sv3asr
As filed with the Securities and Exchange Commission on
October 10, 2007
Registration No. 333-
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
Form S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
V.F. CORPORATION
(Exact name of registrant as
specified in its charter)
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Pennsylvania
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23-1180120
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(State or other jurisdiction
of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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105 Corporate Center Boulevard.
Greensboro, North Carolina 27408
(336) 424-6000
(Address, including zip code,
and telephone number, including area code, of registrants
principal executive offices)
Candace S. Cummings, Esq.
Vice President Administration, General
Counsel and Secretary
105 Corporate Center Boulevard
Greensboro, North Carolina 27408
(336) 424-6000
(Name, address, including zip
code, and telephone number, including area code, of agent for
service)
Copies to:
Sarah Beshar, Esq.
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
(212) 450-4000
Approximate date of commencement of proposed sale to the
public: From time to time after this Registration
Statement becomes effective.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box. o
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, check the following
box. þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following box. þ
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box. o
CALCULATION OF REGISTRATION FEE
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Proposed Maximum
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Proposed Maximum
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Title of Each Class of
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Amount to be
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Offering Price
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Aggregate Offering
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Amount of
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Securities to be Registered
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Registered(1)
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per Unit(1)
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Price(1)
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Registration Fee(1)
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Debt securities
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Warrants to purchase debt securities
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Warrants to purchase Common Stock
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Preferred stock
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Common Stock
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Purchase Contracts
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Units
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(1)
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An indeterminate amount of
securities to be offered at indeterminate prices is being
registered pursuant to this registration statement. The
registrant is deferring payment of the registration fee pursuant
to Rule 456(b) and is omitting this information in reliance on
Rule 456(b) and Rule 457(r).
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PROSPECTUS
VF Corporation
COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
WARRANTS
PURCHASE CONTRACTS
UNITS
We may offer from time to time common stock, preferred stock,
debt securities, warrants, purchase contracts or units. Specific
terms of these securities will be provided in supplements to
this prospectus. You should read this prospectus and any
supplement carefully before you invest.
We may sell the securities through underwriters or dealers,
directly to other purchasers or through agents. The accompanying
prospectus supplement will set forth the names of any
underwriters or agents involved in the sale of the 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.
Investing in these securities involves certain risks. See
Risk Factors beginning on page 14 of our annual
report on
Form 10-K
for the year ended December 30, 2006 which is incorporated
by reference herein.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved these
securities, or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The date of this prospectus is October 10, 2007
You should rely only on the information contained in or
incorporated by reference in this prospectus. We have not
authorized anyone to provide you with different information. We
are not making an offer of these securities in any state where
the offer is not permitted. You should not assume that the
information contained in or incorporated by reference in this
prospectus is accurate as of any date other than the date on the
front of this prospectus.
TABLE OF
CONTENTS
1
VF Corporation, organized in 1899, is a worldwide leader in
branded lifestyle apparel and related products. Unless the
context indicates otherwise, the terms we,
us, our and VF used herein
refer to VF Corporation and its consolidated subsidiaries.
For over 100 years, VF has grown by offering consumers high
quality, high value branded apparel and other products. Our
stated vision is: VF will grow by building lifestyle brands that
excite consumers around the world. Lifestyle brands are those
brands that connect closely with consumers because they are
aspirational and inspirational; they reflect consumers
specific activities and interests. Lifestyle brands generally
extend across multiple product categories and have greater
potential for growth. For several years, VF has been
implementing a growth plan designed to transform its mix of
business to include more higher growth, higher margin lifestyle
brands. As part of its growth plan, VF has acquired such
lifestyle brands as
Nautica®,
Vans®,
Reef®,
Kipling®,
Napapijri®,
7 for All
Mankind®
and
lucy®,
and has also invested heavily behind several of its other brands
to maximize their growth potential.
We generally target a VF brand to specific groups of consumers
within specific channels of distribution. VFs diverse
portfolio of brands and products serves consumers shopping in
specialty stores, department stores, national chains and mass
merchants. In addition, many products are sold directly to
consumers through VF-operated retail stores, as well as
monobrand retail stores operated by independent parties. A
global company, VF derives 26% of its revenues from outside the
United States, primarily in Europe, Canada, Latin America and
the Far East, with VF products sold in certain geographic areas
through our licensees and distributors. To provide these
products across numerous channels of distribution in different
geographic areas, we have implemented a strategy that combines
efficient and flexible internally-owned manufacturing with
sourcing of finished goods from independent contractors.
VFs businesses are organized into product categories, and
by brands within those product categories, for both management
and internal financial reporting purposes. These groupings of
businesses are called coalitions and consist of the
following: Jeanswear, Outdoor, Imagewear, Sportswear and
Contemporary Brands. These coalitions are treated as reportable
segments for financial reporting purposes. Coalition management
has the responsibility to build and develop brands, with certain
financial and administrative support and disciplines provided by
VF corporate management.
2
The following table summarizes VFs primary owned and
licensed brands by coalition:
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Primary
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Primary
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Coalition
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Brands
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Product(s)
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Jeanswear
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Wrangler®
Wrangler
Hero®
Lee®
Riders®
Rustler®
Timber Creek by
Wrangler®
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denim and casual bottoms, tops
denim bottoms
denim and casual bottoms, tops
denim and casual bottoms, tops
denim and casual bottoms, tops
casual bottoms and tops
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Outdoor
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The North
Face®
Vans®
JanSport®
Eastpak®
Kipling®
Napapijri®
Reef®
Eagle
Creek®
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performance-oriented apparel, footwear, outdoor gear
skateboard-inspired footwear and apparel
backpacks, luggage, apparel
backpacks, apparel
luggage, travel bags, backpacks, accessories
premium outdoor apparel products
surf-inspired footwear and apparel
luggage, packs, travel accessories
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Imagewear
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Red
Kap®
Bulwark®
Lee
Sport®
NFL®
(licensed)
MLB®
(licensed)
Harley-Davidson®
(licensed)
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occupational apparel
occupational apparel
licensed sports apparel
licensed athletic apparel
licensed athletic apparel
licensed apparel
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Sportswear
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Nautica®
John
Varvatos®
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fashion sportswear and accessories
luxury mens apparel and accessories
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Contemporary
Brands
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7 for All
Mankind®
lucy®
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premium denim
womens activewear
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Our principal executive offices are located at 105 Corporate
Center Boulevard, Greensboro, North Carolina 27408, and our
telephone number is
(336) 424-6000.
We maintain a website at www.vfc.com where general information
about us is available. We are not incorporating the contents of
the website into this prospectus.
About
this Prospectus
This prospectus is part of a registration statement that we
filed with the SEC utilizing a shelf registration
process. Under this shelf process, we may sell any combination
of the securities described in this prospectus in one or more
offerings. This prospectus provides you with a general
description of the securities we may offer. Each time we sell
securities, we will provide a prospectus supplement that will
contain specific information about the terms of that offering.
The prospectus supplement may also add, update or change
information contained in this prospectus. You should read both
this prospectus and any prospectus supplement together with
additional information described under the heading Where
You Can Find More Information.
3
WHERE
YOU CAN FIND MORE INFORMATION
All periodic and current reports, registration statements and
other filings that VF is required to file or furnish to the
Securities and Exchange Commission (SEC), including
our annual report on
Form 10-K,
quarterly reports on
Form 10-Q,
current reports on
Form 8-K,
and amendments to those reports filed or furnished pursuant to
Section 13(a) of the Exchange Act, are available free of
charge from the SECs website
(http://www.sec.gov)
and public reference room at 100 F Street, NE,
Washington, DC 20549 and on VFs website at
http://www.vfc.com.
Such documents are available as soon as reasonably practicable
after electronic filing of the material with the SEC.
The SEC allows us to incorporate by reference the
information we file with it, which means that we can disclose
important information to you by referring you to those
documents. The information incorporated by reference is an
important part of this prospectus, and information that we file
later with the SEC will automatically update and supersede this
information. We incorporate by reference the documents listed
below and all documents subsequently filed with the SEC pursuant
to Section 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934, as amended, prior to the termination of
the offering under this prospectus:
(a) Annual Report on
Form 10-K
for the year ended December 30, 2006;
(b) Quarterly Report on
Form 10-Q
for the quarterly period ended March 31, 2007;
(c) Quarterly Report on
Form 10-Q
for the quarterly period ended June 30, 2007;
(d) Annual Proxy Statement filed on March 22, 2007;
(e) Current Report on
Form 8-K
filed on January 26, 2007;
(f) Current Report on
Form 8-K
filed on April 24, 2007;
(g) Current Report on
Form 8-K
filed on July 30, 2007;
(h) Current Report on
Form 8-K
filed on August 24, 2007;
(i) Current Report on
Form 8-K
filed on August 31, 2007.
(j) Current Report on Form 8-K filed on October 5,
2007.
Copies of these reports may also be obtained free of charge upon
written request to the Secretary of VF Corporation,
P.O. Box 21488, Greensboro, NC 27420.
4
Unless otherwise specified in an applicable prospectus
supplement, VF Corporation will use the proceeds it receives
from the offered securities for general corporate purposes,
which could include working capital, capital expenditures,
acquisitions, refinancing other debt or other capital
transactions. Net proceeds of any offering may be temporarily
invested prior to use. The application of proceeds will depend
upon the funding requirements of VF at the time and the
availability of other funds.
RATIOS
OF EARNINGS TO FIXED CHARGES
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Six Months Ended June
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Fiscal Years Ended December
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2007
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2006
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2006
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2005
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2004
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2003
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2002
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Ratio of Earnings to Fixed Charges(1)
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9.4
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x
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8.2
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x
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9.6
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x
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8.0
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6.6
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7.1
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x
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6.2x
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Ratio of Earnings to Combined Fixed Charges(2) and Preferred
Dividends
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9.4
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x
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8.1
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x
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9.5
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x
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7.9
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x
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6.5
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x
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6.9
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x
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6.0x
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(1) |
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For purposes of this ratio, earnings are based on income from
continuing operations before income taxes and before fixed
charges. Income from continuing operations before income taxes
is adjusted for minority interests of partially owned
consolidated subsidiaries and for earnings and dividends of
investments accounted for on the equity method. Fixed charges
consist of interest expense, capitalized interest and one-third
of rent expense (excluding contingent rent expense), which
approximates the interest factor of such rent expense. |
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For purposes of this ratio, earnings are based on income from
continuing operations before income taxes and before fixed
charges. Income from continuing operations before income taxes
is adjusted for minority interests of partially owned
consolidated subsidiaries and for earnings and dividends of
investments accounted for on the equity method. Fixed charges
consist of interest expense, capitalized interest and one-third
of rent expense (excluding contingent rent expense), which
approximates the interest factor of such rent expense. Preferred
stock dividends relate to the Series B Convertible
Preferred Stock held by the Employee Stock Ownership Plan, all
of which was converted to Common Stock in June 2006. |
5
CAPITALIZATION
OF VF CORPORATION
The following table sets forth the unaudited consolidated
summary capitalization at June 30, 2007 of VF Corporation.
The table should be read in conjunction with our consolidated
financial statements and related notes and other financial data
included in our Annual Report on
Form 10-K
for the fiscal year ended December 30, 2006 incorporated by
reference herein.
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At June 30,
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2007
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(In millions)
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Cash and equivalents
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$
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178
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Short-term debt (including current portion of long-term debt)
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$
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205
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Long-term debt
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602
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Total debt
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807
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Common shareholders equity
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Common stock, par value $1 per share
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110
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Additional paid-in capital
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1,585
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Accumulated other comprehensive loss
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(59
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Retained earnings
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1,541
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Total common shareholders equity
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3,177
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Total debt and common shareholders equity
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$
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3,984
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6
SELECTED
FINANCIAL INFORMATION
The following summary financial data for the five fiscal years
ended December 30, 2006 are derived from our consolidated
financial statements, which have been audited by
PricewaterhouseCoopers LLP, independent accountants, for the
fiscal years 2006, 2005, 2004, 2003 and 2002. The data should be
read in conjunction with our consolidated financial statements,
related notes, and other financial information included in our
Annual Report on
Form 10-K
for the fiscal year ended December 30, 2006 incorporated by
reference herein.
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Fiscal Years Ended December
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2006
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2005
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2004
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2003
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2002
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(In thousands, except per share and ratio data)
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Summary of Operations
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Total revenues from continuing operations
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$
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6,215,794
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$
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5,654,155
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$
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5,218,066
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$
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4,413,354
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$
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4,267,068
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Operating income from continuing operations
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826,144
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767,951
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664,357
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552,523
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523,501
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Income from continuing operations
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535,051
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482,629
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398,879
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343,261
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300,223
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Discontinued operations
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(1,535
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35,906
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75,823
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54,672
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72,488
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Cumulative effect of change in accounting policy(1)
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(11,833
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(527,254
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Net income (loss)
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533,516
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506,702
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474,702
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397,933
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(154,543
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Earnings (loss) per common share basic
Income from continuing operations
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4.83
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4.33
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3.61
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3.17
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2.67
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Discontinued operations
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(0.01
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0.32
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0.69
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0.51
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0.66
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Cumulative effect of change in accounting policy(1)
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(0.11
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(4.83
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Net income (loss)
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4.82
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4.54
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4.30
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3.67
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(1.49
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Earnings (loss) per common share diluted
Income from continuing operations
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4.73
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4.23
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3.54
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3.11
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2.67
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Discontinued operations
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(0.01
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0.31
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0.67
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0.50
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0.65
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Cumulative effect of change in accounting policy(1)
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(0.10
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(4.69
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Net income (loss)
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4.72
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4.44
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4.21
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3.61
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(1.38
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Dividends per share
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1.94
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1.10
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1.05
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1.01
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.97
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Dividends payout ratio(2)
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41.1
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%
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24.2
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%
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24.9
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%
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28.0
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%
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29.2
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%
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Average number of common shares
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$
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110,560
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$
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111,192
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$
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109,872
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$
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107,713
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$
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109,167
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Financial Position
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Working capital
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$
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1,563,162
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$
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1,213,233
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$
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1,006,354
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$
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1,419,281
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$
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1,199,696
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Current ratio
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2.5
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x
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2.1
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x
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1.7
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x
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2.8
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x
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2.4
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x
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Total assets
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$
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5,465,693
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$
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5,171,071
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$
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5,004,278
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$
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4,245,552
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$
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3,503,151
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Long-term debt
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635,359
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647,728
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556,639
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955,393
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601,145
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Redeemable preferred stock
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23,326
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26,053
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29,987
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36,902
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Common stockholders equity
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3,265,172
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2,808,213
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|
|
2,513,241
|
|
|
|
1,951,307
|
|
|
|
1,657,848
|
|
Debt to total capital ratio(3)
|
|
|
19.5
|
%
|
|
|
22.6
|
%
|
|
|
28.5
|
%
|
|
|
33.7
|
%
|
|
|
28.3
|
%
|
Book value per common share
|
|
$
|
29.11
|
|
|
$
|
25.50
|
|
|
$
|
22.56
|
|
|
$
|
18.04
|
|
|
$
|
15.28
|
|
Other Statistics(5)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating margin
|
|
|
13.3
|
%
|
|
|
13.6
|
%
|
|
|
12.7
|
%
|
|
|
12.5
|
%
|
|
|
12.3
|
%
|
Return on invested capital(4)(6)
|
|
|
14.7
|
%
|
|
|
14.2
|
%
|
|
|
13.4
|
%
|
|
|
14.4
|
%
|
|
|
14.2
|
%
|
Return on average common stockholders equity(6)
|
|
|
18.0
|
%
|
|
|
18.0
|
%
|
|
|
17.8
|
%
|
|
|
19.3
|
%
|
|
|
18.2
|
%
|
Return on average total assets(6)
|
|
|
10.0
|
%
|
|
|
9.4
|
%
|
|
|
8.5
|
%
|
|
|
9.1
|
%
|
|
|
8.6
|
%
|
Cash dividends paid
|
|
$
|
216,529
|
|
|
$
|
124,116
|
|
|
$
|
117,731
|
|
|
$
|
111,258
|
|
|
$
|
108,773
|
|
|
|
|
(1) |
|
After tax effect of change in accounting policy in 2005 to adopt
FASB Statement No. 123(R), Share Based
Payment, and in 2002 to adopt FASB Statement No. 142,
Goodwill and Other Intangible Assets. |
|
(2) |
|
Dividends per share divided by the total of income from
continuing and discontinued operations per diluted share. |
|
(3) |
|
Total capital is defined as common stockholders equity
plus short-term and long-term debt. |
|
(4) |
|
Invested capital is defined as common stockholders equity
plus average short-term and long-term debt. |
|
(5) |
|
Operating statistics and market data are based on continuing
operations. |
|
(6) |
|
Return is defined as income from continuing operations before
net interest expense, after income taxes. |
7
SPECIAL
NOTE ON FORWARD-LOOKING STATEMENTS
From time to time, we may make oral or written statements,
including statements in our Annual Report, that constitute
forward-looking statements within the meaning of the
federal securities laws. These include statements concerning
plans, objectives, projections and expectations relating to
VFs operations or economic performance, and assumptions
related thereto. Forward-looking statements are made based on
our expectations and beliefs concerning future events impacting
VF and therefore involve a number of risks and uncertainties. We
caution that forward-looking statements are not guarantees and
actual results could differ materially from those expressed or
implied in the forward-looking statements.
8
DESCRIPTION
OF COMMON STOCK
The following description of our capital stock is based upon our
articles of incorporation, which were restated as of
October 19, 2006 (the Articles of
Incorporation), our amended and restated by-laws (the
By-laws) and applicable provisions of law. We have
summarized certain portions of the Articles of Incorporation and
By-laws below. The summary is not complete. The Articles of
Incorporation and By-laws are incorporated by reference in the
registration statement of which this prospectus is a part and
were filed with the SEC as exhibits to the current report on
Form 8-K
dated October 19, 2006. You should read the Articles of
Incorporation and By-laws for the provisions that are important
to you.
Certain provisions of the Pennsylvania Business Corporation Law,
as amended (the BCL), the Rights Agreement (as
defined below), the Series A Participating Cumulative
Preferred Stock and the Articles of Incorporation and By-laws
could have the effect of delaying, deferring or preventing a
tender offer, change in control or the removal of existing
management that a shareholder might consider in its best
interests, including those attempts that might result in a
premium over the market price for its shares.
Authorized
Capital Stock
Our Articles of Incorporation authorizes us to issue
300,000,000 shares of common stock, without par value, and
25,000,000 shares of preferred stock, par value $1.00 per
share.
Common
Stock
As of July 28, 2007, there were 109,990,315 shares of
common stock issued and outstanding which were held of record by
5,010 shareholders. The holders of common stock are
entitled to one vote per share (which is non-cumulative) on all
matters to be voted upon by the shareholders. Subject to
preferences that may be applicable to any outstanding preferred
stock, the holders of common stock are entitled to receive
dividends, if any, as may be declared from time to time by the
board of directors out of funds legally available therefor. In
the event of the liquidation, dissolution or winding up of VF,
the holders of common stock are entitled to share ratably in all
assets remaining after payment of liabilities, subject to prior
distribution rights of preferred stock, if any, then
outstanding. The common stock has no preemptive or conversion
rights or other subscription rights. There are no redemption or
sinking fund provisions applicable to the common stock. All
outstanding shares of common stock are fully paid and
non-assessable, and any shares of common stock to be issued upon
completion of this offering will be fully paid and
non-assessable. The common stock is listed on the New York Stock
Exchange. The transfer agent and registrar for the common stock
is Computershare Trust Company, N.A., 525 Washington Blvd.,
Jersey City, NJ 07310.
Preferred
Stock
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 will adopt resolutions creating
and designating such series as a series of preferred stock. As
of the date of this prospectus, 2,000,000 shares have been
designated as Series A Participating Cumulative Preferred
Stock and none have been issued.
Certain
Provisions of the Articles of Incorporation, the By-laws and
Pennsylvania Law
Advance
Notice of Proposals and Nominations
Notices of shareholder proposals and nominations for election of
directors may be made by any shareholder entitled to vote only
if written notice is given by the shareholder and received by
the secretary of the Company not less than 150 days prior
to the date of the annual meeting of shareholders.
9
Supermajority
Voting Provisions
Certain provisions of our 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; our
By-laws and Articles of Incorporation may only be amended,
altered, repealed or new By-laws or Articles adopted upon
approval by at least 80% of the votes entitled to be cast by
shareholders, unless the change was proposed by a majority of
the disinterested directors (as defined in the
By-laws), in which case only a majority approval vote is
required, or unless the change was approved by a majority vote
of the disinterested directors.
Rights
Plan and Series A Participating Cumulative Preferred
Stock
We adopted a shareholder rights plan on January 13, 1988.
Each share of our outstanding common stock is accompanied by a
Right. The terms of the Rights are set forth in an
agreement (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, December 4, 1990 and January 26, 1998. Each
Right entitles the registered holder to purchase one
one-hundredth of a share of Series A Participating
Cumulative 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 our Articles of Incorporation. Prior to
the distribution date of the Rights, the Rights are not
exercisable.
The Rights have certain anti-takeover effects. When the Rights
become exercisable, a 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 our common stock, however, would be void. In the
event of a merger or a sale of 50% or more of our assets, each
Rights holder will be entitled to purchase a certain number of
shares of the acquiror at half the market price of the
acquirors common shares. Our 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 us without
our board of directors approval and to dilute the stock
holdings of a potential acquiror.
Until a Right is exercised, the holder thereof, as such, will
have no rights as a shareholder, including without limitation,
the right to vote or to receive dividends. The Rights expire on
January 25, 2008 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.
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.
Classified
Board
We have 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. Our By-laws provide a nominating
procedure for directors if shareholders wish to make nominations
for directors.
10
Certain
Anti-Takeover Effects of Pennsylvania Law
Under the BCL, we are prohibited from engaging in certain
business combinations and other transactions with
any interested stockholder, unless:
|
|
|
|
|
the transaction is approved by the board of directors prior to
the time the interested shareholder became an interested
shareholder;
|
|
|
|
the transaction is approved 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
the shareholders called to approve the transaction no earlier
than three months after the interested shareholders
acquisition date, 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 shareholders
acquisition date, whichever is higher, plus interest compounded
annually, and less the amount of any dividends paid,
(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;
|
|
|
|
the transaction is approved 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
shareholders acquisition date; or
|
|
|
|
the transaction is approved at a shareholders meeting
called for such purpose no earlier than five years after the
interested shareholders acquisition date, provided such
business combination meets all of the conditions specified in
the second bullet above.
|
We opted out of the provisions of the BCL regarding
control share acquisition and disgorgement by
certain controlling shareholders following attempts to acquire
control.
DESCRIPTION
OF PREFERRED STOCK
When we offer to sell a particular series of preferred stock, we
will describe the specific terms of the securities in a
supplement to this prospectus, including, without limitation:
|
|
|
|
|
the specific designation and number of shares to be issued;
|
|
|
|
the stated value per share of such preferred stock;
|
|
|
|
the initial public offering price at which shares of such series
of preferred stock will be sold;
|
|
|
|
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;
|
|
|
|
the dividend rate or rates (or method of calculation);
|
|
|
|
whether dividends will be cumulative or non-cumulative;
|
|
|
|
the minimum and maximum applicable rate for any dividend period;
|
|
|
|
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;
|
|
|
|
any redemption or sinking fund provisions; and
|
11
|
|
|
|
|
any additional dividend, redemption, liquidation or other
preference or rights and qualifications, limitations or
restrictions of such preferred stock.
|
Our board is authorized, subject to limitations prescribed by
law, to provide by resolution for the issuance from time to time
of preferred stock in one or more series, any or all of which
may have full, limited, multiple, fractional, or no voting
rights, and such designations, preferences, qualifications,
privileges, limitations, restrictions, options, conversion
rights, and other special or relative rights as shall be stated
in the resolution or resolutions adopted by the board. Each
share of preferred stock will, when issued, be fully paid and
non-assessable. The preferred stock will have no preemptive
rights.
DESCRIPTION
OF DEBT SECURITIES
This prospectus describes certain general terms and provisions
of the debt securities. The debt securities will be issued under
an Indenture (the Indenture) which will be entered
into between us and The Bank of New York Trust Company,
N.A., as trustee (the Trustee) and will be our
unsecured obligations. 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. When
we offer to sell a particular series of debt securities, we will
describe the specific terms for the securities in a supplement
to this prospectus. The prospectus supplement will also indicate
whether the general terms and provisions described in this
prospectus apply to a particular series of debt securities.
We have summarized herein certain terms and provisions of the
Indenture. The summary is not complete. The Indenture is
incorporated by reference as an exhibit to the registration
statement of which this prospectus is a part. You should read
the Indenture for the provisions which may be important to you.
The Indenture is subject to and governed by the
Trust Indenture Act of 1939, as amended, and the laws of
the state of New York. We have also included references in
parentheses to certain sections of the Indenture. See
Where You Can Find Additional Information for
information on how to obtain a copy of the Indenture.
We may issue debt securities up to an aggregate principal amount
as we may authorize from time to time. The prospectus supplement
will describe the terms of any debt securities being offered,
including:
|
|
|
|
|
the title of the debt securities;
|
|
|
|
any limit on the aggregate principal amount of the debt
securities;
|
|
|
|
the date or dates on which the debt securities will mature;
|
|
|
|
the rate or rates (which may be fixed or variable) per annum at
which the debt securities will bear interest, if any, and the
date or dates from which such interest will accrue;
|
|
|
|
the dates on which such interest, if any, will be payable and
the regular record dates for such interest payment dates;
|
|
|
|
the place or places where principal of (and premium, if any) and
interest on the debt securities shall be payable;
|
|
|
|
any mandatory or optional sinking fund or analogous provisions;
|
|
|
|
if applicable, the price at which, the periods within which, and
the terms and conditions upon which the debt securities may,
pursuant to any optional or mandatory redemption provisions, be
redeemed;
|
|
|
|
if applicable, the terms and conditions upon which the debt
securities may be repayable prior to final maturity at the
option of the holder thereof (which option may be conditional);
|
|
|
|
the portion of the principal amount of the debt securities, if
other than the entire principal amount thereof, payable upon
acceleration of maturity thereof;
|
|
|
|
the currency of payment of principal of and premium, if any, and
interest on the debt securities;
|
12
|
|
|
|
|
any index used to determine the amount of payments of principal
of and premium, if any, and interest on the debt
securities; and
|
|
|
|
any other terms of the debt securities.
(Section 3.01)
|
Unless otherwise indicated in the prospectus supplement relating
thereto, the debt securities are to be issued as registered
securities without coupons in denominations of $2,000 or any
integral multiple of $1,000 in excess thereof. No service charge
will be made for any transfer or exchange of such debt
securities, but we may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection
therewith. (Section 3.05)
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. As defined in the indenture,
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 1.01)
Modification
of the Indenture
There are three types of changes that can be made to the
indenture and the debt securities:
|
|
|
|
|
Changes requiring your approval. First, the
consent of each affected noteholder is required to:
|
|
|
|
|
|
change the stated maturity of the principal or interest on a
debt security;
|
|
|
|
reduce any amounts due on a debt security;
|
|
|
|
reduce the amount of principal payable upon acceleration of the
maturity of a note following a default;
|
|
|
|
change the place or currency of payment on a debt security;
|
|
|
|
impair your right to sue for payment;
|
|
|
|
reduce the percentage of holders of debt securities whose
consent is needed to modify or amend the indenture;
|
|
|
|
reduce the percentage of holders of debt securities whose
consent is needed to waive compliance with certain provisions of
the indenture or to waive certain defaults; or
|
|
|
|
modify any other aspect of the provisions dealing with
modification and waiver of the indenture.
(Section 9.02)
|
|
|
|
|
|
Changes requiring a majority vote. The second
type of change to the indenture and the debt securities requires
a vote in favor by holders of debt securities owning a majority
of the outstanding aggregate principal amount of the series of
debt securities affected. Most changes fall into this category.
A majority vote would also be required for us to obtain a waiver
of all or part of the restrictive covenants described below, or
a waiver of a past default. However, we cannot obtain a waiver
of a payment default or any other aspect of the indenture or the
debt securities listed in the first category described above
under Changes Requiring Your Approval unless we
obtain your individual consent to the waiver.
(Sections 5.13 and 9.02)
|
|
|
|
Changes not requiring holder approval. The
third type of change does not require any vote by holders of
debt securities. This type is limited to clarifications and
certain other changes that would not adversely affect holders of
the debt securities. (Section 9.01)
|
Debt securities will not be considered outstanding, and
therefore will not be eligible to vote on any matter, if we have
deposited or set aside in trust for you money for their payment
or redemption. Debt securities will also not be eligible to vote
if they have been fully defeased as described later under
Full Defeasance.
13
We will generally be entitled to set any day as a record date
for the purpose of determining the holders of outstanding
securities that are entitled to vote or take other action under
the indenture. In certain limited circumstances, the trustee
will be entitled to set a record date for action by holders. If
we or the trustee set a record date for a vote or other action
to be taken, that vote or action may be taken only by persons
who are holders of outstanding securities on the record date and
must be taken within 180 days following the record date or
a shorter period that we may specify (or as the trustee may
specify, if it set the record date). We may shorten or lengthen
(but not beyond 180 days) this period from time to time.
(Section 1.04)
Covenants
Restrictions
on Mortgages and Other Liens
We will not, nor will we permit any Subsidiary to, issue, assume
or guarantee any debt secured by a Mortgage (as defined below)
upon any Principal Property or on any shares of stock or
indebtedness of any Restricted Subsidiary (as each such term is
defined below) without providing that the debt securities
(together with, if we so determine, any other indebtedness of or
guaranteed by us or such Restricted Subsidiary ranking equally
with the debt securities then existing or thereafter created)
will be secured equally and ratably with such debt, except that
the foregoing restrictions do 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, 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 us or
a Restricted Subsidiary or at the time of a purchase, lease or
other acquisition of the property of a corporation or firm as an
entirety or substantially as an entirety by us or a Restricted
Subsidiary;
(v) Mortgages on our property or that of a Restricted
Subsidiary in favor of the United States or any state or
political subdivision thereof, or in favor of any other country
or 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
financing);
(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 any of the foregoing clauses.
Notwithstanding the above, we or our 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) does not exceed
15% of the shareholders equity of the Company and its
consolidated Subsidiaries as of the end of the previous fiscal
year. (Section 10.08)
14
Restrictions
on Sale and Leaseback Transactions
Sale and leaseback transactions by us or any Restricted
Subsidiary of any Principal Property are prohibited unless:
(i) the Company or such Restricted Subsidiary would be
entitled under the indenture to issue, assume or guarantee debt
secured by a Mortgage upon such Principal Property at least
equal in amount to the Attributable Debt (as defined below) 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 above under Restrictions on Mortgages and Other
Liens, or
(ii) the Company applies an amount in cash equal to such
Attributable Debt to the retirement of non-subordinated debt of
the Company or a Restricted Subsidiary.
(Section 10.09)
The restrictions described above do not apply to:
(i) such transactions involving leases with a term of up to
three years,
(ii) leases between the Company and a Restricted Subsidiary
or between Restricted Subsidiaries, or
(iii) leases of any 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.
Definitions
Attributable Debt means 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.
Mortgage means any mortgage, pledge, lien or
other encumbrance.
Principal Property means any manufacturing
plant or facility located within the United States (other than
its territories and possessions) owned by the Company or any
subsidiary, except any such plant or facility which, in the
opinion of the board of directors of the Company, is not of
material importance to the business conducted by the Company and
its Subsidiaries, taken as a whole.
Restricted Subsidiary means a Subsidiary
which owns or leases any Principal Property.
(Section 1.01)
Subsidiary means any corporation, partnership
or other legal entity of which, in the case of a corporation,
more than 50% of the outstanding voting stock 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 or, in the case of any partnership or other legal
entity, more than 50% of the ordinary equity capital interests
is directly or indirectly owned or controlled by the Company or
by one or more other Subsidiaries or by the Company and one or
more other Subsidiaries.
Mergers
and Similar Events
We may not consolidate with or merge into any other person (as
defined in the indenture) or convey, transfer or lease our
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 our 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, neither we nor
the successor person, as the case may be, would have outstanding
indebtedness secured by any mortgage or other encumbrance
prohibited by the provisions of our restrictive covenant
relating to liens or, if so, shall have secured the debt
securities equally and ratably with (or prior to) any
indebtedness secured thereby. (Section 8.01)
15
Defeasance
Full
Defeasance
If there is a change in federal income tax law, as described
below, we can legally release ourselves from any payment or
other obligations on the debt securities (this is called
full defeasance) if:
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we deposit in trust for the benefit of all direct holders of the
debt securities a combination of money and U.S. government
notes or bonds that will generate enough cash to make interest,
principal and any other payments on the debt securities on their
various due dates;
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there is a change in U.S. federal income tax law or an
Internal Revenue Service ruling that permits us to make the
above deposit without causing you to be taxed on the debt
securities any differently than if we did not make the deposit
and simply repaid the debt securities; and
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we deliver to the trustee a legal opinion of our counsel
confirming the tax law change described above.
(Sections 13.02 and 13.04)
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If we accomplished full defeasance, you would have to rely
solely on the trust deposit for all payments on the debt
securities. You could not look to us for payment in the event of
any shortfall. Conversely, the trust deposit would most likely
be protected from claims of our lenders and other creditors if
we became bankrupt or insolvent.
Covenant
Defeasance
Under current U.S. federal income tax law, if we make the
type of trust deposit described above, we can be released from
some of the restrictive covenants in the Indenture. This is
called covenant defeasance. In that event, you would
lose the benefit of those restrictive covenants but would gain
the protection of having money
and/or notes
or bonds set aside in trust to repay the debt securities. In
order to achieve covenant defeasance, we must:
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deposit in trust for the benefit of all direct holders of the
debt securities a combination of money and U.S. government
notes or bonds that will generate enough cash to make interest,
principal and any other payments on the debt securities on their
various due dates; and
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deliver to the trustee a legal opinion of our counsel confirming
that under current U.S. federal income tax law we may make
the above deposit without causing you to be taxed on the debt
securities any differently than if we did not make the deposit
and simply repaid the debt securities.
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If we accomplish covenant defeasance, the following provisions
of the indenture and the debt securities would no longer apply:
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our obligations regarding the conduct of our business described
above under Covenants, and any other covenants
applicable to the debt securities described in the applicable
prospectus supplement;
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the conditions to our engaging in a merger or similar
transaction, as described above under Mergers and Similar
Events; and
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the events of default relating to breaches of covenants, certain
events in bankruptcy, insolvency or reorganization, and
acceleration of the maturity of other debt, described below
under Events of Default.
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If we accomplish covenant defeasance, you can still look to us
for repayment of the debt securities in the event of a shortfall
in the trust deposit. In fact, if one of the remaining events of
default occurred (such as our bankruptcy) and the debt
securities become immediately due and payable, such a shortfall
could arise. Depending on the event causing the default, you may
not be able to obtain payment of the shortfall.
(Sections 13.03 and 13.04)
16
Events of
Default and Notice Thereof
When we use the term Event of Default in the
indenture with respect to the debt securities of any series,
here are some examples of what we mean:
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failure to pay principal of (or premium, if any) on any debt
security of that series when due;
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failure to pay any interest on any debt security of that series
when due, continued for 30 days;
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failure to deposit any sinking fund payment, when due, in
respect of any debt security of that series;
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failure to perform any other covenant 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 us by
the trustee or the holders of at least 10% in principal amount
of the debt securities outstanding and affected thereby;
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acceleration of any debt aggregating in excess of $100,000,000
(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 us by the
trustee or the holders of at least 10% in principal amount of
the outstanding debt securities of such series;
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certain events in bankruptcy, insolvency or reorganization of
the Company; and
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any other Event of Default provided with respect to debt
securities of such series. (Section 5.01)
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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 5.02)
Reference is made to the prospectus supplement relating to any
series of 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 trustee, within 30 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 6.02)
We will be required to furnish to the trustee annually within
120 days after the end of each fiscal year a statement by
certain of our officers to the effect that to the best of their
knowledge we are not in default in the fulfillment of any of its
obligations under the Indenture or, if there has been a default
in the fulfillment of any such obligation, specifying each such
default. (Section 10.04)
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 5.12 and 5.13)
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 6.01) 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 6.03)
17
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 $2,000 principal amount of the debt
securities held by such persons, and this tax will be withheld
by us from interest paid to such persons.
Persons resident in Pennsylvania holding debt securities should
consult their tax advisors regarding the applicability of the
Pennsylvania Corporate Loans Tax.
We may issue warrants to purchase our debt or equity securities
or securities of third parties or other rights, including rights
to receive payment in cash or securities based on the value,
rate or price of one or more specified commodities, currencies,
securities or indices, or any combination of the foregoing.
Warrants may be issued independently or together with any other
securities and may be attached to, or separate from, such
securities. Each series of warrants will be issued under a
separate warrant agreement to be entered into between us and a
warrant agent. The terms of any warrants to be issued and a
description of the material provisions of the applicable warrant
agreement will be set forth in the applicable prospectus
supplement.
DESCRIPTION
OF PURCHASE CONTRACTS
We may issue purchase contracts for the purchase or sale of:
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debt or equity securities issued by us or securities of third
parties, a basket of such securities, an index or indices or
such securities or any combination of the above as specified in
the applicable prospectus supplement;
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currencies; or
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commodities.
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Each purchase contract will entitle the holder thereof to
purchase or sell, and obligate us to sell or purchase, on
specified dates, such securities, currencies or commodities at a
specified purchase price, which may be based on a formula, all
as set forth in the applicable prospectus supplement. We may,
however, satisfy our obligations, if any, with respect to any
purchase contract by delivering the cash value of such purchase
contract or the cash value of the property otherwise deliverable
or, in the case of purchase contracts on underlying currencies,
by delivering the underlying currencies, as set forth in the
applicable prospectus supplement. The applicable prospectus
supplement will also specify the methods by which the holders
may purchase or sell such securities, currencies or commodities
and any acceleration, cancellation or termination provisions or
other provisions relating to the settlement of a purchase
contract.
The purchase contracts may require us to make periodic payments
to the holders thereof of vice versa, which payments may be
deferred to the extent set forth in the applicable prospectus
supplement, and those payments may be unsecured or prefunded on
some basis. The purchase contracts may require the holders
thereof to secure their obligations in a specified manner to be
described in the applicable prospectus supplement.
Alternatively, the purchase contracts may require holders to
satisfy their obligations thereunder when the purchase contracts
are issued. Our obligation to settle such pre-paid purchase
contracts on the relevant settlement date may constitute
indebtedness. Accordingly, pre-paid purchase contracts will be
issued under the indenture.
As specified in the applicable prospectus supplement, we may
issue units consisting of one or more purchase contracts,
warrants, debt securities, shares of preferred stock, shares of
common stock or any combination of such securities.
18
Each debt security, warrant, and unit will be represented either
by a certificate issued in definitive form to a particular
investor or by one or more global securities representing the
entire issuance of securities. Certificated securities in
definitive form and global securities will be issued in
registered form. Definitive securities name you or your nominee
as the owner of the security, and in order to transfer or
exchange these securities or to receive payments other than
interest or other interim payments, you or your nominee must
physically deliver the securities to the trustee, registrar,
paying agent or other agent, as applicable. Global securities
name a depositary or its nominee as the owner of the debt
securities, warrants or units represented by the global
securities. The depositary maintains a computerized system that
will reflect each investors beneficial ownership of the
securities through an account maintained by the investor with
its broker/dealer, bank, trust company or other representative,
as we explain more fully below.
Global
Securities
We may issue the registered debt securities, warrants, and units
in the form of one or more fully registered global securities
that will be deposited with a depositary or its nominee
identified in the applicable prospectus supplement and
registered in the name of that depositary or nominee. In those
cases, one or more registered global securities will be issued
in a denomination or aggregate denominations equal to the
portion of the aggregate principal or face amount of the
securities to be represented by registered global securities.
Unless and until it is exchanged in whole for securities in
definitive registered form, a registered global security may not
be transferred except as a whole by and among the depositary for
the registered global security, the nominees of the depositary
or any successors of the depositary or those nominees.
Any specific terms not described below of the depositary
arrangement with respect to any securities to be represented by
a registered global security will be described in the prospectus
supplement relating to those securities. We anticipate that the
following provisions will apply to all depositary arrangements.
Ownership of beneficial interests in a registered global
security will be limited to persons, called participants, that
have accounts with the depositary or persons that may hold
interests through participants. Upon the issuance of a
registered global security, the depositary will credit, on its
book-entry registration and transfer system, the
participants accounts with the respective principal or
face amounts of the securities beneficially owned by the
participants. Any dealers, underwriters or agents participating
in the distribution of the securities will designate the
accounts to be credited. Ownership of beneficial interests in a
registered global security will be shown on, and the transfer of
ownership interests will be effected only through, records
maintained by the depositary, with respect to interests of
participants, and on the records of participants, with respect
to interests of persons holding through participants. The laws
of some states may require that some purchasers of securities
take physical delivery of these securities in definitive form.
These laws may impair your ability to own, transfer or pledge
beneficial interests in registered global securities.
So long as the depositary, or its nominee, is the registered
owner of a registered global security, that depositary or its
nominee, as the case may be, will be considered the sole owner
or holder of the securities represented by the registered global
security for all purposes under the applicable indenture,
warrant agreement, guaranteed trust preferred security or unit
agreement. Except as described below, owners of beneficial
interests in a registered global security will not be entitled
to have the securities represented by the registered global
security registered in their names, will not receive or be
entitled to receive physical delivery of the securities in
definitive form and will not be considered the owners or holders
of the securities under the applicable indenture, warrant
agreement, guaranteed trust preferred security or unit
agreement. Accordingly, each person owning a beneficial interest
in a registered global security must rely on the procedures of
the depositary for that registered global security and, if that
person is not a participant, on the procedures of the
participant through which the person owns its interest, to
exercise any rights of a holder under the applicable indenture,
warrant agreement, guaranteed trust preferred security or unit
agreement. We understand that under existing industry practices,
if we request any action of holders or if an owner of a
beneficial interest in a registered global security desires to
give or take any action that a holder is entitled to give or
take under the applicable indenture, warrant agreement,
guaranteed trust preferred security or unit agreement, the
depositary
19
for the registered global security would authorize the
participants holding the relevant beneficial interests to give
or take that action, and the participants would authorize
beneficial owners owning through them to give or take that
action or would otherwise act upon the instructions of
beneficial owners holding through them.
Principal, premium, if any, and interest payments on debt
securities, and any payments to holders with respect to
warrants, guaranteed trust preferred securities or units,
represented by a registered global security registered in the
name of a depositary or its nominee will be made to the
depositary or its nominee, as the case may be, as the registered
owner of the registered global security. None of VF, the
trustees, the warrant agents, the unit agents or any other agent
of VF, agent of the trustees or agent of the warrant agents or
unit agents will have any responsibility or liability for any
aspect of the records relating to payments made on account of
beneficial ownership interests in the registered global security
or for maintaining, supervising or reviewing any records
relating to those beneficial ownership interests.
We expect that the depositary for any of the securities
represented by a registered global security, upon receipt of any
payment of principal, premium, interest or other distribution of
underlying securities or other property to holders on that
registered global security, will immediately credit
participants accounts in amounts proportionate to their
respective beneficial interests in that registered global
security as shown on the records of the depositary. We also
expect that payments by participants to owners of beneficial
interests in a registered global security held through
participants will be governed by standing customer instructions
and customary practices, as is now the case with the securities
held for the accounts of customers in bearer form or registered
in street name, and will be the responsibility of
those participants.
If the depositary for any of these securities represented by a
registered global security is at any time unwilling or unable to
continue as depositary or ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, and a
successor depositary registered as a clearing agency under the
Securities Exchange Act of 1934 is not appointed by us within
90 days, we will issue securities in definitive form in
exchange for the registered global security that had been held
by the depositary. Any securities issued in definitive form in
exchange for a registered global security will be registered in
the name or names that the depositary gives to the relevant
trustee, warrant agent, unit agent or other relevant agent of
ours or theirs. It is expected that the depositarys
instructions will be based upon directions received by the
depositary from participants with respect to ownership of
beneficial interests in the registered global security that had
been held by the depositary.
The validity of the securities in respect of which this
prospectus is being delivered will be passed upon for us by
Davis Polk & Wardwell. Certain legal matters in
connection with the securities and any offering of these
securities will be passed upon for us by our general counsel,
Candace S. Cummings, Esq.
The financial statements and managements assessment of the
effectiveness of internal control over financial reporting
(which is included in Managements Report on Internal
Control over Financial Reporting) incorporated in this
Prospectus by reference to the Annual Report on
Form 10-K
for the year ended December 30, 2006 have been so
incorporated in reliance on the report of PricewaterhouseCoopers
LLP, an independent registered public accounting firm, given on
the authority of said firm as experts in auditing and accounting.
20
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other
Expenses of Issuance and Distribution
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The following table sets forth the estimated costs and expenses
payable by the Registrant in connection with the offerings
described in this Registration Statement.
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Amount
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to be Paid
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Registration fee
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$
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0
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*
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Printing
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$
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105,000
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Legal fees and expenses (including Blue Sky fees)
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$
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450,000
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Rating Agency fees
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$
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1,350,000
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Accounting fees and expenses
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$
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300,000
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Miscellaneous
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$
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300,000
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TOTAL
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$
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2,505,000
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Omitted because the registration fee is being deferred pursuant
to Rule 456(b). |
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Item 15.
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Indemnification
of Directors and Officers
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Section 1741 of the Pennsylvania Business Corporation Law,
as amended (the 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 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 person who was, or
is threatened to be, made a party to such transaction 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 referred to in Sections 1741 and
1742 (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 indemnification provided for under the BCL is not exclusive
of any other rights of indemnification. Under Section 1746
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
II-1
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 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 and Section 1745 provide 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 registrants By-laws provide that any person made a
party to any lawsuit by reason of being a director or officer of
the registrant may be indemnified by the registrant, to the
fullest 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
registrant 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 has breached or failed to
perform the duties of a director under Section 1712 of the
BCL, as such law may be amended from time to time, and
(b) the breach of duty constituted self-dealing, willful
misconduct, or recklessness. The limitation on a directors
personal liability for monetary damages does not apply to a
directors criminal liability or liability for taxes.
The registrant maintains directors and officers
liability insurance for expenses for which indemnification is
permitted by the BCL and Section 518. These insurance
policies insure the registrant 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 any 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 insureds breach of fiduciary duty,
subject to certain exclusions.
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Item 16.
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Exhibits
and Financial Statement Schedules
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(a) The following exhibits are filed as part of this
Registration Statement:
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Exhibit No.
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Document
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1
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.1*
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Form of Underwriting Agreement (Debt)
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1
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.2**
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Form of Underwriting Agreement (Equity)
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4
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.1*
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Form of Indenture between the Registrant and The Bank of New
York Trust Company, N.A.
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4
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.2*
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Form of Note (included in Exhibit 4.1)
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4
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.3**
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Form of Warrant Agreement
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4
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.4**
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Form of Purchase Contract
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4
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.5**
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Form of Unit Agreement
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4
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.6
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Amended and Restated By-laws (filed as Exhibit 3.1 to VF
Corporations Current Report on Form
8-K filed on
October 23, 2006 and incorporated by reference herein)
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4
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.7
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Restated Articles of Incorporation (filed as Exhibit 3.1 to
VF Corporations Current Report on
Form 8-K
filed on October 23, 2006 and incorporated by reference
herein)
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5
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.1*
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Opinion of Davis Polk & Wardwell
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5
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.2*
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Opinion of Candace S. Cummings, General Counsel
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12
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.1*
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Statement regarding computation of Ratio of Earnings to Fixed
Charges
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II-2
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Exhibit No.
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Document
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23
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.1*
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Consent of PricewaterhouseCoopers LLP
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23
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.2*
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Consent of Davis Polk & Wardwell (included in
Exhibit 5.1)
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23
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.3*
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Consent of Candace S. Cummings (included in Exhibit 5.2)
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24
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.1*
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Powers of Attorney
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25
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.1*
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Statement of Eligibility on
Form T-1
of The Bank of New York Trust Company, N.A.
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* |
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Filed herewith |
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** |
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To be filed prior to or connection with the first offering
contemplated by such agreement as an exhibit to a Current Report
on
Form 8-K
and incorporated herein by reference |
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Incorporated by reference |
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made of securities registered hereby, 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 the 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.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Securities and Exchange Commission
pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the
effective registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (i), (ii) and
(iii) above do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the
Securities and Exchange Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in this
registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of 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 herein, 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.
(4) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(A) Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the registration
statement as of the date the filed prospectus was deemed part of
and included in the registration statement; and
II-3
(B) Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5), or (b)(7) as part of a registration statement
in reliance on Rule 430B relating to an offering made
pursuant to Rule 415(a)(1)(i), (vii), or (x) for the
purpose of providing the information required by
Section 10(a) of the Securities Act of 1933 shall be deemed
to be part of and included in the registration statement as of
the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however,
that no statement made in a registration statement or prospectus
that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or
made in any such document immediately prior to such effective
date.
(5) That, for the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering
of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a
seller to the purchaser and will be considered to offer or sell
such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used
or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned registrant or its securities provided by or on
behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned registrant to the purchaser.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the registrants annual report
pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plans annual report pursuant
to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the 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.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the registrants
pursuant to the foregoing provisions, or otherwise, the
registrants have been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrants will, unless in the
opinion of their 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 the Act and will be
governed by the final adjudication of such issue.
II-4
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 the
City of Greensboro, State of North Carolina, on October 10,
2007.
VF Corporation
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By:
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/s/ Mackey
J. McDonald
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Name: Mackey J. McDonald
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Title:
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Chairman and Chief Executive Officer
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|
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By:
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/s/ Candace
S. Cummings
|
Name: Candace S. Cummings
|
|
|
|
Title:
|
Vice President Administration, General Counsel
and Secretary
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|
|
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Signature
|
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Title
|
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Date
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|
|
|
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/s/ Mackey
J. McDonald
Mackey
J. McDonald
|
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Chairman and Chief Executive Officer
|
|
October 10, 2007
|
|
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|
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/s/ Robert
K. Shearer
Robert
K. Shearer
|
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Senior Vice President and
Chief Financial Officer
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October 10, 2007
|
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/s/ Bradley
W. Batten
Bradley
W. Batten
|
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Vice President Controller and
Chief Accounting Officer
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October 10, 2007
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|
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*
Juan
Ernesto de Bedout
|
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Director
|
|
October 10, 2007
|
|
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|
|
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*
Edward
E. Crutchfield
|
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Director
|
|
October 10, 2007
|
|
|
|
|
|
*
Ursula
O. Fairbairn
|
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Director
|
|
October 10, 2007
|
|
|
|
|
|
*
Barbara
S. Feigin
|
|
Director
|
|
October 10, 2007
|
|
|
|
|
|
*
George
Fellows
|
|
Director
|
|
October 10, 2007
|
|
|
|
|
|
*
Daniel
R. Hesse
|
|
Director
|
|
October 10, 2007
|
II-5
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
*
Robert
J. Hurst
|
|
Director
|
|
October 10, 2007
|
|
|
|
|
|
*
W.
Alan McCollough
|
|
Director
|
|
October 10, 2007
|
|
|
|
|
|
*
Clarence
Otis, Jr.
|
|
Director
|
|
October 10, 2007
|
|
|
|
|
|
*
M.
Rust Sharp
|
|
Director
|
|
October 10, 2007
|
|
|
|
|
|
*
Eric
C. Wiseman
|
|
Director
|
|
October 10, 2007
|
|
|
|
|
|
*
Raymond
G. Viault
|
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Director
|
|
October 10, 2007
|
|
|
|
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*By:
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/s/ CANDACE
S. CUMMINGS
Name: Candace S. Cummings
Title: Attorney-in-fact
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II-6
EXHIBIT INDEX
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|
|
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Exhibit No.
|
|
Document
|
|
|
1
|
.1*
|
|
Form of Underwriting Agreement (Debt)
|
|
1
|
.2**
|
|
Form of Underwriting Agreement (Equity)
|
|
4
|
.1*
|
|
Form of Indenture between the Registrant and The Bank of New
York Trust Company, N.A.
|
|
4
|
.2*
|
|
Form of Note (included in Exhibit 4.1)
|
|
4
|
.3**
|
|
Form of Warrant Agreement
|
|
4
|
.4**
|
|
Form of Purchase Contract
|
|
4
|
.5**
|
|
Form of Unit Agreement
|
|
4
|
.6
|
|
Amended and Restated By-laws (filed as Exhibit 3.1 to VF
Corporations Current Report on Form
8-K filed on
October 23, 2006 and incorporated by reference herein)
|
|
4
|
.7
|
|
Restated Articles of Incorporation (filed as Exhibit 3.1 to
VF Corporations Current Report on
Form 8-K
filed on October 23, 2006 and incorporated by reference
herein)
|
|
5
|
.1*
|
|
Opinion of Davis Polk & Wardwell
|
|
5
|
.2*
|
|
Opinion of Candace S. Cummings, General Counsel
|
|
12
|
.1*
|
|
Statement regarding computation of Ratio of Earnings to Fixed
Charges
|
|
23
|
.1*
|
|
Consent of PricewaterhouseCoopers LLP
|
|
23
|
.2*
|
|
Consent of Davis Polk & Wardwell (included in
Exhibit 5.1)
|
|
23
|
.3*
|
|
Consent of Candace S. Cummings (included in Exhibit 5.2)
|
|
24
|
.1*
|
|
Powers of Attorney
|
|
25
|
.1*
|
|
Statement of Eligibility on
Form T-1
of The Bank of New York Trust Company, N.A.
|
|
|
|
* |
|
Filed herewith |
|
** |
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To be filed prior to or connection with the first offering
contemplated by such agreement as an exhibit to a Current Report
on
Form 8-K
and incorporated herein by reference |
|
|
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Incorporated by reference |
II-7