
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By:
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/s/ Eric C. Wiseman
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Eric C. Wiseman
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Chairman, President and Chief
Executive Officer
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Attest:
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By:
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/s/ Candace S. Cummings
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Candace S. Cummings
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Vice President Administration
General Counsel and Secretary
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By:
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/s/ Robert K. Shearer
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Robert K. Shearer
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Senior Vice President and Chief
Financial Officer
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Attest:
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By:
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/s/ Candace S. Cummings
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Candace S. Cummings
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Vice President Administration
General Counsel and Secretary
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THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., as Trustee
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By:
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/s/ Christie Leppert
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Name: Christie Leppert
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Title: Vice President
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14
ANNEX A
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE
OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (DTC), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OR TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-1
V.F. CORPORATION
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No. 1
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CUSIP No.: 918204 AV0
$500,000,000
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V.F. CORPORATION, a corporation duly incorporated and subsisting under the laws of the
Commonwealth of Pennsylvania (herein called the Company, which term includes any successor
corporation under the Indenture hereinafter referred to), for value received, hereby promises to
pay to Cede & Co., or registered assigns, the principal sum of $500,000,000 on September 1, 2021
and to pay interest thereon from August 24, 2011, or from the most recent Fixed Rate Note Interest
Payment Date to which interest has been paid or duly provided for, semi-annually on March 1 and
September 1 in each year, commencing March 1, 2012 , at the rate of 3.500% per annum, until the
principal hereof is paid or made available for payment. Interest on this security shall be
computed on the basis of a 360-day year of twelve 30-day months.
The interest so payable, and punctually paid or duly provided for, on any Fixed Rate Note
Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this
Note (or one or more Predecessor Securities) is registered at the close of business on the Business
Day next preceding the relevant Fixed Rate Note Interest Payment Date, or in the event the Notes
cease to be held in the form of one or more Global Notes, at the close of business on the date 15
days prior to that Fixed Rate Note Interest Payment Date, whether or not a Business Day. Any such
interest not so punctually paid or duly provided for will forthwith cease to be payable to the
Noteholder on such Regular Record Date and may either be paid to the Person in whose name this Note
(or one or more Predecessor Securities) is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Noteholders of Notes of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Notes of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this Note will be made at
the office or agency of the Company maintained for that purpose in New York, New York in such coin
or currency of the United States of America as at the time of payment is legal tender for payment
of public and private debts;
provided
,
however
, that at the option of the Company, payment of
interest may be made by check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register.
Reference is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
A-2
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
A-3
In Witness
Whereof, the Company has caused this instrument to be duly executed under
its corporate seal.
Dated: August 24, 2011
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V.F. CORPORATION
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By:
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Eric C. Wiseman
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Chairman, President and Chief
Executive Officer
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Attest:
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By:
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Patrick J. Guido
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Vice President Treasurer
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By:
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Robert K. Shearer
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Senior Vice President and
Chief
Financial Officer
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Attest:
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By:
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Patrick J. Guido
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Vice President Treasurer
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This is one of the Notes of the series designated therein referred to in the within-mentioned
Indenture.
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U.S. BANK NATIONAL ASSOCIATION
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By:
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Authorized Signature
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A-4
[Reverse of Note]
This Note is one of a duly authorized issue of notes of the Company (herein called the
Notes), issued and to be issued in one or more series under an Indenture, dated as of October 15,
2007 (herein called the Base Indenture, which term shall have the meaning assigned to it in such
instrument), as supplemented by a Second Supplemental Indenture, dated as of August 24, 2011
(herein called the Second Supplemental Indenture and together with the Base Indenture, the
Indenture), between the Company and The Bank of New York Mellon Trust Company, N.A., formerly
known as The Bank of New York Trust Company, N.A., as Trustee under the Indenture (the Trustee),
and reference is hereby made to the Indenture for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the Noteholders and of
the terms upon which the Notes are, and are to be, authenticated and delivered. This Note is one of
the series designated on the face hereof, initially limited in aggregate principal amount to
$500,000,000. The Company may at any time issue additional notes under the Indenture in unlimited
amounts having the same terms as the Notes.
The Notes of this series are subject to redemption, as a whole or from time to time in part,
upon not less than 30 nor more than 60 days notice mailed to each Noteholder of Notes to be
redeemed at his address as it appears in the Securities Register, (1) on any date prior to June 1,
2021 (three months prior to their Stated Maturity) at a Redemption Price equal to the greater of
(i) 100% of the principal amount of such Notes to be redeemed, plus accrued and unpaid interest
thereon to the Redemption Date or (ii) as determined by a Quotation Agent (as defined below), the
sum of the present values of the remaining scheduled payments of principal and interest thereon
(not including any portion of such payments of interest accrued and paid as of the Redemption Date)
discounted to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Treasury Rate (as defined below), plus 20 basis points, plus
accrued and unpaid interest thereon to the Redemption Date, and (2) on any date on and after June
1, 2021 at a Redemption Price equal to 100% of the principal amount of such Securities to be
redeemed, plus accrued and unpaid interest thereon to the Redemption Date; provided that unless the
Company defaults in payment of the Redemption Price, on or after the Redemption Date, interest will
cease to accrue on the Notes or portions thereof called for redemption.
Adjusted Treasury Rate means, with respect to any Redemption Date, the rate per annum equal
to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price
for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date. The semi-annual equivalent yield to maturity
will be computed as of the third business day immediately preceding the Redemption Date.
Comparable Treasury Issue (expressed as a percentage of its principal amount) means the United
States Treasury security selected by the Quotation Agent as having a maturity comparable to the
remaining term of the Notes to be redeemed that would be utilized in accordance with customary
financial practice in pricing new issues of corporate notes of comparable maturity to the remaining
term of the Notes. Comparable Treasury Price means, with respect to any Redemption Date, the
average of the Reference Treasury
A-5
Dealer Quotations for such Redemption Date,
provided
, that if
three or more Reference Treasury Dealer Quotations are obtained, the highest and lowest of such
quotations shall be excluded from the calculation. Quotation Agent means the Reference Treasury Dealer
appointed by the Company. Reference Treasury Dealers means (i) each of Merrill Lynch, Pierce,
Fenner & Smith Incorporated and J.P. Morgan Securities LLC and their respective successors;
provided, however
, that, if the foregoing shall cease to be a primary U.S. Government securities
dealer (a Primary Treasury Dealer), the Company shall substitute therefor another Primary
Treasury Dealer; and (ii) any other Primary Treasury Dealer selected by the Company. Reference
Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer and any
Redemption Date, the average, as determined by the Quotation Agent, of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 5:00 p.m. on the
third Business Day preceding such Redemption Date.
The Notes do not have the benefit of any sinking fund obligations.
In the event of redemption of this Note in part only, a new Note or Notes of this series and
of like tenor for the unredeemed portion hereof will be issued in the name of the Noteholder hereof
upon the cancellation hereof.
In the event that the closing of the transactions contemplated by the Merger Agreement has not
occurred on or before March 12, 2012 (the Outside Date) (such occurrence, the Special Mandatory
Redemption Event), the Company shall redeem the Notes, unless the Company has exercised its right
to redeem all the Notes on or before the Outside Date, on the date that is 20 Business Days after
the Outside Date (the Special Mandatory Redemption Date), at a cash redemption price equal to
101% of the aggregate principal amount of Notes redeemed plus any accrued and unpaid interest on
the Notes redeemed to but excluding the Special Mandatory Redemption Date (the Special Mandatory
Redemption Price);
provided, however
, that if the Merger Agreement is terminated in accordance
with its terms prior to March 12, 2012, the Outside Date shall be deemed to be the date the Merger
Agreement is terminated.
On the occurrence of a Special Mandatory Redemption Event, the Company shall promptly mail a
notice to each Noteholder of the Notes, with a copy to the Trustee. Such notice of redemption
shall state: (a) the Special Mandatory Redemption Date, (b) the Special Mandatory Redemption Price,
(c) that, on the Special Mandatory Redemption Date, the Special Mandatory Redemption Price will
become due and payable upon the Notes and that interest thereon will cease to accrue on and after
said date, and (d) the place or places where the Notes are to be surrendered for payment of the
Special Mandatory Redemption Price. Notice of redemption of the Notes shall be given by the
Company or, at the Companys request, by the Trustee in the name and at the expense of the Company.
For purposes of Section 11.05 and 11.06 of the Base Indenture, the Special Mandatory Redemption
Date shall be a Redemption Date and the Special Mandatory Redemption Price shall be a Redemption
Price.
If a Change of Control Repurchase Event with respect to the Notes occurs, unless the Company
has exercised its right to redeem all the Notes, the Company shall make an offer to each Noteholder
of the Notes to repurchase all or any part (in integral
A-6
multiples of $1,000) of that Noteholders
Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of Notes
repurchased plus any accrued and unpaid interest on the Notes repurchased to the date of
repurchase. Within 30 days following any such Change of Control Repurchase Event or, at the
Companys option, prior to any Change of Control, but after the public announcement of an impending Change of
Control, the Company shall mail a notice (a Change of Control Notice) to each Noteholder of the
Notes, with a copy to the Trustee, describing the transaction or transactions that constitute or
may constitute the Change of Control Repurchase Event and offering to repurchase the Notes on the
payment date specified in the Change of Control Notice, which date will be no earlier than 30 days
and no later than 60 days from the date such Change of Control Notice is mailed. The Change of
Control Notice shall, if mailed prior to the date of consummation of the Change of Control, state
that the offer to repurchase is conditioned on the Change of Control Repurchase Event occurring on
or prior to the payment date specified in the Change of Control Notice.
The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder, to the extent those laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a Change of Control
Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict
with the Change of Control Repurchase Event provisions of the Notes, the Company shall comply with
the applicable securities laws and regulations and shall not be deemed to have breached its
obligations under the Indenture by virtue of such conflict.
On the Change of Control Repurchase Event payment date, the Company shall, to the extent
lawful, with respect to the Notes:
accept for payment all Notes or portions of Notes (in integral multiples of $1,000) properly
tendered pursuant to the Companys offer (Tendered Notes);
deposit with the Trustee a cash amount in immediately available funds equal to the aggregate
repurchase price in respect of all Tendered Notes; and
deliver or cause to be delivered to the Trustee the Tendered Notes, together with an
officers certificate stating that such Tendered Notes have been properly accepted by the Company
and stating the aggregate principal amount of Tendered Notes being purchased by the Company.
The Trustee or Paying Agent, as applicable, shall promptly mail to each Noteholder of Tendered
Notes the repurchase price for the Tendered Notes, and the Trustee shall, to the extent necessary,
promptly authenticate and mail (or cause to be transferred by book-entry) to each such Noteholder a
new note equal in principal amount to any unpurchased portion of any Tendered Notes; provided, that
each new note will be in a principal amount of $2,000 or any integral multiple of $1,000 in excess
thereof.
The Company shall not be required to make an offer to repurchase the Notes upon a Change of
Control Repurchase Event if a third party makes such an offer in the manner, at the times and
otherwise in compliance with the requirements for an offer
A-7
made by the Company and such third party
purchases all Notes properly tendered and not withdrawn under its offer.
The Indenture contains provisions for defeasance at any time of the entire indebtedness of
this Note or certain restrictive covenants and Events of Default with respect to this Note, in each
case upon compliance with certain conditions set forth in the Indenture.
If an Event of Default with respect to Notes of this series shall occur and be continuing, the
principal of the Notes of this series may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Noteholders of
the Notes of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Noteholders of not less than 50% in principal amount of the Notes
at the time Outstanding of each series to be affected. The Indenture also contains provisions
permitting the Noteholders of specified percentages in principal amount of the Notes of each series
at the time Outstanding, on behalf of the Noteholders of all Notes of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the Noteholder of this Note
shall be conclusive and binding upon such Noteholder and upon all future Noteholders of this Note
and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this Note.
As provided in and subject to the provisions of the Indenture, the Noteholder of this Note
shall not have the right to institute any proceeding with respect to the Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless such Noteholder
shall have previously given the Trustee written notice of a continuing Event of Default with
respect to the Notes of this series, the Noteholders of not less than 25% in principal amount of
the Notes of this series at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered the Trustee
reasonable indemnity, and the Trustee shall not have received from the Noteholders of a majority in
principal amount of Notes of this series at the time Outstanding a direction inconsistent with such
request, and shall have failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the
Noteholder of this Note for the enforcement of any payment of principal hereof or any premium or
interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of and any premium and interest on this Note at the times, place and rate, and in the
coin or currency, herein prescribed.
A-8
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Note is registrable in the Security Register, upon surrender of this Note for
registration of transfer at the office or agency of the Company in any place where the principal of
and any premium and interest on this Note are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Noteholder hereof or his attorney duly authorized in writing, and thereupon one or
more new Notes of this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or transferees.
The Notes of this series are issuable only in registered form without coupons in denominations
of $2,000 and any integral multiple of $1,000 in excess thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Notes of this series are exchangeable for a like
aggregate principal amount of Notes of this series and of like tenor of a different authorized
denomination, as requested by the Noteholder surrendering the same.
No service charge shall be made to a Noteholder for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name this Note is
registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
A-9
ANNEX B
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE
OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (DTC), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OR TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
B-1
V.F. CORPORATION
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No. 1
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CUSIP No.: 918204 AU2
$400,000,000
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V.F. CORPORATION, a corporation duly incorporated and subsisting under the laws of the
Commonwealth of Pennsylvania (herein called the Company, which term includes any successor
corporation under the Indenture hereinafter referred to), for value received, hereby promises to
pay to Cede & Co., or registered assigns, the principal sum of $400,000,000 on August 23, 2013 and
to pay interest thereon from August 24, 2011, or from the most recent Floating Rate Note Interest
Payment Date to which interest has been paid or duly provided for, quarterly on February 23, May
23, August 23 and November 23 in each year, commencing November 23, 2011, at a rate per annum
determined in accordance with the provisions set forth on the reverse hereof, until the principal
hereof is paid or made available for payment.
The interest so payable, and punctually paid or duly provided for, on any Floating Rate Note
Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this
Note (or one or more Predecessor Securities) is registered at the close of business on the Business
Day next preceding the relevant Floating Rate Note Interest Payment Date, or in the event the Notes
cease to be held in the form of one or more Global Notes, at the close of business on 15th calendar
day (whether or not a Business Day) immediately preceding such Floating Rate Note Interest Payment
Date, whether or not a Business Day. Any such interest not so punctually paid or duly provided for
will forthwith cease to be payable to the Noteholder on such Regular Record Date and may either be
paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered at
the close of business on a Special Record Date for the payment of such Defaulted Interest to be
fixed by the Trustee, notice whereof shall be given to Noteholders of Notes of this series not less
than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the Notes of this series
may be listed, and upon such notice as may be required by such exchange, all as more fully provided
in said Indenture.
Payment of the principal of (and premium, if any) and interest on this Note will be made at
the office or agency of the Company maintained for that purpose in New York, New York in such coin
or currency of the United States of America as at the time of payment is legal tender for payment
of public and private debts;
provided
,
however
, that at the option of the Company, payment of
interest may be made by check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register.
Reference is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
B-2
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
B-3
In Witness
Whereof, the Company has caused this instrument to be duly executed under
its corporate seal.
Dated: August 24, 2011
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V.F. CORPORATION
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By:
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Eric C. Wiseman
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Chairman, President and Chief
Executive Officer
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Attest:
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By:
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Patrick J. Guido
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Vice President Treasurer
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By:
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Robert K. Shearer
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Senior Vice President and Chief
Financial Officer
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Attest:
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By:
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Patrick J. Guido
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Vice President Treasurer
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This is one of the Notes of the series designated therein referred to in the within-mentioned
Indenture.
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U.S. BANK NATIONAL ASSOCIATION
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By:
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Authorized Signature
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B-4
[Reverse of Note]
This Note is one of a duly authorized issue of notes of the Company (herein called the
Notes), issued and to be issued in one or more series under an Indenture, dated as of October 15,
2007 (herein called the Base Indenture, which term shall have the meaning assigned to it in such
instrument), as supplemented by a Second Supplemental Indenture, dated as of August 24, 2011
(herein called the Second Supplemental Indenture and together with the Base Indenture, the
Indenture), between the Company and The Bank of New York Mellon Trust Company, N.A., formerly
known as The Bank of New York Trust Company, N.A., as Trustee under the Indenture (the Trustee),
and reference is hereby made to the Indenture for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the Noteholders and of
the terms upon which the Notes are, and are to be, authenticated and delivered. This Note is one of
the series designated on the face hereof, initially limited in aggregate principal amount to
$400,000,000. The Company may at any time issue additional notes under the Indenture in unlimited
amounts having the same terms as the Notes.
The Notes are not subject to redemption other than as set forth below.
The Notes do not have the benefit of any sinking fund obligations.
Interest payable on any Floating Rate Note Interest Payment Date or the Floating Rate Note
Maturity Date shall be the amount accrued from, and including, the immediately preceding Floating
Rate Note Interest Payment Date in respect of which interest has been paid or duly provided for (or
from and including the original issue date of August 24, 2011, if no interest has been paid or duly
provided for with respect to the Notes) to but excluding such Floating Rate Note Interest Payment
Date or Floating Rate Note Maturity Date, as the case may be (each, a Floating Rate Note Interest
Period). The Notes will bear interest at a rate equal to the three-month LIBOR rate, as
determined on the applicable Floating Rate Note Interest Determination Date by the Calculation
Agent, plus 0.75% (75 basis points) from the original issue date thereof to the Floating Rate Note
Maturity Date. The amount of interest for each day that the Notes are outstanding (the Daily
Interest Amount) shall be calculated by the Calculation Agent by dividing the interest rate in
effect during the applicable Floating Rate Note Interest Period by 360 and multiplying the result
by the outstanding principal amount of the Notes. The amount of interest to be paid on the Notes
for any Floating Rate Note Interest Period will be calculated by adding the Daily Interest Amounts
for each day in such Floating Rate Note Interest Period. Interest on the Notes shall be payable
quarterly in arrears on February 23, May 23, August 23 and November 23 of each year, beginning on
November 23, 2011 (each such date, a Floating Rate Note Interest Payment Date). If any Floating
Rate Note Interest Payment Date, other than the Floating Rate Note Maturity Date, is not a Business
Day, the interest payment due on such day shall be made on the next succeeding day that is a
Business Day; provided, that if the next succeeding day that is a Business Day is in the next
succeeding calendar month, the interest payment due on such Floating Rate Note Interest Payment
Date shall be made on the immediately preceding Business Day. If the Floating Rate Note Maturity
Date is not a Business Day, the principal amount of the Notes plus accrued and unpaid interest
thereon shall be paid
B-5
on the next succeeding day that is a Business Day and no interest shall
accrue for the Floating Rate Note Maturity Date or any day thereafter. Each payment of interest on
the Notes will include interest to, but excluding, as the case may be, the relevant Floating Rate
Note Interest Payment Date or Floating Rate Note Maturity Date. The rate of interest on the Notes
for the Initial Floating Rate Note Interest Period will be 1.05844% and will be reset on the
next occurring Floating Rate Note Interest Reset Date.
Floating Rate Note Interest Determination Date means the second London Business Day
immediately preceding the applicable Floating Rate Note Interest Reset Date. The Floating Rate Note
Interest Determination Date for the Initial Floating Rate Interest Period will be August 22, 2011.
Floating Rate Note Interest Reset Date means the first day of each Floating Rate Note Interest
Period other than the Initial Floating Rate Note Interest Period. The Initial Floating Rate Note
Interest Period shall be August 24, 2011 through November 22, 2011. London Business Day means a
day on which commercial banks are open for business (transacting dealings in U.S. dollars) in
London. The three-month LIBOR, for any Floating Rate Note Interest Determination Date will be
the offered rate for deposits in the London interbank market in U.S. dollars having an index
maturity of three months, as such rate appears on the Reuters (or any successor service) Page LIBOR
01 (or such other page as may replace that page on that service, or any successor service, for the
purpose of displaying such rates) as of approximately 11:00 a.m., London time, on such Floating
Rate Note Interest Determination Date. The Calculation Agent shall be the agent appointed by the
Company to calculate the interest rate on the Notes and will initially be the Trustee. The
Calculation Agent shall calculate the interest rate in accordance with the foregoing. On or before
each Floating Rate Note Interest Determination Date, the Calculation Agent will determine the
interest rate and notify the Paying Agent. All calculations made by the Calculation Agent shall in
the absence of manifest error be conclusive for all purposes and binding on the Company and the
Noteholders of the Notes. For so long as three-month LIBOR is required to be determined with
respect to the Notes, the Company shall have a Calculation Agent. In the event that the Calculation
Agent is unable or unwilling to act, the Calculation Agent fails to duly establish three-month
LIBOR for any Interest Period or the Company proposes to remove the Calculation Agent, the Company
shall appoint itself or another person that is a bank, trust company, investment banking firm or
other financial institution to act as the Calculation Agent.
Notwithstanding the foregoing, the interest rate shall in no event be higher than the maximum
rate permitted by New York or other applicable state law, as such law may be modified by United
States law of general application.
In the event that the closing of the transactions contemplated by the Merger Agreement has not
occurred on or before March 12, 2012 (the Outside Date) (such occurrence, the Special Mandatory
Redemption Event), the Company shall redeem the Notes on the date that is 20 Business Days after
the Outside Date (the Special Mandatory Redemption Date), at a cash redemption price equal to
101% of the aggregate principal amount of Notes redeemed plus any accrued and unpaid interest on
the Notes redeemed to but excluding the Special Mandatory Redemption Date (the Special Mandatory
Redemption Price);
provided, however
, that if the Merger Agreement is terminated in accordance
with its terms prior to March 12, 2012, the Outside Date shall be deemed to be the date the Merger
Agreement is terminated.
B-6
On the occurrence of a Special Mandatory Redemption Event, the Company shall promptly mail a
notice to each Noteholder of the Notes, with a copy to the Trustee. Such notice of redemption
shall state: (a) the Special Mandatory Redemption Date, (b)
the Special Mandatory Redemption Price, (c) that, on the Special Mandatory Redemption Date,
the Special Mandatory Redemption Price will become due and payable upon the Notes and that interest
thereon will cease to accrue on and after said date, and (d) the place or places where the Notes
are to be surrendered for payment of the Special Mandatory Redemption Price. Notice of redemption
of the Notes shall be given by the Company or, at the Companys request, by the Trustee in the name
and at the expense of the Company. For purposes of Section 11.05 and 11.06 of the Base Indenture,
the Special Mandatory Redemption Date shall be a Redemption Date and the Special Mandatory
Redemption Price shall be a Redemption Price.
If a Change of Control Repurchase Event with respect to the Notes occurs, the Company shall
make an offer to each Noteholder of the Notes to repurchase all or any part (in integral multiples
of $1,000) of that Noteholders Notes at a repurchase price in cash equal to 101% of the aggregate
principal amount of Notes repurchased plus any accrued and unpaid interest on the Notes repurchased
to the date of repurchase. Within 30 days following any such Change of Control Repurchase Event
or, at the Companys option, prior to any Change of Control, but after the public announcement of
an impending Change of Control, the Company shall mail a notice (a Change of Control Notice) to
each Noteholder of the Notes, with a copy to the Trustee, describing the transaction or
transactions that constitute or may constitute the Change of Control Repurchase Event and offering
to repurchase the Notes on the payment date specified in the Change of Control Notice, which date
will be no earlier than 30 days and no later than 60 days from the date such Change of Control
Notice is mailed. The Change of Control Notice shall, if mailed prior to the date of consummation
of the Change of Control, state that the offer to repurchase is conditioned on the Change of
Control Repurchase Event occurring on or prior to the payment date specified in the Change of
Control Notice.
The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder, to the extent those laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a Change of Control
Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict
with the Change of Control Repurchase Event provisions of the Notes, the Company shall comply with
the applicable securities laws and regulations and shall not be deemed to have breached its
obligations under the Indenture by virtue of such conflict.
On the Change of Control Repurchase Event payment date, the Company shall, to the extent
lawful, with respect to the Notes:
accept for payment all Notes or portions of Notes (in integral multiples of $1,000) properly
tendered pursuant to the Companys offer (Tendered Notes);
deposit with the Trustee a cash amount in immediately available funds equal to the aggregate
repurchase price in respect of all Tendered Notes; and
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deliver or cause to be delivered to the Trustee the Tendered Notes, together with an
officers certificate stating that such Tendered Notes have been properly accepted by the Company
and stating the aggregate principal amount of Tendered Notes being purchased by the Company.
The Trustee or Paying Agent, as applicable, shall promptly mail to each Noteholder of Tendered
Notes the repurchase price for the Tendered Notes, and the Trustee shall, to the extent necessary,
promptly authenticate and mail (or cause to be transferred by book-entry) to each such Noteholder a
new note equal in principal amount to any unpurchased portion of any Tendered Notes; provided, that
each new note will be in a principal amount of $2,000 or any integral multiple of $1,000 in excess
thereof.
The Company shall not be required to make an offer to repurchase the Notes upon a Change of
Control Repurchase Event if a third party makes such an offer in the manner, at the times and
otherwise in compliance with the requirements for an offer made by the Company and such third party
purchases all Notes properly tendered and not withdrawn under its offer.
The Indenture contains provisions for defeasance at any time of the entire indebtedness of
this Note or certain restrictive covenants and Events of Default with respect to this Note, in each
case upon compliance with certain conditions set forth in the Indenture.
If an Event of Default with respect to Notes of this series shall occur and be continuing, the
principal of the Notes of this series may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Noteholders of
the Notes of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Noteholders of not less than 50% in principal amount of the Notes
at the time Outstanding of each series to be affected. The Indenture also contains provisions
permitting the Noteholders of specified percentages in principal amount of the Notes of each series
at the time Outstanding, on behalf of the Noteholders of all Notes of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the Noteholder of this Note
shall be conclusive and binding upon such Noteholder and upon all future Noteholders of this Note
and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this Note.
As provided in and subject to the provisions of the Indenture, the Noteholder of this Note
shall not have the right to institute any proceeding with respect to the Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless such Noteholder
shall have previously given the Trustee written notice of a continuing Event of Default with
respect to the Notes of this series, the Noteholders of not less than 25% in principal amount of
the Notes of this series at the time Outstanding shall have made written request to the Trustee to
institute proceedings in
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respect of such Event of Default as Trustee and offered the Trustee
reasonable indemnity, and the Trustee shall not have received from the Noteholders of a majority in
principal amount of Notes of this series at the time Outstanding a direction inconsistent with such
request, and shall have failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the
Noteholder of this Note for the enforcement of any payment of principal hereof or any premium or interest
hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of and any premium and interest on this Note at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Note is registrable in the Security Register, upon surrender of this Note for
registration of transfer at the office or agency of the Company in any place where the principal of
and any premium and interest on this Note are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Noteholder hereof or his attorney duly authorized in writing, and thereupon one or
more new Notes of this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or transferees.
The Notes of this series are issuable only in registered form without coupons in denominations
of $2,000 and any integral multiple of $1,000 in excess thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Notes of this series are exchangeable for a like
aggregate principal amount of Notes of this series and of like tenor of a different authorized
denomination, as requested by the Noteholder surrendering the same.
No service charge shall be made to a Noteholder for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name this Note is
registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
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