<PAGE> 1
As Filed with the Securities and Exchange Commission on April 22, 1994
Registration No.------
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
V.F. CORPORATION
(Exact name of registrant as specified in its charter)
Pennsylvania 23-1180120
(State of Incorporation) (I.R.S. Employer Identification No.)
1047 North Park Road
Wyomissing, Pennsylvania 19610
(610) 378-1151
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive office)
LORI M. TARNOSKI
VICE PRESIDENT AND SECRETARY
V.F. CORPORATION
1047 North Park Road
Wyomissing, Pennsylvania 19610
(610) 378-1151
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
<TABLE>
<S> <C>
Aloysius T. Lawn, IV, Esq. Andrew D. Soussloff, Esq.
Clark, Ladner, Fortenbaugh & Young Sullivan & Cromwell
One Commerce Square, 2005 Market Street 125 Broad Street
Philadelphia, PA 19103 New York, NY 10004
(215) 241-1800 (212) 558-4000
</TABLE>
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box:
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box: X
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Amount Maximum Maximum Amount of
Title of each class of to be Offering Price Aggregate Offering Registration
securities to be registered Registered(1) per Unit(1)(2) Price(1)(2) Fee(1)
<S> <C> <C> <C> <C>
Debt Securities.............. )
)
Preferred Stock, par value )
$1.00 per share............ )
)
Common Stock, without par )
value(4)................... } $400,000,000(3) 100% $400,000,000 $137,932
)
Debt Warrants................ )
)
Preferred Stock Warrants..... )
)
Common Stock Warrants........ )
</TABLE>
(1) Pursuant to Rule 457(o) under the Securities Act of 1933, which permits
the registration fee to be calculated on the basis of the maximum offering
price of all the securities listed, the table does not specify
<PAGE> 2
by each class information as to the amount to be registered, proposed maximum
offering price per Unit or proposed maximum aggregate offering price. There
are being registered hereunder such presently indeterminate principal amount or
number of Debt Securities, shares of Preferred Stock, shares of Common Stock,
Debt Warrants, Preferred Stock Warrants and Common Stock Warrants as may be
offered from time to time, with an aggregate initial offering price not to
exceed $400,000,000, plus an indeterminate number of shares as may be issued
upon conversion of Debt Securities or Preferred Stock for which no separate
consideration will be received.
(2) Estimated solely for the purpose of determining the amount of the
registration fee.
(3) Or, if any such securities are issued at original issue discount, such
greater principal amount as shall result in an aggregate initial offering price
of $400,000,000.
(4) Includes rights to purchase Series A Junior Participating Preferred Stock.
Prior to the occurrence of certain events, rights to purchase Series A Junior
Participating Preferred Stock will not be exercisable or evidenced separately
from the Common Stock.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE> 3
Subject to Completion, Dated April 22, 1994
[Logo]
V.F. CORPORATION
Debt Securities
Preferred Stock
Common Stock
Warrants
The Company may offer from time to time, in one or more series, securities
having an aggregate initial offering price not to exceed $400,000,000,
consisting of: (i) debt securities, consisting of debentures, notes and/or
other unsecured evidences of indebtedness (the "Debt Securities") and warrants
to purchase the Debt Securities (the "Debt Warrants"); (ii) shares of preferred
stock, par value $1.00 per share, (the "Preferred Stock") and warrants to
purchase shares of Preferred Stock (the "Preferred Stock Warrants"); and (iii)
shares of common stock, without par value, (the "Common Stock") and warrants to
purchase shares of Common Stock (the "Common Stock Warrants"). The Debt
Securities, Preferred Stock, Common Stock, Debt Warrants, Preferred Stock
Warrants and Common Stock Warrants (such Warrants, collectively the "Securities
Warrants") offered hereby (collectively, the "Offered Securities") may be
offered, separately or together, in separate series, in amounts, at prices and
on terms to be determined at the time of sale and to be set forth in a
supplement to this Prospectus (a "Prospectus Supplement").
The specific terms of the Offered Securities in respect of which this
Prospectus is being delivered will be set forth in the accompanying Prospectus
Supplement, such as: (i) in the case of Debt Securities, the specific
designation, aggregate principal amount, denominations, maturity, priority,
premium, if any, rate (which may be fixed or variable) and time of payment of
any interest, terms for any redemption at the option of the Company or the
holder, terms for any sinking fund payments, listing on any securities
exchanges, initial public offering price, the form of the Debt Securities
(which may be in registered or permanent global form) and any other terms in
connection with the offer and sale of the Debt Securities, (ii) in the case of
Preferred Stock, the specific title, number of shares or fractional interests
therein, initial public offering price, dividend rate (or method of
calculation), dividend payment dates, liquidation provisions, preferences, any
redemption or sinking fund provisions, listing on any securities exchanges, any
conversion or exchange provisions, voting and any other terms in connection
with the offer and sale of the Preferred Stock; (iii) in the case of Common
Stock, the number of shares, and initial public offering price and other terms
in connection with the offer and sale of Common Stock; and (iv) in the case of
Securities Warrants, the duration, initial public offering price, exercise
dates, exercise price, detachability and other terms in connection with the
offer and sale of Securities Warrants.
The Company may sell the Offered Securities through underwriters or
dealers, directly to other purchasers or through agents. See "Plan of
Distribution". Such underwriters may include Goldman, Sachs & Co. and J.P.
Morgan Securities Inc. or may be a group of underwriters represented by
Goldman, Sachs & Co. and J.P. Morgan Securities Inc. Goldman, Sachs & Co. and
J.P. Morgan Securities Inc. or other firms may also act as agents. The
accompanying Prospectus Supplement sets forth the names of any underwriters or
agents involved in the sale of the Offered Securities in respect of which this
Prospectus is being delivered, the principal amounts, if any, to be purchased
by underwriters and the compensation, if any, of such underwriters or agents.
<PAGE> 4
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
---------
Goldman, Sachs & Co. J.P. Morgan Securities Inc.
The date of this Prospectus is April __, 1994.
<PAGE> 5
AVAILABLE INFORMATION
V.F. Corporation (the "Company") is subject to the information
requirements of the Securities Exchange Act of 1934 (the "Exchange Act") and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Reports, proxy
statements and other information filed by the Company may be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's
Regional Offices at Seven World Trade Center, New York, New York 10048, and at
Northwest Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661. Copies of such material can be obtained upon written request addressed
to the Commission, Public Reference Section, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. The Company's Common Stock is
listed on the New York Stock Exchange and The Pacific Stock Exchange, and
reports, proxy statements and other information filed by the Company may be
inspected and copied at the offices of the New York Stock Exchange, Inc., 20
Broad Street, New York, New York 10005 or The Pacific Stock Exchange, Inc., 115
Sansone Street, 8th Floor, San Francisco, California 94104.
The Company has filed with the Commission a registration statement on Form
S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended. This
Prospectus does not contain all of the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. For further information, reference
is hereby made to the Registration Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission (File No.
1-5256) pursuant to Section 13 of the Exchange Act are incorporated herein by
reference:
1. Annual Report on Form 10-K for the fiscal year ended January 1,
1994 (the "1993 Form 10-K"); and
2. Current Report on Form 8-K, dated January 19, 1994
(the "Form 8-K"); and
3. Amendment to Current Report on Form 8-K/A, dated
January 19, 1994 (the "Form 8-K/A"); and
4. The Company's Registration Statement on Form 8-A dated
February 27, 1965 filed pursuant to Section 12(g) of the
Exchange Act and the Company's Registration Statements on Form 8-
A dated May 8, 1987 and January 25, 1988 filed pursuant to
Section 12(b) of the Exchange Act, which contain descriptions of
the Common Stock and certain rights relating to the Common
Stock, including any amendment or reports filed for the purpose
of updating such descriptions; and
5. Current Report on Form 8-K, dated April 6, 1994 (the "April
Form 8-K").
All other documents filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Offered Securities shall be
deemed to be incorporated by reference in this Prospectus.
Any statement contained herein or in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any document subsequently filed with the Commission
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of
this Prospectus.
The Company will furnish without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, on the
written or oral request of such person, a copy of any or all of the documents
described above and incorporated herein by reference (not including exhibits
thereto unless such exhibits are specifically incorporated by reference into
the information that the Registration Statement incorporates). Written or
telephone requests should be directed to Secretary, V.F. Corporation, P.O. Box
1022,
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Reading, Pennsylvania 19603 (tel. 610-378-1151) or to the Company, c/o
Registration Department, Goldman, Sachs & Co., 85 Broad Street, New York, New
York 10004, Attention: Donald T. Hansen (tel. 212-902-6685) or c/o J.P. Morgan
Securities Inc., 60 Wall Street, 44th Floor, New York, New York 10260,
Attention: Prospectus Department (tel. 212-648-9922).
THE COMPANY
The Company, organized in 1899, through its operating subsidiaries,
designs, manufactures and markets apparel in five business groups: Jeanswear,
Decorated Knitwear, Intimate Apparel, Playwear and Specialty Apparel.
JEANSWEAR
The Jeanswear business group consists of the Lee and Wrangler
subsidiaries in the United States and in international markets, primarily in
Europe. These companies design, manufacture and market jeanswear and other
casual apparel for men, women and youth primarily under the Lee(R),
Wrangler(R), Rustler(R) and Riders brand names in the United States and under
the Lee(R), Wrangler(R) and Maverick(R) labels in Europe. This business group
also includes Girbaud, which designs and markets licensed jeanswear and other
casual apparel in the United States under the Marithe & Francois Girbaud(R)
label.
DECORATED KNITWEAR
The Decorated Knitwear business group consists of licensed, branded and
private label fleece and T-shirts. Nutmeg and the sports apparel division of
H. H. Cutler, both acquired in January 1994, design, manufacture and market
imprinted knitwear apparel under licenses granted by the four major American
professional sports leagues and most major American colleges and universities.
The college division of JanSport also markets imprinted knitwear products under
licenses granted by major colleges and universities. The Bassett-Walker
subsidiary produces branded knitwear products under Lee(R) and certain other
Company labels, private label products, and also a significant portion of the
blank fleece and T-shirt needs of Nutmeg, H. H. Cutler and JanSport.
INTIMATE APPAREL
Vanity Fair Mills designs, manufactures and markets body fashions,
daywear, sleepwear and loungewear under the Vanity Fair(R) and Vassarette(R)
brand names and has developed private label lingerie and sportswear programs
with major retailers. Barbizon(R) brand sleepwear and loungewear products are
marketed through a chain of leased retail stores. Also included in this
business group are international intimate apparel operations. Internationally,
intimate apparel is designed, manufactured and marketed for distribution
primarily in France in department and specialty stores under the Lou, Bolero
and Silhouette brand names and in discount stores under the Variance, Carina
and Siltex brand names. In Spain, intimate apparel is marketed in department
and specialty stores under the Gemma, Intima Cherry and Belcor brand names.
PLAYWEAR
The Playwear business group consists of Healthtex, the playwear and
sleepwear divisions of H. H. Cutler and the preschool sizes of Lee and Wrangler
in the United States. These companies design, manufacture and market
children's clothing primarily under the Healthtex(R), Lee(R), Wrangler(R) and
Rustler(R) brands and also under licenses granted by Walt Disney, Fisher-Price
and various other companies.
SPECIALTY APPAREL
This business group consists primarily of the Red Kap and Jantzen
subsidiaries and the equipment division of JanSport. Red Kap is a leading
producer of occupational and career apparel sold primarily under the Red Kap(R)
label. Jantzen designs, manufactures and markets men's and women's swimwear
and sportswear, including sweaters and coordinated tops and bottoms, primarily
under the Jantzen(R) trademark. The equipment division of JanSport designs,
manufactures and markets JanSport(R) brand daypacks and
backpacking/mountaineering gear.
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4
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USE OF PROCEEDS
Except as otherwise may be disclosed in the Prospectus Supplement, the net
proceeds from the sale of the Offered Securities offered hereby will be used
for general corporate purposes, including reduction of outstanding indebtedness
and to finance possible acquisitions. As of April 2, 1994, the Company had
outstanding commercial paper and other short-term indebtedness of $546.6
million.
5
<PAGE> 9
SUMMARY FINANCIAL INFORMATION OF THE COMPANY
The following selected financial data (except for the ratio of earnings
to fixed charges and the ratio of earnings to combined fixed charges and
preferred stock dividends) are derived from the consolidated financial
statements of the Company which have been audited by Ernst & Young,
independent auditors. The data should be read in conjunction with the
consolidated financial statements, related notes, and other financial
information incorporated by reference herein.
<TABLE>
<CAPTION>
Fiscal Years Ended
January 1, January 2, January 4, December 29, December 30,
1994 1993 1992 1990 1989
---------- ---------- ---------- ------------ ------------
(dollars in millions, except per share data)
<S> <C> <C> <C> <C> <C>
Income Statement
Data:
Net sales $4,320 $3,824 $2,952 $2,613 $2,533
Operating income 432 429 304 207 313
Interest expense 73 71 69 76 46
Other income, net 41 18 28 12 17
Income before
income taxes 400 376 263 143 284
Income taxes 154 139 102 62 108
Net income 246 237 161 81 176
Ratio of earnings to
fixed charges(1) 5.4x 5.5x 4.4x 2.7x 6.1x
Ratio of earnings to combined
fixed charges and preferred
stock dividends(2) 5.2x 5.2x 4.1x 2.6x 6.1x
Per Common Share Data:
Earnings - Primary $3.80 $3.97 $2.75 $1.35 $2.72
Earnings - Fully diluted 3.71 3.85 2.62 1.33 2.70
Cash dividends 1.22 1.11 1.02 1.00 .91
Average number of common and
common equivalent shares:
Primary 64,011 58,608 57,152 57,122 64,803
Fully diluted 66,025 60,988 60,472 59,162 65,182
Balance Sheet Data
(at end of period):
Working capital $840 $682 $560 $473 $548
Intangible assets 575 555 422 427 432
Total assets 2,877 2,712 2,127 1,853 1,890
Short-term debt 36 126 6 33 85
Current portion of long-term
debt 110 54 103 52 12
Long-term debt 528 768 583 585 638
Redeemable preferred
stock 63 64 65 65 --
Deferred contribution
to employee stock
ownership plan (48) (52) (57) (61) --
Common shareholders'
equity 1,547 1,154 938 823 820
</TABLE>
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<TABLE>
<S> <C> <C> <C> <C> <C>
Cash Flow Data:
Depreciation $107 $91 $76 $81 $73
Amortization of
intangible assets 19 17 15 17 18
</TABLE>
(1) For purposes of this ratio, fixed charges consist of interest expense,
capitalized interest and one-third of rental expense, which
approximates the interest factor of such rental expense.
(2) For purposes of this ratio, fixed charges consist of interest expense,
capitalized interest and one-third of rental expense, which approximates
the interest factor of such rental expense. Preferred stock dividends
relate to the outstanding Series B Preferred Stock held by the Employee
Stock Ownership Plan.
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8
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DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions of
the Debt Securities to which any Prospectus Supplement may relate. The
particular terms of the Debt Securities offered by any Prospectus Supplement
and the extent, if any, to which such general provisions may apply to the Debt
Securities so offered will be described in the Prospectus Supplement relating
to such Debt Securities.
Offered Debt Securities (as defined below) are to be issued under an
Indenture (the "Indenture"), dated as of January 1, 1987, as supplemented by a
First Supplemental Indenture dated September 1, 1989, between the Company,
Morgan Guaranty Trust Company of New York, as retiring Trustee, and United
States Trust Company of New York, as successor Trustee (the "Trustee") and a
Second Supplemental Indenture, dated as of April 1, 1994, between the Company
and the Trustee. The statements under this caption relating to the Debt
Securities and the Indenture are summaries and do not purport to be complete.
Such summaries make use of terms defined in the Indenture and are qualified in
their entirety by express reference to the Indenture and the cited provisions
thereof, the form of which is filed as an exhibit to the Registration Statement.
General
The Debt Securities will be unsecured obligations of the Company. The
Indenture does not limit the aggregate principal amount of Debt Securities
which may be issued thereunder and provides that Debt Securities may be issued
thereunder from time to time in one or more series.
Reference is made to the Prospectus Supplement relating to the particular
Debt Securities offered thereby (the "Offered Debt Securities") for the
following terms of the Offered Debt Securities: (1) the title of the Offered
Debt Securities; (2) any limit on the aggregate principal amount of the Offered
Debt Securities; (3) the date or dates on which the Offered Debt Securities
will mature; (4) the rate or rates (which may be fixed or variable) per annum
at which the Offered Debt Securities will bear interest, if any, and the date
or dates from which such interest will accrue; (5) the dates on which such
interest, if any, will be payable and the regular record dates for such
interest payment dates; (6) the place or places where principal of (and
premium, if any) and interest on Offered Debt Securities shall be payable; (7)
any mandatory or optional sinking fund or analogous provisions; (8) if
applicable, the price at which, the periods within which, and the terms and
conditions upon which the Offered Debt Securities may, pursuant to any optional
or mandatory redemption provisions, be redeemed at the option of the Company;
(9) if applicable, the terms and conditions upon which the Offered Debt
Securities may be repayable prior to final maturity at the option of the holder
thereof (which option may be conditional); (10) the portion of the principal
amount of the Offered Debt Securities, if other than the principal amount
thereof, payable upon acceleration of maturity thereof; (11) the currency of
payment of principal of and premium, if any, and interest on the Offered Debt
Securities; (12) any index used to determine the amount of payments of
principal of and premium, if any, and interest on the Offered Debt Securities;
and (13) any other terms of the Offered Debt Securities. (Section 301)
Unless otherwise indicated in the Prospectus Supplement relating thereto,
the Offered Debt Securities are to be issued as registered securities without
coupons in denominations of $1,000 or any integral multiple of $1,000. (Section
302) No service charge will be made for any transfer or exchange of such
Offered Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. (Section 305)
Debt Securities may be issued under the Indenture as Original Issue Discount
Securities to be offered and sold at a substantial discount below their stated
principal amount. Federal income tax consequences and other considerations
applicable thereto will be described in the Prospectus Supplement relating
thereto. "Original Issue Discount Securities" means any Debt Securities which
provide for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof. (Section
101)
Certain Covenants of the Company
Limitations on Secured Debt. The Company will not, and it will not permit
any Subsidiary to, issue, assume or guarantee any Debt secured by a Mortgage
upon any Principal Property or on any shares of stock or indebtedness of any
Restricted Subsidiary (whether such Principal Property, shares of stock or
indebtedness is now owned or hereafter acquired) without in any such case
effectively providing that the Debt Securities (together with, if the Company
shall so determine, any other indebtedness of or guaranteed by the Company or
such Restricted Subsidiary ranking equally with the Debt Securities then
existing or thereafter created) shall be secured equally and ratably with such
Debt, except that the foregoing restrictions shall not apply to (i) Mortgages
on property, shares of stock or indebtedness of or guaranteed by any
corporation existing at the time such corporation becomes a Restricted
Subsidiary; (ii) Mortgages on property existing at the time of acquisition
thereof, or to secure the payment of all or part of the purchase price of such
property, or to secure Debt incurred or guaranteed for the purpose of financing
all or part of the purchase price of such property or construction or
improvements thereon, which Debt is incurred or guaranteed prior to, at the
time of, or within 120 days after the later of such acquisition or completion
of such improvements or construction or commencement of full operation of such
property; (iii) Mortgages securing Debt owing by any Restricted Subsidiary to
the Company or another Restricted Subsidiary; (iv) Mortgages on property of a
corporation existing at the time such corporation is merged into or
consolidated with the Company or a Restricted Subsidiary or at the time of a
purchase, lease or other acquisition of the property of a corporation or firm
as
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an entirety or substantially as an entirety by the Company or a Restricted
Subsidiary; (v) Mortgages on property of the Company or a Restricted Subsidiary
in favor of the United States of America or any State thereof, or any political
subdivision thereof, or in favor of any other country, or any political
subdivision thereof, to secure certain payments pursuant to any contract or
statute or to secure any indebtedness incurred or guaranteed for the purpose of
financing all or any part of the purchase price or the cost of construction of
the property subject to such Mortgages (including, but not limited to,
Mortgages incurred in connection with pollution control industrial revenue bond
or similar financings); (vi) Mortgages existing on the date of the Indenture;
and (vii) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any Mortgage referred to in
the foregoing clauses (i) to (vi), inclusive. Notwithstanding the above, the
Company and any one or more Subsidiaries may, without securing the Debt
Securities, issue, assume or guarantee secured Debt which would otherwise be
subject to the foregoing restrictions, provided that after giving effect
thereto the aggregate amount of Debt which would otherwise be subject to the
foregoing restrictions then outstanding (not including secured Debt permitted
under the foregoing exceptions) at such time does not exceed 10% of the
shareholders' equity of the Company and its consolidated Subsidiaries as of the
end of the latest fiscal year. (Section 1007)
Limitations on Sale and Leaseback Transactions. Sale and leaseback
transactions (except such transactions involving leases for less than three
years, leases between the Company and a Restricted Subsidiary or between
Restricted Subsidiaries or leases of a Principal Property entered into within
120 days after the later of the acquisition, completion of construction or
commencement of full operation of such Principal Property) by the Company or
any Restricted Subsidiary of any Principal Property (whether now owned or
hereafter acquired) are prohibited unless (i) the Company or such Restricted
Subsidiary would be entitled under Section 1007 to issue, assume or guarantee
Debt secured by a Mortgage upon such Principal Property at least equal in
amount to the Attributable Debt in respect of such transaction without equally
and ratably securing the Debt Securities, provided that such Attributable Debt
shall thereupon be deemed to be Debt subject to the provisions described in the
preceding paragraph, or (ii) an amount in cash equal to such Attributable Debt
is applied to the retirement of funded non-subordinated Debt of the Company or
a Restricted Subsidiary. (Section 1008)
Limitations on Consolidation, Merger and Sale of Assets. The Company may not
consolidate with or merge into any other Person (as defined in the Indenture)
or convey, transfer or lease its properties and assets substantially as an
entirety, unless (a) the successor Person is a corporation, partnership or
trust organized and validly existing under the laws of the United States of
America, any State thereof or the District of Columbia and expressly assumes
the Company's obligations on the Debt Securities and under the Indenture; (b)
after giving effect to such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of Default,
would occur and be continuing; and (c) after giving effect to such transaction
the Company or successor Person, as the case may be, would not immediately
thereafter have outstanding indebtedness secured by any Mortgage not permitted
by the provisions of Section 1007 or shall have secured the Debt Securities
equally and ratably with (or prior to) any indebtedness secured thereby.
(Section 801)
Certain Definitions. "Principal Property" is defined as any manufacturing
plant or facility located within the United States of America (other than its
territories and possessions) and owned by the Company or any Subsidiary, except
any such plant or facility which, in the opinion of the Board of Directors, is
not of material importance to the business conducted by the Company and its
Subsidiaries, taken as a whole. "Debt" is defined as indebtedness for money
borrowed. "Mortgage" is defined as any mortgage, pledge, lien or other
encumbrance. "Attributable Debt" is defined as the present value (discounted
at the rate of interest implicit in the terms of the lease) of the obligation
of a lessee for net rental payments during the remaining term of any lease.
"Subsidiary" is defined to mean a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by
one or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. "Restricted Subsidiary" is defined as a Subsidiary which owns or
leases any Principal Property. (Section 101)
Defeasance and Covenant Defeasance
The Indenture provides, if such provision is made applicable to the Debt
Securities of any series, that the Company may elect either (A) to defease and
be discharged from any and all obligations with respect to such Securities
(except for the obligations to register the transfer or exchange of such
Securities, to replace temporary or mutilated, destroyed, lost or stolen
Securities, to maintain an office or agency in respect of the Securities and to
hold moneys for payment in trust) ("defeasance") or (B) (i) to be released from
its obligations with respect to such Securities under Sections 801
(consolidation, merger and sale of assets), 1005 (maintenance of properties),
1006 (payment of taxes and other claims), 1007 (restrictions upon mortgages),
1008 (restrictions upon sale and leaseback transactions) and 1009 (certificates
of compliance) and (ii) that Sections 501 (4) (as to Sections 801, 1005, 1006,
1007, 1008 and 1009), 501(5), 501(6), 501(7) and 501(8) (if Section 501(8) is
specified in the Prospectus Supplement), as described in clauses (d) through
(g) under "Events of Default" below, shall not be deemed to be Events of
Default under the Indenture with respect to such series ("covenant
defeasance"), upon the deposit with the Trustee (or other qualifying trustee),
in trust for such purpose, of money, and/or U.S. Government Obligations (as
defined) which through the payment of principal and interest in accordance with
their terms will provide money, in an amount sufficient to pay the principal of
(and premium, if any) and interest on such Securities, and any mandatory
sinking fund or analogous payments thereon, on the scheduled due dates
therefor. In the case of defeasance, the Holders of such Securities are
entitled to receive payments in respect of such Securities solely from such
trust. Such
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<PAGE> 14
a trust may only be established if, among other things, the Company
has delivered to the Trustee an Opinion of Counsel (as specified in the
Indenture) to the effect that the Holders of such Securities will not recognize
income, gain or loss for Federal income tax purposes as a result of such
defeasance or covenant defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would have been
the case if such defeasance or covenant defeasance had not occurred. Such
Opinion of Counsel, in the case of defeasance under clause (A) above, must
refer to and be based upon a ruling of the Internal Revenue Service or a change
in applicable Federal income tax law occurring after the date of the Indenture.
(Article Thirteen)
Events of Default and Notice Thereof
The Indenture defines the following events as "Events of Default" with
respect to Debt Securities of any series: (a) failure to pay principal of (or
premium, if any) on any Debt Security of that series when due; (b) failure to
pay any interest on any Debt Security of that series when due, continued for 30
days; (c) failure to deposit any sinking fund payment, when due, in respect of
any Debt Security of that series; (d) failure to perform any other covenant of
the Company in the Indenture (other than a covenant included in the Indenture
solely for the benefit of a series of Debt Securities other than that series),
continued for 60 days after written notice given to the Company by the Trustee
or the holders of at least 10% in principal amount of the Debt Securities
outstanding and affected thereby; (e) acceleration of any Debt aggregating in
excess of $5,000,000 (including Debt Securities of any series other than that
series), if such acceleration has not been rescinded or annulled within 10 days
after written notice given to the Company by the Trustee or the holders of at
least 10% in principal amount of the outstanding Debt Securities of such
serIes; (f) certain events in bankruptcy, insolvency or reorganization of the
Company; and (g) any other Event of Default provided with respect to Debt
Securities of such series. (Section 501)
If an Event of Default with respect to Debt Securities of any series at the
time outstanding shall occur and be continuing, either the Trustee or the
holders of at least 25% in principal amount of the outstanding Debt Securities
of that series may declare the principal amount (or, if the Debt Securities of
that series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) of all Debt
Securities of that series to be due and payable immediately; provided, however,
that under certain circumstances the holders of a majority in aggregate
principal amount of outstanding Debt Securities of that series may rescind or
annul such declaration and its consequences. (Section 502)
Reference is made to the Prospectus Supplement relating to any series of
Offered Debt Securities which are Original Issue Discount Securities for the
particular provisions relating to the principal amount of such Original Issue
Discount Securities due upon the occurrence of any Event of Default and the
continuation thereof.
The Indenture will provide that the Trustee, within 90 days after the
occurrence of a default with respect to any series of Debt Securities, shall
give to the holders of Debt Securities of that series notice of all uncured
defaults known to it (the term default to mean the events specified above
without grace periods), provided that, except in the case of default in the
payment of principal of (or premium, if any) or interest, if any, on any Debt
Security, or in the deposit of any sinking fund payment with respect to any
Debt Securities, the Trustee shall be protected in withholding such notice if
it in good faith determines that the withholding of such notice is in the
interest of the holders of the Debt Securities of such series. (Section 602)
The Company will be required to furnish to the Trustee annually a statement
by certain officers of the Company to the effect that to the best of their
knowledge the Company is not in default in the fulfillment of any of its
obligations under Sections 1007 and 1008 of the Indenture or, if there has been
a default in the fulfillment of any such obligation, specifying each such
default. (Section 1009)
The holders of a majority in principal amount of the outstanding Debt
Securities of any series affected will have the right, subject to certain
limitations, to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee with respect to the Debt Securities of such series,
and to waive certain defaults. (Sections 512 and 513)
The Indenture will provide that in case an Event of Default shall occur and
be continuing, the Trustee shall exercise such of its rights and powers under
the Indenture, and use the same degree of care and skill in their exercise, as
a prudent man would exercise or use under the circumstances in the conduct of
his own affairs. (Section 601) Subject to such provisions, the Trustee will be
under no obligation to exercise any of its rights or powers under the Indenture
at the request of any of the holders of Debt Securities unless they shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request. (Section 603)
Modification of the Indenture
Modifications and amendments of the Indenture may be made by the Company and
the Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the outstanding Debt Securities of each series
issued under the Indenture which are affected by the modification or amendment,
provided that no such modification or amendment may, without the consent of
each holder of such Debt Security affected thereby, (i) change the stated
maturity date of the principal of (or premium, if
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<PAGE> 15
any) or any installment of
interest, if any, on any such Debt Security; (ii) reduce the principal amount
of (or premium, if any) or the interest, if any, on any such Debt Security or
the principal amount due upon acceleration of an Original Issue Discount
Security; (iii) change the place or currency of payment of principal (or
premium, if any) or interest, if any, on any such Debt Security; (iv) impair
the right to institute suit for the enforcement of any such payment on or with
respect to any such Debt Security; (v) reduce the above-stated percentage of
holders of Debt Securities necessary to modify or amend the Indenture; or (vi)
modify the foregoing requirements or reduce the percentage of outstanding Debt
Securities necessary to waive compliance with, or modify, certain provisions of
the Indenture or for waiver of certain defaults. (Section 902)
Certain Pennsylvania Taxes
The Debt Securities held by or for certain persons, principally individuals
and partnerships resident in Pennsylvania, are subject to the Pennsylvania
Corporate Loans Tax, the annual rate of which is currently $4 per $1,000
principal amount of the Debt Securities held by such persons, and this tax will
be withheld by the Company from interest paid to such persons.
In the opinion of Clark, Ladner, Fortenbaugh & Young, counsel for the
Company, the Debt Securities held by most Pennsylvania residents will not be
subject to the Pennsylvania County Personal Property Tax in effect as of the
date of this Prospectus.
Persons resident in Pennsylvania holding Debt Securities should consult
their tax advisors regarding the applicability of the Pennsylvania Corporate
Loans Tax and the Pennsylvania County Personal Property Tax.
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<PAGE> 16
DESCRIPTION OF CAPITAL STOCK
General
The following description of the capital stock of the Company does not
purport to be complete and is subject to, and is qualified in its entirety by
reference to, the more complete descriptions thereof set forth in (a) the
Company's Articles of Incorporation, as amended (the "Articles of
Incorporation"); (b) the Company's By-Laws, as amended; (c) the Rights
Agreement dated January 13, 1988 between the Company and Morgan Shareholder
Services Trust Company of New York (now First Chicago Trust Company of New
York), as amended on April 17, 1990 and December 4, 1990 (the "Rights
Agreement"), all of which have been incorporated by reference as exhibits to
the Registration Statement of which this Prospectus is a part; and (d) the
Statement with Respect to Shares relating to each series of Preferred Stock,
which will be filed with the Commission at or prior to the time of offering
such series of Preferred Stock.
The total number of shares of all classes of stock which the Company has the
authority to issue is 175,000,000 shares, consisting of 150,000,000 shares of
Common Stock, without par value, and 25,000,000 shares of Preferred Stock, par
value $1.00 per share.
Common Stock
Holders of shares of Common Stock are entitled (i) to one vote per share
(which is non-cumulative) for the election of directors and upon any other
matter coming before any meeting of shareholders; (ii) to dividends declared by
the Board of Directors; and (iii) upon liquidation, to share in the available
assets of the Company, pro rata, in accordance with their holdings after
payment of all liabilities and obligations and satisfaction of the liquidation
preferences of any shares of the Company's Preferred Stock at the time
outstanding. Holders of shares of Common Stock have no preemptive, redemption,
subscription or conversion rights.
Certain Provisions of the Articles of Incorporation, the By-Laws and
Pennsylvania Law. The Company has a classified Board of Directors pursuant to
which the Board is divided into three classes, and the term of office of one
class expires in each year. The Company's By-Laws provide a nominating
procedure for directors if shareholders wish to make nominations for directors.
Certain provisions of the Company's Articles of Incorporation and By-Laws
require a greater percentage shareholders' vote than a majority of the shares
cast at a meeting at which a quorum of shareholders is present. For example,
removal of directors requires approval by 80% of the votes which all
shareholders would be entitled to cast at any election of directors; the
Company's By-Laws and Articles of Incorporation may be amended, altered,
repealed or new By-Laws or Articles adopted upon receiving approval by at least
80% of the votes entitled to be cast by shareholders, unless the change was
proposed by a majority of "disinterested directors", in which case only a
majority approval vote is required or unless the change was approved by a
majority vote of "disinterested directors".
Under the Pennsylvania Business Corporation Law of 1988 (the "BCL"), certain
business combinations and other transactions, if such transaction involves an
"interested shareholder", as defined in the BCL, must be approved (i) by the
board of directors of the Company prior to the interested shareholder's
"acquisition date", as defined in the BCL; (ii) by (a) the vote of the holders
of the majority of the votes which all shareholders other than the interested
shareholder are entitled to cast at a meeting of shareholders, provided that
(1) the interested shareholder has acquired 80% of all outstanding shares, (2)
the price to be paid in the business combination for the remaining shares will
be equal to the greater of (x) the highest price paid by the interested
shareholder during the period specified in the BCL, and (y) the market value
per common share on the date on which the business combination is announced or
the interested shareholder's acquisition date, whichever is higher, (3) such
price will be in cash or the same form of consideration previously paid by the
interested shareholder for the largest number of shares previously acquired by
it, (4) all remaining shareholders may participate in the business combination
and be paid, and (5) the interested shareholder has not acquired additional
shares after its acquisition date, except as provided in the BCL, or (b) the
affirmative vote of all holders of all outstanding shares of Common Stock;
(iii) by the vote of the holders of the majority of the votes which all
shareholders other than the interested shareholder are entitled to cast at a
meeting of shareholders called for the purpose of approving the business
combination no earlier than five years after the interested shareholder's
acquisition date, or (iv) at a shareholder's meeting called for such purpose no
earlier than five years after the interested shareholder's acquisition date,
provided such business combination meets all of the conditions specified in
(ii) (a) above. In addition to the provisions of the BCL, to which the Company
is subject, the Company's Articles of Incorporation require an 80% vote of the
voting power of all voting stock of the Company to approve certain business
combinations, unless such business combinations meet certain conditions similar
to those required by the BCL, as described above.
The Company has opted out of the provisions of the BCL regarding Control
Share Acquisition and Disgorgement by Certain Controlling Shareholders
Following Attempts to Acquire Control.
The classified Board of Directors, the supermajority voting provisions, the
provisions authorizing the Board to issue Preferred Stock without shareholder
approval, the Rights Agreement (as defined below), the provisions of the Series
A Junior Participating Preferred Stock and the provisions regarding certain
business combinations in the Articles of Incorporation and the By-Laws and
under the BCL could have the effect of delaying, deferring or preventing a
change in control of the Company or the removal of existing management.
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<PAGE> 17
Transfer Agent and Registrar. The Transfer Agent and Registrar for the
Common Stock is First Chicago Trust Company of New York, located in New York,
New York.
Rights Plan and Series A Junior Participating Preferred Stock
General. The Company adopted a Rights Plan on January 13, 1988. Each
share of outstanding Common Stock of the Company is accompanied by a "Right".
The terms of the Rights are set forth in a Rights Agreement dated January 13,
1988 between the Company and Morgan Shareholder Services Trust Company of New
York (now First Chicago Trust Company of New York), as amended on April 17,
1990 and December 4, 1990 (the "Rights Agreement"). Each Right entitles the
registered holder to purchase one one-hundredth of a share of Series A Junior
Participating Preferred Stock, par value $1.00 per share (the "Series A
Stock"), for $100 (subject to adjustment). The Series A Stock is not
redeemable and is entitled to a minimum preferential quarterly dividend of $1
per share and an aggregate dividend of 100 times the dividend declared on
Common Stock. Holders of Series A Stock are entitled to a minimum preferential
liquidation payment of $100 per share, provided that such holders shall be
entitled to receive an aggregate amount per share equal to 100 times the
payment made per share of Common Stock. Each share of Series A Stock is
entitled to 100 votes per whole share and votes with the Common Stock. In the
event of any merger, consolidation or other transaction in which Common Stock
is exchanged, Series A Stock is entitled to receive 100 times the amount
received per share of Common Stock. The rights relating to the Series A Stock
are junior to all other classes of Preferred Stock which may be designated by
the Board of Directors pursuant to the Company's Articles of Incorporation.
Prior to the "Distribution Date" (defined below) of the Rights, the Rights are
not exercisable.
The Rights remain attached to and can only be transferred with the Common
Stock until the Distribution Date. The transfer of a share of Common Stock
will constitute the transfer of the accompanying Right until the Distribution
Date. The Distribution Date occurs 10 days following the date when a person or
group of affiliated persons acquires 20% or more of the Company's outstanding
Common Stock or 10 days following the date on which a person commences a tender
or exchange offer for 20% or more of the Company's outstanding Common Stock
unless the Board of Directors delays the Distribution Date as provided in the
Rights Agreement. Upon the Distribution Date, the Rights will become a
security separate from the Common Stock and can then be exercised by the Rights
holder.
The Rights have certain anti-takeover effects. When the Rights become
exercisable, the Rights holder is entitled to purchase a number of shares of
Common Stock at half the then current market price; the Rights held by a person
or affiliated group owning 20% or more of the Company's Common Stock, however,
would be void. In the event of a merger of the Corporation or a sale of 50% or
more of its assets, each Rights holder will be entitled to purchase a certain
number of shares of the acquiror at half the market price of the acquiror's
common shares. The Company's Board of Directors can redeem the Rights at any
time prior to a person acquiring 20% of the Common Stock at $.01 per Right.
The Rights are intended to increase the expense of a person seeking to acquire
the Company without Board of Directors' approval and to dilute the stock
holdings of an acquiror.
Until a Right is exercised, the holder thereof, as such, will have no rights
as a shareholder of the Company, including without limitation, the right to
vote or to receive dividends. The Rights expire on January 13, 1998 unless
they are redeemed prior thereto by the Board of Directors. The Board of
Directors may amend the terms of the Rights without shareholder or Rights
holder approval, unless such amendment would adversely affect the holders of
the Rights.
Section 2513 of the BCL expressly authorizes the adoption of shareholders'
rights plans such as that of the Company.
Taxes. The existence of the Rights does not result in a taxable event to
the Company's shareholders or to the acquirors of Common Stock. Acquirors of
Common Stock should not realize income for federal income tax purposes when the
Rights become exercisable as rights to purchase shares of the Company's Series
A Stock or discounted Common Stock. If the Rights become exercisable to
purchase stock of the acquiror or any person other than the Company, the Rights
may be considered for federal income tax purposes to be exchanged or reissued
for new Rights, and a shareholder may recognize gain or income on the exchange
or reissuance. In this case, the amount of the gain or income would equal the
value of the Rights, reduced by the holder's basis in the Rights, if any.
However, there is a lack of judicial or administrative guidance on the issue.
The foregoing statements with respect to taxes are summaries only and do not
purport to be complete. BECAUSE EACH SHAREHOLDER'S TAX SITUATION VARIES, EACH
SHAREHOLDER SHOULD CONSULT HIS OWN TAX ADVISER WITH REGARD TO THE FOREGOING
NARRATIVE, WHICH SHOULD NOT BE CONSTRUED AS TAX ADVICE. EACH SHAREHOLDER
SHOULD ALSO BE AWARE THAT THE EVENTS DESCRIBED ABOVE ARE PREMISED ON FUTURE
EVENTS THE OUTCOME OF WHICH CANNOT BE PREDICTED AT THIS TIME, PARTICULARLY IN
LIGHT OF UNKNOWN CHANGES IN THE TAX LAW WHICH MAY OCCUR IN THE FUTURE. The
foregoing description of the Rights is qualified in its entirety by reference
to the complete terms of the Rights as set forth in the Rights Agreement. The
Rights Agreement is incorporated by reference as an exhibit to the Registration
Statement of which this Prospectus is a part. A copy of the Rights Agreement
can be obtained as described under "Available Information" or upon written
request to the Rights Agent, First Chicago Trust Company of New York, 30 West
Broadway, 11th Floor, New York, NY 10007.
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<PAGE> 18
Preferred Stock
The following description of Preferred Stock sets forth certain general
terms and provisions of the series of Preferred Stock to which any Prospectus
Supplement may relate. Certain other terms of any particular series of
Preferred Stock will be described in the Prospectus Supplement relating to such
series of Preferred Stock. If so indicated in the Prospectus Statement
relating thereto, the terms of any such series of Preferred Stock may differ
from the terms set forth below.
General. Under the Articles of Incorporation, the Board of Directors is
authorized to provide for the issuance of up to 25,000,000 shares of Preferred
Stock, par value $1.00 per share, in one or more series, with such voting
powers, full or limited and the number of votes per share, or without voting
powers, and with such designations, preferences and relative, participating,
optional or other special rights, and qualifications, limitations or
restrictions thereof, as shall be established in or pursuant to the resolution
or resolutions providing for the issue thereof to be adopted by the Board of
Directors. Prior to the issuance of each series of Preferred Stock, the Board
of Directors (as used herein the term "Board of Directors" includes any duly
authorized committee thereof) will adopt resolutions creating and designating
such series as a series of Preferred Stock. As of the date of this Prospectus,
the Company has issued and outstanding two series of Preferred Stock consisting
of 2,000,000 shares of Series A Junior Participating Preferred Stock and
2,043,366 shares of Series B ESOP Convertible Preferred Stock as discussed
below.
The shares of Preferred Stock will, when issued, be fully paid and
nonassessable for each share issued. The Preferred Stock will have no
preemptive rights.
Reference is made to the Prospectus Supplement relating to the particular
series of Preferred Stock offered thereby for certain specified terms thereof,
including, without limitation: (i) the specific designation and number of
shares to be issued; (ii) the stated value per share of such Preferred Stock;
(iii) the initial public offering price at which shares of such series of
Preferred Stock will be sold; (iv) the annual rate of dividends on such
Preferred Stock during the initial dividend period with respect thereto and the
date on which such initial dividend period will end; (v) the dividend rate or
rates (or method of calculation); (vi) whether dividends will be cumulative or
non-cumulative; (vii) the minimum and maximum applicable rate for any dividend
period; (viii) the dates on which dividends will be payable, the date from
which dividends will accrue and the record dates for determining the holders
entitled to such dividends; (ix) any redemption or sinking fund provisions; and
(x) any additional dividend, redemption, liquidation or other preference or
rights and qualifications, limitations or restrictions of such Preferred Stock.
Voting Rights. Holders of shares of Preferred Stock will have no voting
rights, except as set forth below or in the Prospectus Supplement relating to a
particular series of Preferred Stock or as otherwise required by applicable
law.
If the equivalent of six quarterly dividends (whether or not declared and
whether or not consecutive) payable on the Preferred Stock of any series issued
hereunder are in arrears (if such stock is cumulative) or have not been paid
(if such stock is non-cumulative), the number of the directors of the Company
will be increased by two and the holders of all outstanding series of the
Preferred Stock, voting as a single class, will have the exclusive right to
elect such additional two directors until all dividends in arrears, whether or
not declared, have been paid or declared and funds set apart for payment (if
such stock is cumulative) or until all such dividends have been paid regularly
for at least a year (if such stock is non-cumulative).
Unless otherwise provided in the Prospectus Supplement, the affirmative vote
or consent of the holders of at least two-thirds of the outstanding shares of
any series of the Preferred Stock, voting as a single class, will be required
(i) for any amendment of the Company's Articles of Incorporation (or any
certificate supplemental thereto providing for the capital stock of the
Company) or By-Laws which would materially and adversely alter or change the
preferences, privileges, rights or powers of the holders of Preferred Stock,
but, in any case in which one or more, but not all, series of Preferred Stock
would be so affected as to their preferences, privileges, rights or powers,
only the consent of holders of at least two-thirds of the shares of each series
that would be so affected, voting separately as a class, will be required in
lieu thereof or (ii) to issue any class of stock which has preference as to
dividends or distribution of assets over any outstanding series of preferred
stock ranking prior to the Preferred Stock.
Dividends. The holders of shares of each series of Preferred Stock will be
entitled to receive, when and as declared by the Board of Directors, out of
funds legally available therefor, cash dividends on such dates and at such rate
or rates (which may be fixed or variable or both) as are set forth in, or as
are determined by the method described in, the Prospectus Supplement relating
to such series of Preferred Stock.
Such dividends may be cumulative or non-cumulative, as provided in the
Prospectus Supplement. If the Board of Directors fails to declare a dividend
payable on a dividend payment date on any series of Preferred Stock for which
dividends are non-cumulative, then the right to receive a dividend in respect
of the dividend period ending on such dividend payment date will be lost, and
the Company will have no obligation to pay the dividend accrued for such
period, whether or not dividends on such series are declared payable on any
future dividend payment dates. Dividends on the shares of each series of
Preferred Stock for which dividends are cumulative will be payable to holders
of record as they appear on the stock register of the Company on the record
dates fixed by the Board of Directors, as specified in the Prospectus
Supplement relating to such series of Preferred Stock.
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<PAGE> 19
No full dividends will be declared or paid or set apart for payment on
shares of any class or any series ranking, as to dividends, on a parity with or
junior to any series of the Preferred Stock for any period unless full
dividends have been or contemporaneously are declared and paid, or declared and
a sum sufficient for the payment thereof set apart for such payment, on such
series of the Preferred Stock for the then current dividend payment period and,
if such Preferred Stock is cumulative, for all other dividend payment periods
terminating on or before the date of payment of such full dividends. When
dividends are not paid in full upon any series of the Preferred Stock and any
other class or series ranking on a parity as to dividends with such series of
the Preferred Stock, all dividends declared upon such series of the Preferred
Stock and any other class or series ranking on a parity as to dividends will be
declared pro rata so that the amount of dividends declared per share on such
series of the Preferred Stock and such other class or series will in all cases
bear to each other the same ratio that accrued dividends per share on such
series of the Preferred Stock and such other class or series bear to each
other. Except as provided in the preceding sentence, with respect to each
series of cumulative Preferred Stock, unless full cumulative dividends on all
outstanding shares of each series of cumulative Preferred Stock shall have been
paid or concurrently declared and set aside for payment for all past dividend
payment periods, no dividends (other than in shares of Common Stock or another
stock ranking junior to such series of the Preferred Stock as to dividends and
upon liquidation) will be declared or paid or set aside for payment or other
distribution declared or made upon the Common Stock or upon any other stock of
the Company ranking junior to or on a parity with the Preferred Stock of such
series as to dividends or upon liquidation, nor will any Common Stock or any
other stock of the Company ranking junior to or on a parity with such series of
the Preferred Stock as to dividends or upon liquidation be redeemed, purchased
or otherwise acquired for any consideration (or any moneys paid to or made
available for a sinking fund for the redemption of any shares of any such
stock) by the Company (except by conversion into or exchange for stock of the
Company ranking junior to such series of the Preferred Stock as to dividends
and upon liquidation).
The amount of dividends payable for each full dividend period with respect
to any share of Preferred Stock will be computed by annualizing the applicable
dividend rate and dividing by the number of dividend periods in a year and
applying such rate against the stated value of such share, except that the
amount of dividends payable for the initial dividend period or any period
greater or less than a full dividend period shall be computed on the basis of
30-day months, a 360-day year and the actual number of days elapsed in the
period for which a dividend is payable.
Holders of shares of any series of Preferred Stock will not be entitled to
any dividend, whether payable in cash, property or stock, in excess of full
(including accumulated dividends, if any) dividends on shares of such series of
Preferred Stock. No interest, or sum of money in lieu of interest, shall be
payable in respect of any dividend payment or payments which may be in arrears.
Redemption. The shares of any series of Preferred Stock may be redeemable
at the option of the Company and may be subject to mandatory redemption
pursuant to a sinking fund or otherwise, in each case upon the terms, at the
times and at the redemption price set forth in the Prospectus Supplement
relating to such series.
Liquidation Preference. Upon any liquidation, dissolution or winding up of
the Company, the holders of shares of each series of Preferred Stock will be
entitled to receive out of the assets of the Company available for distribution
to stockholders, before any payment or distribution of assets is made on the
Common Stock or on any other class of stock of the Company ranking junior to
the shares of such series upon liquidation, an amount described in the
Prospectus Supplement relating to such series of Preferred Stock plus all
dividends (whether or not earned or declared) accrued and unpaid to the date of
final disposition. If upon any voluntary or involuntary liquidation,
dissolution or winding up of the Company, the assets of the Company available
for distribution to the holders of shares of each series of Preferred Stock and
any other shares of stock of the Company ranking on a parity with shares of
such series of Preferred Stock upon liquidation will not be sufficient to pay
in full all amounts to which such holders are entitled, no such distribution
will be made on account of any shares of any other class or series of capital
stock ranking on a parity as to liquidation preference with the shares of each
series of Preferred Stock upon such dissolution, liquidation or winding up
unless proportionate distributive amounts are paid on account of shares of each
series of Preferred Stock ratably in proportion to the full respective
preferential amounts to which they are entitled. After payment to the holders
of such series of Preferred Stock or the full preferential amounts to which
they are entitled, the holders of shares of such series of Preferred Stock will
have no right or claim to any of the remaining assets of the Company. Neither
the sale, lease or exchange (for cash, shares of stock, securities or other
consideration) of all or substantially all the property or business of the
Company, nor the merger or consolidation of the Company into or with any other
corporation or the merger or consolidation of any other corporation into or
with the Company, will be deemed to be a dissolution, liquidation or winding
up.
Conversion Rights. The shares of any series of Preferred Stock may, as set
forth in the applicable Prospectus Supplement, be convertible, at the option of
the holder of such Preferred Stock, into shares of Common Stock upon the terms
set forth in the Prospectus Supplement relating to such series.
Series B ESOP Convertible Preferred Stock
On January 22, 1990, the Company's Tax-Advantaged Savings Plan for Salaried
Employees (the "Plan") acquired an aggregate 2,105,263.158 shares of Series B
ESOP Convertible Preferred Stock ("ESOP Preferred Stock"). Shares of ESOP
Preferred Stock may be issued only to the Trustee acting on behalf of the ESOP
feature of the Plan or any successor. In the event of any transfer of shares
of ESOP Preferred Stock to other
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<PAGE> 20
than the Trustee or any successor, the shares
of ESOP Preferred Stock so transferred, upon such transfer and without any
further action by the Company or the holder, will be automatically converted
into shares of Common Stock of the Company on the terms provided for such
conversion (as described below), and no such transferee will have any of the
voting powers, preferences and relative, participating, optional or special
rights ascribed to shares of ESOP Preferred Stock so converted.
Liquidation Rights; Dividends. Shares of ESOP Preferred Stock have a
liquidation preference of $30.875 per share (plus accumulated and unpaid
dividends) and pay cumulative dividends quarterly (on the last day of March,
June, September and December of each year, commencing on March 31, 1990) in an
amount per share equal to $2.084 per share per annum (currently representing an
annual per share dividend yield of 6.75%). So long as shares of ESOP Preferred
Stock remain outstanding, no dividend may be declared or paid or set apart for
payment on any other series of stock of the Company ranking on a parity with
the ESOP Preferred Stock as to dividends unless like dividends have been
declared and paid or set apart for payment on shares of ESOP Preferred Stock.
Moreover, except with respect to (i) dividends payable solely in shares of
stock of the Company ranking, as to dividends or as to distributions upon the
liquidation, dissolution or winding-up of the Company ("Liquidation
Distributions"), junior to the ESOP Preferred Stock or (ii) the acquisition of
any shares of stock of the Company ranking as to dividends or as to Liquidation
Distributions, junior to the ESOP Preferred Stock, in exchange solely for
shares of any other stock ranking as to dividends or as to Liquidation
Distributions, junior to the ESOP Preferred Stock, the Company is prohibited
from declaring or paying or setting apart for payment any dividends or making
any distributions in respect of, or making any payments on account of, the
purchase, redemption or other retirement of any other class of stock or series
thereof of the Company ranking, as to dividends or as to Liquidation
Distributions, junior to the ESOP Preferred Stock, until full cumulative
dividends on the shares of ESOP Preferred Stock shall have been paid or
declared and provided for.
Redemption. Generally, shares of ESOP Preferred Stock may be redeemed, in
whole or in part, at the option of the Company, at an initial redemption price
(payable in cash or securities or a combination thereof) of $32.3354 per share,
declining each succeeding year until after January 22, 2000, whereafter the
redemption price per share will be equal to $30.875 per share; plus, in each
case, an amount equal to all dividends accumulated and unpaid on such share to
the date fixed for redemption.
Moreover, under certain circumstances a holder of shares of ESOP Preferred
Stock (i.e., the Trustee, or any successor) may, upon not less than five days
written notice, elect to require the Company to redeem such shares at a
redemption price equal to the greater of (i) $30.875 per share or (ii) the Fair
Market Value (as defined in the Plan) per share of Common Stock into which the
ESOP Preferred Stock could be converted on the fifth business day prior to the
redemption date, plus in either case an amount equal to all dividends
accumulated and unpaid on such shares to the date fixed for redemption.
Conversion Rights. Shares of ESOP Preferred Stock are, at any time prior to
the close of business on the date fixed for redemption of such shares,
convertible into shares of Common Stock, at a conversion rate initially
equivalent to eight-tenths (.8) of a share of Common Stock for each share of
ESOP Preferred Stock, subject to anti-dilution adjustment under certain
circumstances.
Voting Rights. Holders of each share of ESOP Preferred Stock are entitled
to one vote, voting together as a single class with the holders of Common Stock
on all matters submitted to a vote of shareholders. Holders of shares of ESOP
Preferred Stock enjoy no special voting rights and their consent is not
specially required for the taking of any corporate action; except, that the
vote of the holders of at least 66 2/3% of the outstanding shares of ESOP
Preferred Stock, voting separately as a series, is necessary before certain
actions may be taken which would adversely affect the rights of the ESOP
Preferred Stock.
Additional Rights. Holders of shares of ESOP Preferred Stock have certain
additional rights in the event the Company should (i) consummate a merger,
consolidation or similar transaction ("Extraordinary Transaction") pursuant to
which the outstanding shares of Common Stock are, by operation of law,
exchanged solely for, or changed, reclassified or converted solely into, stock
of any successor or resulting company (including the Company), which stock
constitutes "qualifying employer securities" with respect to a holder of ESOP
Preferred Stock (within the meaning of Section 409(l) of the Code and Section
407(d)(5) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or any successor provisions of law), (ii) consummate any merger,
consolidation or similar business combination or division pursuant to which the
outstanding shares of Common Stock are, by operation of law, exchanged for, or
changed, reclassified or converted into, other stock, securities, cash or any
other property, or any combination thereof, other than any such consideration
constituted solely of qualifying employer securities and cash payments in lieu
of fractional shares, as the case may be, or (iii) enter into any agreement
providing for any merger, consolidation or similar business combination or
division pursuant to which the outstanding shares of Common Stock would upon
consummation thereof, be by operation of law, exchanged for, or changed,
reclassified or converted into, other stock, securities, cash or any other
property, or any combination thereof, other than any such consideration
constituted solely of qualifying employer securities and cash payments in lieu
of fractional shares, as the case may be.
DESCRIPTION OF SECURITIES WARRANTS
17
<PAGE> 21
The Company may issue Securities Warrants for the purchase of Debt
Securities, Preferred Stock or Common Stock. Securities Warrants may be issued
independently or together with Debt Securities or Preferred Stock offered by
any Prospectus Supplement and may be attached to or separate from such Debt
Securities or Preferred Stock. Each series of Securities Warrants will be
issued under a separate warrant agreement (a "Securities Warrant Agreement") to
be entered into between the Company and a warrant agent to be designated by
the Company (the "Securities Warrant Agent"), all as set forth in the
Prospectus Supplement relating to the particular issue of offered Securities
Warrants. The Securities Warrant Agent will act solely as an agent of the
Company in connection with the Securities Warrants and will not assume any
obligation or relationship of agency or trust for or with any holders of
Securities Warrants or beneficial owners of Securities Warrants. Holders of
Securities Warrants (without the consent of the Securities Warrant Agent, any
Trustee, the holders of any Debt Securities, Preferred Stock or Common Stock
issued upon exercise of Securities Warrants for the purchase of Debt
Securities, Preferred Stock or Common Stock, respectively, or the holder of any
other Securities Warrants) may, on their own behalf and for their own benefit,
enforce, and may institute and maintain any suit, action or proceeding against
the Company suitable to enforce or otherwise in respect of, their rights to
exercise Securities Warrants.
Reference is made to the Prospectus Supplement relating to any particular
issue of Securities Warrants for the terms of such Securities Warrants,
including, where applicable: (i) the initial public offering price of such
Securities Warrants; (ii) the title and terms of any Debt Securities or
Preferred Stock with which such Securities Warrants are issued, the number of
such Securities Warrants issued with each Debt Security or Preferred Stock
offered and the date, if any, on or after such Securities Warrants and the
related Debt Securities or Preferred Stock will be separately transferable;
(iii) the designation, aggregate principal amount, denominations and terms of
the series of Debt Securities purchasable upon exercise of Securities Warrants
to purchase Debt Securities and the price at which such Debt Securities may be
purchased upon such exercise; (iv) the designation, number, stated value and
terms (including, without limitation, liquidation, dividend conversion and
voting rights) of the series of Preferred Stock purchasable upon exercise of
Securities Warrants to purchase Preferred Stock and the price at which such
number of shares of Preferred Stock of such series may be purchased upon such
exercise; (v) the number of shares of Common Stock purchasable upon the
exercise of Securities Warrants to purchase Common Stock and the price at which
such number of shares of Common Stock may be purchased upon such exercise; (vi)
the date on which the right to exercise such Securities Warrants shall commence
and the date (the "Expiration Date") on which such right shall expire; (vii)
U.S. federal income tax consequences applicable to such Securities Warrants;
and (viii) any other terms of such Securities Warrants. Securities Warrants
will be issued in registered form only. The exercise price for Securities
Warrants may be subject to adjustment in accordance with the applicable
Prospectus Supplement.
Unless otherwise provided in the related Prospectus Supplement, each
Securities Warrant will entitle the holder thereof to purchase such principal
amount of Debt Securities or such number of shares of Preferred Stock or Common
Stock, as the case may be, at such exercise price as shall in each case be set
forth in, or calculable from, the Prospectus Supplement relating to the offered
Securities Warrants, which exercise price may be subject to adjustment upon the
occurrence of certain events as set forth in such Prospectus Supplement. After
the close of business on the Expiration Date (or such later date to which such
Expiration Date may be extended by the Company), unexercised Securities
Warrants will become void. The place or places where, and the manner in which,
Securities Warrants may be exercised will be specified in the Prospectus
Supplement relating to such Securities Warrants.
Prior to the exercise of any Securities Warrants to purchase Debt
Securities, holders of such Securities Warrants will not have any of the rights
of holders of the Debt Securities purchasable upon such exercise, including the
right to receive payments of principal of, premium, if any, or interest on the
Debt Securities purchasable upon such exercise or to enforce covenants in the
applicable Indenture. Prior to the exercise of any Securities Warrants to
purchase Preferred Stock or Common Stock, holders of such Securities Warrants
will not have any rights of holders of the Preferred Stock or Common Stock
purchasable upon such exercise, including the right to receive payments of
dividends, if any, on the Preferred Stock or Common Stock purchasable upon such
exercise or to exercise any applicable right to vote.
Unless otherwise provided in the related Prospectus Supplement, each
Securities Warrant Agreement may be amended by the Company and the Securities
Warrant Agent (i) without the consent of the holders of Securities Warrants for
the purpose of curing any ambiguity, curing, correcting or supplementing any
defective provision contained therein or making such provisions with respect to
matters or questions arising thereunder as the Company and the Securities
Warrant Agent may deem necessary or desirable, provided that such action will
not have a material adverse effect on the interests of the holders of
Securities Warrants and (ii) with the consent of the holders of not less than a
majority of the Securities Warrants then outstanding and unexercised for any
other reason.
18
<PAGE> 22
PLAN OF DISTRIBUTION
The Company may sell the Offered Securities (i) to or through underwriters
or dealers, (ii) directly to other purchasers or (iii) through agents. Such
underwriters may include Goldman, Sachs & Co. and J.P. Morgan Securities Inc.
Goldman, Sachs & Co. and J.P. Morgan Securities Inc. may also act as agents.
The applicable Prospectus Supplement will set forth the terms of the offerings
of any Offered Securities, including the method of distribution, the name or
names of any underwriters, dealers or agents, any managing underwriter or
underwriters, the purchase price of the securities and the proceeds to the
Company from the sale, any underwriting discounts and other items constituting
underwriters and agents' compensation and any discounts and concessions
allowed, reallowed or paid to dealers or agents. Any initial public offering
price and any discount or concessions allowed, reallowed or paid to dealers may
be changed from time to time. The expected time of delivery of the Offered
Securities in respect of which this Prospectus is delivered will be set forth
in the applicable Prospectus Supplement.
The distribution of the Offered Securities may be effected from time to time
in one or more transactions at a fixed price or prices, which may be changed,
or at market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
Sales of shares of Common Stock that may be offered hereby may be effected
from time to time in one or more transactions on the New York Stock Exchange
("NYSE") or in negotiated transactions or a combination of such methods of
sale, at market prices prevailing at the time of sale, at prices related to
such prevailing market prices or at other negotiated prices. In connection
with distributions of shares of Common Stock or otherwise, the Company may
enter into hedging transactions with broker-dealers in connection with which
such broker-dealers may sell shares of Common Stock registered hereunder in
the course of hedging through short sales the positions they assume with the
Company.
In connection with the sale of the Offered Securities, underwriters may
receive compensation from the Company or from purchasers of the Offered
Securities for whom they may act as agents in the form of discounts,
concessions or commissions. Underwriters may sell the Offered Securities to or
through dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters and/or commissions
from the purchasers for whom they may act as agents. Underwriters, dealers and
agents that participate in the distribution of the Offered Securities may be
deemed to be underwriters, and any discounts or commissions received by them
from the Company and any profit on the resale of the Offered Securities by them
may be deemed to be underwriting discounts and commissions, under the
Securities Act of 1933, as amended (the "Act"). Any such underwriter or agent
will be identified, and any such compensation will be described, in the
Prospectus Supplement.
Under agreements which may be entered into by the Company, underwriters and
agents who participate in the distribution of the Offered Securities may be
entitled to indemnification by the Company against certain liabilities,
including liabilities under the Act.
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters or other persons acting as the Company's agents to solicit offers
by certain institutions to purchase Offered Securities from the Company
pursuant to contracts providing for payment and delivery on a future date.
Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all cases such
institutions must be approved by the Company. The obligations of any purchaser
under any such contract will be subject to the condition that the purchase of
the Offered Securities shall not at the time of delivery be prohibited under
the laws of the jurisdiction to which such purchaser is subject. The
underwriters and such other agents will not have any responsibility in respect
of the validity or performance of such contracts.
In the ordinary course of their respective businesses, Goldman, Sachs & Co.
and J.P. Morgan Securities Inc. and their affiliates have provided, and may in
the future provide, investment banking and/or commercial banking services for
the Company.
19
<PAGE> 23
VALIDITY OF THE OFFERED SECURITIES
The validity of the Offered Securities will be passed upon for the Company
by Clark, Ladner, Fortenbaugh & Young, Philadelphia, Pennsylvania, and for any
underwriters or agents by Sullivan & Cromwell, New York, New York, who will
rely upon the opinion of Clark, Ladner, Fortenbaugh & Young as to all matters
of Pennsylvania law. M. Rust Sharp, a partner in Clark, Ladner, Fortenbaugh &
Young, is a director of the Company. On April 6, 1994, Mr. Sharp, other
partners, of counsel, associates and other non-clerical employees of Clark,
Ladner, Fortenbaugh & Young and their spouses owned beneficially an aggregate
3,591 shares of the Common Stock of the Company. In addition, Mr. Sharp
beneficially owns options to purchase 3,600 shares of Common Stock and, as
a co-trustee under certain Deeds of Trust dated August 21, 1951 and under the
Will of John E. Barbey, deceased, beneficially owns 11,461,444 shares of Common
Stock.
EXPERTS
The consolidated financial statements and schedules of the Company
incorporated by reference in the 1993 Form 10-K have been audited by
Ernst & Young, independent auditors, as set forth in their report thereon
included therein and incorporated herein by reference. Such consolidated
financial statements and schedules are incorporated herein by reference
in reliance upon such report given upon the authority of such firm as
experts in accounting and auditing.
20
<PAGE> 24
<TABLE>
<S> <C>
===================================== =====================================
</TABLE>
<TABLE>
<S> <C>
No person is authorized to give
any information or to make any
representations other than those V.F. Corporation
contained in this Prospectus and, if Debt Securities
given or made, such information or Preferred Stock
representations must not be relied Common Stock
upon as having been authorized. This Warrants
Prospectus does not constitute an
offer to sell or solicitation of an
offer to buy any securities other
than the Offered Securities described --------
in this Prospectus, or an offer to
buy such Offered Securities in any PROSPECTUS
circumstance in which such offer or
solicitation is unlawful. Neither --------
the delivery of this Prospectus nor
any sale made hereunder shall, under
any circumstances, create any
implication that there has been no
change in the affairs of V.F.
Corporation since the date hereof or
that the information contained herein
is correct as of any time subsequent
to the date of such information.
TABLE OF CONTENTS
Prospectus
Available Information................ 2
Incorporation of Certain
Documents by Reference............ 2
The Company.......................... 3
Use of Proceeds...................... 5
Summary Financial Information
of the Company..................... 6
Description of Debt Securities....... 9
Description of Capital Stock......... 13
Description of Securities Warrants... 17
Plan of Distribution................. 19
Validity of the Offered Securities... 20
Experts.............................. 20
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
===================================== =====================================
</TABLE>
<PAGE> 25
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.*
The following table sets forth the estimated expenses of issuance
and distribution other than underwriting discounts and commissions:
<TABLE>
<S> <C>
Registration Fee . . . . . . . . . . . . . . . . . . . .$137,932
Trustee's Fees . . . . . . . . . . . . . . . . . . . . . 25,000
Printing and Engraving Fees. . . . . . . . . . . . . . . 13,000
Rating Agency Fees . . . . . . . . . . . . . . . . . . . 135,000
Legal Fees and Expenses. . . . . . . . . . . . . . . . . 250,000
Blue Sky Fees and Expenses . . . . . . . . . . . . . . . 25,000
Accounting Fees. . . . . . . . . . . . . . . . . . . . . 50,000
Miscellaneous. . . . . . . . . . . . . . . . . . . . . . 4,068
Total . . . . . . . . . . . . . . . . . . . . . . .$640,000
</TABLE>
*All expenses except the SEC Registration Fee are estimated.
<PAGE> 26
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 1741 of the Pennsylvania Business Corporation Law, as amended
("BCL"), provides that a business corporation shall have the power to indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit, or proceeding if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Section 1742 of the BCL
provides that in the case of actions by or in the right of the corporation, a
corporation may indemnify any such persons only against expenses (including
attorneys' fees) actually and reasonably incurred in connection with the
defense or settlement of such action and only if such person acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, provided that no such indemnification is
permitted in respect to any claim, issue or matter as to which such person is
adjudged liable for negligence or misconduct in the performance of his duty to
the corporation, except to the extent that a court determines that
indemnification is proper under the circumstances. The BCL further provides
under Section 1743 that to the extent that such person has been successful on
the merits or otherwise in defending any action (even one on behalf of the
corporation), he is entitled to indemnification for expenses (including
attorneys' fees) actually and reasonably incurred in connection with such
action. The By-Laws of the Company provide for indemnification of the officers
or directors of the Company to the fullest extent permissible under the BCL.
The indemnification provided for under the BCL is not exclusive of any other
rights of indemnification. Under Section 1747 of the BCL a corporation may
maintain insurance on behalf of any of the persons referred to above against
liability asserted against any of them and incurred in or arising out of any
capacity referred to above, whether or not the corporation would have the power
to indemnify against such liabilities under the BCL.
Section 518 of the Pennsylvania Associations Code ("Section 518") provides
that a Pennsylvania corporation shall have the power, by action of the
shareholders, directors or otherwise, to indemnify a person as to action in his
official capacity and as to action in another capacity while holding that
office for any action taken or any failure to take any action, whether or not
the corporation would have the power to indemnify the person under any other
provision of law (including Sections 1741 and 1742 of the BCL), except as
provided in Section 518, and whether or not the indemnified liability arises or
arose from any threatened, pending or completed action by or in the right of
the corporation. Indemnification is not authorized pursuant to Section
II-1
<PAGE> 27
518 in any case where the act or failure to act giving rise to the claim for
indemnification is determined by a court to have constituted willful misconduct
or recklessness. In addition to the power to advance expenses under the BCL,
Section 518 provides that expenses incurred by an officer, director, employee
or agent in defending a civil or criminal action, suit or proceeding may be
paid by the corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of such
person to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the corporation. Section 518 permits a business
corporation to create a fund, under the control of a trustee or otherwise, to
secure or insure in any manner its indemnification obligations whether arising
under or pursuant to Section 518 or otherwise. The Company's By-Laws provide
that any person made a party to any lawsuit by reason of being a director or
officer of the Company may be indemnified by the Company, to the full extent
permitted by Pennsylvania law, against the reasonable expenses, including
attorneys' fees, incurred by the director or officer in connection with the
defense of such lawsuit. The By-Laws further provide that a director of the
Company shall not be personally liable for monetary damages arising from any
action taken or any failure to act by the director unless (a) the director
failed to perform his fiduciary duty to the Company and (b) the breach of duty
constituted self-dealing, willful misconduct or recklessness. The limitation
on a director's personal liability for monetary damages does not apply to a
director's criminal liability or liability for taxes.
The Company maintains directors' and officers' liability
insurance for expenses for which indemnification is permitted by the BCL and
Section 518. These insurance policies insure the Company against amounts which
it may become obligated to pay as indemnification to directors and officers and
insures its directors and officers against losses (except fines, penalties and
other matters uninsurable under law) arising from any claim made against them
on account of any alleged "wrongful act" in their official capacity. A
wrongful act is defined as "any breach of duty, neglect, error, misstatement,
misleading statement, omission or other act done or wrongfully attempted by the
directors and officers or ... so alleged by any claimant on any matter claimed
against them solely by reason of their being such directors or officers,"
subject to certain exclusions. Directors and officers are also insured against
losses (except fines, penalties and other matters uninsurable under law)
arising out of the insured's breach of fiduciary duty, subject to certain
exclusions.
Item 16. Exhibits.
Number Description
------ -----------
1.1 Form of Debt Underwriting Agreement.................
1.2 Form of Equity Underwriting Agreement...............
1.3 Form of Distribution Agreement (Incorporated by
reference to Exhibit 1.2 to Form S-3 Registration
No. 33-47329).......................................
2.1 Agreement and Plan of Merger, dated December 12,
1993 between the Company, Spice Acquisition Co. and
Nutmeg Industries, Inc. (Incorporated by reference
to Exhibit (d) to Schedule 14D-1, dated December 17,
1993)...............................................
2.2 Stock Purchase Agreement, dated October 12, 1993
between the Company and the shareholders of H.H.
Cutler Company (Incorporated by reference to
Exhibit 2.1 to Form 8-K/A, dated January 19, 1994)..
4.1 Articles of Incorporation, as amended and restated
as of April 18, 1986 (Incorporated by reference to
Exhibit 3(A) to Form 10-K for the fiscal year
ended January 4, 1992)..............................
4.2 By-Laws, as amended through July 17, 1990 and as
presently in effect (Incorporated by reference to
Exhibit 3 to the Form 8 amendment, dated August 10,
1990, to Form 10-Q for the fiscal quarter ended
June 30, 1990)......................................
4.3 Registrant's Common Stock certificate...............
II-2
<PAGE> 28
4.4 Registrant's Series B ESOP Convertible Preferred
Stock certificate (Incorporated by reference
to Exhibit 4(B) to Form 10-K for the fiscal year
ended December 29, 1990)............................
4.5 Indenture between Registrant and Morgan Guaranty
Trust Company of New York, dated January 1, 1987
(Incorporated by reference to Exhibit 4.1
to Form S-3 Registration No. 33-10939)..............
4.6 First Supplemental Indenture among Registrant,
Morgan Guaranty Trust Company of New York as
retiring Trustee and United States Trust
Company of New York as successor Trustee
(Incorporated by reference to Exhibit 4.3 to
Form S-3 Registration No. 33-30889).................
4.7 Second Supplemental Indenture between Registrant and
United States Trust Company of New York as Trustee
(Incorporated by reference to Exhibit 4.1 to Form
8-K, dated April 6, 1994)...........................
4.8 Rights Agreement between the Registrant and Morgan
Shareholder Services Trust Company, dated
January 13, 1988....................................
4.9 Amendment No. 1 to Rights Agreement among
Registrant, Morgan Shareholder Services Trust
Company, as retiring Rights Agent, and First
Chicago Trust Company of New York as successor
Rights Agent, dated April 17, 1990 (Incorporated
by reference to Exhibit 3 to Form 8 Amendment
No. 1 dated April 17, 1990 to Registration
Statement on Form 8-A dated January 25, 1988).......
4.10 Amendment No. 2 to Rights Agreement between
Registrant and First Chicago Trust Company of
New York, dated December 4, 1990 (Incorporated
by reference to Exhibit 3 to Form 8 Amendment
No. 2 dated December 4, 1990 to Registration
Statement on Form 8-A dated January 25, 1988).......
4.11 Form of Debt Securities (included in Exhibit 4.5
at pages 12 through 19).............................
5. Opinion of Clark, Ladner, Fortenbaugh & Young
as to the validity of the Securities................
8. Opinion of Clark, Ladner, Fortenbaugh & Young as to
Pennsylvania taxes..................................
12.1 Computation of ratio of earnings to fixed charges...
12.2 Computation of ratio of earnings to combined fixed
charges and preferred stock dividends...............
23.1 Consent of Ernst & Young, independent accountants...
23.2 Consent of Ernst & Young, independent accountants...
23.3 Consent of Clark, Ladner, Fortenbaugh & Young is
included in Exhibits 5 and 8........................
24. Power of Attorney...................................
II-3
<PAGE> 29
25. Form T-1 Statement of Eligibility under the Trust
Indenture Act of 1939 of United States Trust
Company of New York.................................
Item 17. Undertakings.
The Company hereby undertakes (1) to file, during any period in which
offers or sales are being made, a post-effective amendment to this registration
statement: (i) to include any prospectus required by section 10(a)(3) of the
Securities Act of 1933; (ii) to reflect in the prospectus any facts or events
arising after the effective date of this registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement; and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
registration statement or any material change to such information in the
registration statement; provided, however, that clauses (1)(i) and (1)(ii) do
not apply if the information required to be included in a post-effective
amendment by those clauses is contained in periodic reports filed by the
Company pursuant to section 13 or section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in the registration statement; (2)
that, for the purpose of determining any liability under the Securities Act of
1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; (3) to remove from registration by means of a post-
effective amendment any of the securities being registered which remain unsold
at the termination of the offering; and (4) that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the Company's
annual report pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in this registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in such Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted against the
Company by such director, officer or controlling person in connection with the
securities being registered, the Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in such Act and will be governed by the
final adjudication of such issue.
II-4
<PAGE> 30
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Wyomissing, Pennsylvania on the 22nd day of April, 1994.
V.F. CORPORATION
Registrant
By: /s/ LAWRENCE R. PUGH
-------------------------------------
Lawrence R. Pugh
Chairman and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signature and Title Date
/s/ LAWRENCE R. PUGH April 22, 1994
- --------------------------------------------------------
Lawrence R. Pugh
Chairman and Chief Executive Officer
/s/ GERALD G. JOHNSON April 22, 1994
- --------------------------------------------------------
Gerald G. Johnson
Vice President - Finance and Chief Financial Officer
/s/ ROBERT K. SHEARER April 22, 1994
- --------------------------------------------------------
Robert K. Shearer
Controller
DIRECTORS
Lawrence R. Pugh Robert D. Buzzell
Edward E. Crutchfield, Jr. Ursula F. Fairbairn
Barbara S. Feigin Roger S. Hillas
Leon C. Holt, Jr. J. Berkley Ingram, Jr.
Robert F. Longbine Mackey J. McDonald
William E. Pike M. Rust Sharp
L. Dudley Walker
A majority of the Board of
Directors
By:/s/ L. M. TARNOSKI
-----------------------
L. M. Tarnoski
Attorney-ln-Fact
Date: April 22, 1994
II-5
<PAGE> 31
EXHIBIT INDEX
Number Description
------ -----------
1.1 Form of Debt Underwriting Agreement............................
1.2 Form of Equity Underwriting Agreement..........................
1.3 Form of Distribution Agreement (Incorporated
by reference to Exhibit 1.2 to Form S-3
Registration No. 33-47329).....................................
2.1 Agreement and Plan of Merger, dated December 12, 1993
between the Company, Spice Acquisition Co. and Nutmeg
Industries, Inc. (Incorporated by reference
to Exhibit (d) to Schedule 14D-1, dated December 17, 1993)......
2.2 Stock Purchase Agreement, dated October 12, 1993 between the
Company and the shareholders of H.H. Cutler Company
(Incorporated by reference to Exhibit 2.1 to Form 8-K/A,
dated January 19, 1994).........................................
4.1 Articles of Incorporation, as amended and restated as of
April 18, 1986 (Incorporated by reference to Exhibit 3(A)
to Form 10-K for the fiscal year ended January 4, 1992)........
4.2 By-Laws, as amended through July 17, 1990 and as presently
in effect (Incorporated by reference to Exhibit 3 to the
Form 8 amendment, dated August 10, 1990, to Form 10-Q
for the fiscal quarter ended June 30, 1990)....................
4.3 Registrant's Common Stock certificate..........................
4.4 Registrant's Series B ESOP Convertible Preferred Stock
certificate (Incorporated by reference to Exhibit 4(B)
to Form 10-K for the fiscal year ended December 29, 1990)......
4.5 Indenture between Registrant and Morgan Guaranty Trust
Company of New York, dated January 1, 1987 (Incorporated
by reference to Exhibit 4.1 to Form S-3 Registration No.
33-10939)......................................................
4.6 First Supplemental Indenture among Registrant, Morgan
Guaranty Trust Company of New York as retiring Trustee
and United States Trust Company of New York as successor
Trustee (Incorporated by reference to Exhibit 4.3 to Form
S-3 Registration No. 33-30889).................................
4.7 Second Supplemental Indenture between Registrant and United
States Trust Company of New York as Trustee (Incorporated by
reference to Exhibit 4.1 to Form 8-K, dated April 6, 1994......
4.8 Rights Agreement between the Registrant and Morgan
Shareholder Services Trust Company, dated January 13, 1988.....
4.9 Amendment No. 1 to Rights Agreement among Registrant, Morgan
Shareholder Services Trust Company, as retiring Rights Agent,
and First Chicago Trust Company of New York as successor
Rights Agent, dated April 17, 1990 (Incorporated by
reference to Exhibit 3 to Form 8 Amendment No. 1 dated
April 17, 1990 to Registration Statement on Form 8-A dated
January 25, 1988)..............................................
4.10 Amendment No. 2 to Rights Agreement between Registrant and
First Chicago Trust Company of New York, dated December 4,
1990 (Incorporated by reference to Exhibit 3 to Form 8
Amendment No. 2 dated December 4, 1990 to Registration
Statement on Form 8-A dated January 25, 1988)..................
4.11 Form of Debt Securities (included in Exhibit 4.5 at
pages 12 through 19)...........................................
II-6
<PAGE> 32
5. Opinion of Clark, Ladner, Fortenbaugh & Young as to the
validity of the Securities.....................................
8. Opinion of Clark, Ladner, Fortenbaugh & Young as to
Pennsylvania taxes.............................................
12.1 Computation of ratio of earnings to fixed charges..............
12.2 Computation of ratio of earnings to combined fixed charges and
preferred stock dividends......................................
23.1 Consent of Ernst & Young, independent accountants..............
23.2 Consent of Ernst & Young, independent accountants..............
23.3 Consent of Clark, Ladner, Fortenbaugh & Young is included in
Exhibits 5 and 8...............................................
24. Power of Attorney..............................................
25. Form T-I Statement of Eligibility under the Trust Indenture
Act of 1939 of United States Trust Company of New York.........
II-7
<PAGE> 1
Exhibit 1.1
V.F. CORPORATION
DEBT SECURITIES
----------------------
Underwriting Agreement
, 1994
----
To the Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described.
Dear Sirs:
From time to time V.F. Corporation, a Pennsylvania
corporation (the "Company"), proposes to enter into one or
more Pricing Agreements (each a "Pricing Agreement") in the
form of Annex I hereto, with such additions and deletions as
the parties thereto may determine, and subject to the terms
and conditions stated herein and therein, to issue and sell
to the firms named in Schedule I to the applicable Pricing
Agreement (such firms constituting the "Underwriters" with
respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the
"Securities") specified in Schedule II to such Pricing
Agreement (with respect to such Pricing Agreement, the
"Designated Securities").
The terms and rights of any particular issuance of
Designated Securities shall be as specified in the Pricing
Agreement relating thereto and in or pursuant to the
indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may
be made from time to time to the Underwriters of such
Securities, for whom the firms designated as representatives
of the Underwriters of such Securities in the Pricing
Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers
to a single firm acting as sole representative of the Under-
writers and to Underwriters who act without any firm being
designated as their representative. This Underwriting
Agreement shall not be construed as an obligation of any of
the Underwriters to purchase the Securities. The obligation
of the Company to issue and sell any of the Securities and
the obligation of any of the Underwriters to purchase any of
the Securities shall be evidenced by the Pricing Agreement
<PAGE> 2
with respect to the Designated Securities specified therein.
Each Pricing Agreement shall specify the aggregate principal
amount of such Designated Securities, the initial public
offering price of such Designated Securities, the purchase
price to the Underwriters of such Designated Securities, the
names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters and the
principal amount of such Designated Securities to be
purchased by each Underwriter and shall set forth the date,
time and manner of delivery of such Designated Securities
and payment therefor. The Pricing Agreement shall also
specify (to the extent not set forth in the Indenture and
the registration statement and prospectus with respect
thereto) the terms of such Designated Securities. A Pricing
Agreement shall be in the form of an executed writing (which
may be in counterparts), and may be evidenced by an exchange
of telegraphic communications or any other rapid trans-
mission device designed to produce a written record of
communications transmitted. The obligations of the Under-
writers under this Agreement and each Pricing Agreement
shall be several and not joint.
2. The Company represents and warrants to, and
agrees with, each of the Underwriters that:
(a) A registration statement in respect of
the aggregate principal amount of Securities
has been filed with the Securities and Exchange
Commission (the "Commission"); such registration
statement and any post-effective amendment thereto,
each in the form heretofore delivered or to be delivered
to the Representatives and, excluding exhibits to such
registration statements but including all documents
incorporated by reference in the prospectus contained
therein, to the Representatives for each of the other
underwriters, have been declared effective by the
Commission in such forms; no other document with respect
to such registration statements or document incorporated
by reference therein has heretofore been filed or
transmitted for filing with the Commission; such
prospectus included for use in connection with the Securities
meets the requirements of the Securities Act of 1933, as
amended (the "Act") and the rules and regulations thereunder
for use of such prospectus in connection
2
<PAGE> 3
with the Securities; no stop order suspending the
effectiveness of the registration statement
has been issued and no proceeding for that purpose has
been initiated or threatened by the Commission (any
preliminary prospectus included in such registration
statement or filed with the Commission pursuant to
Rule 424(a) of the rules and regulations of the
Commission under the Act being hereinafter called a
"Preliminary Prospectus"; the various parts of such
registration statement, including all exhibits thereto
and the documents incorporated by reference in the
prospectus contained in the registration statement
at the time such part of the registration statement
became effective but excluding Form T-1 and, if
applicable, including the information contained in the
form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Act in accordance
with Section 5(a) hereof and deemed by virtue of
Rule 430A under the Act to be part of the
registration statement, each as amended at the time
such part became effective, being hereinafter collec-
tively called the "Registration Statement"; the
prospectus (including, if applicable, any prospectus
supplement) relating to the Designated Securities, in
the form in which it has most recently been filed with
the Commission on or prior to the date of this Agree-
ment, being hereinafter called the "Prospectus"; any
reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to
the applicable form under the Act, as of the date of
such Preliminary Prospectus or Prospectus, as the case
may be; any reference to any amendment or supplement to
any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"),
and incorporated therein by reference; and any refer-
ence to the Prospectus as amended or supplemented shall
be deemed to refer to and include the Prospectus as
amended or supplemented in relation to Designated
Securities sold pursuant to this Agreement, in the form
filed with the Commission pursuant to Rule 424(b) under
the Act and in accordance with Section 5(a) hereof,
including any documents incorporated by reference
therein as of the date of such filing);
(b) The documents incorporated by reference in
the Prospectus, when they became effective or were
filed with the Commission, as the case may be,
conformed in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the
3
<PAGE> 4
rules and regulations of the Commission thereunder, and
none of such documents contained an 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; and any further
documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement
thereto, when such documents become effective or are
filed with the Commission, as the case may be, will
conform in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and
will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; provided, however, that this representation
and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an
Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as
amended or supplemented relating to such Securities;
(c) The Registration Statement and the Prospectus
conform, and any further amendments or supplements to
the Registration Statement or the Prospectus will
conform, in all material respects to the requirements
of the Act and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act") and the rules and
regulations of the Commission thereunder and do not and
will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as
of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a mater-
ial fact required to be stated therein or necessary to
make the statements therein not misleading; provided,
however, that this representation and warranty shall
not apply to any statements or omissions made in reli-
ance upon and in conformity with information furnished
in writing to the Company by an Underwriter of Desig-
nated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented
relating to such Securities;
(d) Neither the Company nor any of its subsid-
iaries has sustained since the date of the latest
audited financial statements included or incorporated
by reference in the 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
4
<PAGE> 5
set forth or contemplated in the Prospectus; and, since
the respective dates as of which information is given
in the Registration Statement and the Prospectus, there
has not been any change in 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,
stockholders' equity or results of operations of the
Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus;
(e) The Company has been duly incorporated and is
validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorpora-
tion, with power and authority (corporate and other) to
own its properties and conduct its business as
described in the Prospectus, and has been duly quali-
fied 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 proper-
ties, or conducts any business, so as to require such
qualification, or is subject to no material liability
or disability by reason of the failure to be so quali-
fied in any such jurisdiction; and each material
subsidiary of the Company has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of its jurisdiction of
incorporation;
(f) The Company has an authorized capitalization
as set forth in the Prospectus, and all of the issued
shares of capital stock of the Company have been duly
and validly authorized and issued and are fully paid
and non-assessable; and all of the issued shares of
capital stock of each subsidiary of the Company have
been duly and validly authorized and issued, are fully
paid and non-assessable and (except for directors'
qualifying shares and except as set forth in the
Prospectus) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances,
equities or claims;
(g) The Securities have been duly authorized,
and, when Designated Securities are issued and
delivered pursuant to this Agreement and the Pricing
Agreement with respect to such Designated Securities,
such Designated Securities will have been duly exe-
cuted, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the
Indenture, which will be substantially in the form
filed as an exhibit to the Registration Statement; the
5
<PAGE> 6
Indenture has been duly authorized and duly qualified
under the Trust Indenture Act and, at the Time of
Delivery for such Designated Securities (as defined in
Section 4 hereof), 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 Indenture conforms,
and the Designated Securities will conform, to the
descriptions thereof contained in the Prospectus as
amended or supplemented with respect to such Designated
Securities;
(h) The issue and sale of the Securities and the
compliance by the Company with all of the provisions of
the Securities, the Indenture, this Agreement and any
Pricing Agreement, and the consummation of the trans-
actions herein and therein contemplated will not con-
flict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the
Company is a party or by which the Company is bound or
to which any of the property or assets of the Company
is subject, nor will such action result in any viola-
tion of the provisions of the Articles of Incorporation
or By-laws of the Company or any statute or any order
rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any of
its properties; and no consent, approval, authoriza-
tion, order, registration or qualification of or with
any such court or governmental agency or body is
required for the issue and sale of the Securities or
the consummation by the Company of the transactions
contemplated by this Agreement or any Pricing Agreement
or the Indenture, except such as have been, or will
have been prior to the Time of Delivery, obtained under
the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifica-
tions as may be required under state securities or Blue
Sky laws in connection with the purchase and distribu-
tion of the Securities by the Underwriters;
(i) Other than as set forth in 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, if determined
adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a material
adverse effect on the consolidated financial position,
6
<PAGE> 7
shareholders' equity or results of operations of the
Company and its subsidiaries; and, to the best of the
Company's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threat-
ened by others; and
(j) The accountants who have certified the
financial statements of the Company and its subsid-
iaries included in the Registration Statement are
independent public accountants as required by the Act
and the rules and regulations of the Commission
thereunder.
3. Upon the execution of the Pricing Agreement
applicable to any Designated Securities and authorization by
the Representatives of the release of such Designated
Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions
set forth in the Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each
Underwriter pursuant to the Pricing Agreement relating
thereto, in definitive form to the extent practicable, and
in such authorized denominations and registered in such
names as the Representatives may request upon at least
forty-eight hours' prior notice to the Company, shall be
delivered by or on behalf of the Company to the Represen-
tatives for the account of such Underwriter, against payment
by such Underwriter or on its behalf of the purchase price
therefor payable to the order of the Company in the manner
and in the funds specified in such Pricing Agreement, all at
the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the
Representatives and the Company may agree upon in writing,
such time and date being herein called the "Time of
Delivery" for such Securities.
5. The Company agrees with each of the
Underwriters of any Designated Securities:
(a) To prepare the Prospectus as amended and
supplemented in relation to the applicable Designated
Securities in the form approved by the Representative
and to file such Prospectus pursuant to Rule 424(b)
under the Act not later than the Commission's close of
business on the second business day following the
execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if
applicable, such earlier time as may be required by
Rule 424(b); to make no further amendment or any
supplement to the Registration Statement or Prospectus
as amended or supplemented after the date of the
Pricing Agreement relating to such Securities and prior
7
<PAGE> 8
to the Time of Delivery for such Securities which shall
be disapproved by the Representatives for such Securi-
ties promptly after reasonable notice thereof; to
advise the Representatives promptly of any such amend-
ment or supplement after such Time of Delivery and
furnish the Representatives with copies thereof; to
file promptly all reports and any definitive proxy or
information statements required to be filed by the
Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act for so long as
the delivery of a prospectus is required in connection
with the offering or sale of such Securities, and
during such same period to advise the Representatives,
promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed
with the Commission of the issuance by the Commission
of any stop order or any order preventing or suspending
the use of any prospectus relating to the Securities,
of the suspension of the qualification of such
Securities for offering or sale in any jurisdiction,
for the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration
Statement or Prospectus or for additional information;
and, in the event of the issuance of any such stop
order or of any such order preventing or suspending the
use of any prospectus relating to the Securities or
suspending any such qualification, to use promptly its
best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such
action as the Representatives may reasonably request to
qualify such Securities for offering and sale under the
securities laws of such jurisdictions as the Represen-
tatives may request and to comply with such laws so as
to permit the continuance of sales and dealings therein
in such jurisdictions for as long as may be necessary
to complete the distribution of such Securities,
provided that in connection therewith the Company shall
not be required to qualify as a foreign corporation or
to file a general consent to service of process in any
jurisdiction;
(c) To furnish the Underwriters with copies of
the Prospectus as amended or supplemented in such
quantities as the Representatives may from time to time
reasonably request, and, if the delivery of a prospec-
tus is required at any time in connection with the
offering or sale of the Securities and if at such time
any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would
8
<PAGE> 9
include an untrue statement of a material fact or omit
to state any material fact necessary in order to make
the statements therein, in the light of the circum-
stances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other
reason it shall be necessary during such same period to
amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in
the Prospectus in order to comply with the Act, the
Exchange Act or the Trust Indenture Act, to notify the
Representatives and upon their request to file such
document and to prepare and furnish without charge to
each Underwriter and to any dealer in securities as
many copies as the Representatives may from time to
time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such
statement or omission or effect such compliance;
(d) To make generally available to its security
holders as soon as practicable, but in any event not
later than eighteen months after the effective date of
the Registration Statement (as defined in Rule 158(c)),
an earning statement of the Company and its subsid-
iaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including at the option
of the Company Rule 158); and
(e) During the period beginning from the date of
the Pricing Agreement for such Designated Securities
and continuing to and including the earlier of (i) the
termination of trading restrictions for such Designated
Securities, as notified to the Company by the Represen-
tatives and (ii) the Time of Delivery for such Desig-
nated Securities, not to offer, sell, contract to sell
or otherwise dispose of any debt securities of the
Company which mature more than one year after such Time
of Delivery and which are substantially similar to such
Designated Securities, without the prior written
consent of the Representatives.
6. The Company covenants and agrees with the
several Underwriters that the Company will pay or cause to
be paid the following: (i) the fees, disbursements and
expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the
Act and all other expenses in connection with the prepara-
tion, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of
printing or producing any Agreement among Underwriters, this
Agreement, any Pricing Agreement, any Indenture, any Blue
9
<PAGE> 10
Sky and Legal Investment Memoranda and any other documents
in connection with the offering, purchase, sale and delivery
of the Securities; (iii) all expenses in connection with the
qualification of the Securities for offering and sale under
state securities laws as provided in Section 5(b) hereof,
including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in
connection with the Blue Sky and legal investment surveys;
(iv) any fees charged by securities rating services for
rating the Securities; (v) any filing fees incident to any
required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities;
(vi) the cost of preparing the Securities; (vii) the fees
and expenses of any Trustee and any agent of any Trustee and
the fees and disbursements of counsel for any Trustee in
connection with any Indenture and the Securities; and
(viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not
otherwise specifically provided for in this Section. It is
understood, however, that, except as provided in this
Section, Section 8 and Section 11 hereof, the Underwriters
will pay all of their own costs and expenses, including the
fees of their counsel, transfer taxes on resale of any of
the Securities by them, and any advertising expenses
connected with any offers they may make.
7. The obligations of the Underwriters of any
Designated Securities under the Pricing Agreement relating
to such Designated Securities shall be subject, in the
discretion of the Representatives, to the condition that all
representations and warranties and other statements of the
Company in or incorporated by reference in the Pricing
Agreement relating to such Designated Securities are, at and
as of the Time of Delivery for such Designated Securities,
true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in
relation to the applicable Designated Securities shall
have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period pre-
scribed for such filing by the rules and regulations
under the Act and in accordance with Section 5(a)
hereof; no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose
shall have been initiated or threatened by the
Commission; and all requests for additional information
on the part of the Commission shall have been complied
with to the Representatives' reasonable satisfaction;
10
<PAGE> 11
(b) Counsel for the Underwriters shall have
furnished to the Representatives such opinion or
opinions, dated the Time of Delivery for such Desig-
nated Securities, with respect to the incorporation of
the Company, the validity of the Indenture, the Desig-
nated Securities, the Registration Statement, the
Prospectus as amended or supplemented and other related
matters as the Representatives may reasonably request,
and such counsel shall have received such papers and
information as they may reasonably request to enable
them to pass upon such matters;
(c) Counsel for the Company satisfactory to the
Representatives shall have furnished to the Represen-
tatives their written opinion, dated the Time of
Delivery for such Designated Securities, in form and
substance satisfactory to the Representatives, to the
effect that:
(i) The Company has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate
and other) to own its properties and conduct its
business as described in the Prospectus as amended
or supplemented;
(ii) The Company has an authorized capital-
ization as set forth in the Prospectus as amended
or supplemented 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;
(iii) The Company has been duly qualified as
a foreign corporation for the transaction of
business and is in good standing under the laws of
each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to
require such qualification, or is subject to no
material liability or disability by reason of the
failure to be so qualified in any such juris-
diction (such counsel being entitled to rely in
respect of the opinion in this clause (iii) upon
opinions of local counsel and in respect of
matters of fact upon certificates of officers of
the Company, provided that such counsel shall
state that they believe that both the Agent and
they are justified in relying upon such opinions
and certificates);
(iv) Each material subsidiary of the
Company has been duly incorporated and is validly
existing
11
<PAGE> 12
as a corporation in good standing under the laws
of its jurisdiction of incorporation; all of the
issued shares of capital stock of each such sub-
sidiary have been duly and validly authorized and
issued, are fully paid and non-assessable, and
(except for directors' qualifying shares and
except as otherwise set forth in the Prospectus)
are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances,
equities or claims (such counsel being entitled to
rely in respect of the opinion in this clause
(iv) upon opinions of local counsel and in respect
of matters of fact upon certificates of officers
of the Company or its subsidiaries, provided that
such counsel shall state that they believe that
both the Agent and they are justified in relying
upon such opinions and certificates);
(v) To the best of such counsel's
knowledge and other than as set forth in 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, if determined adversely to
the Company or any of its subsidiaries, would
individually or in the aggregate have a material
adverse effect on the consolidated financial
position, shareholders' equity or results of
operations of the Company and its subsidiaries;
and, to the best of such counsel's knowledge, no
such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(vi) This Agreement and the Pricing Agree-
ment with respect to the Designated Securities
have been duly authorized, executed and delivered
by the Company;
(vii) The Designated Securities have been
duly authorized, executed, authenticated, issued
and delivered and constitute valid and legally
binding obligations of the Company entitled to the
benefits provided by the Indenture; and the Desig-
nated Securities and the Indenture conform to the
descriptions thereof in the Prospectus as amended
or supplemented;
(viii) The Indenture has been duly author-
ized, executed and delivered by the Company and,
assuming its due authorization, execution and
delivery by the Trustee, constitutes a valid and
legally binding instrument, enforceable in accor-
12
<PAGE> 13
dance with its terms, subject, as to enforcement,
to bankruptcy, insolvency, fraudulent conveyance,
reorganization and other laws of general applic-
ability relating to or affecting creditors' rights
and to general equity principles; and the Inden-
ture has been duly qualified under the Trust
Indenture Act;
(ix) The issue and sale of the Designated
Securities and the compliance by the Company with
all of the provisions of the Designated Secur-
ities, the Indenture, this Agreement and the
Pricing Agreement with respect to the Designated
Securities and the consummation of the trans-
actions herein and therein contemplated will not
conflict with or result in a breach or violation
of any of the terms or provisions of, or consti-
tute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement
or instrument known to such counsel to which the
Company is a party or by which the Company is
bound or to which any of the property or assets of
the Company is subject, nor will such actions
result in any violation of the provisions of the
Articles of Incorporation or By-laws of the
Company or any statute or any order, rule or
regulation known to such counsel of any court or
governmental agency or body having jurisdiction
over the Company or any of its properties;
(x) No consent, approval, authorization,
order, registration or qualification of or with
any such court or governmental agency or body is
required for the issue and sale of the Designated
Securities or the consummation by the Company of
the transactions contemplated by this Agreement or
such Pricing Agreement or the Indenture, except
such as have been obtained under the Act and the
Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as
may be required under state securities or Blue Sky
laws in connection with the purchase and distribu-
tion of the Designated Securities by the Under-
writers;
(xi) The documents incorporated by
reference in the Prospectus as amended or
supplemented (other than the financial statements
and related schedules therein, as to which such
counsel need express no opinion), when they became
effective or were filed with the Commission, as
the case may be, complied as to form in all
material respects with the requirements of the Act
or the Exchange
13
<PAGE> 14
Act, as applicable, and the rules and regulations
of the Commission thereunder; and they have no
reason to believe that any of such documents, when
they became effective or were so filed, as the
case may be, contained, in the case of a regis-
tration statement, which became effective under
the Act, an untrue statement of a material fact
required to be stated therein or necessary to make
the statements therein not misleading, or, in the
case of other documents which were filed under the
Act or the Exchange Act with the Commission, an
untrue statement of a material fact or omitted to
state a material fact necessary in order to make
the statements therein, in the light of the
circumstances under which they were made when such
documents were so filed, not misleading; and
(xii) The Registration Statement and the
Prospectus as amended or supplemented and any
further amendments and supplements thereto made by
the Company prior to the Time of Delivery for the
Designated Securities (other than the financial
statements and related schedules therein, as to
which such counsel need express no opinion) comply
as to form in all material respects with the
requirements of the Act and the Trust Indenture
Act and the rules and regulations thereunder; they
have no reason to believe that, as of the effec-
tive date of the Registration Statement, either
the Registration Statement or the Prospectus (or,
as of its date, any further amendment or supple-
ment thereto made by the Company prior to the Time
of Delivery) contained an 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 or that, as
of the Time of Delivery, either the Registration
Statement or the Prospectus (or any such further
amendment or supplement thereto) contains an
untrue statement of a material fact or omits to
state a material fact required to be stated
therein or necessary to make the statements
therein not misleading; and they do not know of
any contracts or other documents of a character
required to be filed as an exhibit to the Regis-
tration Statement or required to be incorporated
by reference into the Prospectus as amended or
supplemented or required to be described in the
Registration Statement or the Prospectus as
amended or supplemented which are not filed or
incorporated by reference or described as
required;
14
<PAGE> 15
(d) On the date of the Pricing Agreement for such
Designated Securities and at the Time of Delivery for
such Designated Securities, the independent accountants
of the Company who have certified the financial state-
ments of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement
shall have furnished to the Representatives a letter,
dated the effective date of the Registration Statement
or the date of the most recent report filed with the
Commission containing financial statements and incor-
porated by reference in the Registration Statement, if
the date of such report is later than such effective
date, and a letter dated such Time of Delivery, respec-
tively, to the effect set forth in Annex II hereto, and
with respect to such letter dated such Time of Deliv-
ery, as to such other matters as the Representatives
may reasonably request and in form and substance satis-
factory to the Representatives;
(e) (i) Neither the Company nor any of its
subsidiaries shall have sustained since the date of the
latest audited financial statements included or incor-
porated by reference in the Prospectus as amended or
supplemented any loss or interference with its business
from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented, and (ii) since
the respective dates as of which information is given
in the Prospectus as amended or supplemented there
shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsid-
iaries or any change, or any development involving a
prospective change, in or affecting the general
affairs, management, financial position, stockholders'
equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contem-
plated in the Prospectus as amended or supplemented,
the effect of which, in any such case described in
Clause (i) or (ii), is in the judgment of the Repre-
sentatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public
offering or the delivery of the Designated Securities
on the terms and in the manner contemplated in the
Prospectus as amended or supplemented;
(f) On or after the date of the Pricing Agreement
relating to the Designated Securities (i) no
downgrading shall have occurred in the rating accorded
the Company's debt securities by any "nationally
recognized statistical rating organization", as that
term is defined by the Commission for purposes of
15
<PAGE> 16
Rule 436(g)(2) under the Act and (ii) no such organ-
ization shall have publicly announced that it has under
surveillance or review, with possible negative impli-
cations, its rating of any of the Company's debt
securities;
(g) On or after the date of the Pricing Agreement
relating to the Designated Securities there shall not
have occurred any of the following: (i) a suspension
or material limitation in trading in securities gener-
ally on the New York Stock Exchange; (ii) a general
moratorium on commercial banking activities in New York
declared by either Federal or New York State author-
ities; (iii) the outbreak or escalation of hostilities
involving the United States or the declaration by the
United States of a national emergency or war, if the
effect of any such event specified in this clause
(iii) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public
offering or the delivery of the Designated Securities
on the terms and in the manner contemplated in the
Prospectus as amended or supplemented; and
(h) The Company shall have furnished or caused to
be furnished to the Representatives at the Time of
Delivery for the Designated Securities a certificate or
certificates of officers of the Company satisfactory to
the Representatives as to the accuracy of the represen-
tations and warranties of the Company herein at and as
of such Time of Delivery, as to the performance by the
Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to
the matters set forth in subsections (a) and (e) of
this Section and as to such other matters as the
Representative may reasonably request.
8. (a) The Company will indemnify and hold
harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such
Underwriter may become subject under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon
an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any amend-
ment 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 will
reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with
16
<PAGE> 17
investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company
shall not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the
Securities, or any such amendment or supplement in reliance
upon and in conformity with written information furnished to
the Company by any Underwriter of Designated Securities
through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such
Securities.
(b) Each Underwriter will indemnify and hold
harmless the Company against any losses, claims, damages or
liabilities to which the Company may become subject, under
the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supple-
ment, the Registration Statement, the Prospectus as amended
or supplemented and any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omis-
sion or alleged omission was made in any Preliminary
Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospects as amended or supple-
mented and any other prospectus relating to the Securities,
or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company
by such Underwriter through the Representatives expressly
for use therein; and will reimburse the Company for any
legal or other expenses reasonably incurred by the Company
in connection with investigating or defending any such
action or claim.
(c) Promptly after receipt by an indemnified
party under subsection (a) or (b) above of notice of the
commencement of any action, such indemnified party shall, if
a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any
indemnified party otherwise than under such subsection. In
17
<PAGE> 18
case any such action shall be brought against any indem-
nified party and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party
similarly notified to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and, after notice from
the indemnifying party to such indemnified party at its
election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under
such subsection for any legal expenses of other counsel or
any other expenses, in each case subsequently incurred by
such indemnified party, in connection with the defense
thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this
Section 8 is unavailable to or insufficient to hold harmless
an indemnified party under subsection (a) or (b) above in
respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the
one hand and the Underwriters of the Designated Securities
on the other from the offering of the Designated Securities
to which such loss, claim, damage or liability (or action in
respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party
failed to give the notice required under subsection (c)
above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company
on the one hand and the Underwriters of the Designated
Securities on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative
benefits received by the Company on the one hand and such
Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering
(before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by
such Underwriters. The relative fault shall be determined
by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or such
18
<PAGE> 19
Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable
if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the
equitable considerations referred to above in this sub-
section (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabil-
ities (or actions in respect thereof) referred to above in
this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the
total price at which the applicable Designated Securities
underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraud-
ulent 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 misrepresen-
tation. The obligations of the Underwriters of Designated
Securities in this subsection (d) to contribute are several
in proportion to their respective underwriting obligations
with respect to such Securities and not joint.
(e) The obligations of the Company under this
Section 8 shall be in addition to any liability which the
Company may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section 8 shall
be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of
the Company and to each person, if any, who controls the
Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its
obligation to purchase the Designated Securities which it
has agreed to purchase under the Pricing Agreement relating
to such Designated Securities, the Representatives may in
their discretion arrange for themselves or another party or
other parties to purchase such Designated Securities on the
terms contained herein. If within thirty-six hours after
such default by any Underwriter the Representatives do not
arrange for the purchase of such Designated Securities, then
19
<PAGE> 20
the Company shall be entitled to a further period of thirty-
six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such
Designated Securities on such terms. In the event that,
within the respective prescribed period, the Representatives
notify the Company that they have so arranged for the
purchase of such Designated Securities, or the Company
notifies the Representatives that it has so arranged for the
purchase of such Designated Securities, the Representatives
or the Company shall have the right to postpone the Time or
Delivery for such Designated Securities for a period of not
more than seven days, in order to effect whatever changes
may thereby be made necessary in the Registration Statement
or the Prospectus as amended or supplemented, or in any
other documents or arrangements, and the Company agrees to
file promptly any amendments or supplements to the Regis-
tration Statement or the Prospectus which in the opinion of
the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if
such person had originally been a party to the Pricing
Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements
for the purchase of the Designated Securities of a defaul-
ting Underwriter or Underwriters by the Representatives and
the Company as provided in subsection (a) above, the aggregate
principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate
principal amount of the Designated Securities, then the
Company shall have the right to require each non-defaulting
Underwriter to purchase the principal amount of Designated
Securities and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the
principal amount of the Designated Securities which such
Underwriter agreed to purchase under such Pricing Agreement)
of the Designated Securities of such defaulting Underwriter
or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements
for the purchase of the Designated Securities of a defaul-
ting Underwriter or Underwriters by the Representatives and
the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which
remains unpurchased exceeds one-eleventh of the aggregate
principal amount of the Designated Securities, as referred
to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to
require nondefaulting Underwriters to purchase Designated
Securities of a defaulting Underwriter or Underwriters, then
the Pricing Agreement relating to such Designated Securities
20
<PAGE> 21
shall thereupon terminate, without liability on the part of
any non-defaulting Underwriter or the Company, except for
the expenses to be borne by the Company and the Underwriters
as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability
for its default.
10. The respective indemnities, agreements,
representations, warranties and other statements of the
Company and the several Underwriters, as set forth in this
Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as
to the results thereof) made by or on behalf of any Under-
writer or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of
the Company, and shall survive delivery of and payment for
the Securities.
11. If any Pricing Agreement shall be terminated
pursuant to Section 9 hereof, the Company shall not then be
under any liability to any Underwriter with respect to the
Designated Securities covered by such Pricing Agreement
except as provided in Section 6 and Section 8 hereof; but if
for any other reason Designated Securities are not delivered
by or on behalf of the Company as provided herein, the
Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in
writing by the Representatives, including fees and disburse-
ments of counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of
such Designated Securities, but the Company shall then be
under no further liability to any Underwriter with respect
to such Designated Securities except as provided in
Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representa-
tives of the Underwriters of Designated Securities shall act
on behalf of each of such Underwriters, and the parties
hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any underwriter
made or given by such Representatives jointly or by such of
the Representatives, if any, as may be designated for such
purpose in the Pricing Agreement.
All statements, requests, notices and agreements
hereunder shall be in writing, and if to the Underwriters
shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Representatives as set
forth in the Pricing Agreement; and if to the Company shall
be delivered or sent by mail, telex or facsimile trans-
mission to the address of the Company set forth in the
21
<PAGE> 22
Registration Statement: Attention: Secretary; provided,
however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its
address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be
supplied to the Company by the Representatives upon request.
Any such statements, requests, notices or agreements shall
take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement
shall be binding upon, and inure solely to the benefit of,
the Underwriters, the Company and, to the extent provided in
Section 8 and Section 10 hereof, the officers and directors
of the Company and each person who controls the Company or
any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchase of any
of the Securities from any Underwriter shall be deemed a
successor or assign by reason merely of such purchases.
14. Time shall be the essence of each Pricing
Agreement. As used herein, "business day" shall mean any
day when the Commission's office in Washington, D.C. is open
for business.
15. This Agreement and each Pricing Agreement
shall be governed by and construed in accordance with the
laws of the State of New York.
16. This Agreement and each Pricing Agreement may
be executed by any one or more of the parties hereto and
thereto in any number of counterparts, each of which shall
be deemed to be an original, but all such respective
counterparts shall together constitute one and the same
instrument.
Very truly yours,
V.F. Corporation
By:___________________________
Name:
Title:
22
<PAGE> 1
Exhibit 1.2
V.F. Corporation
Underwriting Agreement
, 1994
------
To the Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described.
Dear Sirs:
From time to time V.F. Corporation, a Pennsylvania corporation
(the "Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain shares of its [Title of Securities] (the "Shares")
specified in Schedule II to such Pricing Agreement (with respect to such
Pricing Agreement, the "Firm Shares"). If specified in such Pricing Agreement,
the Company may grant to the Underwriters the right to purchase at their
election an additional number of shares, specified in such Pricing Agreement as
provided in Section 3 hereof (the "Optional Shares"). The Firm Shares and the
Optional Shares, if any, which the Underwriters elect to purchase pursuant to
Section 3 hereof are herein collectively called the "Designated Shares".
The terms and rights of any particular issuance of Designated
Shares shall be as specified in the Pricing Agreement relating thereto [and in
or pursuant to the resolution or resolutions of the board of directors of the
Company identified in such Pricing Agreement].
1. Particular sales of Designated Shares may be made
from time to time to the Underwriters of such Shares, for whom the firms
designated as representatives of the Underwriters of such Shares in the Pricing
Agreement relating thereto will act as representatives (the "Representatives").
The term "Representatives" also refers to a single firm acting as sole
representative of the Underwriters and to Underwriters who act without any firm
being designated as their representative. This Underwriting Agreement shall not
be construed as an obligation of the Company to sell any of the Shares or as an
obligation of any of the Underwriters to purchase any of the Shares. The
obligation of the Company to issue and sell any of the Shares and the
obligation of any of the Underwriters to purchase any of the Shares shall be
evidenced by the Pricing Agreement with respect to the Designated Shares
specified therein. Each Pricing Agreement shall specify the aggregate number of
the Firm Shares, the maximum number of Optional Shares, if any, the initial
public offering price of such Firm and Optional Shares or the manner of
determining such price, the purchase price to the Underwriters of such
Designated Shares, the names of the Underwriters of such Designated Shares, the
names of the Representatives of such Underwriters, the number of such
Designated Shares to be purchased by each Underwriter and the commission, if
any, payable to the Underwriters with respect thereto and shall set forth the
date, time and manner
<PAGE> 2
of delivery of such Firm and Optional Shares, if any, and
payment therefor. The Pricing Agreement shall also specify (to the extent not
set forth in the registration statement and prospectus with respect thereto)
the terms of such Designated Shares. A Pricing Agreement shall be in the form
of an executed writing (which may be in counterparts), and may be evidenced by
an exchange of telegraphic communications or any other rapid transmission
device designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2. The Company represents and warrants to, and agrees
with, each of the Underwriters that:
(a) A registration statement (File No. ________) on Form
S-3 in respect of the Shares and other securities of the Company,
including a prospectus for use in connection with the Designated
Shares, has been filed with the Securities and Exchange Commission
(the "Commission"); such registration statement and any post-effective
amendment thereto, each in the form heretofore delivered or to be
delivered to the Representatives and, excluding exhibits to such
registration statement, but including all documents incorporated by
reference in the prospectus included therein, to the Representatives
for each of the other Underwriters, have been declared effective by
the Commission in such form; no other document with respect to such
registration statement or document incorporated by reference therein
has heretofore been filed or transmitted for filing with the
Commission; no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in such registration statement or
filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Securities Act of 1933, as
amended (the "Act"), being hereinafter called a "Preliminary
Prospectus"; the various parts of such registration statement,
including all exhibits thereto and the documents incorporated by
reference in the prospectus contained in the registration statement at
the time such part of the registration statement became effective,
each as amended at the time such part of the registration statement
became effective, being hereinafter called the "Registration
Statement"; the prospectus relating to the Shares, in the form in
which it has most recently been filed, or transmitted for filing, with
the Commission on or prior to the date of this Agreement, being
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any
documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated by reference
in such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the applicable
Designated Shares, in the form in which it is filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof, including any documents incorporated by reference
therein as of the date of such filing);
(b) No order preventing or suspending the use of any
Preliminary Prospectus as
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<PAGE> 3
amended or supplemented has been issued by the Commission, and each
Preliminary Prospectus as amended or supplemented, at the time of
filing thereof, conformed in all material respects to the requirements
of the Act and the rules and regulations of the Commission thereunder,
and did not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein;
(c) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder, and none of
such documents contained an 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; and any
further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter of Designated Shares through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Shares;
(d) The Registration Statement and the Prospectus
conform, and any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material respects to
the requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Shares through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Shares;
(e) 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 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 Prospectus; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the
capital stock or long-term debt of the Company or any material change
in the capital stock or long term debt of its subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management,
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<PAGE> 4
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus;
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
Commonwealth of Pennsylvania, with power and authority (corporate and
other) to own its properties and conduct its business as described in
the 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, or is
subject to no material liability or disability by reason of the
failure to be so qualified in any such jurisdiction; and each material
subsidiary of the Company has been duly incorporated and is validly
existing as a corporation and is in good standing under the laws of
its jurisdiction of incorporation;
(g) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital stock
of the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and conform to the description of the
capital stock contained in the Prospectus; and all of the issued
shares of capital stock of each subsidiary of the Company have been
duly and validly authorized and issued, are fully paid and
non-assessable and (except for directors' qualifying shares and except
as set forth in the Prospectus) are owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or
claims;
(h) The Firm Shares and any Optional Shares have been
duly and validly authorized, and, when the Firm Shares are issued and
delivered pursuant to this Agreement and the Pricing Agreement with
respect to such Designated Shares, and in the case of any Optional
Shares, pursuant to Over-allotment Options (as defined in Section 3
hereof) with respect to such Shares, such Designated Shares will be
duly and validly issued and fully paid and non-assessable; and the
Shares conform to the description thereof contained in the
Registration Statement and the Designated Shares will conform to the
description thereof contained in the Prospectus as amended or
supplemented with respect to such Designated Shares;
(i) The issue and sale of the Firm Shares and Optional
Shares and the compliance by the Company with all of the provisions of
this Agreement, any Pricing Agreement and each Over-allotment Option,
if any, 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 statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Firm Shares and Optional Shares or the consummation by the Company of
the transactions contemplated by this Agreement or any Pricing
Agreement or any Over-allotment Option, except such as have been, or
will have been prior to each Time of Delivery (as defined in Section 4
hereof), obtained under the Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state or foreign securities or Blue Sky laws in connection with
the purchase and distribution of the
4
<PAGE> 5
Shares by the Underwriters;
(j) Other than as set forth or contemplated in 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, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the consolidated financial position, stockholders'
equity or results of operations of the Company and its subsidiaries;
and, to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened
by others; and
(k) Ernst & Young, 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.
3. Upon the execution of the Pricing Agreement
applicable to any Designated Shares and authorization by the Representatives of
the release of the Firm Shares, the several Underwriters propose to offer the
Firm Shares for sale upon the terms and conditions set forth in the Prospectus
as amended or supplemented.
The Company may specify in the Pricing Agreement applicable to
any Designated Shares that the Company thereby grants to the Underwriters the
right (an "Over-allotment Option") to purchase at their election up to the
number of Optional Shares set forth in such Pricing Agreement, at the terms set
forth in the paragraph above, for the sole purpose of covering over-allotments
in the sale of the Firm Shares. Any such election to purchase Optional Shares
may be exercised only by written notice from the Representatives to the
Company, given within a period specified in the Pricing Agreement, setting
forth the aggregate number of Optional Shares to be purchased and the date on
which such Optional Shares are to be delivered, as determined by the
Representatives but in no event earlier than the First Time of Delivery (as
defined in Section 4 hereof) or, unless the Representatives and the Company
otherwise agree in writing, earlier than two or later than ten business days
after the date of such notice set forth in such Pricing Agreement.
The number of Optional Shares to be added to the number of
Firm Shares to be purchased by each Underwriter as set forth in Schedule I to
the Pricing Agreement applicable to such Designated Shares shall be, in each
case, the number of Optional Shares which the Company has been advised by the
Representatives have been attributed to such Underwriter, provided that, if the
Company has not been so advised, the number of Optional Shares to be so added
shall be, in each case, that proportion of Optional Shares which the number of
Firm Shares to be purchased by such Underwriter under such Pricing Agreement
bears to the aggregate number of Firm Shares (rounded as the Representatives
may determine to the nearest 100 shares). The total number of Designated
Shares to be purchased by all the Underwriters pursuant to such Pricing
Agreement shall be the aggregate number of Firm Shares set forth in Schedule I
to such Pricing Agreement plus the aggregate number of the Optional Shares
which the Underwriters elect to purchase.
4. Certificates in definitive form for the Firm Shares
and the Optional Shares to be purchased by each Underwriter pursuant to the
Pricing Agreement relating thereto, and in such authorized denominations and
registered in such names as the Representatives may request upon at least
forty-eight hours' prior notice to the Company, shall be delivered by or on
behalf of the Company to the Representatives for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor payable to the order of the Company in the manner and
in the funds specified in such Pricing Agreement, (i) with respect to the Firm
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<PAGE> 6
Shares, all at the place and time and date specified in such Pricing Agreement
or at such other place and time and date as the Representatives and the Company
may agree upon in writing, and such time and date being herein called the
"First Time of Delivery" and (ii) with respect to the Optional Shares, if any,
on the time and date specified by the Representatives in the written notice
given by the Representatives of the Underwriters' election to purchase such
Optional Shares, or at such other time and date as the Representatives and the
Company may agree upon in writing, such time and date, if not the "First Time
of Delivery", being herein called the "Second Time of Delivery". Each such time
and date for delivery is herein called a "Time of Delivery".
5. The Company agrees with each of the Underwriters of
any Designated Shares:
(a) To prepare the Prospectus as amended and supplemented
in relation to the applicable Designated Shares in a form approved by
the Representatives and to file such Prospectus pursuant to Rule
424(b) under the Act not later than the Commission's close of business
on the second business day following the execution and delivery of the
Pricing Agreement relating to the applicable Designated Shares or, if
applicable, such earlier time as may be required by Rule 424(b); to
make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date of
the Pricing Agreement relating to such Shares and prior to any Time of
Delivery for such Shares which shall be disapproved by the
Representatives for such Shares promptly after reasonable notice
thereof; to advise the Representatives promptly of any such amendment
or supplement after any Time of Delivery for such Shares and furnish
the Representatives with copies thereof; to file promptly all reports
and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of
a prospectus is required in connection with the offering or sale of
such Shares, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed
or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed with the Commission, of the issuance
by the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Shares, of the
suspension of the qualification of such Shares for offering or sale in
any jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or Prospectus
or for additional information; and, in the event of the issuance of
any such stop order or of any such order preventing or suspending the
use of any prospectus relating to the Shares or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Shares for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Shares, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or
to file a general consent to service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the
Prospectus as amended or supplemented in such quantities as the
Representatives may from time to time reasonably request, and, if the
delivery of a prospectus is required at any time prior to the
expiration of nine months after the date of the Pricing Agreement in
connection with the offering or sale of the Shares and if at such time
any event shall have occurred as a result of which the
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<PAGE> 7
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated
by reference in the Prospectus in order to comply with the Act or the
Exchange Act, to notify the Representatives and upon their request to
file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance, and in case any
Underwriter is required to deliver a prospectus in connection with
sales of any of the Shares at any time nine months or more after the
time of issue of the Pricing Agreement, upon the Representatives'
request but at the expense of such Underwriter, to prepare and deliver
to such Underwriter as many copies as the Representatives may request
of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act;
(d) To make generally available to its security holders
as soon as practicable, but in any event not later than eighteen
months after the effective date of the Registration Statement (as
defined in Rule 158(c)), an earning statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including at the option of the Company Rule 158);
(e) During the period beginning from the date of the
Pricing Agreement for such Designated Shares and continuing to and
including the date [90] days after the last Time of Delivery, not to
offer, sell, contract to sell or otherwise dispose of any securities
of the Company (other than pursuant to employee stock option or
ownership plans existing or on the conversion of convertible
securities outstanding on the date of such Pricing Agreement) which
are substantially similar to such Designated Shares, without the
Representatives' prior written consent;
(f) To furnish to its stockholders as soon as practicable
after the end of each fiscal year an annual report (including a
balance sheet and statements of income, stockholders' equity and cash
flow of the Company and its consolidated subsidiaries certified by
independent public accountants) and, as soon as practicable after the
end of each of the first three quarters of each fiscal year (beginning
with the fiscal quarter ending after the date of the Pricing
Agreement), consolidated summary financial information of the Company
and its subsidiaries for such quarter in reasonable detail;
(g) During a period of five years from the date of the
Pricing Agreement, to furnish to the Representatives copies of all
reports or other communications (financial or other) furnished to
stockholders, and deliver to the Representatives (i) as soon as they
are available, copies of any reports and financial statements
furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed;
and (ii) such additional information concerning the business and
financial condition of the Company as the Representatives may from
time to time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its stockholders
generally or to the Commission); and
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<PAGE> 8
[(h) To use its best efforts to list, subject to notice
of issuance, the Shares on the New York Stock Exchange.]
6. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Company's counsel and accountants
in connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus, and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Blue Sky Memoranda and any other documents in connection with the offering,
purchase, sale and delivery of the Shares; (iii) all expenses in connection
with the qualification of the Shares for offering and sale under state
securities laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey; (iv) any fees charged
by securities rating services for rating the Shares; (v) any filing fees
incident to securing any required reviews by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Shares; (vi) the cost
of preparing certificates for the Shares; (vii) the cost and charges of any
transfer agent or registrar; and (viii) all other costs and expenses incident
to the performance of its obligations hereunder and under any Over-allotment
Options which are not otherwise specifically provided for in this Section. It
is understood, however, that, except as provided in this Section, Section 8 and
Section 11 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, stock transfer taxes on resale
of any of the Shares by them, and any advertising expenses connected with any
offers they may make.
7. The obligations of the Underwriters of any Designated
Shares under the Pricing Agreement relating to such Designated Shares shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Shares are, at and as of each Time of Delivery for such Designated Shares, true
and correct, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus as amended or supplemented in relation
to such Designated Shares shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction;
(b) Sullivan & Cromwell, counsel for the Underwriters,
shall have furnished to the Representatives such opinion or opinions,
dated such Time of Delivery for such Designated Shares, with respect
to the incorporation of the Company, the validity of the Designated
Shares being delivered at such Time of Delivery, the Registration
Statement, the Prospectus as amended or supplemented and other related
matters as the Representatives may reasonably request, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) Clark, Ladner, Fortenbaugh & Young or other counsel
for the Company
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<PAGE> 9
satisfactory to the Representatives shall have furnished to the
Representatives their written opinion, dated such Time of Delivery for
such Designated Shares, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the Commonwealth of Pennsylvania, with power and
authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus as amended
or supplemented;
(ii ) The Company has an authorized capitalization as
set forth in the Prospectus as amended or supplemented, and
all of the issued shares of capital stock of the Company
(including the Designated Shares being delivered at such Time
of Delivery) have been duly and validly authorized and issued
and are fully paid and non- assessable; and the Designated
Shares conform to the description thereof in the Prospectus as
amended or supplemented;
(iii) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business, so as to
require such qualification, or is subject to no material
liability or disability by reason of the failure to be so
qualified in any such jurisdiction (such counsel being
entitled to rely in respect of the opinion in this clause
(iii) upon opinions of local counsel and in respect of matters
of fact upon certificates of officers of the Company and
information obtained from public officials, provided that such
counsel shall state that they believe that both the
Representatives and they are justified in relying upon such
opinions, certificates and information);
(iv ) Each material subsidiary of the Company has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of its jurisdiction of
incorporation; and all of the issued shares of capital stock
of each such subsidiary have been duly and validly authorized
and issued, are fully paid and non- assessable, and (except
for directors' qualifying shares and except as otherwise set
forth in the Prospectus) are owned directly or indirectly by
the Company, free and clear of all liens, encumbrances,
equities or claims (such counsel being entitled to rely in
respect of the opinion in this clause (iv) upon opinions of
local counsel and in respect of matters of fact upon
certificates of officers of the Company or its subsidiaries
and information obtained from public officials, provided that
such counsel shall state that they believe that both the
Representatives and they are justified in relying upon such
opinions, certificates and information);
(v) To the best of such counsel's knowledge and
other than as set forth in 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,
if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the
Company and its subsidiaries; and, to the best of such
counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others;
(vi) This Agreement and the Pricing Agreement with
respect to the Designated
9
<PAGE> 10
Shares have been duly authorized, executed and delivered by
the Company;
(vii) The Designated Shares have been duly authorized
and, when issued and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement
and the Pricing Agreement with respect to the Designated
Shares, will be validly issued, fully paid and nonassessable;
and the Designated Shares conform in all material respects to
the description thereof contained in the Registration
Statement and in the Prospectus as amended or supplemented
with respect to such Designated Shares;
(viii ) The issue and sale of the Designated Shares
being delivered at such Time of Delivery and the compliance by
the Company with all of the provisions of this Agreement and
the Pricing Agreement with respect to the Designated Shares
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 known to such
counsel 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 statute or any
order, rule or regulation known to such counsel of any court
or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties;
(ix ) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale
of the Designated Shares being delivered at such Time of
Delivery or the consummation by the Company of the
transactions contemplated by this Agreement or such Pricing
Agreement except such as have been obtained under the Act of
the Shares, and 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 Designated Shares by the Underwriters;
(x) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the
financial statements, [other financial data] and related
schedules therein, as to which such counsel need express no
opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all
material respects with the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder; and they have no reason to believe
that any of such documents, when they became effective or were
so filed, as the case may be, contained, in the case of a
registration statement which became effective under the Act,
an 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, or, in the case of
other documents which were filed under the Act or the Exchange
Act with the Commission, an untrue statement of a material
fact or omitted to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made when such documents were so filed,
not misleading; and
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<PAGE> 11
(xi ) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and
supplements thereto made by the Company prior to such Time of
Delivery (other than the financial statements, other financial
data and related schedules therein, as to which such counsel
need express no opinion) comply as to form in all material
respects with the requirements of the Act and the rules and
regulations thereunder; they have no reason to believe that,
as of its effective date, the Registration Statement or any
further amendment thereto made by the Company prior to such
Time of Delivery (other than the financial statements, other
financial data and related statements and related schedules
therein, as to which such counsel need express no opinion)
contained an 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 or
that, as of its date, the Prospectus as amended or
supplemented or any further amendment or supplement thereto
made by the Company prior to such Time of Delivery (other than
the financial statements, other financial data and related
schedules therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the
statements therein, in light of the circumstances in which
they were made, not misleading or that, as of such Time of
Delivery, either the Registration Statement or the Prospectus
as amended or supplemented (or any further amendment or
supplement thereto made by the Company prior to such Time of
Delivery (other than the financial statements, other financial
data and related schedules therein, as to which such counsel
need express no opinion)) contains an untrue statement of a
material fact or omits to state a material fact necessary to
make the statements therein, in light of the circumstances in
which they were made, not misleading; and they do not know of
any amendment to the Registration Statement required to be
filed or of any contracts or other documents of a character
required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be
described in the Registration Statement or the Prospectus as
amended or supplemented which are not filed or incorporated by
reference or described as required;
(d) On the date of the Pricing Agreement for such
Designated Shares and at each Time of Delivery for such Designated
Shares, the independent accountants of the Company who have certified
the financial statements of the Company and its subsidiaries included
or incorporated by reference in the Registration Statement shall have
furnished to the Representatives a letter, dated the effective date of
the Registration Statement or the date of the most recent report filed
with the Commission containing financial statements and incorporated
by reference in the Registration Statement, if the date of such report
is later than such effective date, and a letter dated such Time of
Delivery, respectively, to the effect set forth in Annex II hereto,
and with respect to such letter dated such Time of Delivery, as to
such other matters as the Representatives may reasonably request and
in form and substance satisfactory to the Representatives hereto;
(e)(i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus as
amended or supplemented 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 Prospectus as amended or supplemented, and (ii)
since the
11
<PAGE> 12
respective dates as of which information is given in the Prospectus as
amended or supplemented there shall not have been any change in the
capital stock or long-term debt of the Company or any material change
in the capital stock or long-term debt of its subsidiaries or any
change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented, the effect of which, in any
such case described in Clause (i) or (ii), is in the Representatives'
judgment so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Shares on the terms and in the manner contemplated in the
Prospectus as amended or supplemented;
(f) On or after the date of the Pricing Agreement
relating to the Designated Shares (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities or
preferred stock by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for purposes
of Rule 436(g)(2) under the Act and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company's
debt securities or preferred stock;
(g) On or after the date of the Pricing Agreement
relating to the Designated Shares there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a general
moratorium on commercial banking activities in New York declared by
either Federal or New York State authorities; or (iii) the outbreak or
escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if
the effect of any such event specified in this clause (iii) in the
Representatives' judgment makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Firm Shares or
Optional Shares or both on the terms and in the manner contemplated by
the Prospectus as amended or supplemented;
[(h) The Designated Shares to be sold by the Company at
each Time of Delivery shall have been duly listed, subject to notice
of issuance, on the New York Stock Exchange and the Pacific Stock
Exchange; and]
(i) The Company shall have furnished or caused to be
furnished to the Representatives at each Time of Delivery for the
Designated Shares certificates of officers of the Company satisfactory
to the Representatives as to the accuracy of the representations and
warranties of the Company herein at and as of such Time of Delivery,
as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to such Time of Delivery, as to
the matters set forth in subsections (a) and (e) of this Section and
as to such other matters as the Representatives may reasonably
request.
8.(a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Shares, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or
12
<PAGE> 13
necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Shares, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
of Designated Shares through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Shares.
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Shares, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the Prospectus
as amended or supplemented and any other prospectus relating to the Shares, or
any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 8
is unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such
13
<PAGE> 14
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters of the Designated Shares on the
other from the offering of the Designated Shares to which such loss, claim,
damage or liability (or action in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters of the Designated
Shares on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and such Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by such Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or such Underwriters on the other and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the applicable
Designated Shares underwritten by it and distributed to the public were offered
to the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. 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. The obligations of the Underwriters of Designated Shares in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations with respect to such Designated Shares and not joint.
(e) The obligations of the Company under this Section 8
shall be in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section 8 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company and to
each person, if any, who controls the Company within the meaning of the Act.
9.(a) If any Underwriter shall default in its obligation to
purchase the Firm Shares or Optional Shares which it has agreed to purchase
under the Pricing Agreement relating to such Shares, the Representatives may in
their discretion arrange for the Representatives or another party or other
parties to purchase such Shares on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Firm Shares or Optional Shares, as the
case may be, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the
14
<PAGE> 15
Representatives to purchase such Shares on such terms. In the event that,
within the respective prescribed period, the Representatives notify the Company
that the Representatives have so arranged for the purchase of such Shares, or
the Company notifies the Representatives that it has so arranged for the
purchase of such Shares, the Representatives or the Company shall have the
right to postpone a Time of Delivery for such Shares for a period of not more
than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the Representatives' opinion may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such
Designated Shares.
(b) If, after giving effect to any arrangements for the
purchase of the Designated Shares of a defaulting Underwriter or Underwriters
by the Representatives and the Company as provided in subsection (a) above, the
aggregate number of such Firm Shares or Optional Shares, as the case may be,
which remains unpurchased does not exceed one-eleventh of the aggregate number
of the Firm Shares or Optional Shares, as the case may be, to be purchased at
the respective Time of Delivery, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the number of Firm Shares
or Optional Shares, as the case may be, which such Underwriter agreed to
purchase under the Pricing Agreement relating to such Designated Shares and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Firm Shares or Optional Shares, as the case may
be, which such Underwriter agreed to purchase under such Pricing Agreement) of
the Firm Shares or Optional Shares, as the case may be, of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the
purchase of the Firm Shares or Optional Shares, as the case may be, of a
defaulting Underwriter or Underwriters by the Representatives and the Company
as provided in subsection (a) above, the aggregate number of Firm Shares or
Optional Shares, as the case may be, which remains unpurchased exceeds
one-eleventh of the aggregate number of the Firm Shares or Optional Shares, as
the case may be, to be purchased at the respective Time of Delivery, as
referred to in subsection (b) above, or if the Company shall not exercise the
right described in subsection (b) above to require non-defaulting Underwriters
to purchase Firm Shares or Optional Shares, as the case may be, of a defaulting
Underwriter or Underwriters, then the Pricing Agreement relating to such Firm
Shares or the Over-allotment Option relating to such Optional Shares, as the
case may be, shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements,
representations, warranties and other statements of the Company and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, or the Company, or any officer or director or controlling
person of the Company, and shall survive delivery of and payment for the
Shares.
15
<PAGE> 16
11. If any Pricing Agreement or Over-allotment Option
shall be terminated pursuant to Section 9 hereof, the Company shall not then be
under any liability to any Underwriter with respect to the Firm Shares or
Optional Shares covered by such Pricing Agreement except as provided in Section
6 and Section 8 hereof; but, if for any other reason, Designated Shares are not
delivered by or on behalf of the Company as provided herein, the Company will
reimburse the Underwriters through the Representatives for all out-of-pocket
expenses approved in writing by the Representatives, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Shares not so
delivered, but the Company shall then be under no further liability to any
Underwriter in respect of the Shares not so delivered except as provided in
Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Shares shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the Representatives, if
any, as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Representatives as
set forth in the Pricing Agreement; and if to the Company shall be delivered or
sent by mail, telex or facsimile transmission to the address of the Company set
forth in the Registration Statement, Attention: Secretary; provided, however,
that any notice to an Underwriter pursuant to Section 8(c) hereof shall be
delivered or sent by mail, telex or facsimile transmission to such Underwriter
at its address set forth in its Underwriters' Questionnaire, or telex
constituting such Questionnaire, which address will be supplied to the Company
by the Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be
binding upon, and inure solely to the benefit of, the Underwriters, the Company
and, to the extent provided in Sections 8 and 10 hereof, the officers and
directors of the Company and each person who controls the Company or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement or any such Pricing Agreement. No purchaser of any of
the Shares from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of each Pricing
Agreement. As used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be
executed by any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
16
<PAGE> 17
If the foregoing is in accordance with your understanding,
please sign and return to us.
Very truly yours,
V.F. Corporation
By:___________________________
Name:
Title:
Accepted as of the date hereof:
[Name(s) of Co-Representative(s)]
By:______________________________
17
<PAGE> 18
PRICING AGREEMENT
[NAMES OF CO-REPRESENTATIVE(S),]
As Representatives of the several Underwriters
named in Schedule I hereto,
............. 19..
Dear Sirs:
VF Corporation, a Pennsylvania corporation (the "Company"), proposes
subject to the terms and conditions stated herein and in the Underwriting
Agreement, dated ............., 19.. (the "Underwriting Agreement"), between
the Company on the one hand and [(names of Co-Representatives named therein)]
on the other hand, to issue and sell to the Underwriters named in Schedule I
hereto (the "Underwriters") the Shares specified in Schedule II hereto (the
"Designated Shares" [consisting of Firm Shares and any Optional Shares the
Underwriters may elect to purchase]). Each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its entirety, and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the representations
and warranties set forth therein shall be deemed to have been made at and as of
the date of this Pricing Agreement, except that each representation and
warranty which refers to the Prospectus in Section 2 of the Underwriting
Agreement shall be deemed to be a representation or warranty as of the date of
the Underwriting Agreement in relation to the Prospectus (as therein defined),
and also a representation and warranty as of the date of this Pricing Agreement
in relation to the Prospectus as amended or supplemented relating to the
Designated Shares which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Representatives and on behalf of each of the Underwriters
of the Designated Shares pursuant to Section 12 of the Underwriting Agreement
and the address of the Representatives referred to in such Section 12 are set
forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Shares, in the form
heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, [(a)] the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company,
at the time and place and at the purchase price to the Underwriters set forth
in Schedule II hereto, the number of Firm Shares set forth opposite the name of
such Underwriter in Schedule I hereto [and, (b) in the event and to the extent
that the Underwriters shall exercise the election to purchase Optional Shares,
as provided below, the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly,
to purchase from the Company at the purchase price to the Underwriters set out
in Schedule II hereto that portion of the number of Optional Shares as to which
such election shall have been exercised].
<PAGE> 19
[The Company hereby grants to each of the Underwriters the right to
purchase at their election up to the number of Optional Shares set forth
opposite the name of such Underwriter in Schedule I hereto on the terms
referred to in the paragraph above for the sole purpose of covering
overallotments in the sale of the Firm Shares. Any such election to purchase
Optional Shares may be exercised by written notice from the Representatives to
the Company given within a period of 30 calendar days after the date of this
Pricing Agreement, setting forth the aggregate number of Optional Shares to be
purchased and the date on which such Optional Shares are to be delivered, as
determined by the Representatives but in no event earlier than the First Time
of Delivery or, unless the Representatives and the Company otherwise agree in
writing, no earlier than two or later than ten business days after the date of
such notice.]
If the foregoing is in accordance with your understanding, please sign
and return to us [One for the Issuer and for each of the Representatives plus
one for each Counsel] counterparts hereof, and upon acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company for examination, upon request, but
without warranty on the part of the Representatives as to the authority of the
signers thereof.
Very truly yours,
VF Corporation
By:___________________________
Name:
Title:
Accepted as of the date hereof:
[Name(s) of Co-Representative(s)]
By:______________________________
2
<PAGE> 20
SCHEDULE I
<TABLE>
<CAPTION>
[MAXIMUM NUMBER
NUMBER OF OF OPTIONAL
[FIRM] SHARES SHARES WHICH
UNDERWRITER TO BE PURCHASED MAY BE PURCHASED
----------- --------------- ----------------
<S> <C> <C>
[NAME(S) OF CO-REPRESENTATIVE(S)]...
[NAMES OF OTHER UNDERWRITERS].......
Total . . . . . . . . . . . ---------------- -----------------
================ =================]
</TABLE>
<PAGE> 21
SCHEDULE II
TITLE OF DESIGNATED SHARES:
[DATE OF BOARD RESOLUTION ESTABLISHING THE DESIGNATED SHARES: ........., 19..]
NUMBER OF DESIGNATED SHARES:
Number of Firm Shares:
Maximum Number of Optional Shares:
INITIAL OFFERING PRICE TO PUBLIC:
[$....... per Share] [Formula]
Purchase Price by Underwriters:
[$....... per Share] [Formula]
[COMMISSION PAYABLE TO UNDERWRITERS: $....... PER SHARE]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
DIVIDEND RATE:
[.....% per annum]
DIVIDEND PAYMENT DATES:
[months and dates]
DIVIDEND RIGHTS:
[Non-] cumulative, [deferred]
VOTING RIGHTS:
LIQUIDATION RIGHTS:
PREEMPTIVE AND CONVERSION RIGHTS:
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Designated Shares may be redeemed, [otherwise than through the
sinking fund,] in whole or in part at the option of the Company, on or
after ............, .... at the following redemption prices:
<PAGE> 22
<TABLE>
<CAPTION>
REDEMPTION
YEAR PRICE
---- ----------
<S> <C>
</TABLE>
and thereafter at $..... per share, together in each case with accrued
dividends to the redemption date.]
[On any dividend payment date falling on or after ............, ...., at
the election of the Company, at a redemption price equal to the stated
amount thereof, plus accrued dividends to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
SINKING FUND PROVISIONS:
[None]
[The Designated Shares are entitled to the benefit of a sinking fund to
retire ......... Designated Shares on ............ in each of the years
.... through .... at 100% of their stated amount plus accrued dividends]
[, together with [cumulative] [non-cumulative] redemptions at the option
of the Company to retire an additional ......... Designated Shares in the
years .... through .... at 100% of their stated amount plus accrued
dividends.]
TIME OF DELIVERY:
..........., 19..
CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
[OTHER TERMS]:
* A description of particular tax, accounting or other unusual features
(including any event risk provisions) of the Designated Shares should be set
forth, or referenced to an attached and accompanying description, if necessary
to ensure agreement as to the terms of the Securities to be purchased and sold.
Such a description might appropriately be in the form in which such features
will be described in the Prospectus Supplement for the offering.
<PAGE> 23
ANNEX I
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules audited (and, if applicable, prospective
financial statements and/or pro forma financial information examined) by them
and included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and the
related published rules and regulations thereunder; and, if applicable, they
have made a review in accordance with standards established by the American
Institute of Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information,
prospective financial statements and/or condensed financial statements derived
from audited financial statements of the Company for the periods specified in
such letter, as indicated in their reports thereon, copies of which have been
furnished to the representatives of the Underwriters (the "Representatives");
(iii) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company for
the five most recent fiscal years included in the Prospectus and included or
incorporated by reference in Item 6 of the Company's Annual Report on Form 10-K
for the most recent fiscal year agrees with the corresponding amounts (after
restatement where applicable) in the audited consolidated financial statements
for such five fiscal years which were included or incorporated by reference in
the Company's Annual Reports on Form 10-K for such fiscal years;
(iv) On the basis of limited procedures, not constituting an audit in
accordance with generally accepted auditing standards, consisting of a reading
of the unaudited financial statements and other information referred to below,
a reading of the latest available interim financial statements of the Company
and its subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus, inquiries of officials of the
Company and its subsidiaries responsible for financial and accounting matters
and such other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows included
or incorporated by reference in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the Exchange
Act as it applies to Form 10-Q and the related published rules and regulations
thereunder or are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with the basis for the
audited consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included or incorporated by reference in
the Company's Annual Report on Form 10-K for the most recent fiscal year;
<PAGE> 24
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding items in
the unaudited consolidated financial statements from which such data and items
were derived, and any such unaudited data and items were not determined on a
basis substantially consistent with the basis for the corresponding amounts in
the audited consolidated financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K for the most recent
fiscal year;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived the unaudited condensed financial
statements referred to in Clause (A) and any unaudited income statement data
and balance sheet items included in the Prospectus and referred to in Clause
(B) were not determined on a basis substantially consistent with the basis for
the audited financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of the Act and the published rules and regulations thereunder or
the pro forma adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated capital
stock (other than issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and upon conversions
of convertible securities, in each case which were outstanding on the date of
the latest balance sheet included or incorporated by reference in the
Prospectus) or any increase in the consolidated long-term debt of the Company
and its subsidiaries, or any decreases in consolidated net current assets or
net assets or other items specified by the Representatives, or any increases in
any items specified by the Representatives, in each case as compared with
amounts shown in the latest balance sheet included or incorporated by reference
in the Prospectus, except in each case for changes, increases or decreases
which the Prospectus discloses have occurred or may occur or which are
described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to the
specified date referred to in Clause (E) there were any decreases in
consolidated net revenues or operating profit or the total or per share amounts
of consolidated net income or other items specified by the Representatives, or
any increases in any items specified by the Representatives, in each case as
compared with the comparable period of the preceding year and with any other
period of corresponding length specified by the Representatives, except in each
case for increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(v) In addition to the audit referred to in their report(s) included or
incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (iv) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and financial
information specified by the Representatives which are derived from the general
accounting records of the Company and its
2
<PAGE> 25
subsidiaries, which appear in the Prospectus (excluding documents incorporated
by reference) or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representatives or in documents
incorporated by reference in the Prospectus specified by the Representatives,
and have compared certain of such amounts, percentages and financial
information with the accounting records of the Company and its subsidiaries and
have found them to be in agreement.
3
<PAGE> 1
Exhibit 4.3
COMMON STOCK
WITHOUT PAR VALUE
(VF CORPORATION LOGO)
NUMBER SHARES
MN 69614
SEE REVERSE FOR
CERTAIN DEFINITIONS
CUSIP 918204 10 8
INCORPORATED UNDER THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA
This Certifies that
SPECIMEN
is the owner of
FULL-PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK OF
V.F. CORPORATION
transferable on the books of the Corporation in person or by duly authorized
attorney upon surrender of this Certificate properly endorsed. This
Certificate is not valid unless countersigned by the Transfer Agent and
registered by the Registrar.
Witness the seal of the Corporation and the signatures of its duly
authorized officers.
Dated:
/s/ L. M. Taruoski /s/ L. R. Pugh
SECRETARY CHAIRMAN OF THE BOARD
(V.F. CORPORATION SEAL)
COUNTERSIGNED AND REGISTERED
FIRST CHICAGO TRUST COMPANY OF NEW YORK
TRANSFER AGENT
AND REGISTRAR
BY
AUTHORIZED OFFICER
<PAGE> 2
V.F. CORPORATION
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO
SO REQUESTS THE DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL
OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF AND THE
QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM -- as tenants in common UNIF GIFT MIN ACT -- Custodian
-----------------------------
TEN ENT -- as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to Minors
JT TEN -- as joint tenants with right of
survivorship and not as tenants Act
in common --------------------------
Additional abbreviations may also be (State)
used though not in the above list.
</TABLE>
For value received _______ hereby sell, assign and transter unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Shares
- --------------------------------------------------------------------------
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
Attorney
- ------------------------------------------------------------------------
to transfer the said stock on the books of the within-named Corporation with
full power of substitution in the premises.
Dated
------------------------------------------------
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME AS WRITTEN UPON THE
FACE OF THE CERTIFICATE IN EVERY PARTICULAR
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE
WHATEVER.
This certificate also evidences and entitles the holder hereof to certain rights
as set forth in a Rights Agreement between V.F. Corporation and Morgan
Shareholder Services Trust Company, dated as of January 13, 1988 (the "Rights
Agreement"), the terms of which are hereby incorporated herein by reference and
a copy of which is on file at the principal executive offices of V.F.
Corporation. Under certain circumstances, as set forth in the Rights Agreement,
such Rights will be evidenced by separate certificates and will no longer be
evidenced by this certificate. V.F. Corporation will mail to the holder of this
certificate a copy of the Rights Agreement without charge after receipt of a
written request therefor. As described in the Rights Agreement, Rights issued
to any Person who becomes an Acquiring Person (as defined in the Rights
Agreement) shall become null and void.
<PAGE> 1
Exhibit 4.8
V.F. CORPORATION
and
MORGAN SHAREHOLDER SERVICES TRUST COMPANY
Rights Agent
Rights Agreement
Dated as of January 13, 1988
<PAGE> 2
TABLE OF CONTENTS
Page
----
Section 1. Certain Definitions . . . . . . . . . . . . . . . . . . . 1
Section 2. Appointment of Rights Agent . . . . . . . . . . . . . . . 9
Section 3. Issue of Right Certificates . . . . . . . . . . . . . . . 9
Section 4. Form of Right Certificates . . . . . . . . . . . . . . . . 12
Section 5. Countersignature and Registration . . . . . . . . . . . . 13
Section 6. Transfer, Split Up, Combination and
Exchange of Right Certificates;
Mutilated Destroyed, Lost or
Stolen Right Certificates . . . . . . . . . . . . . . 14
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights . . . . . . . . . . . . . . 16
Section 8. Cancellation and Destruction of
Right Certificates . . . . . . . . . . . . . . . . . . 19
Section 9. Availability of Preferred Shares . . . . . . . . . . . . . 19
Section 10. Preferred Shares Record Date . . . . . . . . . . . . . . . 20
Section 11. Adjustment of Purchase Price, Number of
Shares or Number of Rights . . . . . . . . . . . . . . 21
Section 12. Certificate of Adjusted Purchase Price
or Number of Shares . . . . . . . . . . . . . . . . . 37
Section 13. Consolidation, Merger or Sale or Transfer
of Assets or Earning Power . . . . . . . . . . . . . . 37
Section 14. Fractional Rights and Fractional Shares . . . . . . . . . 40
Section 15. Rights of Action . . . . . . . . . . . . . . . . . . . . . 42
Section 16. Agreement of Right Holders . . . . . . . . . . . . . . . . 43
Section 17. Right Certificate Holder Not Deemed a
Stockholder . . . . . . . . . . . . . . . . . . . . . 44
-i-
<PAGE> 3
Page
----
Section 18. Concerning the Rights Agent . . . . . . . . . . . . . . . 45
Section 19. Merger or Consolidation or Change of
Name of Rights Agent . . . . . . . . . . . . . . . . . 46
Section 20. Duties of Rights Agent . . . . . . . . . . . . . . . . . . 48
Section 21. Change of Rights Agent . . . . . . . . . . . . . . . . . . 51
Section 22. Issuance of New Right Certificates . . . . . . . . . . . . 54
Section 23. Redemption . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 24. Exchange . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 25. Notice of Certain Events . . . . . . . . . . . . . . . . . 62
Section 26. Notices . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 27. Supplements and Amendments . . . . . . . . . . . . . . . . 65
Section 28. Successors . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 29. Benefits of this Agreement . . . . . . . . . . . . . . . . 67
Section 30. Severability . . . . . . . . . . . . . . . . . . . . . . . 67
Section 31. Governing Law . . . . . . . . . . . . . . . . . . . . . . 68
Section 32. Counterparts . . . . . . . . . . . . . . . . . . . . . . . 68
Section 33. Descriptive Headings . . . . . . . . . . . . . . . . . . 68
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Exhibit A - Form of Certificate of Designations of Series A Junior
Participating Preferred Stock
Exhibit B - Form of Right Certificate
Exhibit C - Summary of Rights to Purchase Preferred Shares
-ii-
<PAGE> 4
RIGHTS AGREEMENT
Agreement, dated as of January 13, 1988, between V.F. Corporation, a
Pennsylvania corporation (the "Company"), and Morgan Shareholder Services Trust
Company (the "Rights Agent").
The Board of Directors of the Company has authorized and declared a
dividend of one preferred share purchase right (a "Right") for each Common
Share (as hereinafter defined) of the Company outstanding on January 25, 1988
(the "Record Date"), each Right representing the right to purchase one
one-hundredth of a Preferred Share (as hereinafter defined), upon the terms and
subject to the conditions herein set forth, and has further authorized and
directed the issuance of one Right with respect to each Common Share that shall
become outstanding between the Record Date and the earliest of the Distribution
Date, the Redemption Date and the Final Expiration Date (as such terms are
hereinafter defined).
Accordingly, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the
following terms have the meanings indicated:
<PAGE> 5
(a) Subject to Section 27 hereof, "Acquiring Person" shall mean any
Person (as such term is hereinafter defined) who or which, together with
all Affiliates and Associates (as such terms are hereinafter defined) of
such Person, shall be the Beneficial Owner (as such term is hereinafter
defined) of 20% or more of the Common Shares then outstanding, but shall
not include the Company, any Subsidiary (as such term is hereinafter
defined) of the Company or any employee benefit plan of the Company or any
Subsidiary of the Company, or any entity holding Common Shares for or
pursuant to the terms of any such plan. Notwithstanding the foregoing, no
Person shall become an "Acquiring Person" as the result of an acquisition
of Common Shares by the Company which, by reducing the number of shares
outstanding, increases the proportionate number of shares beneficially
owned by such Person to 20% or more of the Common Shares of the Company
then outstanding; provided, however, that if a Person (other than a Person
who beneficially owns Common Shares held by a trust (as defined in Section
27)) becomes the Beneficial Owner of 20% or more of the Common Shares of
the Company then outstanding by reason of share purchases by the Company
and shall, after such share purchases by the Company, become the Beneficial
Owner of any additional Common Shares of
-2-
<PAGE> 6
the Company, then such person shall be deemed to be an "Acquiring Person"
and provided further that if any Person who beneficially owns any Common
Shares held by the trust becomes the Beneficial Owner of 20% or more of the
Common Shares of the Company then outstanding by reason of share purchases
by the Company and thereafter increases the percentage of Common Shares of
the Company which it beneficially owns above the percentage of Common
Shares which it beneficially owned immediately following such purchase by
the Company, then such Person shall be deemed to be an "Acquiring Person".
(b) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
as in effect on the date of this Agreement.
(c) A Person shall be deemed the "Beneficial Owner" of and shall be
deemed to "beneficially own" any securities:
(i) which such Person or any of such Person's Affiliates or
Associates beneficially owns, directly or indirectly;
-3-
<PAGE> 7
(ii) which such Person or any of such Person's Affiliates or
Associates has (A) the right to acquire (whether such right is
exercisable immediately or only after the passage of time) pursuant to
any agreement, arrangement or understanding (other than customary
agreements with and between underwriters and selling group members
with respect to a bona fide public offering of securities), or upon
the exercise of conversion rights, exchange rights, rights (other than
these Rights), warrants or options, or otherwise; provided, however,
that a Person shall not be deemed the Beneficial Owner of, or to
beneficially own, securities tendered pursuant to a tender or exchange
offer made by or on behalf of such Person or any of such Person's
Affiliates or Associates until such tendered securities are accepted
for purchase or exchange; or (B) the right to vote pursuant to any
agreement, arrangement or understanding; provided, however, that a
Person shall not be deemed the Beneficial Owner of, or to beneficially
own, any security if the agreement, arrangement or understanding to
vote such security (1) arises solely from a revocable proxy or consent
given to such Person in response to a public proxy or consent
solicitation made pur-
-4-
<PAGE> 8
suant to, and in accordance with, the applicable rules and regulations
of the Exchange Act and (2) is not also then reportable on Schedule
13D under the Exchange Act (or any comparable or successor report); or
(iii) which are beneficially owned, directly or indirectly, by any
other Person with which such Person or any of such Person's Affiliates
or Associates has any agreement, arrangement or understanding (other
than customary agreements with and between underwriters and selling
group members with respect to a bona fide public offering of
securities) for the purpose of acquiring, holding, voting (except to
the extent contemplated by the proviso to Section 1(c)(ii)(B)) or
disposing of any securities of the Company.
(d) "Business Day" shall mean any day other than a Saturday, a Sunday,
or a day on which banking institutions in the State of New York are
authorized or obligated by law or executive order to close.
(e) "Close of business" on any given date shall mean 5:00 P.M., New
York City time, on such date; provided, however, that if such date is not a
Business Day it shall mean 5:00 P.M., New York City time, on the next
succeeding Business Day.
-5-
<PAGE> 9
(f) "Common Shares" when used with reference to the Company shall mean
the shares of common stock, no par value per share, of the Company.
"Common Shares" when used with reference to any Person other than the
Company shall mean the capital stock (or equity interest) with the greatest
voting power of such other Person or, if such other Person is a Subsidiary
of another Person, the Person or Persons which ultimately control such
first-mentioned Person.
(g) "Distribution Date" shall have the meaning set forth in Section 3
hereof.
(h) "Final Expiration Date" shall have the meaning set forth in
Section 7 hereof.
(i) An "Offer" shall mean a written proposal delivered to the Company
by any Person who both beneficially owns 1% or less of the outstanding
Common Shares as of the date such proposal is delivered and who has not
within one year prior to the delivery of such written proposal beneficially
owned in excess of 1% of the outstanding Common Shares and (at a time when
such Person beneficially owned such 1% stake) disclosed, or caused the
disclosure of, any intention which relates to or would result in the
acquisition, or influence of control, of the Company (an "Offeror"), and
which proposal:
-6-
<PAGE> 10
(i) provides for the acquisition of all of the outstanding shares
of Voting Stock held by any Person other than the Offeror and its
Affiliates for cash at the same price;
(ii) is accompanied by a written opinion of a nationally
recognized investment banking firm which is addressed to the holders
of shares of Voting Stock other than the Offeror and its Affiliates
and states that the price to be paid to such holders pursuant to the
Offer is fair to such holders;
(iii) states that the Offeror has obtained written financing
commitments from recognized financing sources, and/or has on hand cash
or cash equivalents, for the full amount of all financing necessary to
consummate the Offer; and
(iv) requests the Company to call a special meeting of the holders
of Voting Stock for the purpose of voting on a resolution requesting
the Board of Directors to accept such Offer and contains a written
agreement of the Offeror to pay (or share with any other Offeror) at
least one-half of the Company's costs of such special meeting
(exclusive of the Company's costs of preparing and mailing proxy
material for its own solicitation).
-7-
<PAGE> 11
(j) "Person" shall mean any individual, firm, corporation or other
entity, and shall include any successor (by merger or otherwise) of such
entity.
(k) "Preferred Shares" shall mean shares of Series A Junior
Participating Preferred Stock, par value $1.00 per share, of the Company
having the rights and preferences set forth in the form of Certificate of
Designations attached to this Agreement as Exhibit A.
(l) "Redemption Date" shall have the meaning set forth in Section 7
hereof.
(m) "Shares Acquisition Date" shall mean the first date of public
announcement by the Company or an Acquiring Person that an Acquiring Person
has become such.
(n) "Subsidiary" of any Person shall mean any corporation or other
entity of which a majority of the voting power of the voting equity
securities or equity interest is owned, directly or indirectly, by such
Person.
(o) "Voting Stock" shall mean (i) the Common Shares and (ii) any other
shares of capital stock of the Company entitled to vote generally in the
election of directors or entitled to vote together with the Common Shares
in respect of any merger, consolidation, sale of
-8-
<PAGE> 12
all or substantially all of the Company's assets, liquidation, dissolution
or winding up.
Section 2. Appointment of Rights Agent. The Company hereby appoints
the Rights Agent to act as agent for the Company and the holders of the Rights
(who, in accordance with Section 3 hereof, shall prior to the Distribution Date
also be the holders of the Common Shares) in accordance with the terms and
conditions hereof, and the Rights Agent hereby accepts such appointment. The
Company may from time to time appoint such co-Rights Agents as it may deem
necessary or desirable.
Section 3. Issue of Right Certificates. (a) Until the earlier of (i)
the tenth day after the Shares Acquisition Date or (ii) the tenth day after the
date of the commencement of, or of the first public announcement of the
intention of any Person (other than the Company, any Subsidiary of the Company,
any employee benefit plan of the Company or of any Subsidiary of the Company or
any entity holding Common Shares for or pursuant to the terms of any such plan)
to commence, a tender or exchange offer the consummation of which would result
in any Person becoming the Beneficial Owner of Common Shares aggregating 20% or
more of the then outstanding Common Shares (including any such date which is
after the date of this Agreement and prior to the
-9-
<PAGE> 13
issuance of the Rights; the earlier of such dates being herein referred to as
the "Distribution Date"), (x) the Rights will be evidenced (subject to the
provisions of Section 3(b) hereof) by the certificates for Common Shares
registered in the names of the holders thereof (which certificates shall also
be deemed to be Right Certificates) and not by separate Right Certificates, and
(y) the right to receive Right Certificates will be transferable only in
connection with the transfer of Common Shares. As soon as practicable after
the Distribution Date, the Company will prepare and execute, the Rights Agent
will countersign, and the Company will send or cause to be sent (and the Rights
Agent will, if requested, send) by first-class, insured, postage-prepaid mail,
to each record holder of Common Shares as of the close of business on the
Distribution Date, at the address of such holder shown on the records of the
Company, a Right Certificate, in substantially the form of Exhibit B hereto (a
"Right Certificate"), evidencing one Right for each Common Share so held. As
of the Distribution Date, the Rights will be evidenced solely by such Right
Certificates.
(b) On the Record Date, or as soon as practicable thereafter, the
Company will send a copy of a Summary of Rights to Purchase Preferred Shares,
in substantially the form of Exhibit C hereto (the "Summary of Rights"), by
first-class, postage-prepaid mail, to each record holder of
-10-
<PAGE> 14
Common Shares as of the close of business on the Record Date, at the address of
such holder shown on the records of the Company. With respect to certificates
for Common Shares outstanding as of the Record Date, until the Distribution
Date, the Rights will be evidenced by such certificates registered in the names
of the holders thereof together with a copy of the Summary of Rights attached
thereto. Until the Distribution Date (or the earlier of the Redemption Date or
Final Expiration Date), the surrender for transfer of any certificate for
Common Shares outstanding on the Record Date, with or without a copy of the
Summary of Rights attached thereto, shall also constitute the transfer of the
Rights associated with the Common Shares represented thereby.
(c) Certificates for Common Shares which become outstanding
(including, without limitation, reacquired Common Shares referred to in the
last sentence of this paragraph (c)) after the Record Date but prior to the
earliest of the Distribution Date, the Redemption Date or the Final Expiration
Date shall have impressed on, printed on, written on or otherwise affixed to
them the following legend:
This certificate also evidences and entitles the holder hereof to
certain rights as set forth in a Rights Agreement between V.F.
Corporation and Morgan Shareholder Services Trust Company, dated as of
January 13, 1988 (the "Rights Agreement"), the terms of which are
hereby incorporated herein by reference and a copy of which is on file
at the principal executive offices of V.F. Corporation.
-11-
<PAGE> 15
Under certain circumstances, as set forth in the Rights Agreement,
such Rights will be evidenced by separate certificates and will no
longer be evidenced by this certificate. V.F. Corporation will mail
to the holder of this certificate a copy of the Rights Agreement
without charge after receipt of a written request therefor. As
described in the Rights Agreement, Rights issued to any Person who
becomes an Acquiring Person (as defined in the Rights Agreement) shall
become null and void.
With respect to such certificates containing the foregoing legend, until the
Distribution Date, the Rights associated with the Common Shares represented by
such certificates shall be evidenced by such certificates alone, and the
surrender for transfer of any such certificate shall also constitute the
transfer of the Rights associated with the Common Shares represented thereby.
In the event that the Company purchases or acquires any Common Shares after the
Record Date but prior to the Distribution Date, any Rights associated with such
Common Shares shall be deemed canceled and retired so that the Company shall
not be entitled to exercise any Rights associated with the Common Shares which
are no longer outstanding.
Section 4. Form of Right Certificates. The Right Certificates (and
the forms of election to purchase Preferred Shares and of assignment to be
printed on the reverse thereof) shall be substantially the same as Exhibit B
hereto and may have such marks of identification or designation and such
legends, summaries or endorsements printed thereon as
-12-
<PAGE> 16
the Company may deem appropriate and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any
applicable law or with any rule or regulation made pursuant thereto or with any
rule or regulation of any stock exchange on which the Rights may from time to
time be listed, or to conform to usage. Subject to the provisions of Section
22 hereof, the Right Certificates shall entitle the holders thereof to purchase
such number of one one-hundredths of a Preferred Share as shall be set forth
therein at the price per one one-hundredth of a Preferred Share set forth
therein (the "Purchase Price"), but the number of such one one-hundredths of a
Preferred Share and the Purchase Price shall be subject to adjustment as
provided herein.
Section 5. Countersignature and Registration. The Right Certificates
shall be executed on behalf of the Company by its Chairman of the Board, its
President, or any Vice President, either manually or by facsimile signature,
shall have affixed thereto the Company's seal or a facsimile thereof, and shall
be attested by the Secretary or an Assistant Secretary of the Company, either
manually or by facsimile signature. The Right Certificates shall be manually
countersigned by the Rights Agent and shall not be valid for any purpose unless
countersigned. In case any officer of the Company who shall have signed any of
the Right Certifi-
-13-
<PAGE> 17
cates shall cease to be such officer of the Company before countersignature by
the Rights Agent and issuance and delivery by the Company, such Right
Certificates, nevertheless, may be countersigned by the Rights Agent and issued
and delivered by the Company with the same force and effect as though the
person who signed such Right Certificates had not ceased to be such officer of
the Company; and any Right Certificate may be signed on behalf of the Company
by any person who, at the actual date of the execution of such Right
Certificate, shall be a proper officer of the Company to sign such Right
Certificate, although at the date of the execution of this Rights Agreement any
such person was not such an officer.
Following the Distribution Date, the Rights Agent will keep or cause
to be kept, at its principal office, books for registration and transfer of the
Right Certificates issued hereunder. Such books shall show the names and
addresses of the respective holders of the Right Certificates, the number of
Rights evidenced on its face by each of the Right Certificates and the date of
each of the Right Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates. Subject
to the provisions of
-14-
<PAGE> 18
Section 14 hereof, at any time after the close of business on the Distribution
Date, and at or prior to the close of business on the earlier of the Redemption
Date or the Final Expiration Date, any Right Certificate or Right Certificates
(other than Right Certificates representing Rights that have become void
pursuant to Section 11(a)(ii) hereof or that have been exchanged pursuant to
Section 24 hereof) may be transferred, split up, combined or exchanged for
another Right Certificate or Right Certificates, entitling the registered
holder to purchase a like number of one one-hundredths of a Preferred Share as
the Right Certificate or Right Certificates surrendered then entitled such
holder to purchase. Any registered holder desiring to transfer, split up,
combine or exchange any Right Certificate or Right Certificates shall make such
request in writing delivered to the Rights Agent, and shall surrender the Right
Certificate or Right Certificates to be transferred, split up, combined or
exchanged at the principal office of the Rights Agent. Thereupon the Rights
Agent shall countersign and deliver to the person entitled thereto a Right
Certificate or Right Certificates, as the case may be, as so requested. The
Company may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer, split
up, combination or exchange of Right Certificates.
-15-
<PAGE> 19
Upon receipt by the Company and the Rights Agent of evidence reasonably
satisfactory to them of the loss, theft, destruction or mutilation of a Right
Certificate, and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to them, and, at the Company's request,
reimbursement to the Company and the Rights Agent of all reasonable expenses
incidental thereto, and upon surrender to the Rights Agent and cancellation of
the Right Certificate if mutilated, the Company will make and deliver a new
Right Certificate of like tenor to the Rights Agent for delivery to the
registered holder in lieu of the Right Certificate so lost, stolen, destroyed or
mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights. (a) The registered holder of any Right Certificate may exercise the
Rights evidenced thereby (except as otherwise provided herein) in whole or in
part at any time after the Distribution Date upon surrender of the Right
Certificate, with the form of election to purchase on the reverse side thereof
duly executed, to the Rights Agent at the principal office of the Rights Agent,
together with payment of the Purchase Price for each one one-hundredth of a
Preferred Share as to which the Rights are exercised, at or prior to the
earliest of (i) the close of business on January 25, 1998 (the "Final
Expiration Date"), (ii) the time at which the Rights are redeemed as
-16-
<PAGE> 20
provided in Section 23 hereof (the "Redemption Date"), or (iii) the time at
which such Rights are exchanged as provided in section 24 hereof.
(b) The Purchase Price for each one one-hundredth of a Preferred Share
pursuant to the exercise of a Right shall initially be $100, shall be subject
to adjustment from time to time as provided in Sections 11 and 13 hereof and
shall be payable in lawful money of the United States of America in accordance
with paragraph (c) below.
(c) Upon receipt of a Right Certificate representing exercisable
Rights, with the form of election to purchase duly executed, accompanied by
payment of the Purchase Price for the shares to be purchased and an amount
equal to any applicable transfer tax required to be paid by the holder of such
Right Certificate in accordance with Section 9 hereof by certified check,
cashier's check, or money order payable to the order of the Company, the Rights
Agent shall thereupon promptly (i) (A) requisition from any transfer agent of
the Preferred Shares certificates for the number of Preferred Shares to be
purchased and the Company hereby irrevocably authorizes its transfer agent to
comply with all such requests, or (B) requisition from the depositary agent
depositary receipts representing such number of one one-hundredths of a
Preferred Share as are to be purchased (in
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which case certificates for the Preferred Shares represented by such receipts
shall be deposited by the transfer agent with the depositary agent) and the
Company hereby directs the depositary agent to comply with such request, (ii)
when appropriate, requisition from the Company the amount of cash to be paid in
lieu of issuance of fractional shares in accordance with Section 14 hereof,
(iii) after receipt of such certificates or depositary receipts, cause the same
to be delivered to or upon the order of the registered holder of such Right
Certificate, registered in such name or names as may be designated by such
holder and (iv) when appropriate, after receipt, deliver such cash to or upon
the order of the registered holder of such Right Certificate.
(d) In case the registered holder of any Right Certificate shall
exercise less than all the Rights evidenced thereby, a new Right Certificate
evidencing Rights equivalent to the Rights remaining unexercised shall be
issued by the Rights Agent to the registered holder of such Right Certificate
or to his duly authorized assigns, subject to the provisions of Section 14
hereof.
(e) The Company covenants and agrees that it will cause to be reserved
and kept available out of its authorized and unissued Preferred Shares or any
Preferred Shares held in its treasury, the number of Preferred Shares that
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will be sufficient to permit the exercise in full of all outstanding Rights in
accordance with this Section 7.
Section 8. Cancellation and Destruction of Right Certificates. All
Right Certificates surrendered for the purpose of exercise, transfer, split up,
combination or exchange shall, if surrendered to the Company or to any of its
agents, be delivered to the Rights Agent for cancellation or in cancelled form,
or, if surrendered to the Rights Agent, shall be cancelled by it, and no Right
Certificates shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Rights Agreement. The Company shall deliver to
the Rights Agent for cancellation and retirement, and the Rights Agent shall so
cancel and retire, any other Right Certificate purchased or acquired by the
Company otherwise than upon the exercise thereof. The Rights Agent shall
deliver all cancelled Right Certificates to the Company, or shall, at the
written request of the Company, destroy such cancelled Right Certificates, and
in such case shall deliver a certificate of destruction thereof to the Company.
Section 9. Availability of Preferred Shares. The Company covenants
and agrees that it will take all such action as may be necessary to ensure that
all Preferred Shares delivered upon exercise of Rights shall, at the time
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of delivery of the certificates for such Preferred Shares (subject to payment
of the Purchase Price), be duly and validly authorized and issued and fully
paid and nonassessable shares.
The Company further covenants and agrees that it will pay when due and
payable any and all federal and state transfer taxes and charges which may be
payable in respect of the issuance or delivery of the Right Certificates or of
any Preferred Shares upon the exercise of Rights. The Company shall not,
however, be required to pay any transfer tax which may be payable in respect of
any transfer or delivery of Right Certificates to a person other than, or the
issuance or delivery of certificates or depositary receipts for the Preferred
Shares in a name other than that of, the registered holder of the Right
Certificate evidencing Rights surrendered for exercise or to issue or to
deliver any certificates or depositary receipts for Preferred Shares upon the
exercise of any Rights until any such tax shall have been paid (any such tax
being payable by the holder of such Right Certificate at the time of surrender)
or until it has been established to the Company's reasonable satisfaction that
no such tax is due.
Section 10. Preferred Shares Record Date. Each person in whose name
any certificate for Preferred Shares is
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issued upon the exercise of Rights shall for all purposes be deemed to have
become the holder of record of the Preferred Shares represented thereby on, and
such certificate shall be dated, the date upon which the Right Certificate
evidencing such Rights was duly surrendered and payment of the Purchase Price
(and any applicable transfer taxes) was made; provided, however, that if the
date of such surrender and payment is a date upon which the Preferred Shares
transfer books of the Company are closed, such person shall be deemed to have
become the record holder of such shares on, and such certificate shall be
dated, the next succeeding Business Day on which the Preferred Shares transfer
books of the Company are open. Prior to the exercise of the Rights evidenced
thereby, the holder of a Right Certificate shall not be entitled to any rights
of a holder of Preferred Shares for which the Rights shall be exercisable,
including, without limitation, the right to vote, to receive dividends or other
distributions or to exercise any preemptive rights, and shall not be entitled
to receive any notice of any proceedings of the Company, except as provided
herein.
Section 11. Adjustment of Purchase Price, Number of Shares or Number
of Rights. The Purchase Price, the number of Preferred Shares covered by each
Right and the number of Rights outstanding are subject to adjustment from time
to time as provided in this Section 11.
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<PAGE> 25
(a) (i) In the event the Company shall at any time after the date of
this Agreement (A) declare a dividend on the Preferred Shares payable in
Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine
the outstanding Preferred Shares into a smaller number of Preferred Shares or
(D) issue any shares of its capital stock in a reclassification of the
Preferred Shares (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing or surviving
corporation), except as otherwise provided in this Section 11(a), the Purchase
Price in effect at the time of the record date for such dividend or of the
effective date of such subdivision, combination or reclassification, and the
number and kind of shares of capital stock issuable on such date, shall be
proportionately adjusted so that the holder of any Right exercised after such
time shall be entitled to receive the aggregate number and kind of shares of
capital stock which, if such Right had been exercised immediately prior to such
date and at a time when the Preferred Shares transfer books of the Company were
open, he would have owned upon such exercise and been entitled to receive by
virtue of such dividend, subdivision, combination or reclassification;
provided, however, that in no event shall the consideration to be paid upon the
exercise of one Right be less than the aggregate par value of the shares of
capital stock of the Company issuable upon exercise of one Right.
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<PAGE> 26
(ii) Subject to Section 24 of this Agreement, in the event
any Person shall become an Acquiring Person (other than through an acquisition
described in subparagraph (iii) of this paragraph (a)), each holder of a Right
shall thereafter have a right to receive, upon exercise thereof at a price
equal to the then current Purchase Price multiplied by the number of one
one-hundredths of a Preferred Share for which a Right is then exercisable, in
accordance with the terms of this Agreement and in lieu of Preferred Shares,
such number of Common Shares of the Company as shall equal the result obtained
by (A) multiplying the then current Purchase Price by the then number of one
one-hundredths of a Preferred Share for which a Right is then exercisable and
dividing that product by (B) 50% of the then current per share market price of
the Company's Common Shares (determined pursuant to Section 11(d)) on the date
such Person became an Acquiring Person. In the event that any Person shall
become an Acquiring Person and the Rights shall then be outstanding, the
Company shall not take any action which would eliminate or diminish the
benefits intended to be afforded by the Rights.
From and after the time any Person becomes an Acquiring Person (except
through an acquisition described in subparagraph (iii) of this paragraph (a))
any Rights that are or were acquired or beneficially owned by such Acquiring
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Person (or any Associate or Affiliate of such Acquiring Person) shall be void
and any holder of such Rights shall thereafter have no right to exercise such
Rights under any provision of this Agreement. No Right Certificate shall be
issued pursuant to Section 3 that represents Rights beneficially owned by an
Acquiring Person or any Associate or Affiliate thereof and no Right Certificate
shall be issued at any time upon the transfer of any Rights to an Acquiring
Person or any Associate or Affiliate thereof or to any nominee of such
Acquiring Person, Associate or Affiliate. Any Right Certificate delivered to
the Rights Agent for transfer to an Acquiring Person shall be cancelled.
(iii) The right to buy Common Shares of the Company pursuant
to subparagraph (ii) of this paragraph (a) shall not arise as a result of any
Person becoming an Acquiring Person through a purchase of Common Shares
pursuant to a tender offer made in the manner prescribed by Section 14(d) of
the Exchange Act and the rules and regulations promulgated thereunder;
provided, however, that (A) such tender offer shall provide for the acquisition
of all of the outstanding Common Shares held by any Person other than such
Person and its Affiliates for cash and (B) such purchase shall cause such
Person, together with all Affiliates and Associates of such Person, to be the
Beneficial Owner of 80% or more of the Common Shares then outstanding.
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<PAGE> 28
(iv) In the event that there shall not be sufficient Common
Shares issued but not outstanding or authorized but unissued to permit the
exercise in full of the Rights in accordance with the foregoing subparagraph
(ii), the Company shall take all such action as may be necessary to authorize
additional Common Shares for issuance upon exercise of the Rights.
(b) In case the Company shall fix a record date for the issuance of
rights, options or warrants to all holders of Preferred Shares entitling them
(for a period expiring within 45 calendar days after such record date) to
subscribe for or purchase Preferred Shares (or shares having the same rights,
privileges and preferences as the Preferred Shares ("equivalent preferred
shares")) or securities convertible into Preferred Shares or equivalent
preferred shares at a price per Preferred Share or equivalent preferred share
(or having a conversion price per share, if a security convertible into
Preferred Shares or equivalent preferred shares) less than the then current per
share market price of the Preferred Shares (as defined in Section 11(d)) on
such record date, the Purchase Price to be in effect after such record date
shall be determined by multiplying the Purchase Price in effect immediately
prior to such record date by a fraction, the numerator of which shall be the
number of Preferred Shares outstanding on such
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<PAGE> 29
record date plus the number of Preferred Shares which the aggregate offering
price of the total number of Preferred Shares and/or equivalent preferred
shares so to be offered (and/or the aggregate initial conversion price of the
convertible securities so to be offered) would purchase at such current market
price and the denominator of which shall be the number of Preferred Shares
outstanding on such record date plus the number of additional Preferred Shares
and/or equivalent preferred shares to be offered for subscription or purchase
(or into which the convertible securities so to be offered are initially
convertible); provided, however, that in no event shall the consideration to be
paid upon the exercise of one Right be less than the aggregate par value of the
shares of capital stock of the Company issuable upon exercise of one Right. In
case such subscription price may be paid in a consideration part or all of
which shall be in a form other than cash, the value of such consideration shall
be as determined in good faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed with the Rights Agent.
Preferred Shares owned by or held for the account of the Company shall not be
deemed outstanding for the purpose of any such computation. Such adjustment
shall be made successively whenever such a record date is fixed; and in the
event that such rights or warrants are not so issued, the Purchase Price
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shall be adjusted to be the Purchase Price which would then be in effect if
such record date had not been fixed.
(c) In case the Company shall fix a record date for the
making of a distribution to all holders of the Preferred Shares (including any
such distribution made in connection with a consolidation or merger in which
the Company is the continuing or surviving corporation) of evidences of
indebtedness or assets (other than a regular quarterly cash dividend or a
dividend payable in Preferred Shares) or subscription rights or warrants
(excluding those referred to in Section 11(b)), the Purchase Price to be in
effect after such record date shall be determined by multiplying the Purchase
Price in effect immediately prior to such record date by a fraction, the
numerator of which shall be the then current per share market price of the
Preferred Shares (as defined in Section 11(d)) on such record date, less the
fair market value (as determined in good faith by the Board of Directors of the
Company, whose determination shall be described in a statement filed with the
Rights Agent) of the portion of the assets or evidences of indebtedness so to
be distributed or of such subscription rights or warrants applicable to one
Preferred Share and the denominator of which shall be such current per share
market price of the Preferred Shares; provided, however, that in no event shall
the consideration to be paid upon the exercise of one Right
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<PAGE> 31
be less than the aggregate par value of the shares of capital stock of the
Company to be issued upon exercise of one Right. Such adjustments shall
be made successively whenever such a record date is fixed; and in the event
that such distribution is not so made, the Purchase Price shall again be
adjusted to be the Purchase Price which would then be in effect if such record
date had not been fixed.
(d) (i) For the purpose of any computation hereunder, the
"current per share market price" of any security (a "Security" for the purpose
of this Section 11(d)(i)) on any date shall be deemed to be the average of the
daily closing prices per share of such Security for the 30 consecutive Trading
Days (as such term is hereinafter defined) immediately prior to such date;
provided, however, that in the event that the current per share market price of
the Security is determined during a period following the announcement by the
issuer of such Security of (A) a dividend or distribution on such Security
payable in shares of such Security or securities convertible into such shares,
or (B) any subdivision, combination or reclassification of such Security and
prior to the expiration of 30 Trading Days after the ex-dividend date for such
dividend or distribution, or the record date for such subdivision, combination
or reclassification, then, and in each such case, the current per share market
price shall be appropriately adjusted
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<PAGE> 32
to reflect the current market price per share equivalent of such Security. The
closing price for each day shall be the last sale price, regular way, or, in
case no such sale takes place on such day, the average of the closing bid and
asked prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange or, if the Security is not
listed or admitted to trading on the New York Stock Exchange, as reported in
the principal consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange on which the
Security is listed or admitted to trading or, if the Security is not listed or
admitted to trading on any national securities exchange, the last quoted price
or, if not so quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by the National Association of Securities
Dealers, Inc. Automated Quotations System ("NASDAQ") or such other system then
in use, or if on any such date the Security is not quoted by any such
organization, the average of the closing bid and asked prices as furnished by a
professional market maker making a market in the Security selected by the Board
of Directors of the Company. The term "Trading Day" shall mean a day on which
the principal national securities exchange on which the Security is listed or
admitted to
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<PAGE> 33
trading is open for the transaction of business or, if the Security is not
listed or admitted to trading on any national securities exchange, a Business
Day.
(ii) For the purpose of any computation hereunder, the
"current per share market price" of the Preferred Shares shall be determined in
accordance with the method set forth in Section 11(d)(i). If the Preferred
Shares are not publicly traded, the "current per share market price" of the
Preferred Shares shall be conclusively deemed to be the current per share
market price of the Common Shares as determined pursuant to Section 11(d)(i)
(appropriately adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof), multiplied by one hundred. If
neither the Common Shares nor the Preferred Shares are publicly held or so
listed or traded, "current per share market price" shall mean the fair value
per share as determined in good faith by the Board of Directors of the Company,
whose determination shall be described in a statement filed with the Rights
Agent.
(e) No adjustment in the Purchase Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in the Purchase
Price; provided, however, that any adjustments which by reason of this Section
11(e) are not required to be made shall be carried for-
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<PAGE> 34
ward and taken into account in any subsequent adjustment. All calculations
under this Section 11 shall be made to the nearest cent or to the nearest
one-millionth of a Preferred Share or one ten-thousandth of any other share or
security as the case may be. Notwithstanding the first sentence of this
Section 11(e), any adjustment required by this Section 11 shall be made no
later than the earlier of (i) three years from the date of the transaction
which requires such adjustment or (ii) the date of the expiration of the right
to exercise any Rights.
(f) If as a result of an adjustment made pursuant to Section 11(a),
the holder of any Right thereafter exercised shall become entitled to receive
any shares of capital stock of the Company other than Preferred Shares,
thereafter the number of such other shares so receivable upon exercise of any
Right shall be subject to adjustment from time to time in a manner and on terms
as nearly equivalent as practicable to the provisions with respect to the
Preferred Shares contained in Section 11(a) through (c), inclusive, and the
provisions of Sections 7, 9, 10 and 13 with respect to the Preferred Shares
shall apply on like terms to any such other shares.
(g) All Rights originally issued by the Company subsequent to any
adjustment made to the Purchase Price
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<PAGE> 35
hereunder shall evidence the right to purchase, at the adjusted Purchase Price,
the number of one one-hundredths of a Preferred Share purchasable from time to
time hereunder upon exercise of the Rights, all subject to further adjustment
as provided herein.
(h) Unless the Company shall have exercised its election as provided
in Section 11(i), upon each adjustment of the Purchase Price as a result of the
calculations made in Section 11(b) and (c), each Right outstanding immediately
prior to the making of such adjustment shall thereafter evidence the right to
purchase, at the adjusted Purchase Price, that number of one one-hundredths of
a Preferred Share (calculated to the nearest one one-millionth of a Preferred
Share) obtained by (i) multiplying (x) the number of one one-hundredths of a
share covered by a Right immediately prior to this adjustment by (y) the
Purchase Price in effect immediately prior to such adjustment of the Purchase
Price and (ii) dividing the product so obtained by the Purchase Price in effect
immediately after such adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any adjustment of
the Purchase Price to adjust the number of Rights, in substitution for any
adjustment in the number of one one-hundredths of a Preferred Share purchasable
upon the
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exercise of a Right. Each of the Rights outstanding after such adjustment of
the number of Rights shall be exercisable for the number of one one-hundredths
of a Preferred Share for which a Right was exercisable immediately prior to
such adjustment. Each Right held of record prior to such adjustment of the
number of Rights shall become that number of Rights (calculated to the nearest
one ten-thousandth) obtained by dividing the Purchase Price in effect
immediately prior to adjustment of the Purchase Price by the Purchase Price in
effect immediately after adjustment of the Purchase Price. The Company shall
make a public announcement of its election to adjust the number of Rights,
indicating the record date for the adjustment, and, if known at the time, the
amount of the adjustment to be made. This record date may be the date on which
the Purchase Price is adjusted or any day thereafter, but, if the Right
Certificates have been issued, shall be at least 10 days later than the date of
the public announcement. If Right Certificates have been issued, upon each
adjustment of the number of Rights pursuant to this Section 11(i), the Company
shall, as promptly as practicable, cause to be distributed to holders of record
of Right Certificates on such record date Right Certificates evidencing,
subject to Section 14 hereof, the additional Rights to which such holders shall
be entitled as a result of such adjustment, or, at the option of the Company,
shall
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cause to be distributed to such holders of record in substitution and
replacement for the Right Certificates held by such holders prior to the date
of adjustment, and upon surrender thereof, if required by the Company, new
Right Certificates evidencing all the Rights to which such holders shall be
entitled after such adjustment. Right Certificates so to be distributed shall
be issued, executed and countersigned in the manner provided for herein and
shall be registered in the names of the holders of record of Right Certificates
on the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase Price or
the number of one one-hundredths of a Preferred Share issuable upon the
exercise of the Rights, the Right Certificates theretofore and thereafter
issued may continue to express the Purchase Price and the number of one
one-hundredths of a Preferred Share which were expressed in the initial Right
Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment reducing
the Purchase Price below one one-hundredth of the then par value, if any, of
the Preferred Shares issuable upon exercise of the Rights, the Company shall
take any corporate action which may, in the opinion of its counsel, be necessary
in order that the Company may
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<PAGE> 38
validly and legally issue fully paid and nonassessable Preferred Shares at such
adjusted Purchase Price.
(l) In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be made effective as of a record date for a
specified event, the Company may elect to defer until the occurrence of such
event the issuing to the holder of any Right exercised after such record date
of the Preferred Shares and other capital stock or securities of the Company,
if any, issuable upon such exercise over and above the Preferred Shares and
other capital stock or securities of the Company, if any, issuable upon such
exercise on the basis of the Purchase Price in effect prior to such adjustment;
provided, however, that the Company shall deliver to such holder a due bill or
other appropriate instrument evidencing such holder's right to receive such
additional shares upon the occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary notwithstanding, the
Company shall be entitled to make such reductions in the Purchase Price, in
addition to those adjustments expressly required by this Section 11, as and to
the extent that it in its sole discretion shall determine to be advisable in
order that any consolidation or subdivision of the Preferred Shares, issuance
wholly for cash of any
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<PAGE> 39
Preferred Shares at less than the current market price, issuance wholly for
cash of Preferred Shares or securities which by their terms are convertible
into or exchangeable for Preferred Shares, dividends on Preferred Shares
payable in Preferred Shares or issuance of rights, options or warrants referred
to hereinabove in Section 11(b), hereafter made by the Company to holders of
its Preferred Shares shall not be taxable to such stockholders.
(n) In the event that at any time after the date of this Agreement
and prior to the Distribution Date, the Company shall (i) declare or pay any
dividend on the Common Shares payable in Common Shares or (ii) effect a
subdivision, combination or consolidation of the Common Shares (by
reclassification or otherwise than by payment of dividends in Common Shares)
into a greater or lesser number of Common Shares, then in any such case (i) the
number of one one-hundredths of a Preferred Share purchasable after such event
upon proper exercise of each Right shall be determined by multiplying the
number of one one-hundredths of a Preferred Share so purchasable immediately
prior to such event by a fraction, the numerator of which is the number of
Common Shares outstanding immediately before such event and the denominator of
which is the number of Common Shares outstanding immediately after such event,
and (ii) each Common Share outstanding immediately after such event shall have
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<PAGE> 40
issued with respect to it that number of Rights which each Common Share
outstanding immediately prior to such event had issued with respect to it. The
adjustments provided for in this Section 11(n) shall be made successively
whenever such a dividend is declared or paid or such a subdivision, combination
or consolidation is effected.
Section 12. Certificate of Adjusted Purchase Price or Number of
Shares. Whenever an adjustment is made as provided in Sections 11 and 13
hereof, the Company shall promptly (a) prepare a certificate setting forth such
adjustment, and a brief statement of the facts accounting for such adjustment,
(b) file with the Rights Agent and with each transfer agent for the Common
Shares or the Preferred Shares a copy of such certificate and (c) mail a brief
summary thereof to each holder of a Right Certificate in accordance with
Section 25 hereof.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power. In the event, directly or indirectly, (a) the Company shall
consolidate with, or merge with and into, any other Person, (b) any Person
shall consolidate with the Company, or merge with and into the Company and the
Company shall be the continuing or surviving corporation of such merger and, in
connection with such merger, all or part of the Common Shares shall be changed
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<PAGE> 41
into or exchanged for stock or other securities of any other Person (or the
Company) or cash or any other property, or (c) the Company shall sell or
otherwise transfer (or one or more of its Subsidiaries shall sell or otherwise
transfer), in one or more transactions, assets or earning power aggregating 50%
or more of the assets or earning power of the Company and its Subsidiaries
(taken as a whole) to any other Person other than the Company or one or more of
its wholly-owned Subsidiaries, then, and in each such case, proper provision
shall be made so that (i) each holder of a Right (except as otherwise provided
herein) shall thereafter have the right to receive, upon the exercise thereof
at a price equal to the then current Purchase Price multiplied by the number of
one one-hundredths of a Preferred Share for which a Right is then exercisable,
in accordance with the terms of this Agreement, such number of Common Shares of
such other Person (including the Company as successor thereto or as the
surviving corporation) as shall be equal to the result obtained by (x)
multiplying the then current Purchase Price by the number of one one-hundredths
of a Preferred Share for which a Right is then exercisable and dividing that
product by (y) 50% of the then current per share market price of the Common
Shares of such other Person (determined pursuant to Section 11(d)) on the date
of consummation of such consolidation, merger, sale or transfer; (ii) the
issuer of such
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<PAGE> 42
Common Shares shall thereafter be liable for, and shall assume, by virtue of
such consolidation, merger, sale or transfer, all the obligations and duties of
the Company pursuant to this Agreement; (iii) the term "Company" shall
thereafter be deemed to refer to such issuer; and (iv) such issuer shall take
such steps (including, but not limited to, the reservation of a sufficient
number of its Common Shares in accordance with Section 9 hereof) in connection
with such consummation as may be necessary to assure that the provisions hereof
shall thereafter be applicable, as nearly as reasonably may be, in relation to
the Common Shares thereafter deliverable upon the exercise of the Rights. The
Company shall not consummate any such consolidation, merger, sale or transfer
unless prior thereto the Company and such issuer shall have executed and
delivered to the Rights Agent a supplemental agreement so providing. The
Company shall not enter into any transaction of the kind referred to in this
Section 13 if at the time of such transaction there are any rights, warrants,
instruments or securities outstanding or any agreements or arrangements which,
as a result of the consummation of such transaction, would eliminate or
substantially diminish the benefits intended to be afforded by the Rights. The
provisions of this Section 13 shall similarly apply to successive mergers or
consolidations or sales or other transfers.
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<PAGE> 43
Section 14. Fractional Rights and Fractional Shares. (a) The
Company shall not be required to issue fractions of Rights or to distribute
Right Certificates which evidence fractional Rights. In lieu of such
fractional Rights, there shall be paid to the registered holders of the Right
Certificates with regard to which such fractional Rights would otherwise be
issuable, an amount in cash equal to the same fraction of the current market
value of a whole Right. For the purposes of this Section 14(a), the current
market value of a whole Right shall be the closing price of the Rights for the
Trading Day immediately prior to the date on which such fractional Rights would
have been otherwise issuable. The closing price for any day shall be the last
sale price, regular way, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the New York Stock
Exchange or, if the Rights are not listed or admitted to trading on the New
York Stock Exchange, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal national
securities exchange on which the Rights are listed or admitted to trading or,
if the Rights are not listed or admitted to trading on any national securities
exchange, the
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last quoted price or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by NASDAQ or such
other system then in use or, if on any such date the Rights are not quoted by
any such organization, the average of the closing bid and asked prices as
furnished by a professional market maker making a market in the Rights selected
by the Board of Directors of the Company. If on any such date no such market
maker is making a market in the Rights the fair value of the Rights on such
date as determined in good faith by the Board of Directors of the Company shall
be used.
(b) The Company shall not be required to issue fractions of Preferred
Shares (other than fractions which are integral multiples of one one-hundredth
of a Preferred Share) upon exercise of the Rights or to distribute certificates
which evidence fractional Preferred Shares (other than fractions which are
integral multiples of one one-hundredth of a Preferred Share). Fractions of
Preferred Shares in integral multiples of one one-hundredth of a Preferred
Share may, at the election of the Company, be evidenced by depositary receipts,
pursuant to an appropriate agreement between the Company and a depositary
selected by it, provided that such agreement shall provide that the holders of
such depositary receipts shall have all the rights, privileges and preferences
to which they are entitled as beneficial owners
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of the Preferred Shares represented by such depositary receipts. In lieu of
fractional Preferred Shares that are not integral multiples of one
one-hundredth of a Preferred Share, the Company shall pay to the registered
holders of Right Certificates at the time such Rights are exercised as herein
provided an amount in cash equal to the same fraction of the current market
value of one Preferred Share. For purposes of this Section 14(b), the current
market value of a Preferred Share shall be the closing price of a Preferred
Share (as determined pursuant to the second sentence of Section 11(d)(i)
hereof) for the Trading Day immediately prior to the date of such exercise.
(c) The holder of a Right by the acceptance of the Right expressly
waives his right to receive any fractional Rights or any fractional shares upon
exercise of a Right (except as provided above).
Section 15. Rights of Action. All rights of action in respect of
this Agreement, excepting the rights of action given to the Rights Agent under
Section 18 hereof, are vested in the respective registered holders of the Right
Certificates (and, prior to the Distribution Date, the registered holders of
the Common Shares); and any registered holder of any Right Certificate (or,
prior to the Distribution Date, of the Common Shares), without the consent of
the
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Rights Agent or of the holder of any other Right Certificate (or, prior to the
Distribution Date, of the Common Shares), may, in his own behalf and for his
own benefit, enforce, and may institute and maintain any suit, action or
proceeding against the Company to enforce, or otherwise act in respect of, his
right to exercise the Rights evidenced by such Right Certificate in the manner
provided in such Right Certificate and in this Agreement. Without limiting the
foregoing or any remedies available to the holders of Rights, it is
specifically acknowledged that the holders of Rights would not have an adequate
remedy at law for any breach of this Agreement and will be entitled to specific
performance of the obligations under, and injunctive relief against actual or
threatened violations of the obligations of any Person subject to, this
Agreement.
Section 16. Agreement of Right Holders. Every holder of a Right, by
accepting the same, consents and agrees with the Company and the Rights Agent
and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be transferable
only in connection with the transfer of the Common Shares;
(b) after the Distribution Date, the Right Certificates are
transferable only on the registry books of the
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<PAGE> 47
Rights Agent if surrendered at the principal office of the Rights Agent, duly
endorsed or accompanied by a proper instrument of transfer; and
(c) the Company and the Rights Agent may deem and treat the person in
whose name the Right Certificate (or, prior to the Distribution Date, the
associated Common Shares certificate) is registered as the absolute owner
thereof and of the Rights evidenced thereby (notwithstanding any notations of
ownership or writing on the Right Certificates or the associated Common Shares
certificate made by anyone other than the Company or the Rights Agent) for all
purposes whatsoever, and neither the Company nor the Rights Agent shall be
affected by any notice to the contrary.
Section 17. Right Certificate Holder Not Deemed a Stockholder. No
holder, as such, of any Right Certificate shall be entitled to vote, receive
dividends or be deemed for any purpose the holder of the Preferred Shares or
any other securities of the Company which may at any time be issuable on the
exercise of the Rights represented thereby, nor shall anything contained herein
or in any Right Certificate be construed to confer upon the holder of any Right
Certificate, as such, any of the rights of a stockholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
stockholders at any
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meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting stockholders (except as
provided in Section 25 hereof), or to receive dividends or subscription rights,
or otherwise, until the Right or Rights evidenced by such Right Certificate
shall have been exercised in accordance with the provisions hereof.
Section 18. Concerning the Rights Agent. The Company agrees to pay
to the Rights Agent reasonable compensation for all services rendered by it
hereunder and, from time to time, on demand of the Rights Agent, its reasonable
expenses and counsel fees and other disbursements incurred in the
administration and execution of this Agreement and the exercise and performance
of its duties hereunder. The Company also agrees to indemnify the Rights Agent
for, and to hold it harmless against, any loss, liability, or expense, incurred
without negligence, bad faith or willful misconduct on the part of the Rights
Agent, for anything done or omitted by the Rights Agent in connection with the
acceptance and administration of this Agreement, including the costs and
expenses of defending against any claim of liability in the premises.
The Rights Agent shall be protected and shall incur no liability for,
or in respect of any action taken, suf-
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<PAGE> 49
fered or omitted by it in connection with, its administration of this Agreement
in reliance upon any Right Certificate or certificate for the Preferred Shares
or Common Shares or for other securities of the Company, instrument of
assignment or transfer, power of attorney, endorsement, affidavit, letter,
notice, direction, consent, certificate, statement, or other paper or document
believed by it to be genuine and to be signed, executed and, where necessary,
verified or acknowledged, by the proper person or persons, or otherwise upon
the advice of counsel as set forth in Section 20 hereof.
Section 19. Merger or Consolidation or Change of Name of Rights
Agent. Any corporation into which the Rights Agent or any successor Rights
Agent may be merged or with which it may be consolidated, or any corporation
resulting from any merger or consolidation to which the Rights Agent or any
successor Rights Agent shall be a party, or any corporation succeeding to the
stock transfer or corporate trust business of the Rights Agent or any successor
Rights Agent, shall be the successor to the Rights Agent under this Agreement
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, provided that such corporation would be eligible for
appointment as a successor Rights Agent under the provisions of Section 21
hereof. In case at the time such successor
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Rights Agent shall succeed to the agency created by this Agreement, any of the
Right Certificates shall have been countersigned but not delivered, any such
successor Rights Agent may adopt the countersignature of the predecessor Rights
Agent and deliver such Right Certificates so countersigned; and in case at that
time any of the Right Certificates shall not have been countersigned, any
successor Rights Agent may countersign such Right Certificates either in the
name of the predecessor Rights Agent or in the name of the successor Rights
Agent; and in all such cases such Right Certificates shall have the full force
provided in the Right Certificates and in this Agreement.
In case at any time the name of the Rights Agent shall be changed and
at such time any of the Right Certificates shall have been countersigned but
not delivered, the Rights Agent may adopt the countersignature under its prior
name and deliver Right Certificates so countersigned; and in case at that time
any of the Right Certificates shall not have been countersigned, the Rights
Agent may countersign such Right Certificates either in its prior name or in
its changed name; and in all such cases such Right Certificates shall have the
full force provided in the Right Certificates and in this Agreement.
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Section 20. Duties of Rights Agent. The Rights Agent
undertakes the duties and obligations imposed by this Agreement upon the
following terms and conditions, by all of which the Company and the holders of
Right Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may
be legal counsel for the Company), and the opinion of such counsel shall be
full and complete authorization and protection to the Rights Agent as to any
action taken or omitted by it in good faith and in accordance with such
opinion.
(b) Whenever in the performance of its duties under this
Agreement the Rights Agent shall deem it necessary or desirable that any fact
or matter be proved or established by the Company prior to taking or suffering
any action hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by any one of the Chairman of
the Board, the Chief Executive Officer, the President, any Vice President, the
Treasurer or the Secretary of the Company and delivered to the Rights Agent;
and such certificate shall be full authorization to the Rights Agent for any
action taken or suffered in good faith by it under the provisions of this
Agreement in reliance upon such certificate.
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(c) The Rights Agent shall be liable hereunder to the Company
and any other Person only for its own negligence, bad faith or willful
misconduct.
(d) The Rights Agent shall not be liable for or by reason of
any of the statements of fact or recitals contained in this Agreement or in the
Right Certificates (except its countersignature thereof) or be required to
verify the same, but all such statements and recitals are and shall be deemed
to have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery hereof
(except the due execution hereof by the Rights Agent) or in respect of the
validity or execution of any Right Certificate (except its countersignature
thereof); nor shall it be responsible for any breach by the Company of any
covenant or condition contained in this Agreement or in any Right Certificate;
nor shall it be responsible for any change in the exercisability of the Rights
(including the Rights becoming void pursuant to Section 11(a)(ii) hereof) or
any adjustment in the terms of the Rights (including the manner, method or
amount thereof) provided for in Section 3, 11, 13, 23 or 24, or the
ascertaining of the existence of facts that would require any such change or
adjustment (except with respect to the exercise of
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Rights evidenced by Right Certificates after actual notice that such change or
adjustment is required); nor shall it by any act hereunder be deemed to make
any representation or warranty as to the authorization or reservation of any
Preferred Shares to be issued pursuant to this Agreement or any Right
Certificate or as to whether any Preferred Shares will, when issued, be validly
authorized and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed, acknowledged and
delivered all such further and other acts, instruments and assurances as may
reasonably be required by the Rights Agent for the carrying out or performing
by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties hereunder
from any one of the Chairman of the Board, the Chief Executive Officer, the
President, any Vice President, the Secretary or the Treasurer of the Company,
and to apply to such officers for advice or instructions in connection with its
duties, and it shall not be liable for any action taken or suffered by it in
good faith in accordance with instructions of any such officer or for any delay
in acting while waiting for those instructions.
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(h) The Rights Agent and any stockholder, director, officer
or employee of the Rights Agent may buy, sell or deal in any of the Rights or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as though it were not
Rights Agent under this Agreement. Nothing herein shall preclude the Rights
Agent from acting in any other capacity for the Company or for any other legal
entity.
(i) The Rights Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder either
itself or by or through its attorneys or agents, and the Rights Agent shall not
be answerable or accountable for any act, default, neglect or misconduct of any
such attorneys or agents or for any loss to the Company resulting from any such
act, default, neglect or misconduct provided reasonable care was exercised in
the selection and continued employment thereof.
Section 21. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties under this
Agreement upon 30 days' notice in writing mailed to the Company and to each
transfer agent of the Common Shares or Preferred Shares by registered
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or certified mail, and to the holders of the Right Certificates by first-class
mail. The Company may remove the Rights Agent or any successor Rights Agent
upon 30 days' notice in writing, mailed to the Rights Agent or successor Rights
Agent, as the case may be, and to each transfer agent of the Common Shares or
Preferred Shares by registered or certified mail, and to the holders of the
Right Certificates by first-class mail. If the Rights Agent shall resign or be
removed or shall otherwise become incapable of acting, the Company shall
appoint a successor to the Rights Agent. If the Company shall fail to make
such appointment within a period of 30 days after giving notice of such removal
or after it has been notified in writing of such resignation or incapacity by
the resigning or incapacitated Rights Agent or by the holder of a Right
Certificate (who shall, with such notice, submit his Right Certificate for
inspection by the Company), then the registered holder of any Right Certificate
may apply to any court of competent jurisdiction for the appointment of a new
Rights Agent. Any successor Rights Agent, whether appointed by the Company or
by such a court, shall be (a) a corporation organized and doing business under
the laws of the United States or of the State of New York (or of any other
state of the United States so long as such corporation is authorized to do
business as a banking institution in the State of New York), in good standing,
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having an office in the State of New York, which is authorized under such laws
to exercise corporate trust or stock transfer powers and is subject to
supervision or examination by federal or state authority and which has at the
time of its appointment as Rights Agent a combined capital and surplus of at
least $50 million or (b) an affiliate of a corporation described in clause (a)
of this sentence. After appointment, the successor Rights Agent shall be
vested with the same powers, rights, duties and responsibilities as if it had
been originally named as Rights Agent without further act or deed; but the
predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute and deliver
any further assurance, conveyance, act or deed necessary for the purpose. Not
later than the effective date of any such appointment the Company shall file
notice thereof in writing with the predecessor Rights Agent and each transfer
agent of the Common Shares or Preferred Shares, and mail a notice thereof in
writing to the registered holders of the Right Certificates. Failure to give
any notice provided for in this Section 21, however, or any defect therein,
shall not affect the legality or validity of the resignation or removal of the
Rights Agent or the appointment of the successor Rights Agent, as the case may
be.
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Section 22. Issuance of New Right Certificates.
Notwithstanding any of the provisions of this Agreement or of the Rights to the
contrary, the Company may, at its option, issue new Right Certificates
evidencing Rights in such form as may be approved by its Board of Directors to
reflect any adjustment or change in the Purchase Price and the number or kind
or class of shares or other securities or property purchasable under the Right
Certificates made in accordance with the provisions of this Agreement.
Section 23. Redemption. (a) The Rights may be redeemed by
action of the Board of Directors pursuant to subsection (b) of this Section 23
or by stockholder action pursuant to subsection (c) of this Section 23 and
shall not be redeemed in any other manner.
(b) The Board of Directors of the Company may, at its options
at any time prior to such time as any Person becomes an Acquiring Person,
redeem all but not less than all the then outstanding Rights at a redemption
price of $.O1 per Right, appropriately adjusted to reflect any stock split,
stock dividend or similar transaction occurring after the date hereof (such
redemption price being hereinafter referred to as the "Redemption Price").
(c) (i) In the event the Company receives an Offer from any
Offeror, the Board of Directors of the Com-
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pany shall call a special meeting of stockholders (the "Special Meeting") for
the purpose of voting on a precatory resolution requesting the Board of
Directors to accept such Offer, as such Offer may be amended or revised by the
Offeror from time to time to increase the price per share in cash to be paid to
holders of shares of Voting Stock (the "Resolution"). The Special Meeting
shall be held on a date selected by the Board of Directors, which date shall be
not less than 90 and not more than 120 days after the later of (A) the date
such Offer is received by the Company (the "Offer Date") and (B) the date of
any meeting of stockholders already scheduled as of the Offer Date; provided,
however, that if (x) such other meeting shall have been called for the purpose
of voting on a precatory resolution with respect to another offer and (y) the
Offer Date shall be not later than fifteen days after the date such other Offer
was received by the Company, then both the Resolution and such other resolution
shall be voted on at such meeting and such meeting shall be deemed to be the
Special Meeting. The Board of Directors shall set a date for determining the
stockholders of record entitled to notice of and to vote at the Special Meeting
in accordance with the Company's Certificate of Incorporation and Bylaws and
with applicable law. At the Offeror's request, the Company shall include in
any proxy soliciting material prepared by it in connection with
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the Special Meeting proxy soliciting material submitted by the Offeror;
provided, however, that the Offeror shall by written agreement with the Company
contained in or delivered with such request have indemnified the Company
against any and all liabilities resulting from any misstatements, misleading
statements and omissions contained in the Offeror's proxy soliciting material
and have agreed to pay the Company's incremental costs incurred as a result of
including such material in the Company's proxy soliciting material.
Notwithstanding the foregoing, no Special Meeting shall be held from and after
such time as any Person becomes an Acquiring Person, and any Special Meeting
scheduled prior to such time and not theretofore held shall be cancelled.
(ii) If at the Special Meeting the Resolution receives the
affirmative vote of a majority of the shares of Voting Stock outstanding as of
the record date of the Special Meeting, then all of the Rights shall be
redeemed by such stockholder action at the Redemption Price, effective
immediately prior to the consummation of any tender offer (provided that such
tender offer is consummated prior to 60 days after the date of the Special
Meeting) pursuant to which any Person offers to purchase all of the shares of
Voting Stock held by Persons other than such Person and its Affiliates at a
price per share in cash equal to or greater than the price contained in the
Resolution approved at the
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Special Meeting; provided, however, that the Rights shall not be redeemed at
any time from and after such time as any Person becomes an Acquiring Person.
(iii) Nothing contained in this subsection (c) shall be
deemed to be in derogation of the obligation of the Board of Directors of the
Company to exercise its fiduciary duty. Without limiting the foregoing, nothing
contained herein shall be construed to suggest or imply that the Board of
Directors shall not be entitled to reject any Offer, or to recommend that
holders of shares of Voting Stock reject any tender offer, or to take any other
action (including, without limitation, the commencement, prosecution, defense
or settlement of any litigation and the submission of additional or alternative
Offers or other proposals to the Special Meeting) with respect to any Offer or
any tender offer that the Board of Directors believes is necessary or
appropriate in the exercise of such fiduciary duty.
(iv) Nothing in this subsection (c) shall be construed as
limiting or prohibiting the Company or any Offeror from proposing or engaging,
at any time, in any acquisition, disposition or other transfer of any
securities of the Company, any merger or consolidation involving the Company,
any sale or other transfer of assets of the Company, any liquidation,
dissolution or winding-up of the Company, or any
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other business combination or other transaction, or any other action by the
Company or such Offeror; provided, however, that the holders of Rights shall
have the rights set forth in this Agreement with respect to any such
acquisition, disposition, transfer, merger, consolidation, sale, liquidation,
dissolution, winding-up, business combination, transaction or action.
(d) Immediately upon the action of the Board of Directors of
the Company ordering the redemption of the Rights pursuant to subsection (b) of
this Section 23, or upon the effectiveness of the redemption of the Rights
pursuant to subsection (c) of this Section 23, and without any further action
and without any notice, the right to exercise the Rights will terminate and the
only right thereafter of the holders of Rights shall be to receive the
Redemption Price. The Company shall promptly give public notice of any such
redemption; provided, however, that the failure to give, or any defect int any
such notice shall not affect the validity of such redemption. Within 10 days
after such action of the Board of Directors ordering the redemption of the
Rights pursuant to subsection (b) or the effectiveness of the redemption of the
Rights pursuant to subsection (c), as the case may be, the Company shall mail a
notice of redemption to all the holders of the then outstanding Rights at their
last addresses as they appear upon the registry
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books of the Rights Agent or, prior to the Distribution Date, on the registry
books of the transfer agent for the Common Shares. Any notice which is mailed
in the manner herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of redemption will state the method by
which the payment of the Redemption Price will be made. Neither the Company
nor any of its Affiliates or Associates may redeem, acquire or purchase for
value any Rights at any time in any manner other than that specifically set
forth in this Section 23, and other than in connection with the purchase of
Common Shares prior to the Distribution Date.
Section 24. Exchange. (a) The Board of Directors of the
Company may, at its option, at any time after any Person becomes an Acquiring
Person, exchange all or part of the then outstanding and exercisable Rights
(which shall not include Rights that have become void pursuant to the
provisions of Section 11(a)(ii) hereof) for Common Shares at an exchange ratio
of one Common Share per Right, appropriately adjusted to reflect any stock
split, stock dividend or similar transaction occurring after the date hereof
(such exchange ratio being hereinafter referred to as the "Exchange Ratio").
Notwithstanding the foregoing, the Board of Directors shall not be empowered to
effect such exchange at any time after any Person (other than the Company, any
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Subsidiary of the Company, any employee benefit plan of the Company or any such
Subsidiary, or any entity holding Common Shares for or pursuant to the terms of
any such plan), together with all Affiliates and Associates of such Person,
becomes the Beneficial Owner of 50% or more of the Common Shares then
outstanding.
(b) Immediately upon the action of the Board of Directors of
the Company ordering the exchange of any Rights pursuant to subsection (a) of
this Section 24 and without any further action and without any notice, the
right to exercise such Rights shall terminate and the only right thereafter of
a holder of such Rights shall be to receive that number of Common Shares equal
to the number of such Rights held by such holder multiplied by the Exchange
Ratio. The Company shall promptly give public notice of any such exchange;
provided, however, that the failure to give, or any defect in, such notice
shall not affect the validity of such exchange. The Company promptly shall
mail a notice of any such exchange to all of the holders of such Rights at
their last addresses as they appear upon the registry books of the Rights
Agent. Any notice which is mailed in the manner herein provided shall be
deemed given, whether or not the holder receives the notice. Each such notice
of exchange will state the method by which the exchange of the Common Shares
for Rights will be effected and, in the event
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of any partial exchange, the number of Rights which will be exchanged. Any
partial exchange shall be effected pro rata based on the number of Rights
(other than Rights which have become void pursuant to the provisions of Section
11(a)(i) hereof) held by each holder of Rights.
(c) In any exchange pursuant to this Section 24, the Company,
at its option, may substitute Preferred Shares (or equivalent preferred shares,
as such term is defined in paragraph (b) of Section 11 of this Agreement) for
Common Shares exchangeable for rights, at the initial rate of one one-hundredth
of a Preferred Share (or equivalent preferred share) for each Common Share, as
appropriately adjusted to reflect adjustments in the voting rights of the
Preferred Shares pursuant to Section 3(A) of the Certificate of Designations
attached hereto as Exhibit A, so that the fraction of a Preferred Share
delivered in lieu of each Common Share shall have the same voting rights as one
Common Share.
(d) In the event that there shall not be sufficient Common
Shares issued but not outstanding or authorized but unissued to permit any
exchange of Rights as contemplated in accordance with this Section 24, the
Company shall take all such action as may be necessary to authorize additional
Common Shares for issuance upon exchange of the Rights.
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(e) The Company shall not be required to issue fractions of
Common Shares or to distribute certificates which evidence fractional Common
Shares. In lieu of such fractional Common Shares, there shall be paid to the
registered holders of the Right Certificates with regard to which such
fractional Common Shares would otherwise be issuable, an amount in cash equal
to the same fraction of the current market value of a whole Common Share. For
the purposes of this subsection (e), the current market value of a whole Common
Share shall be the closing price of a Common Share (as determined pursuant to
the second sentence of Section 11(d)(i) hereof) for the Trading Day immediately
prior to the date of exchange pursuant to this Section 24.
Section 25. Notice of Certain Events. (a) In case the
Company shall propose (i) to pay any dividend payable in stock of any class to
the holders of its Preferred Shares or to make any other distribution to the
holders of its Preferred Shares (other than a regular quarterly cash dividend),
(ii) to offer to the holders of its Preferred Shares rights or warrants to
subscribe for or to purchase any additional Preferred Shares or shares of stock
of any class or any other securities, rights or options, (iii) to effect any
reclassification of its Preferred Shares (other than a reclassification
involving only the subdivision of outstanding Preferred Shares), (iv) to effect
any consolida-
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tion or merger into or with, or to effect any sale or other transfer (or to
permit one or more of its Subsidiaries to effect any sale or other transfer),
in one or more transactions, of 50% or more of the assets or earning power of
the Company and its Subsidiaries (taken as a whole) to, any other Person, (v)
to effect the liquidation, dissolution or winding up of the Company, or (vi) to
declare or pay any dividend on the Common Shares payable in Common Shares or to
effect a subdivision, combination or consolidation of the Common Shares (by
reclassification or otherwise than by payment of dividends in Common Shares),
then, in each such case, the Company shall give to each holder of a Right
Certificate, in accordance with Section 26 hereof, a notice of such proposed
action, which shall specify the record date for the purposes of such stock
dividend, or distribution of rights or warrants, or the date on which such
reclassification, consolidation, merger, sale, transfer, liquidation,
dissolution, or winding up is to take place and the date of participation
therein by the holders of the Common Shares and/or Preferred Shares, if any
such date is to be fixed, and such notice shall be so given in the case of any
action covered by clause (i) or (ii) above at least 10 days prior to the record
date for determining holders of the Preferred Shares for purposes of such
action, and in the case of any such other action, at least 10 days prior to the
date of the
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taking of such proposed action or the date of participation therein by the
holders of the Common Shares and/or Preferred Shares, whichever shall be the
earlier.
(b) In case the event set forth in Section 11(a)(ii)
of this Agreement shall occur, then the Company shall as soon as practicable
thereafter give to each holder of a Right Certificate, in accordance with
Section 26 hereof, a notice of the occurrence of such event, which notice shall
describe the event and the consequences of the event to holders of Rights under
Section 11(a)(ii) hereof.
Section 26. Notices. Notices or demands authorized by this
Agreement to be given or made by the Rights Agent or by the holder of any Right
Certificate to or on the Company shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed (until another address is filed in
writing with the Rights Agent) as follows:
V.F. Corporation
1047 North Park Road
Wyomissing, PA 19610
Attention: Secretary
Subject to the provisions of Section 21 hereof, any notice or demand authorized
by this Agreement to be given or made by the Company or by the holder of any
Right Certificate to
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or on the Rights Agent shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed (until another address is filed in
writing with the Company) as follows:
Morgan Shareholder Services
Trust Company
30 West Broadway
New York, NY
Attention: Tenders and Exchanges
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Right Certificate shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on the registry
books of the Company.
Section 27. Supplements and Amendments. The Company may from
time to time supplement or amend this Agreement without the approval of any
holders of Right Certificates in order to cure any ambiguity, to correct or
supplement any provision contained herein which may be defective or
inconsistent with any other provisions herein, or to make any other provisions
in regard to matters or questions arising hereunder which the Company may deem
necessary or desirable and which shall be consistent with, and for the purpose
of fulfilling, the objectives of the
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Board of Directors in adopting this Agreement, any such supplement or amendment
to be evidenced by a writing signed by the Company and the Rights Agent;
provided, however, that from and after such time as any Person becomes an
Acquiring Person, this Agreement shall not be amended in any manner which would
adversely affect the interests of the holders of Rights. Without limiting the
foregoing, the Company may at any time prior to such time as any Person becomes
an Acquiring Person amend this Agreement to lower the thresholds set forth in
Sections 1(a) and 3(a) hereof from 20% to not less than the greater of (i) the
largest percentage of the outstanding Common Shares then known by the Company
to be beneficially owned by any Person, other than a Person that beneficially
owns any Common Shares held by any trust, will or deed of trust created by John
Barbey, as amended (collectively, the "Trusts") and (ii) 10%; provided,
however, that following the lowering of such threshold neither any Trust nor
any Person who beneficially owns Common Shares of the Company held by any Trust
shall be an Acquiring Person unless such Person thereafter increases its
aggregate beneficial ownership of Common Shares of the Company with the result
that its aggregate beneficial ownership of the Common Shares of the Company
then outstanding exceeds its aggregate beneficial ownership of Common Shares of
the Company on the effective date of such amendment by more than 2% of the Com-
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<PAGE> 70
mon Shares then outstanding and would otherwise be an Acquiring Person
hereunder.
Section 28. Successors. All the covenants and provisions of
this Agreement by or for the benefit of the Company or the Rights Agent shall
bind and inure to the benefit of their respective successors and assigns
hereunder.
Section 29. Benefits of this Agreement. Nothing in this
Agreement shall be construed to give to any person or corporation other than
the Company, the Rights Agent and the registered holders of the Right
Certificates (and, prior to the Distribution Date, the Common Shares) any legal
or equitable right, remedy or claim under this Agreement; but this Agreement
shall be for the sole and exclusive benefit of the Company, the Rights Agent
and the registered holders of the Right Certificates (and, prior to the
Distribution Date, the Common Shares).
Section 30. Severability. If any term, provision, covenant
or restriction of this Agreement is held by a court of competent jurisdiction
or other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
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<PAGE> 71
Section 31. Governing Law. This Agreement and each Right
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the Commonwealth of Pennsylvania and for all purposes shall be governed
by and construed in accordance with the laws of such Commonwealth applicable to
contracts to be made and performed entirely within such Commonwealth, except
for Sections 18, 19, 20, and 21 hereof, which for all purposes shall be
construed and governed by the laws of the State of New York.
Section 32. Counterparts. This Agreement may be executed in
any number of counterparts and each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts shall together
constitute but one and the same instrument.
Section 33. Descriptive Readings. Descriptive headings of
the several Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the
provisions hereof.
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<PAGE> 72
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and attested, all as of the day and year first
above written.
V.F. CORPORATION
Attest:
By By
---------------------- ------------------------
Title: Title:
MORGAN SHAREHOLDER SERVICES
TRUST COMPANY
Attest:
By By
---------------------- -----------------------
Title: Title:
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<PAGE> 73
Exhibit A
FORM
of
CERTIFICATE OF DESIGNATIONS
of
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
V.F. CORPORATION
(Pursuant to Section 601 of the
Pennsylvania Business Corporation Law)
V.F. Corporation, a corporation organized and existing under the
General Corporation Law of the Commonwealth of Pennsylvania (hereinafter called
the "Corporation"), hereby certifies that the following resolution was adopted
by the Board of Directors of the Corporation as required by Section 601 of the
Pennsylvania Business Corporation Law at a meeting duly called and held on
January 13, 1988:
RESOLVED, that pursuant to the authority granted to and vested in the
Board of Directors of this Corporation (hereinafter called the "Board of
Directors" or the "Board") in accordance with the provisions of the Certificate
of Incorporation, the Board of Directors hereby creates a series of Preferred
Stock, par value $1.00 per share (the "Preferred Stock"), of the Corporation
and hereby states the designation and number of shares, and fixes the relative
rights, preferences, and limitations thereof as follows:
Series A Junior Participating Preferred Stock:
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series A Junior Participating Preferred Stock" (the "Series A
Preferred Stock") and the number of shares constituting the Series A Preferred
Stock shall be 2,000,000. Such number of shares may be increased or decreased
by resolution of the Board of Directors; provided, that no decrease shall
reduce the number of shares of Series A Preferred Stock to a number less than
the number of shares then outstanding plus the number of shares
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<PAGE> 74
reserved for issuance upon the exercise of outstanding options, rights or
warrants or upon the conversion of any outstanding securities issued by the
Corporation convertible into Series A Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any series
of Preferred Stock (or any similar stock) ranking prior and superior to the
Series A Preferred Stock with respect to dividends, the holders of shares
of Series A Preferred Stock, in preference to the holders of Common Stock,
no par value (the "Common Stock"), of the Corporation, and of any other
junior stock, shall be entitled to receive, when, as and if declared by the
Board of Directors out of funds legally available for the purpose,
quarterly dividends payable in cash on the first day of March, June,
September and December in each year (each such date being referred to
herein as a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or
fraction of a share of Series A Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (a) $1 or (b) subject
to the provision for adjustment hereinafter set forth, 100 times the
aggregate per share amount of all cash dividends, and 100 times the
aggregate per share amount (payable in kind) of all non-cash dividends or
other distributions, other than a dividend payable in shares of Common
Stock or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date or, with respect to
the first Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series A Preferred Stock. In the event the
Corporation shall at any time declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the amount to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event under clause
(b) of the preceding sentence shall be adjusted by multiplying such amount
by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which
is the number of shares of
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<PAGE> 75
Common Stock that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the
Series A Preferred Stock as provided in paragraph (A) of this Section
immediately after it declares a dividend or distribution on the Common
Stock (other than a dividend payable in shares of Common Stock); provided
that, in the event no dividend or distribution shall have been declared on
the Common Stock during the period between any Quarterly Dividend Payment
Date and the next subsequent Quarterly Dividend Payment Date, a dividend of
$1 per share on the Series A Preferred Stock shall nevertheless be payable
on such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment Date
next preceding the date of issue of such shares, unless the date of issue
of such shares is prior to the record date for the first Quarterly Dividend
Payment Date, in which case dividends on such shares shall begin to accrue
from the date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series A Preferred Stock entitled to
receive a quarterly dividend and before such Quarterly Dividend Payment
Date, in either of which events such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the shares of Series
A Preferred Stock in an amount less than the total amount of such dividends
at the time accrued and payable on such shares shall be allocated pro rata
on a share-by-share basis among all such shares at the time outstanding.
The Board of Directors may fix a record date for the determination of
holders of shares of Series A Preferred Stock entitled to receive payment
of a dividend or distribution declared thereon, which record date shall be
not more than 60 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth,
each share of Series A Preferred
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<PAGE> 76
Stock shall entitle the holder thereof to 100 votes on all matters
submitted to a vote of the stockholders of the Corporation. In the event
the Corporation shall at any time declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a subdivision or
combination of consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the number of votes per share to which holders of
shares of Series A Preferred Stock were entitled immediately prior to such
event shall be adjusted by multiplying such number by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such
event.
(B) Except as otherwise provided herein, in any other Certificate of
Designations creating a series of Preferred Stock or any similar stock, or
by law, the holders of shares of Series A Preferred Stock and the holders
of shares of Common Stock and any other capital stock of the Corporation
having general voting rights shall vote together as one class on all
matters submitted to a vote of stockholders of the Corporation.
(C) Except as set forth herein, or as otherwise provided by law,
holders of Series A Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent they are entitled
to vote with holders of Common Stock as set forth herein) for taking any
corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section 2 are in
arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Preferred
Stock outstanding shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on
any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred
Stock;
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<PAGE> 77
(ii) declare or pay dividends, or make any other distributions,
on any shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A
Preferred Stock, except dividends paid ratably on the Series A
Preferred Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which the
holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred
Stock, provided that the Corporation may at any time redeem, purchase
or otherwise acquire shares of any such junior stock in exchange for
shares of any stock of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or winding up) to the
Series A Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration
any shares of Series A Preferred Stock, or any shares of stock ranking
on a parity with the Series A Preferred Stock, except in accordance
with a purchase offer made in writing or by publication (as determined
by the Board of Directors) to all holders of such shares upon such
terms as the Board of Directors, after consideration of the respective
annual dividend rates and other relative rights and preferences of the
respective series and classes, shall determine in good faith will
result in fair and equitable treatment among the respective series or
classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares
of stock of the Corporation unless the Corporation could, under paragraph
(A) of this Section 4, purchase or otherwise acquire such shares at such
time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof. All
such shares shall upon their cancellation become authorized but unissued shares
of Preferred Stock and may be reissued
A-5
<PAGE> 78
as part of a new series of Preferred Stock subject to the conditions and
restrictions on issuance set forth herein, in the Certificate of Incorporation,
or in any other Certificate of Designations creating a series of Preferred
Stock or any similar stock or as otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation, no distribution
shall be made (1) to the holders of shares of stock ranking junior (either as
to dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received $100 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment, provided that the holders of shares of
Series A Preferred Stock shall be entitled to receive an aggregate amount per
share, subject to the provision for adjustment hereinafter set forth, equal to
100 times the aggregate amount to be distributed per share to holders of shares
of Common Stock, or (2) to the holders of shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up) with
the Series A Preferred Stock, except distributions made ratably on the Series A
Preferred Stock and all such parity stock in proportion to the total amounts to
which the holders of all such shares are entitled upon such liquidation,
dissolution or winding up. In the event the Corporation shall at any time
declare or pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the aggregate amount
to which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under the proviso in clause (1) of the
preceding sentence shall be adjusted by multiplying such amount by a fraction
the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the Corporation shall
enter into any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case each share of
Series A Preferred Stock shall at the
A-6
<PAGE> 79
same time be similarly exchanged or changed into an amount per share, subject
to the provision for adjustment hereinafter set forth, equal to 100 times the
aggregate amount of stock, securities, cash and/or any other property (payable
in kind), as the case may be, into which or for which each share of Common
Stock is changed or exchanged. In the event the Corporation shall at any time
declare or pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the amount set forth
in the preceding sentence with respect to the exchange or change of shares of
Series A Preferred Stock shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such event.
Section 8. No Redemption. The shares of Series A Preferred Stock
shall not be redeemable.
Section 9. Rank. The Series A Preferred Stock shall rank, with
respect to the payment of dividends and the distribution of assets, junior to
all series of any other class of the Corporation's Preferred Stock.
Section 10. Amendment. The Certificate of Incorporation of the
Corporation shall not be amended in any manner which would materially alter or
change the powers, preferences or special rights of the Series A Preferred
Stock so as to affect them adversely without the affirmative vote of the
holders of at least two-thirds of the outstanding shares of Series A Preferred
Stock, voting together as a single class.
A-7
<PAGE> 80
IN WITNESS WHEREOF, this Certificate of Designations is executed on
behalf of the Corporation by its Chairman of the Board and attested by its
Secretary this_______day of_____198_.
---------------------
Chairman of the Board
Attest:
- ----------------------
Secretary
A-8
<PAGE> 81
Exhibit B
Form of Right Certificate
Certificate No. R- ___________ Rights
NOT EXERCISABLE AFTER JANUARY 13, 1998 OR EARLIER IF REDEMPTION OR
EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT TO REDEMPTION AT $.01 PER
RIGHT AND TO EXCHANGE ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT.
Right Certificate
V.F. CORPORATION
This certifies that Morgan Shareholder Services Trust Company, or
registered assigns, is the registered owner of the number of Rights set forth
above, each of which entitles the owner thereof, subject to the terms,
provisions and conditions of the Rights Agreement, dated as of January 13, 1988
(the "Rights Agreement"), between V.F. Corporation, a Pennsylvania corporation
(the "Company"), and Morgan Shareholder Services Trust Company (the "Rights
Agent"), to purchase from the Company at any time after the Distribution Date
(as such term is defined in the Rights Agreement) and prior to 5:00 P.M., New
York City time, on January 13, 1998 at the principal office of the Rights
Agent, or at the office of its successor as Rights Agent, one one-hundredth of
a fully paid non-assessable share of Series A Junior Participating Preferred
Stock, par value $1.00 per share (the "Preferred Shares"), of the Company, at a
purchase price of $100 per one one-hundredth of a Preferred Share (the
"Purchase Price"), upon presentation and surrender of this Right Certificate
with the Form of Election to Purchase duly executed. The number of Rights
evidenced by this Right Certificate (and the number of one one-hundredths of a
Preferred Share which may be purchased upon exercise hereof) set forth above,
and the Purchase Price set forth above, are the number and Purchase Price as of
January 25, 1988, based on the Preferred Shares as constituted at such date.
As provided in the Rights Agreement, the Purchase Price and the number of one
one-hundredths of a Preferred Share which may be purchased upon the exercise of
the Rights evidenced by this Right Certificate are subject to modification and
adjustment upon the happening of certain events.
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<PAGE> 82
This Right Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Right Certificates. Copies of
the Rights Agreement are on file at the principal executive offices of the
Company and the above-mentioned offices of the Rights Agent.
This Right Certificate, with or without other Right Certificates, upon
surrender at the principal office of the Rights Agent, may be exchanged for
another Right Certificate or Right Certificates of like tenor and date
evidencing Rights entitling the holder to purchase a like aggregate number of
Preferred Shares as the Rights evidenced by the Right Certificate or Right
Certificates surrendered shall have entitled such holder to purchase. If this
Right Certificate shall be exercised in part, the holder shall be entitled to
receive upon surrender hereof another Right Certificate or Right Certificates
for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate (i) may be, and under certain circumstances are
required to be, redeemed by the Company at a redemption price of $.01 per Right
or (ii) may be exchanged in whole or in part for Preferred Shares or shares of
the Company's Common Stock, no par value per share.
No fractional Preferred Shares will be issued upon the exercise of any
Right or Rights evidenced hereby (other than fractions which are integral
multiples of one one-hundredth of a Preferred Share, which may, at the election
of the Company, be evidenced by depositary receipts), but in lieu thereof a
cash payment will be made, as provided in the Rights Agreement.
No holder of this Right Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of the Preferred
Shares or of any other securities of the Company which may at any time be
issuable on the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof, as such, any
of the rights of a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any
B-2
<PAGE> 83
corporate action, or to receive notice of meetings or other actions affecting
stockholders (except as provided in the Rights Agreement), or to receive
dividends or subscription rights, or otherwise, until the Right or Rights
evidenced by this Right Certificate shall have been exercised as provided in
the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company
and its corporate seal. Dated as of________________,19__.
ATTEST: V.F. CORPORATION
By
---------------------------- -----------------------------
Countersigned:
----------------------------
By
--------------------------
Authorized Signature
B-3
<PAGE> 84
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to
transfer the Right Certificate.)
FOR VALUE RECEIVED
hereby sells, assigns and transfers unto
(Please print name and address of transferee)
this Right Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint _________ Attorney, to
transfer the within Right Certificate on the books of the within-named Company,
with full power of substitution.
Dated:___________________________,19__
----------------------------------
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of
Securities Dealers, Inc., or a commercial bank or trust company having an
office or correspondent in the United States.
The undersigned hereby certifies that the Rights evidenced by this
Right Certificate are not beneficially owned by an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement).
----------------------------------
Signature
B-4
<PAGE> 85
Form of Reverse Side of Right Certificate -- Continued
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Right Certificate.)
To: V.F. CORPORATION
The undersigned hereby irrevocably elects to exercise __________ Rights
represented by this Right Certificate to purchase the Preferred Shares issuable
upon the exercise of such Rights and requests that certificates for such
Preferred Shares be issued in the name of:
Please insert social security or other identifying number
- --------------------------------------------------------------------------------
(Please print name and address)
If such number of Rights shall not be all the Rights evidenced by this Right
Certificate, a new Right Certificate for the balance remaining of such Rights
shall be registered in the name of and delivered to:
Please insert social security or other identifying number
- --------------------------------------------------------------------------------
(Please print name and address)
Dated:__________________, 19__
-----------------------------
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of Securities
Dealers, Inc., or a commercial bank or trust company having an office or
correspondent in the United States.
B-5
<PAGE> 86
Form of Reverse Side of Right Certificate -- continued
The undersigned hereby certifies that the Rights evidenced by this
Right Certificate are not beneficially owned by an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement).
------------------------------------------
Signature
NOTICE
The signature in the foregoing Forms of Assignment and Election must
conform to the name as written upon the face of this Right Certificate in every
particular, without alteration or enlargement or any change whatsoever.
In the event the certification set forth above in the Form of
Assignment or the Form of Election to Purchase, as the case may be, is not
completed, the Company and the Rights Agent will deem the beneficial owner of
the Rights evidenced by this Right Certificate to be an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement) and such
Assignment or Election to Purchase will not be honored.
B-6
<PAGE> 87
Exhibit C
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED SHARES
On January 13, 1988, the Board of Directors of V.F. Corporation (the
"Company") declared a dividend of one preferred share purchase right (a
"Right") for each outstanding share of common stock, no par value (the "Common
Shares") of the Company. The dividend is payable on January 25, 1988 (the
"Record Date") to the stockholders of record on that date. Each Right entitles
the registered holder to purchase from the Company one one-hundredth of a share
of Series A Junior Participating Preferred Stock, par value $1.00 per share (the
"Preferred Shares"), of the Company, at a price of $100 per one one-hundredth
of a Preferred Share (the "Purchase Price"), subject to adjustment. The
description and terms of the Rights are set forth in a Rights Agreement (the
"Rights Agreement") between the Company and Morgan Shareholder Services Trust
Company, as Rights Agent (the "Rights Agent").
Until the earlier to occur of (i) 10 days following a public
announcement that a person or group of affiliated or associated persons (an
"Acquiring Person") have acquired beneficial ownership of 20% or more of the
outstanding Common Shares or (ii) 10 days following the commencement of, or
announcement of an intention to make, a tender offer or exchange offer the
consummation of which would result in the beneficial ownership by a person or
group of 20% or more of such outstanding Common Shares (the earlier of such
dates being called the "Distribution Date"), the Rights will be evidenced,
with respect to any of the Common Share certificates outstanding as of the
Record Date, by such Common Share certificate with a copy of this Summary of
Rights attached thereto.
The Rights Agreement provides that, until the Distribution Date, the
Rights will be transferred with and only with the Common Shares. Until the
Distribution Date (or earlier redemption or expiration of the Rights), new
Common Share certificates issued after the Record Date, upon transfer or new
issuance of Common Shares will contain a notation incorporating the Rights
Agreement by reference. Until the Distribution Date (or earlier redemption or
expiration of the Rights), the surrender for transfer of any certificates for
Common Shares, outstanding as of the Record Date, even without such notation or
a copy of this Summary of Rights being attached thereto, will also constitute
the transfer of the Rights associated with the Common Shares represented by
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<PAGE> 88
such certificate. As soon as practicable following the Distribution Date,
separate certificates evidencing the Rights ("Right Certificates") will be
mailed to holders of record of the Common Shares as of the close of business on
the Distribution Date and such separate Right Certificates alone will evidence
the Rights.
The Rights are not exercisable until the Distribution Date. The
Rights will expire on January 13, 1998 (the "Final Expiration Date"), unless
the Final Expiration Date is extended or unless the Rights are earlier redeemed
by the Company, in each case, as described below.
The Purchase Price payable, and the number of Preferred Shares or
other securities or property issuable, upon exercise of the Rights are subject
to adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the
Preferred Shares, (ii) upon the grant to holders of the Preferred Shares of
certain rights or warrants to subscribe for or purchase Preferred Shares at a
price, or securities convertible into Preferred Shares with a conversion price,
less than the then current market price of the Preferred Shares or (iii) upon
the distribution to holders of the Preferred Shares of evidences of
indebtedness or assets (excluding regular periodic cash dividends paid out of
earnings or retained earnings or dividends payable in Preferred Shares) or of
subscription rights or warrants (other than those referred to above).
The number of outstanding Rights and the number of one one-hundredths
of a Preferred Share issuable upon exercise of each Right are also subject to
adjustment in the event of a stock split of the Common Shares or a stock
dividend on the Common Shares payable in Common Shares or subdivisions,
consolidations or combinations of the Common Shares occurring, in any such
case, prior to the Distribution Date.
Preferred Shares purchasable upon exercise of the Rights will not be
redeemable. Each Preferred Share will be entitled to a minimum preferential
quarterly dividend payment of $1 per share but will be entitled to an aggregate
dividend of 100 times the dividend declared per Common Share. In the event of
liquidation, the holders of the Preferred Shares will be entitled to a minimum
preferential liquidation payment of $100 per share but will be entitled to an
aggregate payment of 100 times the payment made per Common Share. Each
Preferred Share will have 100 votes, voting together with the Common Shares.
Finally, in the event of any merger, consolidation or other transaction in
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<PAGE> 89
which Common Shares are exchanged, each Preferred Share will be entitled to
receive 100 times the amount received per Common Share. These rights are
protected by customary antidilution provisions.
Because of the nature of the Preferred Shares' dividend, liquidation
and voting rights, the value of the one one-hundredth interest in a Preferred
Share purchasable upon exercise of each Right should approximate the value of
one Common Share.
In the event that the Company is acquired in a merger or other
business combination transaction or 50% or more of its consolidated assets or
earning power are sold, proper provision will be made so that each holder of a
Right will thereafter have the right to receive, upon the exercise thereof at
the then current exercise price of the Right, that number of shares of common
stock of the acquiring company which at the time of such transaction will have
a market value of two times the exercise price of the Right. In the event that
any person becomes an Acquiring Person (unless such person first acquires 20%
or more of the outstanding Common Shares by a purchase pursuant to a tender
offer for all of the Common Shares for cash, which purchase increases such
person's beneficial ownership to 80% or more of the outstanding Common Shares),
proper provision shall be made so that each holder of a Right, other than
Rights beneficially owned by the Acquiring Person (which will thereafter be
void), will thereafter have the right to receive upon exercise that number of
Common Shares having a market value of two times the exercise price of the
Right.
At any time after the acquisition by a person or group of affiliated
or associated persons of beneficial ownership of 20% or more of the outstanding
Common Shares and prior to the acquisition by such person or group of 50% or
more of the outstanding Common Shares, the Board of Directors of the Company
may exchange the Rights (other than Rights owned by such person or group which
have become void), in whole or in part, at an exchange ratio of one Common
Share, or one one-hundredth of a Preferred Share (or of a share of a class or
series of the Company's preferred stock having equivalent rights, preferences
and privileges), per Right (subject to adjustment).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional Preferred Shares will be issued (other than
fractions which are integral multiples of one one-
C-3
<PAGE> 90
hundredth of a Preferred Share, which may, at the election of the Company, be
evidenced by depositary receipts) and in lieu thereof, an adjustment in cash
will be made based on the market price of the Preferred Shares on the last
trading day prior to the date of exercise.
At any time prior to the acquisition by a person or group of
affiliated or associated persons of beneficial ownership of 20% or more of the
outstanding Common Shares, the Board of Directors of the Company may redeem the
Rights in whole, but not in part, at a price of $.01 per Right (the "Redemption
Price"). In addition, if a bidder who does not beneficially own more than 1%
of the Common Shares (and who has not within the past year owned in excess of
1% of the Common Shares and, at a time he held such 1% stake, disclosed, or
caused the disclosure of, an intention which relates to or would result in the
acquisition or influence of control of the Company) proposes to acquire all of
the Common Shares (and all other shares of capital stock of the Company
entitled to vote with the Common Shares in the election of directors or on
mergers, consolidations, sales of all or substantially all of the Company's
assets, liquidations, dissolutions or windings up) for cash at a price which a
nationally recognized investment banker selected by such bidder states in
writing is fair, and such bidder has obtained written financing commitments (or
otherwise has financing) and complies with certain procedural requirements,
then the Company, upon the request of the bidder, will hold a special
stockholders meeting to vote on a resolution requesting the Board of Directors
to accept the bidder's proposal. If a majority of the outstanding shares
entitled to vote on the proposal vote in favor of such resolution, then for a
period of 60 days after such meeting the Rights will be automatically redeemed
at the Redemption Price immediately prior to the consummation of any tender
offer for all of such shares at a price per share in cash equal to or greater
than the price offered by such bidder; provided, however, that no redemption
will be permitted or required after the acquisition by any person or group of
affiliated or associated persons of beneficial ownership of 20% or more of the
outstanding Common Shares. Immediately upon any redemption of the Rights, the
right to exercise the Rights will terminate and the only right of the holders
of Rights will be to receive the Redemption Price.
The terms of the Rights may be amended by the Board of Directors of
the Company without the consent of the holders of the Rights, including an
amendment to lower the threshold for exercisability of the Rights from 20% to
not less than the greater of (i) the largest percentage of the
C-4
<PAGE> 91
outstanding Common Shares then known to the Company to be beneficially owned by
any Person (other than any beneficial ownership arising as a result of certain
existing trusts holding Common Shares (a "Trust")) and (ii) 10%, provided that
no person or group with beneficial ownership of Common Shares arising as a
result of a Trust shall become an Acquiring Person as a result of any such
amendment so long such person or group does not increase its beneficial
ownership by more than two percentage points and provided further that from and
after such time as any person becomes an Acquiring Person no such amendment may
adversely affect the interests of the holders of the Rights.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the
right to vote or to receive dividends.
A copy of the Rights Agreement is being filed with the Securities and
Exchange Commission as an Exhibit to a Registration Statement on Form 8-A. A
copy of the Rights Agreement is available free of charge from the Company.
This summary description of the Rights does not purport to be complete and is
qualified in its entirety by reference to the Rights Agreement which is hereby
incorporated herein by reference.
C-5
<PAGE> 1
EXHIBIT 5
April 22, 1994
V.F. Corporation
1047 North Park Road
Wyomissing, PA 19610
RE: V.F. CORPORATION REGISTRATION STATEMENT
ON FORM S-3 UNDER THE SECURITIES ACT OF 1933
Gentlemen:
As counsel for V.F. Corporation, a Pennsylvania corporation
(the "Company"), we are furnishing this opinion in connection with the
above-captioned Registration Statement relating to the offering and sale of
the following securities of the Company (collectively, the "Securities")
having an aggregate initial offering price of up to $400,000,000: (i) debt
securities, consisting of debentures, notes and/or other unsecured evidences
of indebtedness (the "Debt Securities"); (ii) preferred stock, par value
$1.00 per share (the "Preferred Stock"); (iii) shares of common stock,
without par value (the "Common Stock") and related preferred stock purchase
rights (the "Rights") to be issued pursuant to a Rights Agreement dated January
13, 1988 between the Company and Morgan Shareholder Services Trust Company of
New York (now First Chicago Trust Company of New York) as amended on April 17,
1990 and December 4, 1990 (the "Rights Agreement"); and (iv) warrants to
purchase Debt Securities, shares of Preferred Stock and shares of Common Stock
(collectively,
<PAGE> 2
V.F. Corporation
April 22, 1994
Page 2
the "Securities Warrants"). We have participated in the preparation of such
Registration Statements and have examined the Articles of Incorporation and
By-Laws of the Company and such other documents, records, statutes and
decisions as we have deemed relevant.
The Debt Securities are to be issued under and pursuant to
an Indenture dated as of January 1, 1987 as supplemented by a First
Supplemental Indenture dated as of September 1, 1989 (the "Indenture"), between
the Company, Morgan Guaranty Trust Company of New York, as Retiring Trustee and
United States Trust Company of New York, as Successor Trustee (the "Trustee")
and a Second Supplemental Indenture dated as of April 1, 1994 between the
Company and the Trustee. The Preferred Stock is to be issued under the
Articles of Incorporation of the Company and a Statement with Respect to
Shares (a "Statement with Respect to Shares") to be approved by the Board
of Directors of the Company or a committee thereof and filed with the
Secretary of State of the Commonwealth of Pennsylvania (the "Pennsylvania
Secretary of State") pursuant to Section 1522(c) of the Business Corporation
Law of 1988, as amended (the "BCL") of the Commonwealth of Pennsylvania.
The Common Stock is to be issued under the Articles of Incorporation of the
Company. The Securities Warrants are to be issued under warrant agreements
(the "Warrant Agreements") to be entered into between the Company and warrant
agents to be named by the Company.
Certain terms of the Securities to be issued by the Company
from time to time will be approved by the Board of Directors of the Company or
a committee thereof as part of the corporate action taken and to be taken (the
"Corporate Proceedings") in connection with the issuance of the Securities.
In connection with our opinion set forth in paragraph (4)
below, we note that the question of whether the Board of Directors of the
Company might be required to terminate the Rights at some future time will
depend upon the facts and circumstances existing at that time and, accordingly,
is beyond the scope of such opinion. In addition, our opinion set forth in
paragraph (4) below is based upon the BCL as in effect on the date hereof.
There is little judicial precedent interpreting the provisions of the BCL as
they relate to the valid issuance of preferred stock purchase rights such as
the Rights. For purposes of this opinion, we have assumed that a Pennsylvania
court considering the valid issuance of the Rights would follow the judicial
precedents construing analogous provisions of the Delaware General Corporation
Law.
In connection with our opinion set forth in paragraph (5)
below, we note that we have not reviewed a form of the Warrant Agreement and,
accordingly, we have assumed that the Warrant Agreements are legal, valid and
binding obligations of the Company.
<PAGE> 3
V.F. Corporation
April 22, 1994
Page 3
Based on the foregoing, we are of the opinion that:
(1) Upon the execution of the Debt Securities by the
Company, the completion of all Corporate Proceedings and the
authentication and delivery by the Trustee under the terms of the
Indenture, the Debt Securities will be legal, valid and binding
obligations of the Company and entitled to the benefits of the
Indenture except as enforcement of the provisions of such Debt
Securities and Indenture may be limited by bankruptcy or other
laws of general application affecting the enforcement of
creditors' rights and by general equity principles;
(2) Upon the authorization, execution, delivery and filing
with, and recording by, the Pennsylvania Secretary of State of
the Statement with Respect to Shares, the completion of all
Corporate Proceedings and the execution, authentication,
issuance, delivery and sale of the Preferred Stock pursuant to
such Statement with Respect to Shares and as contemplated by the
Registration Statement, the Preferred Stock will be duly and
validly authorized and issued, fully paid and non-assessable;
(3) Upon the authorization of issuance of the Common Stock,
the completion of all Corporate Proceedings and the execution,
authentication, issuance, delivery and sale of the Common Stock
as contemplated by the Registration Statement, the Common Stock
will be duly and validly authorized and issued, fully paid and
non-assessable;
(4) Assuming the Board of Directors of the Company, after
fully informing itself with respect to the Rights Agreement and
the Rights and after giving due consideration to all relevant
issues, determined that the execution and delivery of the Rights
Agreement and the issuance of the Rights thereunder would be in
the best interest of the Company and its shareholders, and
assuming further that the Rights Agreement has been duly
authorized, executed and delivered by the Rights Agent, then when
the Common Stock has been validly issued and sold as contemplated
by the Registration Statement, the Rights attributable to the
shares of Common Stock will be validly issued;
<PAGE> 4
V.F. Corporation
April 22, 1994
Page 4
(5) Upon the execution and delivery of the applicable
Warrant Agreement, the completion of all Corporate Proceedings
and the execution, authentication, issuance and delivery of the
Warrants pursuant to such agreement, the Warrants issuable
pursuant to the Warrant Agreements will be duly and validly
authorized and issued.
We hereby consent to the filing of a copy of this opinion
as an exhibit to such Registration Statement and to the references to this firm
in the Prospectus. In giving such consent, we do not thereby admit that we are
acting within the category of persons whose consent is required under Section 7
of the Act.
Very truly yours,
CLARK, LADNER, FORTENBAUGH & YOUNG
<PAGE> 1
Exhibit 8
April 22, 1994
V.F. Corporation
1047 North Park Road
Wyomissing, PA 19610
RE: V.F. CORPORATION REGISTRATION STATEMENT ON
FORM S-3 UNDER THE SECURITIES ACT OF 1933
Gentlemen:
As counsel for V.F. Corporation, a Pennsylvania corporation
(the "Company"), we are furnishing this opinion in connection with the
above-captioned Registration Statement and Prospectus contained therein
relating to the offering and sale of up to $400,000,000 aggregate principal
amount of the Company's debt securities, consisting of debentures, notes and/or
other unsecured evidences of indebtedness ("Debt Securities"), to be issued
under and pursuant to an indenture dated as of January 1, 1987, as supplemented
by a First Supplemental Indenture dated as of September 1, 1989, between the
Company, Morgan Guaranty Trust Company of New York, as retiring Trustee, and
United States Trust Company of New York, as successor Trustee and a Second
Supplemental Indenture dated as of April 1, 1994, between the Company and
United States Trust Company of New York as Trustee. We have made such
examinations of fact and law as we have deemed necessary in order to
render the opinion hereinafter set forth.
In our opinion, the Debt Securities held by most
Pennsylvania residents will not be subject to Pennsylvania County Personal
Property Taxes now in effect.
We hereby consent to the filing of a copy of this opinion
as an exhibit to such Registration Statement. In giving such consent, we do
not thereby admit that we are acting within the
<PAGE> 2
V.F. Corporation
April 22, 1994
Page 2
category of persons whose consent is required under Section 7 of the Securities
Act of 1933, as amended.
Very truly yours,
CLARK, LADNER, FORTENBAUGH & YOUNG
<PAGE> 1
EXHIBIT 12.1
VF CORPORATION
COMPUTATION OF RATIO OF EARNINGS TO
FIXED CHARGES
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
Year Ended
---------------------------------------------------------------------------------------
January 1 January 2 January 4 December 29 December 30
1994 1993 1992 1990 1989
--------------- ----------------- --------------- ---------------- ----------------
<S> <C> <C> <C> <C> <C>
Income from continuing operations
before provision for income
taxes per consolidated
statements of income $399,987 $375,773 $263,197 $143,084 $283,745
Add
Interest on indebtedness 72,671 71,068 68,587 75,843 46,185
Amortization of debt expense
and premium 493 589 583 526 143
Portion of rents representative
of the interest factor 15,600 10,100 8,200 6,800 6,500
------ ------ ----- ----- -----
Income as adjusted $488,751 $457,530 $340,567 $226,253 $336,573
======== ======== ======== ======== ========
Fixed charges
Interest on indebtedness $72,671 $71,068 $68,587 $75,843 $46,185
Amortization of debt expense
and premium 493 589 583 526 143
Capitalized interest 1,022 1,439 466 145 2,087
Portion of rents representative
of the interest factor 15,600 10,100 8,200 6,800 6,500
------ ------ ----- ----- -----
Fixed charges $89,786 $83,196 $77,836 $83,314 $54,915
======= ======= ======= ======= =======
Ratio of earnings to fixed
charges 5.4 5.5 4.4 2.7 6.1
=== === === === ===
</TABLE>
Note: For purposes of this ratio, fixed charges consist of interest
expense, capitalized interest and one-third of rental expense,
which approximates the interest factor of such rental expense.
<PAGE> 1
EXHIBIT 12.2
VF CORPORATION
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
Year Ended
--------------------------------------------------------------------------------------
January 1 January 2 January 4 December 29 December 30
1994 1993 1992 1990 1989
-------------- ---------------- --------------- ----------------- ----------------
<S> <C> <C> <C> <C> <C>
Income from continuing operations
before provision for income
taxes per consolidated
statements of income $399,987 $375,773 $263,197 $143,084 $283,745
Add
Interest on indebtedness 72,671 71,068 68,587 75,843 46,185
Amortization of debt expense
and premium 493 589 583 526 143
Portion of rents representative
of the interest factor 15,600 10,100 8,200 6,800 6,500
------ ------ ----- ----- -----
Income as adjusted $488,751 $457,530 $340,567 $226,253 $336,573
======== ======== ======== ======== ========
Fixed charges
Interest on indebtedness $72,671 $71,068 $68,587 $75,843 $46,185
Amortization of debt expense
and premium 493 589 583 526 143
Capitalized Interest 1,022 1,439 466 145 2,087
Portion of rents representative
of the interest factor 15,600 10,100 8,200 6,800 6,500
------ ------ ----- ----- -----
Fixed charges 89,786 83,196 77,836 83,314 54,915
Preferred stock dividends 4,291 4,335 4,366 4,130 --
------ ------ ----- ----- -----
Fixed charges and preferred
stock dividends $94,077 $87,531 $82,202 $87,444 $54,915
======= ======= ======= ======= =======
Ratio of earnings to fixed
charges and preferred stock
dividends 5.2 5.2 4.1 2.6 6.1
=== === === === ===
</TABLE>
Note: For purposes of this ratio, fixed charges consist of interest
expense, capitalized interest and one-third of rental expense,
which approximates the interest factor of such rental expense.
Preferred stock dividends relate to the outstanding Series B
Preferred Stock held by the Employee Stock Ownership Plan.
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the captions "Experts" and
"Summary Financial Information of the Company" in this Registration Statement
on Form S-3 and related Prospectus of VF Corporation for the registration of
debt securities, shares of preferred stock, shares of common stock and
securities warrants and to the incorporation by reference therein of our report
dated February 4, 1994, with respect to the consolidated financial statements
and schedules of VF Corporation incorporated by reference in its Annual Report
(Form 10-K) for the year ended January 1, 1994 filed with the Securities and
Exchange Commission.
ERNST & YOUNG
Reading, Pennsylvania
April 20, 1994
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated March 3, 1993, on the consolidated
financial statements of Nutmeg Industries, Inc. for the fiscal year ended
January 30, 1993, included in the Current Report on Form 8-K as amended on the
Form 8-K/A of VF Corporation dated January 19, 1994.
ERNST & YOUNG
Tampa, Florida
April 20, 1994
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned V.F.
Corporation, a corporation organized and existing under the laws of the
Commonwealth of Pennsylvania ("VF"), and the undersigned directors and officers
of VF hereby constitute and appoint G. G. Johnson, F. C. Pickard III, and L.
M. Tarnoski, and each of them, severally, its and his true and lawful attorneys
and agents at any time and from time to time to do any and all acts and things
and execute in his name (whether on behalf of VF or as an officer or director
of VF or by attesting the seal of VF or otherwise), any and all instruments and
documents which said attorneys and agents, or any of them, may deem necessary
or advisable and may be required to enable VF to comply with the Securities Act
of 1933, as amended ("Act"), and any rules, regulations or requirements of the
Securities and Exchange Commission ("Commission") in respect thereof, in
connection with the registration under the Act of not more than $500,000,000
aggregate principal amount of equity and/or debt securities of VF, including
specifically, but without limiting the generality of the foregoing, a power of
attorney to sign the name of VF and affix the corporate seal and to sign the
names of the undersigned directors and officers to all registration statements,
and all amendments and supplements thereto (including post-effective
amendments), on Form S-3 or on any other appropriate Form, hereafter filed with
the Commission, and all instruments or documents filed as a part thereof or in
connection therewith, and each of the undersigned hereby ratifies and confirms
all that said attorneys, agents, or any of them, shall do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, each of the undersigned has subscribed to
these presents as of the 8th day of February, 1994.
<TABLE>
<CAPTION>
ATTEST: V.F. CORPORATION
<S> <C>
/s/ L. M. Tarnoski By: /s/ L. R. Pugh
- ------------------------------ -----------------------------
L. M. Tarnoski L. R. Pugh
Secretary Chairman of the Board and
Chief Executive Officer
Principal Executive Officer: Principal Financial Officer:
/s/ L. R. Pugh /s/ G. G. Johnson
- ------------------------------ --------------------------------
L. R. Pugh, Chairman of the G. G. Johnson
of the Board, Chief Executive Vice President-Finance and
Officer and Director Chief Financial Officer
Principal Accounting Officer:
/s/ R. K. Shearer /s/ Robert D. Buzzell
- ------------------------------ --------------------------------
R. K. Shearer, Controller Robert D. Buzzell, Director
/s/ Edward E. Crutchfield, Jr. /s/ Ursula F. Fairbairn
- ------------------------------ --------------------------------
Edward E. Crutchfield, Jr., Ursula F. Fairbairn, Director
Director
/s/ Barbara S. Feigin /s/ Roger S. Hillas
- ------------------------------ --------------------------------
Barbara S. Feigin, Director Roger S. Hillas, Director
/s/ Leon C. Holt, Jr. /s/ J. Berkely Ingram, Jr.
- ------------------------------ --------------------------------
Leon C. Holt, Jr., Director J. Berkely Ingram, Jr., Director
/s/ R.F. Longbine /s/ Mackey J. McDonald
- ------------------------------ --------------------------------
R.F. Longbine, Director Mackey J. McDonald, Director
/s/ William E. Pike /s/ M. Rust Sharp
- ------------------------------ --------------------------------
William E. Pike, Director M. Rust Sharp, Director
/s/ L.D. Walker
-----------------------------
L.D. Walker, Director
</TABLE>
<PAGE> 1
Exhibit 25
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
----------------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
----------------------------------
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
-----
----------------------------------
UNITED STATES TRUST COMPANY OF NEW YORK
(Exact name of trustee as specified in its charter)
<TABLE>
<S> <C>
New York 13-5459866
(Jurisdiction of incorporation (I. R. S. Employer
if not a U. S. national bank) Identification No.)
114 West 47th Street 10036
New York, New York (Zip Code)
(Address of principal
executive offices)
--------------------------
</TABLE>
V.F. Corporation
(Exact name of OBLIGOR as specified in its charter)
<TABLE>
<S> <C>
Pennsylvania 23-1180120
(State or other jurisdiction of (I. R. S. Employer
incorporation or organization) Identification No.)
</TABLE>
<TABLE>
<S> <C>
1047 North Park Road 19610
Wyomissing, Pennsylvania (Zip code)
(Address of principal executive offices)
------------------------
</TABLE>
Debt Securities
(Title of the indenture securities)
===============================================================================
<PAGE> 2
- 2 -
GENERAL
1. General Information
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Federal Reserve Bank of New York (2nd District), New York, New
York (Board of Governors of the Federal Reserve
System).
Federal Deposit Insurance Corporation, Washington, D. C.
New York State Banking Department, Albany, New York
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust
powers.
2. Affiliations with the Obligor
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
3. Voting Securities of the Trustee
Not applicable.
4. Trusteeships under Other Indentures
Not applicable.
5. Interlocking Directorates and Similar Relationships with the Obligor
or Underwriters
Not applicable.
<PAGE> 3
- 3 -
6. Voting Securities of the Trustee Owned by the Obligor or its Officials
Not applicable.
7. Voting Securities of the Trustee Owned by Underwriters or their
Officials
Not applicable.
8. Securities of the Obligor Owned or Held by the Trustee
Not applicable.
9. Securities of Underwriters Owned or Held by the Trustee
Not applicable.
10. Ownership or Holdings by the Trustee of Voting Securities of Certain
Affiliates or Securities Holders of the Obligor
Not applicable.
11. Ownership or Holdings by the Trustee of any Securities of a Person
Owning 50 Percent or More of the Voting Securities of the Obligor
Not applicable.
12. Indebtedness of the Obligor to the Trustee
Not applicable.
13. Defaults by the Obligor
Not applicable.
14. Affiliations with the Underwriters
Not applicable.
<PAGE> 4
- 4 -
15. Foreign Trustee
Not applicable.
16. List of Exhibits
<TABLE>
<S> <C> <C>
T-1.1 -- "Chapter 204, Laws of 1853, An Act to Incorporate the United States Trust Company of New York, as
Amended", is incorporated by reference to Exhibit T-1.1 to Form T-1 filed on September 20, 1991
with the Securities and Exchange Commission (the "Commission") pursuant to the Trust Indenture Act
of 1939 (Registration No. 2221291).
T-1.2 -- The trustee was organized by a special act of the New York Legislature in 1853 prior to the time
that the New York Banking Law was revised to require a Certificate of authority to commence
business. Accordingly, under New York Banking Law, the Charter (Exhibit T-1.1) constitutes an
equivalent of a certificate of authority to commence business.
T-1.3 -- The authorization of the trustee to exercise corporate trust powers is contained in the Charter
(Exhibit T-1.1).
T-1.4 -- The By-laws of the United States Trust Company of New York, as amended to date, are incorporated
by reference to Exhibit T-1.4 to Form T-1 filed on September 20, 1991 with the Commission pursuant
to the Trust Indenture Act of 1939 (Registration No. 2221291).
T-1.6 -- The consent of the trustee required by Section 321(b) of the Trust Indenture Act of 1939.
T-1.7 -- A copy of the latest report of condition of the trustee published pursuant to law or the
requirements of its supervising or examining authority.
</TABLE>
<PAGE> 5
- 5 -
NOTE
As of April 15, 1994, the trustee had 2,999,020 shares of Common Stock
outstanding, all of which are owned by its parent company, U. S. Trust
Corporation. The term "trustee" in Item 2, refers to each of United States
Trust Company of New York and its parent company, U. S. Trust Corporation.
In answering Item 2 in this statement of eligibility, as to matters peculiarly
within the knowledge of the obligor or its directors, the trustee has relied
upon information furnished to it by the obligor and will rely on information to
be furnished by the obligor and the trustee disclaims responsibility for the
accuracy or completeness of such information.
---------------------
Pursuant to the requirements of the Trust Indenture Act of 1939, the trustee,
United States Trust Company of New York, a corporation organized and existing
under the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York, and State of New York, on the 15th day
of April, 1994.
UNITED STATES TRUST COMPANY OF
NEW YORK, Trustee
By: /s/ ANDRES E. SERRANO
---------------------------------------
Andres E. Serrano
Assistant Vice President
<PAGE> 6
Exhibit T-1.6
The consent of the trustee required by Section 321 (b)
of the Act.
United States Trust Company of New York
114 West 47th Street
New York
NY 10036
March 19, 1992
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Gentlemen:
Pursuant to the provisions of Section 321 (b) of the Trust Indenture Act of
1939, as amended by the Trust Indenture Reform Act of 1990, and subject to the
limitations set forth therein, United States Trust Company of New York ("U. S.
Trust") hereby consents that reports of examinations of U. S. Trust by Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Securities and Exchange Commission upon request therefor.
Very truly yours,
UNITED STATES TRUST COMPANY
OF NEW YORK
By: /S/ GERARD F. GANEY
--------------------------
Gerard F. Ganey
Senior Vice President
<PAGE> 7
Exhibit T-1.7
American Banker, February 9, 1994
---------------------------------
CONSOLIDATED REPORT OF CONDITION OF
UNITED STATES TRUST
COMPANY OF NEW YORK
and Foreign and Domestic Subsidiaries, a member of the Federal Reserve System,
at the close of business December 31, 1993, published in accordance with a call
made by the Federal Reserve Bank of this District pursuant to the provisions of
the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS In Thousands
<S> <C>
Cash and balances due from depository institutions
a. Noninterest-bearing balances and currency
and coin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 176,527
b. Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50,000
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 833,859
Federal funds sold and securities purchased under agreements
to resell in domestic offices of the bank and of its Edge
and Agreement subsidiaries, and in IBFs:
a. Federal funds sold . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205,000
b. Securities purchased under agreements to resell . . . . . . . . . . . . . . . . . . . 32,000
Loans and lease financing receivables:
a. Loans and leases, net of unearned income . . . . 1,271,077
b. LESS: Allowance for loan and lease losses . . . . . 11,928
c. Loans and losses, net of unearned income, allowance, and reserve . . . . . . . . . . 1,259,149
Premises and fixed assets (including capitalized leases) . . . . . . . . . . . . . . . . . . . . 98,896
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,543
Investments in unconsolidated subsidiaries and associated companies . . . . . . . . . . . . . . . 725
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 856
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256,699
------------
TOTAL ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 2,925,254
============
LIABILITIES
Deposits:
a. In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 2,345,177
(1) Noninterest-bearing. . . . . . . . . . . . . . . . . . . . . . . 1,228,335
(2) Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . 1,116,842
b. In foreign offices, Edge and Agreement subsidiaries, and IBF's . . . . . . . . . . . 5,617
(1) Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . 5,617
Federal funds purchased and securities sold under agreements to repurchase in domestic
offices of the bank of its Edge and Agreement subsidiaries and in IBF's:
a. Federal Funds purchased . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211,921
b. Securities sold under agreements to repurchase . . . . . . . . . . . . . . . . . . . 15,016
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33,824
Other borrowed money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Mortgage indebtedness and obligations under capitalized leases . . . . . . . . . . . . . . . . . 2,429
Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12,453
Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118,457
------------
TOTAL LIABILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,744,004
------------
EQUITY CAPITAL
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,995
Surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41,500
Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123,855
------------
TOTAL EQUITY CAPITAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180,350
------------
TOTAL LIABILITIES AND EQUITY CAPITAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 2,925,254
============
</TABLE>
I, Richard E. Brinkmann, Senior Vice President & Comptroller of the
above-named bank do hereby declare that this report of condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
RICHARD E BRINKMANN, SVP, Comptroller
January 31, 1994
We, the undersigned trustees, attest the correctness of this Report
of Condition and declare that it has been examined by us and to
the best of our knowledge and belief has been prepared in conformance
with the instructions issued by the Board of Governors of the Federal
Reserve System and is true and correct.
H. MARSHALL SCHWARZ )
JEFFERY S. MAURER ) Trustees
)
