Hanesbrands Inc.
As filed with the Securities and Exchange Commission on
August 1, 2008
Registration No. 333-
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Form S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
HANESBRANDS INC.*
(Exact name of registrant as
specified in its charter)
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Maryland
(State or other jurisdiction
of
incorporation or organization)
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20-3552316
(I.R.S. Employer
Identification No.)
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1000 East
Hanes Mill Road
Winston-Salem, North Carolina 27105
(336) 519-4400
(Address,
including zip code, and telephone number, including area code,
of registrants principal executive
offices)
Joia M.
Johnson, Esq.
Executive Vice President,
General Counsel and Corporate Secretary
Hanesbrands Inc.
1000 East Hanes Mill Road
Winston-Salem, North Carolina 27105
(336) 519-4400
(Name,
address, including zip code, and telephone number, including
area code, of agent for service)
Copies of all communications,
including communications sent to agent for service, should be
sent to:
Gerald T.
Nowak, Esq.
Paul D. Zier, Esq.
200 East Randolph Drive
Chicago, Illinois 60601
(312) 861-2000
Approximate date of commencement of proposed sale to the
public: From time to time on or after the
effective date of this Registration Statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box. 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
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in
Rule 12b-2
of the Exchange Act. (Check one):
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Large accelerated
filer þ
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Accelerated
filer o
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Non-accelerated
filer o
(Do not check if a smaller reporting company)
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Smaller reporting
company o
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CALCULATION
OF REGISTRATION FEE
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Title of Each Class of
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Amount to be
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Proposed Maximum
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Proposed Maximum
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Amount of
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Securities to be Registered
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Registered
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Offering Price per Unit
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Aggregate Offering Price
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Registration Fee
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Debt Securities
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(1
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(1
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(1
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(1
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Guarantees of Debt Securities
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(1
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(1
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(1
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(1
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Preferred Stock
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(1
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(1
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(1
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(1
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Common Stock(2)
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(1
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(1
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(1
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(1
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Warrants
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(1
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(1
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(1
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(1
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Depositary Shares
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(1
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(1
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(1
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(1
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Stock Purchase Units
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(1
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(1
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(1
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(1
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Stock Purchase Contracts
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(1
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(1
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(1
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(1
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(1)
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Omitted pursuant to
Form S-3
General Instruction II.E. An indeterminate aggregate
initial offering price or number of the securities of each
identified class is being registered as may from time to time be
issued at indeterminate prices. Separate consideration may or
may not be received for securities that are issuable on
exercise, conversion or exchange of other securities or that are
issued in units or represented by depositary shares. In
accordance with Rules 456(b) and 457(r), the Registrant is
deferring payment of all of the registration fee.
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(2)
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Each share of Common Stock
registered hereunder includes an associated preferred stock
purchase right. Until the occurrence of certain prescribed
events, none of which have occurred, the preferred stock
purchase rights will trade, and may be transferred, only with
the Common Stock. The value attributable to the rights, if any,
will be reflected in the market price of the Common Stock. No
separate consideration is payable for, and no additional
registration fee is payable with respect to, the rights.
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* The co-registrants listed on
the next page are also included in this
Form S-3
Registration Statement as additional registrants.
Table of
Co-Registrants
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Exact Name of Additional Registrant*
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Jurisdiction of Formation
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I.R.S Employer Identification No.
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BA International, L.L.C.
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Delaware
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20-3151349
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Caribesock, Inc.
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Delaware
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36-4311677
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Caribetex, Inc.
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Delaware
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36-4147282
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CASA International, LLC
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Delaware
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01-0863412
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Ceibena Del, Inc.
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Delaware
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36-4165547
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Hanes Menswear, LLC
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Delaware
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66-0320041
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Hanes Puerto Rico, Inc.
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Delaware
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36-3726350
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Hanesbrands Direct, LLC
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Colorado
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20-5720114
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Hanesbrands Distribution, Inc.
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Delaware
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36-4500174
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HBI Branded Apparel Enterprises, LLC
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Delaware
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20-5720055
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HBI Branded Apparel Limited, Inc.
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Delaware
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35-2274670
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HbI International, LLC
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Delaware
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01-0863413
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HBI Sourcing, LLC
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Delaware
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20-3552316
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Inner Self LLC
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Delaware
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36-4413117
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Jasper-Costa Rica, L.L.C.
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Delaware
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51-0374405
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Playtex Dorado, LLC
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Delaware
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13-2828179
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Playtex Industries, Inc.
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Delaware
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51-0313092
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Seamless Textiles, LLC
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Delaware
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36-4311900
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UPCR, Inc.
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Delaware
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36-4165638
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UPEL, Inc.
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Delaware
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36-4165642
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The address for each of the additional Registrants is
c/o Hanesbrands
Inc., 1000 East Hanes Mill Road, Winston-Salem, NC 27105,
telephone:
(336) 519-4400.
The name, address, including zip code, of the agent for service
for each of the additional Registrants is Joia M.
Johnson, Esq., Executive Vice President, General Counsel
and Corporate Secretary of Hanesbrands Inc., 1000 East Hanes
Mill Road, Winston-Salem, North Carolina 27105, telephone
(336) 519-4400. |
The information
contained in this prospectus is not complete and may be changed.
We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these
securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not
permitted.
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SUBJECT TO COMPLETION, DATED
AUGUST 1, 2008
PROSPECTUS
Hanesbrands Inc.
DEBT SECURITIES, PREFERRED
STOCK, COMMON STOCK,
WARRANTS, DEPOSITARY SHARES,
STOCK PURCHASE UNITS
AND STOCK PURCHASE
CONTRACTS
We may from time to time sell any combination of debt
securities, preferred stock, common stock, warrants, depositary
shares, stock purchase units and stock purchase contracts
described in this prospectus in one or more offerings. This
prospectus provides a general description of the securities we
may offer. Each time we sell securities we will provide specific
terms of the securities offered in a supplement to this
prospectus and will also describe the specific manner in which
we will offer these securities. The prospectus supplement may
also add, update or change information contained in this
prospectus. You should read this prospectus and the applicable
prospectus supplement carefully before you invest in any
securities. This prospectus may not be used to consummate a sale
of securities unless accompanied by the applicable prospectus
supplement.
Our common stock is traded on the New York Stock Exchange under
the symbol HBI. On July 31, 2008, the last
reported sale price for our common stock on the New York Stock
Exchange was $21.44 per share.
See Risk Factors on page 1 of
this prospectus to read about factors you should consider before
investing in these securities.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the accuracy or adequacy of this
prospectus. Any representation to the contrary is a criminal
offense.
The date of this prospectus
is ,
2008.
TABLE OF
CONTENTS
ABOUT
THIS PROSPECTUS
This prospectus is a part of a registration statement that we
filed with the Securities and Exchange Commission (the
SEC) utilizing a shelf registration
process. Under this shelf registration process, we may sell any
combination of the securities described in this prospectus in
one or more offerings from time to time. This prospectus
provides you with a general description of the securities we may
offer. Each time we sell securities under this shelf
registration, 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. Therefore, if there is
any inconsistency between the information in this prospectus and
the prospectus supplement, you should rely on the information in
the prospectus supplement. You should read both this prospectus
and any prospectus supplement together with additional
information described under the heading Where You Can Find
More Information.
We have not authorized any dealer, salesman or other person to
give any information or to make any representation other than
those contained or incorporated by reference in this prospectus
and the accompanying supplement to this prospectus. You must not
rely upon any information or representation not contained or
incorporated by reference in this prospectus or the accompanying
prospectus supplement. This prospectus and the accompanying
supplement to this prospectus do not constitute an offer to sell
or the solicitation of an offer to buy any securities other than
the registered securities to which they relate, nor do this
prospectus and the accompanying supplement to this prospectus
constitute an offer to sell or the solicitation of an offer to
buy securities in any jurisdiction to any person to whom it is
unlawful to make such offer or solicitation in such
jurisdiction. You should not assume that the information
contained in this prospectus and the accompanying prospectus
supplement is accurate on any date subsequent to the date set
forth on the front of the document or that any information we
have incorporated by reference is correct on any date subsequent
to the date of the document incorporated by reference, even
though this prospectus and any accompanying prospectus
supplement is delivered or securities are sold on a later date.
Unless the context otherwise requires or as otherwise expressly
stated, references in this prospectus to
Hanesbrands, we, us and
our and similar terms refer to Hanesbrands Inc. and
its direct and indirect subsidiaries on a consolidated basis.
References to our common stock or our
preferred stock refer to the common stock or
preferred stock of Hanesbrands Inc.
We own or have rights to use the trademarks, service marks and
trade names that we use in conjunction with the operation of our
business. Some of the more important trademarks that we own or
have rights to use that appear in this prospectus include the
Hanes, Champion, Playtex, Bali,
Just My Size, barely there and Wonderbra
marks, which may be registered in the United States and
other jurisdictions.
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OUR
COMPANY
We are a consumer goods company with a portfolio of leading
apparel brands, including Hanes, Champion, Playtex, Bali,
Just My Size, barely there and Wonderbra. We design,
manufacture, source and sell a broad range of apparel essentials
such as t-shirts, bras, panties, mens underwear,
kids underwear, socks, hosiery, casualwear and activewear.
Our products are sold through multiple distribution channels.
During the year ended December 29, 2007, approximately 46%
of our net sales were to mass merchants, 19% were to national
chains and department stores, 8% were direct to consumers, 9%
were in our International segment and 18% were to other retail
channels such as embellishers, specialty retailers, warehouse
clubs and sporting goods stores. In addition to designing and
marketing apparel essentials, we have a long history of
operating a global supply chain that incorporates a mix of
self-manufacturing, third-party contractors and third-party
sourcing.
The apparel essentials segment of the apparel industry is
characterized by frequently replenished items, such as t-shirts,
bras, panties, mens underwear, kids underwear, socks
and hosiery. Growth and sales in the apparel essentials industry
are not primarily driven by fashion, in contrast to other areas
of the broader apparel industry. Rather, we focus on the core
attributes of comfort, fit and value, while remaining current
with regard to consumer trends. The majority of our core styles
continue from year to year, with variations only in color,
fabric or design details. We continue to invest in our largest
and strongest brands to achieve our long-term growth goals.
We were spun off from Sara Lee Corporation (Sara
Lee) on September 5, 2006. In connection with the
spin off, Sara Lee contributed its branded apparel Americas and
Asia business to us and distributed all of the outstanding
shares of our common stock to its stockholders on a pro rata
basis. As a result of the spin off, Sara Lee ceased to own any
equity interest in our company. In this prospectus, we describe
the businesses contributed to us by Sara Lee in the spin off as
if the contributed businesses were our business for all
historical periods described. References in this prospectus to
our assets, liabilities, products, businesses or activities of
our business for periods including or prior to the spin off are
generally intended to refer to the historical assets,
liabilities, products, businesses or activities of the
contributed businesses as the businesses were conducted as part
of Sara Lee and its subsidiaries prior to the spin off. Our
fiscal year ends on the Saturday closest to December 31 and
previously ended on the Saturday closest to June 30. We
refer to the fiscal year ended December 29, 2007 as the
year ended December 29, 2007. A reference to a year ended
on another date is to the fiscal year ended on that date.
We were incorporated in Maryland on September 30, 2005 and
became an independent public company following our spin off from
Sara Lee on September 5, 2006. Our principal executive
offices are located at 1000 East Hanes Mill Road, Winston-Salem,
North Carolina 27105. Our main telephone number is
(336) 519-4400.
Our website is www.hanesbrands.com. Information on our website
is not a part of this prospectus and is not incorporated into
this prospectus by reference.
RISK
FACTORS
Our business is subject to uncertainties and risks. You should
carefully consider and evaluate all of the information included
and incorporated by reference in this prospectus, including the
risk factors incorporated by reference from our most recent
annual report on
Form 10-K,
as updated by our quarterly reports on
Form 10-Q
and other filings we make with the SEC. It is possible that our
business, financial condition, liquidity or results of
operations could be materially adversely affected by any of
these risks.
FORWARD-LOOKING
STATEMENTS
This prospectus and the documents incorporated by reference into
this prospectus contain forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933, as
amended , or the Securities Act, and
Section 21E of the Securities Exchange Act of 1934, as
amended, or the Exchange Act. Forward-looking
statements include all statements that do not relate solely to
historical or current facts, and can
1
generally be identified by the use of words such as
may, believe, will,
expect, project, estimate,
intend, anticipate, plan,
continue or similar expressions. In particular,
information in any prospectus supplement or report incorporated
herein by reference appearing under Business,
Risk Factors and Managements Discussion
and Analysis of Financial Condition and Results of
Operations includes forward-looking statements.
Forward-looking statements inherently involve many risks and
uncertainties that could cause actual results to differ
materially from those projected in these statements. Where, in
any forward-looking statement, we express an expectation or
belief as to future results or events, such expectation or
belief is based on the current plans and expectations of our
management and expressed in good faith and believed to have a
reasonable basis, but there can be no assurance that the
expectation or belief will result or be achieved or
accomplished. The following include some but not all of the
factors that could cause actual results or events to differ
materially from those anticipated:
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our ability to migrate our production and manufacturing
operations to lower-cost locations around the world;
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risks associated with our foreign operations or foreign supply
sources, such as disruption of markets, changes in import and
export laws, currency restrictions and currency exchange rate
fluctuations;
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the impact of economic and business conditions and industry
trends in the countries in which we operate our supply chain;
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the highly competitive and evolving nature of the industry in
which we compete;
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our ability to effectively manage our inventory and reduce
inventory reserves;
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our ability to keep pace with changing consumer preferences;
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loss of or reduction in sales to any of our top customers,
especially Wal-Mart;
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financial difficulties experienced by any of our top customers;
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failure by us to protect against dramatic changes in the
volatile market price of cotton, the primary material used in
the manufacture of our products;
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the impact of increases in prices of other materials used in our
products, such as dyes and chemicals, and increases in other
costs, such as fuel, energy and utility costs;
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costs and adverse publicity arising from violations of labor or
environmental laws by us or any of our third-party manufacturers;
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our ability to attract and retain key personnel;
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our debt and debt service requirements that restrict our
operating and financial flexibility, and impose interest and
financing costs;
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the risk of inflation or deflation;
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consumer disposable income and spending levels, including the
availability and amount of individual consumer debt;
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retailer consolidation and other changes in the apparel
essentials industry;
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future financial performance, including availability, terms and
deployment of capital;
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new litigation or developments in existing litigation;
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our ability to comply with environmental and occupational health
and safety laws and regulations;
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general economic conditions; and
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possible terrorists attacks and ongoing military action in the
Middle East and other parts of the world.
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There may be other factors that may cause our actual results to
differ materially from the forward-looking statements. Our
actual results, performance or achievements could differ
materially from those expressed in, or
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implied by, the forward-looking statements. We can give no
assurances that any of the events anticipated by the
forward-looking statements will occur or, if any of them does,
what impact they will have on our results of operations and
financial condition. You should carefully read the factors
described in the Risk Factors section of this
prospectus and the documents incorporated by reference into this
prospectus for a description of certain risks that could, among
other things, cause our actual results to differ from these
forward-looking statements.
Forward-looking statements speak only as of the date they were
made. We undertake no obligation to update or revise
forward-looking statements to reflect events or circumstances
that arise after the date made or to reflect the occurrence of
unanticipated events, other than as required by law.
3
USE OF
PROCEEDS
We will use the net proceeds from our sale of the securities for
our general corporate purposes, which may include repaying
indebtedness, making additions to our working capital, funding
future acquisitions or for any other purpose we describe in the
applicable prospectus supplement.
RATIO OF
EARNINGS TO FIXED CHARGES
Set forth below is information concerning our ratio of earnings
to fixed charges. For purposes of determining the ratio of
earnings to fixed charges, earnings consist of the total of
(i) the following (a) pretax income from continuing
operations before adjustment for minority interests in
consolidated subsidiaries or income or loss from equity
investees, (b) fixed charges, (c) amortization of
capitalized interest, and (d) distributed income of equity
investees, minus the total of (ii) the following:
(a) interest capitalized and (b) the minority interest
in pre-tax income of subsidiaries that have not incurred fixed
charges. Fixed charges are defined as the sum of the following:
(a) interest expensed and capitalized, (b) amortized
premiums, discounts and capitalized expenses related to
indebtedness, and (c) an appropriate estimate of the
interest within rental expense.
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Six-Months
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Six-Months
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Year Ended
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Ended
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Year Ended
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Ended
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December 29,
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December 30,
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July 1,
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July 2,
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July 3,
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June 28,
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June 28, 2008
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2007
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2006(1)
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2006
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2005
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2004
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2003
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Ratios of earnings to fixed charges
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2.38x
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1.83
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2.24
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x
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10.37
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x
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7.64
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x
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8.71
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x
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10.35x
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(1) |
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In October 2006, our board of directors approved a change in our
fiscal year end from the Saturday closest to June 30 to the
Saturday closest to December 31. |
4
DESCRIPTION
OF DEBT SECURITIES
We may offer secured or unsecured debt securities, which may be
convertible or exchangeable. Our debt securities and any related
guarantees will be issued under an indenture entered into
between us and Branch Banking and Trust Company. Holders of
our indebtedness will be structurally subordinated to holders of
any indebtedness (including trade payables) of any of our
subsidiaries that do not guarantee our payment obligations under
such indebtedness.
We have summarized certain general features of the debt
securities from the indenture. The indenture is attached as an
exhibit to the registration statement of which this prospectus
forms a part. The following description of the terms of the debt
securities and the guarantees sets forth certain general terms
and provisions. The particular terms of the debt securities and
guarantees offered by any prospectus supplement and the extent,
if any, to which such general provisions may apply to the debt
securities and guarantees will be described in the related
prospectus supplement. Accordingly, for a description of the
terms of a particular issue of debt securities, reference must
be made to both the related prospectus supplement and to the
following description.
General
The aggregate principal amount of debt securities that may be
issued under the indenture is unlimited. The debt securities may
be issued in one or more series as may be authorized from time
to time.
Reference is made to the applicable prospectus supplement for
the following terms of the debt securities (if applicable):
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title of the series of debt securities;
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the price or prices (expressed as a percentage of the principal
amount) at which we will sell the debt securities;
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any limit on the aggregate principal amount of the series of
debt securities;
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whether the debt securities rank as senior subordinated debt or
subordinated debt or any combination thereof, and the terms of
any such subordination;
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whether securities issued by us will be entitled to the benefits
of any guarantees and the form and terms of any guarantee;
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the terms and conditions, if any, upon which the series of debt
securities shall be converted into or exchanged for other
securities;
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whether securities issued by us will be secured or unsecured,
and if secured, what the collateral will consist of;
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maturity date(s);
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the rate or rates (which may be fixed or variable) per annum or
the method used to determine the rate or rates (including any
currency exchange rate, commodity, commodity index, stock
exchange index or financial index) at which the debt securities
will bear interest, the date or dates from which interest will
accrue or the method for determining dates from which interest
will accrue, the date or dates on which interest will commence
and be payable and any regular record date for the interest
payable on any interest payment date;
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the manner in which the amounts of payment of principal of or
interest, if any, on the series of debt securities will be
determined (if such amounts may be determined by reference to an
index based on a currency or currencies or by reference to a
currency exchange rate, commodity, commodity index, stock
exchange index or financial index);
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the place or places where principal of, premium, if any, and
interest, if any, on the debt securities will be payable and the
method of such payment, if by wire transfer, mail or other means;
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provisions related to redemption or early repayment of the debt
securities of our option;
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our obligation, if any, to redeem or purchase any series of debt
securities pursuant to any sinking fund or analogous provisions
or at the option of a holder thereof and the period or periods
within which, the price or prices at which and the terms and
conditions upon which such debt securities shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
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authorized denominations;
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the form of the debt securities and whether the debt securities
will be issued in bearer or fully registered form (and if in
fully registered form, whether the debt securities will be
issuable, in whole or in part, as global debt securities);
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any depositaries, interest rate calculation agents, exchange
rate calculation agents or other agents with respect to the debt
securities;
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any changes in the trustee for such debt securities;
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the portion of principal amount of the debt securities payable
upon declaration of acceleration of the maturity date, if other
than the principal amount;
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any changes in or additions to the covenants applicable to the
particular debt securities being issued;
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additions to or changes in the events of default with respect to
the securities and any change in the right of the trustee or the
holders to declare the principal, premium and interest with
respect to such securities to be due and payable;
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the currency of denomination of the debt securities;
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the designation of the currency, currencies or currency units in
which the purchase price for, the principal of and any premium
and any interest on, such securities will be payable;
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if payments of principal of, premium or interest on the debt
securities will be made in one or more currencies or currency
units other than that or those in which the debt securities are
denominated, the manner in which the exchange rate with respect
to these payments will be determined;
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securities exchange(s) on which the debt securities will be
listed, if any;
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whether any underwriter(s) will act as market maker(s) for the
debt securities;
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extent to which a secondary market for the debt securities is
expected to develop;
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additions to or changes in the provisions relating to covenant
defeasance and legal defeasance;
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additions to or changes in the provisions relating to
satisfaction and discharge of the indenture;
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additions to or changes in the provisions relating to the
modification of the indenture both with and without the consent
of holders of debt securities issued under the
indenture; and
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any other terms of the debt securities, which may modify,
supplement or delete any provision of the indenture as it
applies to that series.
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One or more series of debt securities may be sold at a
substantial discount below their stated principal amount,
bearing no interest or interest at a rate which at the time of
issuance is below market rates. One or more series of debt
securities may be variable rate debt securities that may be
exchanged for fixed rate debt securities.
United States federal income tax consequences and special
considerations, if any, applicable to any such series will be
described in the applicable prospectus supplement.
The term debt securities includes debt securities
denominated in U.S. dollars or, if specified in the
applicable prospectus supplement, in any other freely
transferable currency or units based on or relating to foreign
currencies.
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We expect most debt securities to be issued in fully registered
form without coupons and in denominations of $1,000 and any
integral multiples thereof.
Transfer
and Exchange
Unless otherwise stated in the applicable prospectus supplement,
each debt security will be represented by either one or more
global securities registered in the name of The Depository
Trust Company, as depositary, or a nominee (we will refer
to any debt security represented by a global debt security as a
book-entry debt security), or a certificate issued
in definitive registered form (we will refer to any debt
security represented by a certificated security as a
certificated debt security) as set forth in the
applicable prospectus supplement. Except as set forth under the
heading Global Debt Securities and Book-Entry System
below, book-entry debt securities will not be issuable in
certificated form.
Certificated Debt Securities. You may
transfer or exchange certificated debt securities at any office
we maintain for this purpose in accordance with the terms of the
indenture. No service charge will be made for any transfer or
exchange of certificated debt securities, but we may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection with a transfer or
exchange.
You may effect the transfer of certificated debt securities and
the right to receive the principal of, premium and interest on
certificated debt securities only by surrendering the
certificate representing those certificated debt securities and
either reissuance by us or the trustee of the certificate to the
new holder or the issuance by us or the trustee of a new
certificate to the new holder.
Global Debt Securities and Book-Entry
System. Each global debt security
representing book-entry debt securities will be deposited with,
or on behalf of, the depositary, and registered in the name of
the depositary or a nominee of the depositary.
We anticipate that the depositary will follow the following
procedures with respect to book-entry debt securities.
Ownership of beneficial interests in book-entry debt securities
will be limited to persons that have accounts with the
depositary for the related global debt security, which we refer
to as participants, or persons that may hold interests through
participants. Upon the issuance of a global debt security, the
depositary will credit, on its book-entry registration and
transfer system, the participants accounts with the
respective principal amounts of the book-entry debt securities
represented by such global debt security beneficially owned by
such participants. The accounts to be credited will be
designated by any dealers, underwriters or agents participating
in the distribution of the book-entry debt securities. Ownership
of book-entry debt securities will be shown on, and the transfer
of such ownership interests will be effected only through,
records maintained by the depositary for the related global debt
security (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 certain purchasers of securities take physical
delivery of such securities in definitive form. These laws may
impair the ability to own, transfer or pledge beneficial
interests in book-entry debt securities.
So long as the depositary for a global debt security, or its
nominee, is the registered owner of that global debt security,
the depositary or its nominee, as the case may be, will be
considered the sole owner or holder of the book-entry debt
securities represented by such global debt security for all
purposes under the indenture. Except as described below,
beneficial owners of book-entry debt securities will not be
entitled to have securities registered in their names, will not
receive or be entitled to receive physical delivery of a
certificate in definitive form representing securities and will
not be considered the owners or holders of those securities
under the indenture. Accordingly, each person beneficially
owning book-entry debt securities must rely on the procedures of
the depositary for the related global debt security and, if such
person is not a participant, on the procedures of the
participant through which such person owns its interest, to
exercise any rights of a holder under the indenture.
We understand, however, that under existing industry practice,
the depositary will authorize the persons on whose behalf it
holds a global debt security to exercise certain rights of
holders of debt securities, and the
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indenture provides that we, the trustee and our respective
agents will treat as the holder of a debt security the persons
specified in a written statement of the depositary with respect
to that global debt security for purposes of obtaining any
consents or directions required to be given by holders of the
debt securities pursuant to the indenture.
We will make payments of principal of, and premium and interest
on book-entry debt securities to the depositary or its nominee,
as the case may be, as the registered holder of the related
global debt security. We, the trustee and any other agent of
ours or agent of the trustee will not have any responsibility or
liability for any aspect of the records relating to or payments
made on account of beneficial ownership interests in a global
debt security or for maintaining, supervising or reviewing any
records relating to beneficial ownership interests.
We expect that the depositary, upon receipt of any payment of
principal of, premium or interest on a global debt security,
will immediately credit participants accounts with
payments in amounts proportionate to the respective amounts of
book-entry debt securities held by each participant as shown on
the records of such depositary. We also expect that payments by
participants to owners of beneficial interests in book-entry
debt securities held through those 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.
We will issue certificated debt securities in exchange for each
global debt security if the depositary is at any time unwilling
or unable to continue as depositary or ceases to be a clearing
agency registered under the Exchange Act, and a successor
depositary registered as a clearing agency under the Exchange
Act is not appointed by us within 90 days. In addition, we
may at any time and in our sole discretion determine not to have
the book-entry debt securities of any series represented by one
or more global debt securities and, in that event, will issue
certificated debt securities in exchange for the global debt
securities of that series. Global debt securities will also be
exchangeable by the holders for certificated debt securities if
an event of default with respect to the book-entry debt
securities represented by those global debt securities has
occurred and is continuing. Any certificated debt securities
issued in exchange for a global debt security will be registered
in such name or names as the depositary shall instruct the
trustee. We expect that such instructions will be based upon
directions received by the depositary from participants with
respect to ownership of book-entry debt securities relating to
such global debt security.
We have obtained the foregoing information concerning the
depositary and the depositarys book-entry system from
sources we believe to be reliable, but we take no responsibility
for the accuracy of this information.
Change of
Control
Unless otherwise stated in the applicable prospectus supplement,
the debt securities will not contain any provisions which may
afford holders of the debt securities protection in the event we
have a change in control or in the event of a highly leveraged
transaction (whether or not such transaction results in a change
in control) which could adversely affect holders of debt
securities.
Covenants
We will set forth in the applicable prospectus supplement any
restrictive covenants applicable to any issue of debt securities.
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Consolidation,
Merger and Sale of Assets
Unless otherwise stated in the applicable prospectus supplement,
we may not consolidate with or merge with or into, or convey,
transfer or lease all or substantially all of our properties and
assets to, any person, which we refer to as a successor person,
unless:
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we are the surviving corporation or the successor person (if
other than Hanesbrands) is a corporation organized and validly
existing under the laws of any U.S. domestic jurisdiction
and expressly assumes our obligations on the debt securities and
under the indenture;
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immediately after giving effect to the transaction, no event of
default, and no event which, after notice or lapse of time, or
both, would become an event of default, shall have occurred and
be continuing under the indenture; and
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certain other conditions that may be set forth in the applicable
prospectus supplement are met.
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Events of
Default
Unless otherwise stated in the applicable prospectus supplement,
event of default means, with respect to any series of debt
securities, any of the following:
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default in the payment of any interest upon any debt security of
that series when it becomes due and payable, and continuance of
that default for a period of 30 days (unless the entire
amount of the payment is deposited by us with the trustee or
with a paying agent prior to the expiration of the
30-day
period);
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default in the payment of principal of or premium on any debt
security of that series when due and payable at maturity, upon
redemption or otherwise;
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default in the deposit of any sinking fund payment, when and as
due in respect of any debt security of that series;
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default in the performance or breach of any other covenant or
warranty by us in the indenture (other than a covenant or
warranty that has been included in the indenture solely for the
benefit of a series of debt securities other than that series),
which default continues uncured for a period of 60 days
after we receive written notice from the trustee or we and the
trustee receive written notice from the holders of not less than
a majority in principal amount of the outstanding debt
securities of that series as provided in the indenture;
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certain events of bankruptcy, insolvency or
reorganization; and
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any other event of default provided with respect to debt
securities of that series that is described in the applicable
prospectus supplement accompanying this prospectus.
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No event of default with respect to a particular series of debt
securities (except as to certain events of bankruptcy,
insolvency or reorganization) necessarily constitutes an event
of default with respect to any other series of debt securities.
The occurrence of an event of default may constitute an event of
default under our bank credit agreements in existence from time
to time. In addition, the occurrence of certain events of
default or an acceleration under the indenture may constitute an
event of default under certain of our other indebtedness
outstanding from time to time.
If an event of default with respect to debt securities of any
series at the time outstanding occurs and is continuing, then
the trustee or the holders of not less than a majority in
principal amount of the outstanding debt securities of that
series may, by a notice in writing to us (and to the trustee if
given by the holders), declare to be due and payable immediately
the principal (or, if the debt securities of that series are
discount securities, that portion of the principal amount as may
be specified in the terms of that series) of and accrued and
unpaid interest, if any, on all debt securities of that series.
In the case of an event of default resulting from certain events
of bankruptcy, insolvency or reorganization, the principal (or
such specified amount) of and accrued and unpaid interest, if
any, on all outstanding debt securities will become and be
immediately due and
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payable without any declaration or other act on the part of the
trustee or any holder of outstanding debt securities. At any
time after a declaration of acceleration with respect to debt
securities of any series has been made, but before a judgment or
decree for payment of the money due has been obtained by the
trustee, the holders of a majority in principal amount of the
outstanding debt securities of that series may rescind and annul
the acceleration if all events of default, other than the
non-payment of accelerated principal and interest, if any, with
respect to debt securities of that series, have been cured or
waived as provided in the indenture. We refer you to the
prospectus supplement relating to any series of debt securities
that are discount securities for the particular provisions
relating to acceleration of a portion of the principal amount of
such discount securities upon the occurrence of an event of
default.
The indenture provides that the trustee will be under no
obligation to exercise any of its rights or powers under the
indenture at the request of any holder of outstanding debt
securities, unless the trustee receives indemnity reasonably
satisfactory to it against any loss, liability or expense.
Subject to certain rights of the trustee, the holders of a
majority in principal amount of the outstanding debt securities
of any series will have the right 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 that series.
Unless stated otherwise in the applicable prospectus supplement,
no holder of any debt security of any series will have any right
to institute any proceeding, judicial or otherwise, with respect
to the indenture or for the appointment of a receiver or
trustee, or for any remedy under the indenture, unless:
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that holder has previously given to the trustee written notice
of a continuing event of default with respect to debt securities
of that series;
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the holders of at least a majority in principal amount of the
outstanding debt securities of that series have made written
request to the trustee to pursue the remedy;
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the holder or holders offer and, if requested, provide to the
trustee indemnity reasonably satisfactory to the trustee against
any loss, liability or expense;
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the trustee does not comply with the request within
60 days; and
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the trustee has not received from the holders of a majority in
principal amount of the outstanding debt securities of that
series a direction inconsistent with that request and has failed
to institute the proceeding within 60 days.
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Notwithstanding the foregoing, the holder of any debt security
will have an absolute and unconditional right to receive payment
of the principal of, premium and any interest on that debt
security on or after the due dates expressed in that debt
security and to institute suit for the enforcement of payment.
The indenture requires us, within 120 days after the end of
our fiscal year, to furnish to the trustee a statement as to
compliance with the indenture. The indenture provides that the
trustee may withhold notice to the holders of debt securities of
any series of any default or event of default (except in payment
on any debt securities of that series) with respect to debt
securities of that series if it in good faith determines that
withholding notice is in the interest of the holders of those
debt securities.
Modification
and Waiver
We may modify and amend the indenture with the consent of the
holders of at least a majority in principal amount of the
outstanding debt securities of each series affected by the
modifications or amendments. We may not make any modification or
amendment without the consent of the holders of each affected
debt security then outstanding if that amendment will:
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reduce the amount of debt securities whose holders must consent
to an amendment, supplement or waiver;
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reduce the rate of or extend the time for payment of interest
(including default interest) on any debt security;
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reduce the principal of or premium on or change the fixed
maturity of any debt security or reduce the amount of, or
postpone the date fixed for, the payment of any sinking fund or
analogous obligation with respect to any series of debt
securities;
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reduce the principal amount of discount securities payable upon
acceleration of maturity;
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waive a default in the payment of the principal of, premium or
interest on any debt security (except a rescission of
acceleration of the debt securities of any series by the holders
of at least a majority in aggregate principal amount of the then
outstanding debt securities of that series and a waiver of the
payment default that resulted from such acceleration);
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make the principal of or premium or interest on any debt
security payable in currency other than that stated in the debt
security;
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make any change to certain provisions of the indenture relating
to, among other things, the right of holders of debt securities
to receive payment of the principal of, premium and interest on
those debt securities and to institute suit for the enforcement
of any such payment and to waivers or amendments; or
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waive a redemption payment with respect to any debt security or
change any of the provisions with respect to the redemption of
any debt securities.
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Except for certain specified provisions, the holders of at least
a majority in principal amount of the outstanding debt
securities of any series may on behalf of the holders of all
debt securities of that series waive our compliance with
provisions of the indenture. The holders of a majority in
principal amount of the outstanding debt securities of any
series may on behalf of the holders of all the debt securities
of such series waive any past default under the indenture with
respect to that series and its consequences, except a default in
the payment of the principal of, premium or any interest on any
debt security of that series or in respect of a covenant or
provision which cannot be modified or amended without the
consent of the holder of each outstanding debt security of the
series affected; provided, however, that the holders of a
majority in principal amount of the outstanding debt securities
of any series may rescind an acceleration and its consequences,
including any related payment default that resulted from the
acceleration.
Defeasance
of Debt Securities and Certain Covenants in Certain
Circumstances
Legal Defeasance. The indenture
provides that, unless otherwise provided by the terms of the
applicable series of debt securities, we may be discharged from
any and all obligations in respect of the debt securities of any
series (except for certain obligations to register the transfer
or exchange of debt securities of such series, to replace
stolen, lost or mutilated debt securities of such series, and to
maintain paying agencies and certain provisions relating to the
treatment of funds held by paying agents). We will be so
discharged upon the deposit with the trustee, in trust, of money
and/or
U.S. government obligations or, in the case of debt
securities denominated in a single currency other than
U.S. dollars, foreign government obligations, that, through
the payment of interest and principal in accordance with their
terms, will provide money in an amount sufficient in the opinion
of a nationally recognized firm of independent public
accountants to pay and discharge each installment of principal,
premium and interest on and any mandatory sinking fund payments
in respect of the debt securities of that series on the stated
maturity of those payments in accordance with the terms of the
indenture and those debt securities.
This discharge may occur only if, among other things, we have
delivered to the trustee an opinion of counsel stating that we
have received from, or there has been published by, the United
States Internal Revenue Service a ruling or, since the date of
execution of the indenture, there has been a change in the
applicable United States federal income tax law, in either case
to the effect that, and based thereon such opinion shall confirm
that, the holders of the debt securities of that series will not
recognize income, gain or loss for United States federal
income tax purposes as a result of the deposit, defeasance and
discharge and will be subject to United States federal income
tax on the same amounts and in the same manner and at the same
times as would have been the case if the deposit, defeasance and
discharge had not occurred.
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Defeasance of Certain Covenants. The
indenture provides that, unless otherwise provided by the terms
of the applicable series of debt securities, upon compliance
with certain conditions:
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we may omit to comply with the covenant described under the
heading Consolidation, Merger and Sale of Assets and
certain other covenants set forth in the indenture, as well as
any additional covenants which may be set forth in the
applicable prospectus supplement; and
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any omission to comply with those covenants will not constitute
a default or an event of default with respect to the debt
securities of that series, or covenant defeasance.
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The conditions include:
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depositing with the trustee money
and/or
U.S. government obligations or, in the case of debt
securities denominated in a single currency other than
U.S. dollars, foreign government obligations, that, through
the payment of interest and principal in accordance with their
terms, will provide money in an amount sufficient in the opinion
of a nationally recognized firm of independent public
accountants to pay and discharge each installment of principal
of, premium and interest on and any mandatory sinking fund
payments in respect of the debt securities of that series on the
stated maturity of those payments in accordance with the terms
of the indenture and those debt securities; and
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delivering to the trustee an opinion of counsel to the effect
that the holders of the debt securities of that series will not
recognize income, gain or loss for United States federal income
tax purposes as a result of the deposit and related covenant
defeasance and will be subject to United States federal income
tax on the same amounts and in the same manner and at the same
times as would have been the case if the deposit and related
covenant defeasance had not occurred.
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Covenant Defeasance and Events of
Default. In the event we exercise our option
to effect covenant defeasance with respect to any series of debt
securities and the debt securities of that series are declared
due and payable because of the occurrence of any event of
default, the amount of money
and/or
U.S. government obligations or foreign government
obligations on deposit with the trustee will be sufficient to
pay amounts due on the debt securities of that series at the
time of their stated maturity but may not be sufficient to pay
amounts due on the debt securities of that series at the time of
the acceleration resulting from the event of default. However,
we shall remain liable for those payments.
Guarantees
Any debt securities may be guaranteed by one or more of our
direct or indirect subsidiaries. Each prospectus supplement will
describe any guarantees for the benefit of the series of debt
securities to which it relates, including required financial
information of the subsidiary guarantors, as applicable.
Governing
Law
The indenture, the debt securities and the guarantees shall be
construed in accordance with and governed by the laws of the
State of New York, without giving effect to the principles
thereof relating to conflicts of law.
DESCRIPTION
OF CAPITAL STOCK
The following description is a summary of the material terms of
our capital stock and reflects our charter and bylaws that are
in effect as of the date of this prospectus. The following
summary of the terms of our capital stock is qualified by
reference to our bylaws, our charter and our rights plan. See
Where You Can Find More Information.
General
Our charter provides that we may issue up to 500 million
shares of common stock, par value $0.01 per share, and up to
50 million shares of preferred stock, par value $0.01 per
share, and permits our board of directors, without stockholder
approval, to amend the charter to increase or decrease the
aggregate number of
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shares of stock or the number of shares of stock of any class or
series that we have authority to issue. As of June 28,
2008, 94,038,303 shares of our common stock were issued and
outstanding, options to purchase 4,859,355 shares of our
common stock were outstanding, restricted stock units covering
1,868,332 shares of our common stock were outstanding and
no shares of our preferred stock were issued and outstanding.
500,000 shares of Preferred Stock have been classified and
designated as Junior Participating Preferred Stock,
Series A, or Series A Preferred Stock, and
reserved for issuance upon the exercise of rights under our
rights agreement. See Preferred Stock
and Certain Provisions of Maryland Law and of
Our Charter and Bylaws That Could Have the Effect of Delaying,
Deferring or Preventing a Change in Control Rights
Agreement. The Maryland General Corporation Law, or
MGCL, provides that our stockholders are generally
not obligated to us or our creditors with respect to our stock,
except to the extent that the subscription price or other agreed
upon consideration has not been paid.
Common
Stock
General. Holders of our common stock
have no preference, conversion, exchange, sinking fund,
redemption or appraisal rights. Holders of our common stock are
entitled to receive dividends when authorized by our board of
directors out of our assets legally available for the payment of
dividends. Holders of our common stock are also entitled to
share ratably in our assets legally available for distribution
to our stockholders in the event of our liquidation, dissolution
or winding up, after payment of or adequate provision for all of
our known debts and liabilities. These rights are subject to,
and may be adversely affected by, the preferential rights
granted to any other class or series of our stock.
Each outstanding share of our common stock entitles the holder
to one vote on all matters submitted to a vote of our
stockholders, including the election of directors. Except as
provided with respect to any other class or series of stock, the
holders of our common stock will possess exclusive voting power.
A plurality of all votes cast at a stockholders meeting at which
a quorum is present will be sufficient for the election of
directors, and there is no cumulative voting in the election of
directors.
Under MGCL, a Maryland corporation generally cannot dissolve,
amend its charter, merge, sell all or substantially all of its
assets, engage in a share exchange or engage in similar
transactions outside of the ordinary course of business, unless
approved by the affirmative vote of stockholders holding at
least two-thirds of the shares entitled to vote on the matter.
However, a Maryland corporation may provide in its charter for
the approval of these matters by a lesser percentage, as long as
such percentage is not less than a majority of all the votes
entitled to be cast on the matter. Our charter provides for
approval by a majority of all the votes entitled to be cast in
these situations, except for certain amendments to our charter
relating to directors.
Holders of our common stock, solely by virtue of their holdings,
do not have preemptive rights to subscribe for or purchase any
shares of our capital stock which we may issue in the future.
Our common stock is and is expected to remain uncertificated.
Therefore our stockholders will not be able to obtain stock
certificates.
Preferred Stock Purchase Rights. We
have adopted a stockholder rights agreement. Under the
stockholder rights agreement, each outstanding share of common
stock has attached to it a right entitling its holder to
purchase from us one one-thousandth of a share of Series A
Preferred Stock (subject to antidilution provisions) upon the
occurrence of certain triggering events. Until the rights
distribution date, the rights will not be evidenced by separate
certificates and may be transferred only with the common stock
to which they are attached.
For so long as the rights continue to be associated with our
common stock, each new share of common stock we issue will
include a right. Stockholders will not be required to pay any
separate consideration for the rights issued with our common
stock.
For a more detailed discussion of the rights under our rights
agreement, please see Certain Provisions of
Maryland Law and of Our Charter and Bylaws That Could Have the
Effect of Delaying, Deferring or Preventing a Change in
Control Rights Agreement.
13
Preferred
Stock
The following briefly summarizes the material terms of our
preferred stock, other than pricing and related terms that will
be disclosed in an accompanying prospectus supplement. You
should read the particular terms of any series of preferred
stock offered by us, which will be described in more detail in
any prospectus supplement relating to such series, together with
the more detailed provisions of our charter, including the
articles supplementary thereto, relating to each particular
series of preferred stock for provisions that may be important
to you. The articles supplementary to our charter relating to
the particular series of preferred stock offered by an
accompanying prospectus supplement and this prospectus will be
filed as an exhibit to a document incorporated by reference in
the registration statement. The prospectus supplement will also
state whether any of the terms summarized below do not apply to
the series of preferred stock being offered.
Blank Check Preferred
Stock. Our charter authorizes our board of
directors to authorize blank check preferred stock.
Our board of directors can classify and issue from time to time
any unissued shares of preferred stock and reclassify any
previously classified but unissued shares of any series of
preferred stock. The applicable terms of a particular series of
preferred stock shall be set forth in the articles supplementary
to our charter establishing such series of preferred stock.
These terms must include, but are not limited to, some or all of
the following:
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title of the series;
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the number of shares of the series, which number our board of
directors may thereafter increase or decrease;
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whether and in what circumstances the holder is entitled to
receive dividends and other distributions;
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whether (and if so, when and on what terms) the series can be
redeemed by us or the holder or converted or exchanged by the
holder;
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whether the series will rank senior or junior to or on parity
with any other class or series of preferred stock; and
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voting and other rights of the series, if any.
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Unless otherwise described in the articles supplementary, in the
event we liquidate, dissolve or wind up our affairs, the holders
of any series of preferred stock will have preference over the
holders of common stock and any other capital stock ranking
junior to such series for payment out of our assets of the
amount specified in the applicable articles supplementary.
Holders of our preferred stock, solely by virtue of their
holdings, do not have preemptive rights to subscribe for or
purchase any shares of our capital stock which we may issue in
the future.
Series A Preferred Stock. Shares
of our Series A Preferred Stock have been reserved for
issuance upon exercise of the rights under our rights agreement.
For a more detailed discussion of our rights agreement and our
Series A Preferred Stock, see Certain
Provisions of Maryland Law and of Our Charter and Bylaws That
Could Have the Effect of Delaying, Deferring or Preventing a
Change in Control Rights Agreement. Shares of
our Series A Preferred Stock may only be purchased after
the rights have become exercisable. Each share of Series A
Preferred Stock:
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will rank junior to other senior series of stock as provided in
the terms of such series of stock and senior to our common stock;
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will entitle holders to a cumulative quarterly dividend, when,
as and if declared by our board of directors in an amount equal
to the greater of (a) $25.00, or (b) the product of
(i) 1,000 (subject to antidilution adjustment) and
(ii) the aggregate per share amount of all dividends on our
common stock since the preceding dividend payment date (or the
date of first issuance of Series A Preferred Stock if
dividends have not previously been paid thereon;
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will entitle holders to 1,000 votes (subject to antidilution
adjustment) on all matters submitted to a vote of our
stockholders;
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in the event of a liquidation, will entitle holders to a
preferred liquidation payment equal to the greater of
(a) $100, plus accrued and unpaid dividends, and
(b) an aggregate amount per share equal to the product of
(i) 1,000 (subject to antidilution adjustment) and
(ii) the aggregate amount to be distributed per share to
holders of our common stock; and
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in the event of any consolidation, merger, combination or other
transaction in which shares of our common stock are exchanged
for or changed into stock or securities of another entity, cash
and/or other
property, will entitle holders to exchange their Series A
Preferred Stock in an amount per share equal to the product of
(i) 1,000 (subject to antidilution adjustment) and
(ii) the aggregate amount of stock, securities, cash
and/or other
property into which or for which each share of our common stock
is changed or exchanged.
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The Series A Preferred Stock is not redeemable.
Transfer
Agent and Registrar
The transfer agent and registrar for the common stock is
Computershare Investor Services, LLC. The transfer agent,
registrar, dividend disbursing agent and redemption agent for
shares of each series of preferred stock will be named in the
prospectus supplement relating to such series.
New York
Stock Exchange Listing
Our common stock is listed on the New York Stock Exchange under
the symbol HBI.
Certain
Provisions of Maryland Law and of Our Charter and Bylaws That
Could Have the Effect of Delaying, Deferring or Preventing a
Change in Control
Provisions of MGCL, our charter and bylaws could make the
following more difficult:
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acquisition of us by means of a tender offer or merger;
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acquisition of us by means of a proxy contest or
otherwise; or
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removal of our incumbent officers and directors.
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These provisions, summarized below, are expected to discourage
coercive takeover practices and inadequate takeover bids. These
provisions also are designed to encourage persons seeking to
acquire control of us to first negotiate with our board of
directors. We believe that the benefits of the potential ability
to negotiate with the proponent of an unfriendly or unsolicited
proposal to acquire or restructure our company outweigh the
disadvantages of discouraging those proposals because
negotiation with such proponent could result in an improvement
of their terms.
Board of Directors. Our charter and
bylaws provide that the number of our directors may be
established by the board of directors but may not be fewer than
one nor more than 25. Our charter provides that any vacancy will
be filled by a majority of the remaining directors.
Our board of directors is not currently classified. However, it
would be permissible under MGCL for our board of directors to
classify or declassify itself without stockholder approval.
Our charter provides that, subject to the rights of one or more
classes or series of preferred stock, a director may be removed
from office only for cause and then only by the affirmative vote
of at least two thirds of the votes entitled to be cast
generally in the election of directors. For the purpose of the
charter, cause means the conviction of a felony or a final
judgment of a court of competent jurisdiction holding that such
director caused demonstrable, material harm to the corporation
through bad faith or active and deliberate dishonesty.
Authority to Issue Blank Check Preferred
Stock. The rights of holders of our common
stock or preferred stock offered may be adversely affected by
the rights of holders of any shares of preferred stock that may
be issued in the future. Our board of directors may cause shares
of preferred stock to be issued in public
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or private transactions for any proper corporate purpose.
Examples of proper corporate purposes include issuances to
obtain additional financing in connection with acquisitions or
otherwise, and issuances to our or our subsidiaries
officers, directors and employees pursuant to benefit plans or
otherwise. Shares of preferred stock we issue may have the
effect of rendering more difficult or discouraging an
acquisition of us deemed undesirable by our board of directors.
Power to Reclassify Shares of Our Common and Preferred
Stock. Our charter also authorizes our board
of directors to classify and reclassify any unissued shares of
our common stock and preferred stock into other classes or
series of capital stock, and permits our board of directors,
without stockholder approval, to amend the charter to increase
or decrease the aggregate number of shares of capital stock or
the number of shares of capital stock of any class or series
that we have authority to issue. Prior to issuance of shares of
each class or series, our board of directors is required under
MGCL and by our charter to set the preferences, conversion or
other rights, voting powers, restrictions, limitations as to
dividends or other distributions, qualifications and terms or
conditions of redemption for each class or series.
We believe that the power to issue additional shares of common
stock or preferred stock and to classify or reclassify unissued
shares of common stock or preferred stock and thereafter to
issue the classified or reclassified shares provides us with
increased flexibility in structuring possible future financings
and acquisitions and in meeting other needs which might arise.
These actions can be taken without stockholder approval, unless
stockholder approval is required by applicable law or the rules
of any stock exchange or automated quotation system on which our
securities may be listed or traded. The New York Stock Exchange
currently requires stockholder approval as a prerequisite to
listing shares in several instances, including where the present
or potential issuance of shares could result in an increase in
the number of shares of common stock or in the amount of voting
securities outstanding by at least 20%. If the approval of our
stockholders is not required for the issuance of our common
stock or preferred stock, our board of directors may determine
not to seek stockholder approval. Although we have no present
intention of doing so, we could issue a class or series of stock
that could, depending on the terms of such class or series, have
the effect of delaying, deferring or preventing a transaction or
a change in control that might involve a premium price for
holders of common stock or otherwise be believed to be in the
best interest of our stockholders.
Business Combinations. Under the MGCL,
business combinations between a Maryland corporation
and an interested stockholder or an affiliate of an interested
stockholder are prohibited for five years after the most recent
date on which the interested stockholder becomes an interested
stockholder. These business combinations include certain
mergers, consolidations, share exchanges, asset transfers or
issuances or reclassifications of equity securities. An
interested stockholder is defined as:
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any person who beneficially owns 10% or more of the voting power
of the corporations shares; or
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an affiliate or associate of the corporation who, at any time
within the two-year period prior to the date in question, was
the beneficial owner of 10% or more of the voting power of the
then outstanding voting stock of the corporation.
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A person is not an interested stockholder under the statute if
the board of directors approved in advance the transaction by
which the stockholder otherwise would have become an interested
stockholder. However, in approving a transaction, the board of
directors may provide that its approval is subject to
compliance, at or after the time of approval, with any terms or
conditions determined by the board.
After the five-year prohibition, any business combination
between the corporation and an interested stockholder generally
must be recommended by the board of directors of the corporation
and approved by the affirmative vote of at least:
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80% of the votes entitled to be cast by holders of outstanding
shares of voting stock of the corporation; and
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two-thirds of the votes entitled to be cast by the holders of
voting stock of the corporation other than voting shares held by
the interested stockholder with whom or with whose affiliate the
business combination is to be effected or held by an affiliate
or associate of the interested stockholder.
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These super-majority vote requirements do not apply to business
combinations in which the common stockholders receive a minimum
price, as defined under Maryland law, for their shares in the
form of cash or other consideration in the same form as
previously paid by the interested stockholder for its shares.
The statute provides for various exemptions from its provisions,
including business combinations that are exempted by the board
of directors prior to the time that the interested stockholder
becomes an interested stockholder.
The business combination statute could have the effect of
delaying, deferring or preventing a transaction or a change in
control that might involve a premium price for holders of our
common stock or otherwise believed to be in the best interest of
our stockholders.
Control Share
Acquisitions. Marylands control share
acquisition act provides that control shares of a Maryland
corporation acquired in a control share acquisition have no
voting rights, except to the extent approved by a vote of
two-thirds of the votes entitled to be cast on the matter.
Shares owned by the acquiror, by officers or by directors who
are employees of the corporation are excluded from shares
entitled to vote on the matter. Control shares are voting shares
of stock, which, if aggregated with all other shares of stock
owned by the acquiror or in respect of which the acquiror is
able to exercise or direct the exercise of voting power (except
solely by virtue of a revocable proxy), would entitle the
acquiror to exercise voting power in electing directors within
one of the following ranges:
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one-tenth or more but less than one-third;
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one-third or more but less than a majority; or
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a majority or more of all voting power.
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Control shares do not include shares the acquiring person is
then entitled to vote as a result of having previously obtained
stockholder approval. A control share acquisition means the
acquisition of control shares, subject to certain exceptions.
A person who has made or proposes to make a control share
acquisition may compel the board of directors of the corporation
to call a special meeting of stockholders, to be held within
50 days after a request and written undertaking, to
consider the voting rights of the control shares. The right to
compel the calling of a special meeting is subject to the
satisfaction of certain conditions, including delivery of an
acquiring person statement and a written undertaking to pay the
expenses of the meeting. If no request for a meeting is made,
the corporation may itself present the question at any
stockholders meeting.
If voting rights are not approved at the meeting or if the
acquiring person does not deliver an acquiring person statement
as required by the statute, then the corporation may redeem for
fair value any or all of the control shares, except those for
which voting rights have previously been approved. The right of
the corporation to redeem control shares is subject to certain
conditions and limitations. Fair value of the control shares is
determined, without regard to the absence of voting rights for
the control shares, as of the date of the last control share
acquisition by the acquiror or, if a meeting of stockholders is
held at which the voting rights of the shares are considered and
not approved, as of the date of such meeting. If voting rights
for control shares are approved at a stockholders meeting and
the acquiror becomes entitled to vote a majority of the shares
entitled to vote, all other stockholders may elect to exercise
appraisal rights.
The fair value of the shares as determined for purposes of
appraisal rights may not be less than the highest price per
share paid by the acquiror in the control share acquisition.
The control share acquisition statute does not apply to shares
acquired in a merger, consolidation or share exchange if the
corporation is a party to the transaction, or to acquisitions
approved or exempted by the charter or bylaws of the corporation.
Our bylaws contain a provision exempting any and all
acquisitions by any person of shares of our stock from
Marylands control share acquisition act. Our board of
directors may, however, amend or eliminate this provision in the
future without stockholder approval.
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Amendments to the Charter. Subject to
certain exceptions, our charter may be amended only if declared
advisable by the board of directors and approved by the
affirmative vote of the holders of not less than a majority of
all of the votes entitled to be cast on the matter. Among the
exceptions provided for in the charter, the board of directors
may, without action by our stockholders, amend our charter to
increase or decrease the aggregate number of shares of capital
stock or the number of shares of capital stock of any class or
series that we have authority to issue, or change the name or
designation or par value of any class or series of our capital
stock or the aggregate par value. In addition, certain
amendments to provisions of our charter relating to removal of
directors require the affirmative vote of the holders of not
less than two-thirds of all the votes entitled to be cast on the
matter.
Advance Notice of Director Nominations and New
Business. Our bylaws provide that with
respect to an annual meeting of stockholders, nominations of
persons for election to the board of directors and the proposal
of other business to be considered by stockholders may be made
only:
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pursuant to our notice of the meeting;
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by or at the direction of the board of directors; or
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by a stockholder who is a holder of record at both the time of
giving notice and the time of the meeting and who is entitled to
vote at the meeting and who has complied with the advance notice
procedures provided for in our bylaws.
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In order to comply with the advance notice procedures of our
bylaws, a stockholder must give written notice to our corporate
secretary at least 120 days, but no more that 150 days
in advance of the anniversary of the date that we mailed the
notice for the preceding years annual meeting. For
nominations to the board, the notice must include information
about the director nominee, including his or her name, holdings
of our stock, as well as information required by SEC rules
regarding elections to boards of directors. For other business
that a stockholder proposes to bring before the meeting, the
notice must include the reasons for proposing the business at
the meeting and a discussion of the stockholders material
interest in such business. Whether the notice relates to a
nomination to the board of directors or to other business to be
proposed at the meeting, among other information, the notice
also must include information about the stockholder and the
stockholders holdings of our stock.
With respect to special meetings of stockholders, only the
business specified in our notice of the special meeting may be
brought before the meeting. Nominations of persons for election
to the board of directors at a special meeting may be made only:
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pursuant to our notice of the special meeting;
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by or of the direction of the board of directors; or
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provided that the board of directors has determined that
directors shall be elected at such special meeting, by a
stockholder who is a holder of record at both the time of giving
notice and the time of the meeting and who is entitled to vote
at the meeting and who has complied with the advance notice
procedures provided for in our bylaws.
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Stockholder Action by Written
Consent. Our bylaws provide that any action
required or permitted to be taken by our stockholders may be
taken without a meeting only by a unanimous written consent of
all of the stockholders entitled to vote on the matter or, if
the action is advised and submitted to the stockholders for
approval by the board of directors, by a written consent of
stockholders entitled to cast not less than the minimum number
of votes that would be necessary for such action at a meeting of
stockholders.
Rights Agreement. Pursuant to our
stockholder rights agreement, one preferred stock purchase right
is distributed with and attached to each share of our common
stock. Each right will entitle its holder, under the
circumstances described below, to purchase from us one
one-thousandth of a share of our Series A Preferred Stock
at an initial exercise price per right of $75.00 per
one-thousandth of a share of Series A Preferred Stock,
subject to certain adjustments. The description and terms of the
rights are set forth in a rights agreement between us and
Computershare Investor Services, LLC, as rights agent. The
following description of the rights
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is a summary and is qualified in its entirety by reference to
the rights agreement, which has been included as an exhibit to
the registration statement of which this prospectus is a part.
Initially, the rights will be associated with our common stock
and evidenced by book-entry statements, which will contain a
notation incorporating the rights by reference. Each right
initially will be transferable with and only with the transfer
of the underlying share of common stock. The rights will become
exercisable and separately certificated only upon the rights
distribution date, which will occur upon the earlier of:
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ten days following a public announcement by us that a person or
group (an acquiring person) has acquired, or
obtained the right to acquire, beneficial ownership of 15% or
more of our outstanding shares of common stock (the date of the
announcement being the stock acquisition
date); or
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ten business days (or later if so determined by our board of
directors) following the commencement of or public disclosure of
an intention to commence a tender offer or exchange offer by a
person if, after acquiring the maximum number of securities
sought pursuant to such offer, such person, or any affiliate or
associate of such person, would acquire, or obtain the right to
acquire, beneficial ownership of 15% or more of our outstanding
shares of our common stock.
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Until the rights distribution date, the transfer of any shares
of common stock outstanding also will constitute the transfer of
the rights associated with such shares.
As soon as practicable after the rights distribution date, the
rights agent will mail to each record holder of our common stock
as of the close of business on the rights distribution date
certificates evidencing the rights. From and after the rights
distribution date, the separate certificates alone will
represent the rights. Except as otherwise provided in the rights
agreement, only shares of common stock issued or sold by
Hanesbrands prior to the rights distribution date will receive
rights.
The rights are not exercisable until the rights distribution
date and will expire ten years from September 1, 2006,
unless earlier redeemed or exchanged by us as described below.
Upon our public announcement that a person or group has become
an acquiring person (a flip-in event), each holder
of a right (other than any acquiring person and certain related
parties, whose rights will have automatically become null and
void) will have the right to receive, upon exercise, common
stock with a current market value equal to two times the
exercise price of the right. Under the stockholder rights
agreement current market value as of a particular date means the
average of the daily closing prices per share for the thirty
consecutive trading days immediately prior to such date.
For example, at an exercise price of $75 per right, each right
not owned by an acquiring person (or by certain related parties)
following a flip-in event would entitle its holder to purchase
$150 worth of common stock (as described above) for $75.
Assuming that the common stock had a current market value of $50
per share at that time, the holder of each valid right would be
entitled to purchase three shares of common stock for $150.
In the event that, at any time after a person becomes an
acquiring person:
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we are acquired in a merger or other business combination in
which we are not the surviving entity;
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we are acquired in a merger or other business combination in
which we are the surviving entity and all or part of our common
stock is converted into or exchanged for securities of another
entity, cash or other property;
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we effect a share exchange in which all or part of our common
stock is exchanged for securities of another entity, cash or
other property; or
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50% or more of our assets or earning power is sold or
transferred,
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(the above events being business combinations) then
each holder of a right (except rights which previously have been
voided as described above) will have the right to receive, upon
exercise, common stock of the acquiring company having a value
equal to two times the exercise price of the right.
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The exercise price of the rights, the number of shares of
Series A Preferred Stock issuable and the number of
outstanding rights will adjust to prevent dilution that may
occur from a stock dividend, a stock split or a reclassification
of the Series A Preferred Stock or common stock.
We may redeem the rights in whole, but not in part, at a price
of $0.001 per right (subject to adjustment and payable in cash,
common stock or other consideration deemed appropriate by our
board of directors) at any time prior to the earlier of the
stock acquisition date and the rights expiration date.
Immediately upon the action of our board of directors
authorizing any redemption, the rights will terminate and the
holders of rights will only be entitled to receive the
redemption price.
At any time after a person becomes an acquiring person and prior
to the earlier of (i) the time any person, together with
all affiliates and associates, becomes the beneficial owner of
50% or more of our outstanding common stock and (ii) the
occurrence of a business combination, our board of directors may
cause us to exchange for all or part of the then-outstanding and
exercisable rights shares of our common stock at an exchange
ratio of one common share per right, adjusted to reflect any
stock split, stock dividend or similar transaction.
Until a right is exercised, its holder, as such, will have no
rights as a stockholder with respect to such rights, including,
without limitation, the right to vote or to receive dividends.
While the distribution of the rights will not result in the
recognition of taxable income by our stockholders or us,
stockholders may, depending upon the circumstances, recognize
taxable income after a triggering event.
The terms of the rights may be amended by our board of directors
without the consent of the holders of the rights. From and after
the stock acquisition date, however, no amendment can adversely
affect the interests of the holders of the rights.
The rights will have certain anti-takeover effects. For example,
the rights will cause substantial dilution to any person or
group who attempts to acquire a significant interest in us
without advance approval from our board of directors. As a
result, the overall effect of the rights may be to render it
more difficult or to discourage any attempt to acquire us, even
if the acquisition would be in the best interest of our
stockholders. Because we can redeem the rights, the rights will
not interfere with a merger or other business combination
approved by our board of directors.
DESCRIPTION
OF WARRANTS
We may issue warrants for the purchase of debt securities,
common stock or preferred stock. We may issue warrants
independently or together with any other securities offered by
any prospectus supplement and may be attached to or separate
from the other offered securities. Each series of warrants will
be issued under a separate warrant agreement to be entered into
by us with a warrant agent. The warrant agent will act solely as
our agent in connection with the series of warrants and will not
assume any obligation or relationship of agency or trust for or
with any holders or beneficial owners of the warrants. Further
terms of the warrants and the applicable warrant agreements will
be set forth in the applicable prospectus supplement. As of the
date of this prospectus we have no warrants outstanding.
The applicable prospectus supplement will describe the terms of
the warrants in respect of which this prospectus is being
delivered, including, where applicable, the following:
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the title of the warrants;
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the aggregate number of the warrants;
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the price or prices at which the warrants will be issued;
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the designation, terms and number of shares of debt securities,
common stock or preferred stock purchasable upon exercise of the
warrants;
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the designation and terms of the offered securities, if any,
with which the warrants are issued and the number of the
warrants issued with each offered security;
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the date, if any, on and after which the warrants and the
related debt securities, common stock or preferred stock will be
separately transferable;
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the price at which each share of debt securities, common stock
or preferred stock purchasable upon exercise of the warrants may
be purchased;
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the date on which the right to exercise the warrants shall
commence and the date on which that right shall expire;
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the minimum or maximum amount of the warrants which may be
exercised at any one time;
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information with respect to book-entry procedures, if any;
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a discussion of certain Federal income tax
considerations; and
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any other terms of the warrants, including terms, procedures and
limitations relating to the exchange and exercise of the
warrants.
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DESCRIPTION
OF DEPOSITARY SHARES
We may, at our option, elect to offer fractional or multiple
shares of preferred stock, rather than single shares of
preferred stock. In the event we exercise this option, we will
issue receipts for depositary shares, each of which will
represent a fraction or multiple of, to be described in an
applicable prospectus supplement, of shares of a particular
series of preferred stock. The preferred stock represented by
depositary shares will be deposited under a deposit agreement
between us and a bank or trust company selected by us and having
its principal office in the United States and having a combined
capital and surplus of at least $50,000,000. Subject to the
terms of the deposit agreement, each owner of a depositary share
will be entitled, in proportion to the applicable preferred
stock or fraction or multiple thereof represented by the
depositary share, to all of the rights and preferences of the
preferred stock or other equity stock represented thereby,
including any dividend, voting, redemption, conversion or
liquidation rights. For an additional description of our common
stock and preferred stock, see the descriptions in this
prospectus under the heading Description of Capital
Stock.
The depositary shares will be evidenced by depositary receipts
issued pursuant to the deposit agreement. The particular terms
of the depositary shares offered by any prospectus supplement
will be described in the prospectus supplement, which will also
include a discussion of certain U.S. federal income tax
consequences.
A copy of the form of deposit agreement, including the form of
depositary receipt, will be included as an exhibit to the
registration statement or a current report on
Form 8-K
incorporated by reference herein.
DESCRIPTION
OF STOCK PURCHASE UNITS
AND STOCK PURCHASE CONTRACTS
We may issue stock purchase contracts, including contracts
obligating holders to purchase from us, and us to sell to the
holders, a specified number of shares of common stock at a
future date or dates. The price per share of common stock and
the number of shares of common stock may be fixed at the time
the stock purchase contracts are issued or may be determined by
reference to a specific formula stated in the stock purchase
contracts.
The stock purchase contracts may be issued separately or as part
of units that we call stock purchase units. Stock
purchase units consist of a stock purchase contract and either
our debt securities or debt obligations of third parties,
including U.S. treasury securities, securing the
holders obligations to purchase the common stock under the
stock purchase contracts.
The stock purchase contracts may require us to make periodic
payments to the holders of the stock purchase units or vice
versa, and these payments may be unsecured or refunded on some
basis. The stock purchase contracts may require holders to
secure their obligations in a specified manner.
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The applicable prospectus supplement will describe the terms of
the stock purchase contracts or stock purchase units. The
description in the prospectus supplement will only be a summary,
and you should read the stock purchase contracts, and, if
applicable, collateral or depositary arrangements, relating to
the stock purchase contracts or stock purchase units. Material
United States federal income tax considerations applicable to
the stock purchase units and the stock purchase contracts will
also be discussed in the applicable prospectus supplement.
22
PLAN OF
DISTRIBUTION
We may sell the securities offered pursuant to this prospectus
in any of the following ways:
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directly to one or more purchasers;
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through agents;
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through underwriters, brokers or dealers; or
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through a combination of any of these methods of sale.
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We will identify the specific plan of distribution, including
any underwriters, brokers, dealers, agents or direct purchasers
and their compensation, in a prospectus supplement.
LEGAL
MATTERS
Kirkland & Ellis LLP, Chicago, Illinois or Venable
LLP, Baltimore, Maryland will issue an opinion about certain
legal matters with respect to the securities. Any underwriters
or agents will be advised about other issues relating to any
offering by counsel named in the applicable prospectus
supplement.
EXPERTS
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 fiscal year ended December 29, 2007 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.
WHERE YOU
CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements
and other information with the SEC. You can inspect, read and
copy these reports, proxy statements and other information at
the public reference facilities the SEC maintains at
100 F Street, N.E., Washington, D.C. 20549. We
make available free of charge at www.hanesbrands.com (in the
Investors section) copies of materials we file with,
or furnish to, the SEC. You can also obtain copies of these
materials at prescribed rates by writing to the Public Reference
Section of the SEC at 100 F Street, N.E.,
Washington, D.C. 20549. You can obtain information on the
operation of the public reference facilities by calling the SEC
at
1-800-SEC-0330.
The SEC also maintains a website at www.sec.gov that makes
available reports, proxy statements and other information
regarding issuers that file electronically with it. By referring
to our website and the SECs website, we do not incorporate
such websites or their contents into this prospectus.
This prospectus is one part of a registration statement filed on
Form S-3
with the SEC under the Securities Act. This prospectus does not
contain all of the information set forth in the registration
statement and the exhibits and schedules to the registration
statement. For further information concerning us and the
securities, you should read the entire registration statement
and the additional information described under
Incorporation of Certain Information by Reference
below. The registration statement has been filed electronically
and may be obtained in any manner listed above. Any statements
contained herein concerning the provisions of any document are
not necessarily complete, and, in each instance, reference is
made to the copy of such document filed as an exhibit to the
registration statement or otherwise filed with the SEC. Each
such statement is qualified in its entirety by such reference.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference
information into this prospectus, which means that we can
disclose important information about us by referring you to
another document filed separately with the
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SEC. The information incorporated by reference is considered to
be a part of this prospectus. This prospectus incorporates by
reference the documents and reports listed below (other than
portions of these documents deemed to be furnished
or not deemed to be filed, including the portions of
these documents that are either (1) described in paragraphs
(d)(1), (d)(2), (d)(3) or (e)(5) of Item 407 of
Regulation S-K
promulgated by the SEC or (2) furnished under
Item 2.02 or Item 7.01 of a Current Report on
Form 8-K,
including any exhibits included with such Items):
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our Annual Report on
Form 10-K
for the fiscal year ended December 29, 2007;
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our Quarterly Reports on
Form 10-Q
for the fiscal quarters ended March 29, 2008 and
June 28, 2008;
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our Current Reports on
Form 8-K
filed on February 1, 2008 and May 8, 2008;
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our Definitive Proxy Statement on Schedule 14A filed on
March 10, 2008; and
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the description of our common stock contained in our
Registration Statement on Form 10 filed with the SEC on
August 10, 2006.
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We also incorporate by reference the information contained in
all other documents we file with the SEC pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
(other than portions of these documents deemed to be
furnished or not deemed to be filed,
including the portions of these documents that are either
(1) described in paragraphs (d)(1), (d)(2), (d)(3) or
(e)(5) of Item 407 of
Regulation S-K
promulgated by the SEC or (2) furnished under
Item 2.02 or Item 7.01 of a Current Report on
Form 8-K,
including any exhibits included with such Items, unless
otherwise specifically indicated therein) after the date of this
prospectus and prior to the termination of this offering. The
information contained in any such document will be considered
part of this prospectus from the date the document is filed with
the SEC.
Any statement contained in this prospectus or in a document
incorporated or deemed to be incorporated by reference in this
prospectus will be deemed to be modified or superseded to the
extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be
incorporated by reference in this prospectus modifies or
supersedes that statement. Any statement so modified or
superseded will not be deemed, except as so modified or
superseded, to constitute a part of this prospectus.
We undertake to provide without charge to any person, including
any beneficial owner, to whom a copy of this prospectus is
delivered, upon oral or written request of such person, a copy
of any or all of the documents that have been incorporated by
reference in this prospectus, other than exhibits to such other
documents (unless such exhibits are specifically incorporated by
reference therein). We will furnish any exhibit not specifically
incorporated by reference upon the payment of a specified
reasonable fee, which fee will be limited to our reasonable
expenses in furnishing such exhibit. All requests for such
copies should be directed to Corporate Secretary, Hanesbrands
Inc., 1000 East Hanes Mill Road, Winston-Salem, North Carolina
27105.
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Hanesbrands
Inc.
DEBT
SECURITIES, PREFERRED STOCK, COMMON STOCK,
WARRANTS, DEPOSITARY SHARES, STOCK PURCHASE UNITS
AND STOCK PURCHASE CONTRACTS
PROSPECTUS
You should rely only on the information contained or
incorporated by reference in this prospectus. We have not
authorized anyone to provide you with different information. You
should not assume that the information contained or incorporated
by reference in this prospectus is accurate as of any date other
than the date of this prospectus. We are not making an offer of
these securities in any state where the offer is not
permitted.
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 is a statement of the estimated expenses, to be
paid solely by the registrant, of the issuance and distribution
of the securities being registered hereby:
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Securities and Exchange Commission registration fee
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(1
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Printing expenses
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(2
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Accounting fees and expenses
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(2
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Legal fees and expenses
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(2
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Rating agency fees and expenses
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(2
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Trustees fees and expenses (including counsels fees)
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(2
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Miscellaneous expenses
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(2
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Total
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(2
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In accordance with Rules 456(b) and 457(r), we are
deferring payment of the registration fee. |
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An estimate of the aggregate amount of these expenses will be
reflected in the applicable prospectus supplement. |
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Item 15.
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Indemnification
of Directors and Officers.
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Maryland
Hanesbrands Inc. is a Maryland corporation.
Section 2-405.2
of MGCL permits a Maryland corporation to include in its charter
a provision limiting the liability of its directors and officers
to the corporation and its stockholders for money damages,
except for liability resulting from (1) actual receipt of
an improper benefit or profit in money, property or services or
(2) active and deliberate dishonesty established by a final
judgment or other adjudication as material to the cause of
action adjudicated in the proceeding. Our charter contains a
provision that eliminates directors and officers
liability to the maximum extent permitted by MGCL.
Section 2-418(d)
of MGCL requires a corporation (unless its charter provides
otherwise, which our charter does not) to indemnify a director
of the corporation who has been successful, on the merits or
otherwise, in the defense of any proceeding to which such
director was made a party by reason of the directors
service in that capacity.
Section 2-418(b)
permits a corporation to indemnify its present or former
directors against judgments, penalties, fines, settlements and
reasonable expenses actually incurred by the director in
connection with any proceeding to which the director is made a
party by reason of the directors service as a director,
unless it is established that (1) the act or omission of
the director was material to the matter giving rise to the
proceeding and was committed in bad faith or was the result of
active and deliberate dishonesty, (2) the director actually
received an improper personal benefit in money, property or
services or (3) in the case of any criminal proceeding, the
director had reasonable cause to believe that the act or
omission was unlawful. If, however, the proceeding was one by or
in the right of the corporation and the director was adjudged
liable to the corporation, the corporation may not indemnify the
director. MGCL also permits a Maryland corporation to pay a
directors expenses in advance of the final disposition of
an action to which the director is a party upon receipt by the
corporation of (1) a written affirmation by the director of
the directors good faith belief that the director has met
the standard of conduct necessary for indemnification and
(2) a written undertaking by or on behalf of the director
to repay the amount advanced if it is ultimately determined that
the director did not meet the necessary standard of conduct.
Section 2-418
of the MGCL defines a director as any person who is or was a
director of a corporation and any person who, while a director
of the corporation, is or was serving at the request of the
corporation as a director, officer, partner, trustee, employee
or agent of another foreign or domestic corporation,
partnership, joint venture, trust or other enterprise or
employee benefit plan.
Section 2-418(j)(2)
of MGCL also permits a Maryland corporation to indemnify and
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advance expenses to its officers, employees and agents to the
extent that it may indemnify and advance expenses to its
directors.
Our charter authorizes and our bylaws obligate us, to the
maximum extent permitted by MGCL, to indemnify any of our
present or former directors or officers or those of our
subsidiaries who (1) is made a party to a proceeding by
reason of such persons service in that capacity or
(2) while a director or officer and at our request, serves
or served another corporation, partnership, joint venture,
trust, employee benefit plan or any other enterprise as a
director, officer, partner or trustee from and against any claim
or liability to which that person may become subject or which
that person may incur by reason of such persons services
in such capacity and to pay or reimburse that persons
reasonable expenses in advance of final disposition of a
proceeding. This indemnity could apply to liabilities under the
Securities Act of 1933, as amended (the Securities Act),
in certain circumstances.
Our bylaws also permit us, with the approval of our board of
directors, to indemnify and advance expenses to (1) a
person who served a predecessor in any of the capacities
described above or (2) any of our employees or agents, or
any employee or agent of a predecessor.
We also maintain indemnity insurance as permitted by
Section 2-418
of MGCL, pursuant to which our officers and directors are
indemnified or insured against liability or loss under certain
circumstances, which may include liability or related losses
under the Securities Act or the Securities Exchange Act of 1934,
as amended.
Delaware
BA International, L.L.C., Caribesock, Inc., Caribetex, Inc.,
CASA International, LLC, Ceibena Del, Inc., Hanes Menswear, LLC,
Hanes Puerto Rico, Inc., Hanesbrands Distribution, Inc., HBI
Branded Apparel Enterprises, LLC, HBI Branded Apparel Limited,
Inc., HbI International, LLC, HBI Sourcing, LLC, Inner Self LLC,
Jasper-Costa Rica, L.L.C., Playtex Dorado, LLC, Playtex
Industries, Inc., Seamless Textiles, LLC, UPCR, Inc. and UPEL,
Inc. are organized under the laws of the State of Delaware.
Section 18-108
of the Delaware Limited Liability Company Act provides that a
limited liability company may, and shall have the power to,
indemnify and hold harmless any member or manager or other
person from and against any and all claims and demands
whatsoever.
Section 145 of the Delaware General Corporation Law, or the
DGCL, provides that a corporation may indemnify any person,
including an officer or director, who was or is, 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 such corporation), by reason of the fact that such
person is or was a director, officer, employee or agent of such
corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise. The indemnity may include expenses (including
attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided such
person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best
interests of such corporation, and, with respect to any criminal
actions and proceedings, had no reasonable cause to believe that
his conduct was unlawful. A Delaware corporation may indemnify
any person, including an officer or director, who was or is, or
is threatened to be made, a party to any threatened, pending or
contemplated action or suit by or in the right of such
corporation, under the same conditions, except that such
indemnification is limited to expenses (including
attorneys fees) actually and reasonably incurred by such
person, and except that no indemnification is permitted without
judicial approval if such person is adjudged to be liable to
such corporation. Where an officer or director of a corporation
is successful, on the merits or otherwise, in the defense of any
action, suit or proceeding referred to above, or any claim,
issue or matter therein, the corporation must indemnify that
person against the expenses (including attorneys fees)
which such officer or director actually and reasonably incurred
in connection therewith.
The Limited Liability Company Agreements of each of BA
International, L.L.C., CASA International, LLC, Hanes Menswear,
LLC, HBI Branded Apparel Enterprises, LLC, HbI International,
LLC, HBI Sourcing,
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LLC, Inner Self LLC, Playtex Dorado, LLC and Seamless Textiles,
LLC provide, to the fullest extent authorized by the Delaware
Limited Liability Company Act, for the indemnification of any
manager, officer, employee or agent of the companies from and
against any and all claims and demands arising by reason of the
fact that such person is, or was, a manager, officer, employee
or agent of the companies. The Limited Liability Company
Agreement of Jasper-Costa Rica, L.L.C. provides, to the fullest
extent authorized by the Delaware Limited Liability Company Act,
for the indemnification of the member.
The charter documents of each of Caribesock, Inc., Caribetex,
Inc., Ceibena Del, Inc., Hanesbrands Distribution, Inc., HBI
Branded Apparel Limited, Inc., Playtex Industries, Inc., UPCR,
Inc. and UPEL, Inc. provide for the indemnification of directors
and officers to the fullest extent authorized by the DGCL. The
charter documents of Hanes Puerto Rico, Inc. are silent as to
indemnification.
The bylaws of each of Caribesock, Inc., Caribetex, Inc., Ceibena
Del, Inc., Hanes Puerto Rico, Inc., Hanesbrands Distribution,
Inc., UPCR, Inc. and UPEL, Inc. provide, subject to certain
exceptions, for the indemnification of all current and former
directors, officers, employees or agents against expenses,
judgments, fines and amounts paid in connection with actions
(other than actions by or in the right of the corporation) taken
against such person by reason of the fact that he or she was a
director, officer, employee or agent of the corporation. The
bylaws of Playtex Industries, Inc. and HBI Branded Apparel
Limited, Inc. provide generally for the indemnification of
directors and officers to the fullest extent authorized by the
DGCL.
Colorado
Hanesbrands Direct, LLC is organized under the laws of the State
of Colorado.
Section 7-80-104(1)(k)
of the Colorado Limited Liability Company Act permits a company
to indemnify a member or manager or former member or manager of
the limited liability company as provided in
section 7-80-407.
Under
Section 7-80-407,
a limited liability company shall reimburse a member or manager
for payments made, and indemnify a member or manager for
liabilities incurred by the member or manager, in the ordinary
conduct of the business of the limited liability company or for
the preservation of its business or property if such payments
were made or liabilities incurred without violation of the
members or managers duties to the limited liability
company.
The Hanesbrands Direct, LLC Limited Liability Company Agreement
provides, to the fullest extent authorized by the Colorado
Limited Liability Company Act, for the indemnification of any
manager, director, officer, employee or agent of the company
from and against any and all claims and demands arising by
reason of the fact that such person is, or was, a manager,
director, officer, employee or agent of the company.
Notwithstanding the Limited Liability Company Agreement, the
company may not indemnify a director under the Colorado Limited
Liability Company Act: (a) in connection with a proceeding
by or in the right of the corporation in which the director was
adjudged liable to the corporation; or (b) in connection
with any other proceeding charging that the director derived an
improper personal benefit, whether or not involving action in an
official capacity, in which proceeding the director was adjudged
liable on the basis that the director derived an improper
personal benefit.
Reference is made to the attached Exhibit Index.
(a) Each of the undersigned registrants hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
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(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 Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum
aggregate offering price set forth in the Calculation of
Registration Fee table in the effective registration
statement; and
(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 (a)(1)(i), (a)(1)(ii)
and (a)(1)(iii) of this section do not apply if information
required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to
the 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 the 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 therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(i) 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) 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
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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) Each of the undersigned registrants hereby undertakes
that, for purposes of determining any liability under the
Securities Act of 1933, each filing of such 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 registrant
pursuant to the provisions referred to in Item 15, or
otherwise, each of the registrants has 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 such 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, such registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, Hanesbrands
Inc. has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of
Winston-Salem,
State of North Carolina on August 1, 2008.
HANESBRANDS INC.
Richard A. Noll
Chief Executive Officer
POWER OF
ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints jointly and
severally, Richard A. Noll, E. Lee Wyatt Jr. and Joia M.
Johnson, and each one of them, his or her attorneys-in-fact,
each with the power of substitution, for him or her in any and
all capacities, to sign any and all amendments to this
Registration Statement and to file the same, with exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and
confirming all that each said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated:
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Signature
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Capacity
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Date
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/s/ Richard
A. Noll
Richard
A. Noll
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Chief Executive Officer and Director
(principal executive officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ E.
Lee Wyatt Jr.
E.
Lee Wyatt Jr.
|
|
Executive Vice President, Chief Financial Officer
(principal financial officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Dale
W. Boyles
Dale
W. Boyles
|
|
Vice President,
Chief Accounting Officer and Controller
(principal accounting officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Lee
A. Chaden
Lee
A. Chaden
|
|
Chairman of the Board of Directors
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Charles
W. Coker
Charles
W. Coker
|
|
Director
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Bobby
J. Griffin
Bobby
J. Griffin
|
|
Director
|
|
August 1, 2008
|
|
|
|
|
|
/s/ James
C. Johnson
James
C. Johnson
|
|
Director
|
|
August 1, 2008
|
II-6
|
|
|
|
|
|
|
Signature
|
|
Capacity
|
|
Date
|
|
|
|
|
|
|
/s/ Jessica
T. Mathews
Jessica
T. Mathews
|
|
Director
|
|
August 1, 2008
|
|
|
|
|
|
/s/ J.
Patrick Mulcahy
J.
Patrick Mulcahy
|
|
Director
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Ronald
L. Nelson
Ronald
L. Nelson
|
|
Director
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Alice
M. Peterson
Alice
M. Peterson
|
|
Director
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Andrew
J. Schindler
Andrew
J. Schindler
|
|
Director
|
|
August 1, 2008
|
II-7
SIGNATURES
Pursuant to the requirements of the Securities Act, BA
International, L.L.C. has duly caused this registration
statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Winston-Salem, State
of North Carolina on August 1, 2008.
BA INTERNATIONAL, L.L.C.
Joia M. Johnson
President
POWER OF
ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints jointly and
severally, Richard A. Noll, E. Lee Wyatt Jr. and Joia M.
Johnson, and each one of them, his or her attorneys-in-fact,
each with the power of substitution, for him or her in any and
all capacities, to sign any and all amendments to this
Registration Statement and to file the same, with exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and
confirming all that each said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
|
|
Signature
|
|
Capacity
|
|
Date
|
|
|
|
|
|
|
/s/ Joia
M. Johnson
Joia
M. Johnson
|
|
President and Manager
(principal executive officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Dale
W. Boyles
Dale
W. Boyles
|
|
Vice President and Controller
(principal financial officer and principal accounting officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Catherine
A. Meeker
Catherine
A. Meeker
|
|
Manager
|
|
August 1, 2008
|
II-8
SIGNATURES
Pursuant to the requirements of the Securities Act, Caribesock,
Inc. has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of
Winston-Salem,
State of North Carolina on August 1, 2008.
CARIBESOCK, INC.
Joia M. Johnson
President
POWER OF
ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints jointly and
severally, Richard A. Noll, E. Lee Wyatt Jr. and Joia M.
Johnson, and each one of them, his or her attorneys-in-fact,
each with the power of substitution, for him or her in any and
all capacities, to sign any and all amendments to this
Registration Statement and to file the same, with exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and
confirming all that each said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
|
|
Signature
|
|
Capacity
|
|
Date
|
|
|
|
|
|
|
/s/ Joia
M. Johnson
Joia
M. Johnson
|
|
President and Director
(principal executive officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Dale
W. Boyles
Dale
W. Boyles
|
|
Vice President and Controller
(principal financial officer and principal accounting officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Catherine
A. Meeker
Catherine
A. Meeker
|
|
Director
|
|
August 1, 2008
|
II-9
SIGNATURES
Pursuant to the requirements of the Securities Act, Caribetex,
Inc. has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of
Winston-Salem,
State of North Carolina on August 1, 2008.
CARIBETEX, INC.
Joia M. Johnson
President
POWER OF
ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints jointly and
severally, Richard A. Noll, E. Lee Wyatt Jr. and Joia M.
Johnson, and each one of them, his or her attorneys-in-fact,
each with the power of substitution, for him or her in any and
all capacities, to sign any and all amendments to this
Registration Statement and to file the same, with exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and
confirming all that each said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
|
|
Signature
|
|
Capacity
|
|
Date
|
|
|
|
|
|
|
/s/ Joia
M. Johnson
Joia
M. Johnson
|
|
President and Director
(principal executive officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Dale
W. Boyles
Dale
W. Boyles
|
|
Vice President and Controller
(principal financial officer and principal accounting officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Catherine
A. Meeker
Catherine
A. Meeker
|
|
Director
|
|
August 1, 2008
|
II-10
SIGNATURES
Pursuant to the requirements of the Securities Act, CASA
International, LLC has duly caused this registration statement
to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Winston-Salem, State of North
Carolina on August 1, 2008.
CASA INTERNATIONAL, LLC
Joia M. Johnson
President
POWER OF
ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints jointly and
severally, Richard A. Noll, E. Lee Wyatt Jr. and Joia M.
Johnson, and each one of them, his or her attorneys-in-fact,
each with the power of substitution, for him or her in any and
all capacities, to sign any and all amendments to this
Registration Statement and to file the same, with exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and
confirming all that each said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
|
|
Signature
|
|
Capacity
|
|
Date
|
|
|
|
|
|
|
/s/ Joia
M. Johnson
Joia
M. Johnson
|
|
President and Manager
(principal executive officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Dale
W. Boyles
Dale
W. Boyles
|
|
Vice President and Controller
(principal financial officer and principal accounting officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Catherine
A. Meeker
Catherine
A. Meeker
|
|
Manager
|
|
August 1, 2008
|
II-11
SIGNATURES
Pursuant to the requirements of the Securities Act, Ceibena Del,
Inc. has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of
Winston-Salem,
State of North Carolina on August 1, 2008.
CEIBENA DEL, INC.
Joia M. Johnson
President
POWER OF
ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints jointly and
severally, Richard A. Noll, E. Lee Wyatt Jr. and Joia M.
Johnson, and each one of them, his or her attorneys-in-fact,
each with the power of substitution, for him or her in any and
all capacities, to sign any and all amendments to this
Registration Statement and to file the same, with exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and
confirming all that each said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
|
|
Signature
|
|
Capacity
|
|
Date
|
|
|
|
|
|
|
/s/ Joia
M. Johnson
Joia
M. Johnson
|
|
President and Director
(principal executive officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Dale
W. Boyles
Dale
W. Boyles
|
|
Vice President and Controller
(principal financial officer and principal accounting officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Catherine
A. Meeker
Catherine
A. Meeker
|
|
Director
|
|
August 1, 2008
|
II-12
SIGNATURES
Pursuant to the requirements of the Securities Act, Hanes
Menswear, LLC has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Winston-Salem, State of North
Carolina on August 1, 2008.
HANES MENSWEAR, LLC
Joia M. Johnson
President
POWER OF
ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints jointly and
severally, Richard A. Noll, E. Lee Wyatt Jr. and Joia M.
Johnson, and each one of them, his or her attorneys-in-fact,
each with the power of substitution, for him or her in any and
all capacities, to sign any and all amendments to this
Registration Statement and to file the same, with exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and
confirming all that each said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
|
|
Signature
|
|
Capacity
|
|
Date
|
|
|
|
|
|
|
/s/ Joia
M. Johnson
Joia
M. Johnson
|
|
President and Manager
(principal executive officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Dale
W. Boyles
Dale
W. Boyles
|
|
Vice President and Controller
(principal financial officer and principal accounting officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Catherine
A. Meeker
Catherine
A. Meeker
|
|
Manager
|
|
August 1, 2008
|
II-13
SIGNATURES
Pursuant to the requirements of the Securities Act, Hanes Puerto
Rico, Inc. has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Winston-Salem, State of North
Carolina on August 1, 2008.
HANES PUERTO RICO, INC.
Joia M. Johnson
President
POWER OF
ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints jointly and
severally, Richard A. Noll, E. Lee Wyatt Jr. and Joia M.
Johnson, and each one of them, his or her attorneys-in-fact,
each with the power of substitution, for him or her in any and
all capacities, to sign any and all amendments to this
Registration Statement and to file the same, with exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and
confirming all that each said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
|
|
Signature
|
|
Capacity
|
|
Date
|
|
|
|
|
|
|
/s/ Joia
M. Johnson
Joia
M. Johnson
|
|
President and Director
(principal executive officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Dale
W. Boyles
Dale
W. Boyles
|
|
Vice President and Controller
(principal financial officer and principal accounting officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Catherine
A. Meeker
Catherine
A. Meeker
|
|
Director
|
|
August 1, 2008
|
II-14
SIGNATURES
Pursuant to the requirements of the Securities Act, Hanesbrands
Direct, LLC has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Winston-Salem, State of North
Carolina on August 1, 2008.
HANESBRANDS DIRECT, LLC
Michael O. Ernst
President
POWER OF
ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints jointly and
severally, Richard A. Noll, E. Lee Wyatt Jr. and Joia M.
Johnson, and each one of them, his or her attorneys-in-fact,
each with the power of substitution, for him or her in any and
all capacities, to sign any and all amendments to this
Registration Statement and to file the same, with exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and
confirming all that each said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
|
|
Signature
|
|
Capacity
|
|
Date
|
|
|
|
|
|
|
/s/ Michael
O. Ernst
Michael
O. Ernst
|
|
President
(principal executive officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Dale
W. Boyles
Dale
W. Boyles
|
|
Vice President and Controller
(principal financial officer and principal accounting officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Joia
M. Johnson
Joia
M. Johnson
|
|
Manager
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Catherine
A. Meeker
Catherine
A. Meeker
|
|
Manager
|
|
August 1, 2008
|
II-15
SIGNATURES
Pursuant to the requirements of the Securities Act, Hanesbrands
Distribution, Inc. has duly caused this registration statement
to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Winston-Salem, State of North
Carolina on August 1, 2008.
HANESBRANDS DISTRIBUTION, INC.
Joia M. Johnson
President
POWER OF
ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints jointly and
severally, Richard A. Noll, E. Lee Wyatt Jr. and Joia M.
Johnson, and each one of them, his or her attorneys-in-fact,
each with the power of substitution, for him or her in any and
all capacities, to sign any and all amendments to this
Registration Statement and to file the same, with exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and
confirming all that each said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
|
|
Signature
|
|
Capacity
|
|
Date
|
|
|
|
|
|
|
/s/ Joia
M. Johnson
Joia
M. Johnson
|
|
President and Director
(principal executive officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Dale
W. Boyles
Dale
W. Boyles
|
|
Vice President and Controller
(principal financial officer and principal accounting officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Catherine
A. Meeker
Catherine
A. Meeker
|
|
Director
|
|
August 1, 2008
|
II-16
SIGNATURES
Pursuant to the requirements of the Securities Act, HBI Branded
Apparel Enterprises, LLC has duly caused this registration
statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Winston-Salem, State
of North Carolina on August 1, 2008.
HBI BRANDED APPAREL ENTERPRISES, LLC
Joia M. Johnson
President
POWER OF
ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints jointly and
severally, Richard A. Noll, E. Lee Wyatt Jr. and Joia M.
Johnson, and each one of them, his or her attorneys-in-fact,
each with the power of substitution, for him or her in any and
all capacities, to sign any and all amendments to this
Registration Statement and to file the same, with exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and
confirming all that each said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
|
|
Signature
|
|
Capacity
|
|
Date
|
|
|
|
|
|
|
/s/ Joia
M. Johnson
Joia
M. Johnson
|
|
President and Manager
(principal executive officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Dale
W. Boyles
Dale
W. Boyles
|
|
Vice President and Controller
(principal financial officer and principal accounting officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Catherine
A. Meeker
Catherine
A. Meeker
|
|
Manager
|
|
August 1, 2008
|
II-17
SIGNATURES
Pursuant to the requirements of the Securities Act, HBI Branded
Apparel Limited, Inc. has duly caused this registration
statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Winston-Salem, State
of North Carolina on August 1, 2008.
HBI BRANDED APPAREL LIMITED, INC.
Joia M. Johnson
President
POWER OF
ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints jointly and
severally, Richard A. Noll, E. Lee Wyatt Jr. and Joia M.
Johnson, and each one of them, his or her attorneys-in-fact,
each with the power of substitution, for him or her in any and
all capacities, to sign any and all amendments to this
Registration Statement and to file the same, with exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and
confirming all that each said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
|
|
Signature
|
|
Capacity
|
|
Date
|
|
|
|
|
|
|
/s/ Joia
M. Johnson
Joia
M. Johnson
|
|
President and Director
(principal executive officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Dale
W. Boyles
Dale
W. Boyles
|
|
Vice President and Controller
(principal financial officer and principal accounting officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Catherine
A. Meeker
Catherine
A. Meeker
|
|
Director
|
|
August 1, 2008
|
II-18
SIGNATURES
Pursuant to the requirements of the Securities Act, HbI
International, LLC has duly caused this registration statement
to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Winston-Salem, State of North
Carolina on August 1, 2008.
HBI INTERNATIONAL, LLC
Joia M. Johnson
President
POWER OF
ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints jointly and
severally, Richard A. Noll, E. Lee Wyatt Jr. and Joia M.
Johnson, and each one of them, his or her attorneys-in-fact,
each with the power of substitution, for him or her in any and
all capacities, to sign any and all amendments to this
Registration Statement and to file the same, with exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and
confirming all that each said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
|
|
Signature
|
|
Capacity
|
|
Date
|
|
|
|
|
|
|
/s/ Joia
M. Johnson
Joia
M. Johnson
|
|
President and Manager
(principal executive officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Dale
W. Boyles
Dale
W. Boyles
|
|
Vice President and Controller
(principal financial officer and principal accounting officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Catherine
A. Meeker
Catherine
A. Meeker
|
|
Manager
|
|
August 1, 2008
|
II-19
SIGNATURES
Pursuant to the requirements of the Securities Act, HBI
Sourcing, LLC has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the City of
Winston-Salem,
State of North Carolina on August 1, 2008.
HBI SOURCING, LLC
Joia M. Johnson
President
POWER OF
ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints jointly and
severally, Richard A. Noll, E. Lee Wyatt Jr. and Joia M.
Johnson, and each one of them, his or her attorneys-in-fact,
each with the power of substitution, for him or her in any and
all capacities, to sign any and all amendments to this
Registration Statement and to file the same, with exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and
confirming all that each said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
|
|
Signature
|
|
Capacity
|
|
Date
|
|
|
|
|
|
|
/s/ Joia
M. Johnson
Joia
M. Johnson
|
|
President
(principal executive officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Dale
W. Boyles
Dale
W. Boyles
|
|
Vice President and Controller
(principal financial officer and principal accounting officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Joia
M. Johnson
Hanesbrands
Inc., as sole member of
HBI Sourcing, LLC
|
|
|
|
August 1, 2008
|
Executive Vice President, General
Counsel and Corporate Secretary
II-20
SIGNATURES
Pursuant to the requirements of the Securities Act, Inner Self
LLC has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of
Winston-Salem,
State of North Carolina on August 1, 2008.
INNER SELF LLC
Joia M. Johnson
President
POWER OF
ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints jointly and
severally, Richard A. Noll, E. Lee Wyatt Jr. and Joia M.
Johnson, and each one of them, his or her attorneys-in-fact,
each with the power of substitution, for him or her in any and
all capacities, to sign any and all amendments to this
Registration Statement and to file the same, with exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and
confirming all that each said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
|
|
Signature
|
|
Capacity
|
|
Date
|
|
|
|
|
|
|
/s/ Joia
M. Johnson
Joia
M. Johnson
|
|
President and Manager
(principal executive officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Dale
W. Boyles
Dale
W. Boyles
|
|
Vice President and Controller
(principal financial officer and principal accounting officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Catherine
A. Meeker
Catherine
A. Meeker
|
|
Manager
|
|
August 1, 2008
|
II-21
SIGNATURES
Pursuant to the requirements of the Securities Act, Jasper-Costa
Rica, L.L.C. has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Winston-Salem, State of North
Carolina on August 1, 2008.
JASPER-COSTA RICA, L.L.C.
Joia M. Johnson
President
POWER OF
ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints jointly and
severally, Richard A. Noll, E. Lee Wyatt Jr. and Joia M.
Johnson, and each one of them, his or her attorneys-in-fact,
each with the power of substitution, for him or her in any and
all capacities, to sign any and all amendments to this
Registration Statement and to file the same, with exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and
confirming all that each said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
|
|
Signature
|
|
Capacity
|
|
Date
|
|
|
|
|
|
|
/s/ Joia
M. Johnson
Joia
M. Johnson
|
|
President
(principal executive officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Dale
W. Boyles
Dale
W. Boyles
|
|
Vice President and Controller
(principal financial officer and principal accounting officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Catherine
A. Meeker
Industria
Textileras del Este ITE, S. de R.L., as sole member
|
|
|
|
August 1, 2008
|
|
|
By: |
Catherine A. Meeker
Fourth Manager
|
II-22
SIGNATURES
Pursuant to the requirements of the Securities Act, Playtex
Dorado, LLC has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the City of
Winston-Salem,
State of North Carolina on August 1, 2008.
PLAYTEX DORADO, LLC
Joia M. Johnson
President
POWER OF
ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints jointly and
severally, Richard A. Noll, E. Lee Wyatt Jr. and Joia M.
Johnson, and each one of them, his or her attorneys-in-fact,
each with the power of substitution, for him or her in any and
all capacities, to sign any and all amendments to this
Registration Statement and to file the same, with exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and
confirming all that each said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
|
|
Signature
|
|
Capacity
|
|
Date
|
|
|
|
|
|
|
/s/ Joia
M. Johnson
Joia
M. Johnson
|
|
President and Manager
(principal executive officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Dale
W. Boyles
Dale
W. Boyles
|
|
Vice President and Controller
(principal financial officer and principal accounting officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Catherine
A. Meeker
Catherine
A. Meeker
|
|
Manager
|
|
August 1, 2008
|
II-23
SIGNATURES
Pursuant to the requirements of the Securities Act, Playtex
Industries, Inc. has duly caused this registration statement to
be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Winston-Salem, State of North
Carolina on August 1, 2008.
PLAYTEX INDUSTRIES, INC.
Joia M. Johnson
President
POWER OF
ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints jointly and
severally, Richard A. Noll, E. Lee Wyatt Jr. and Joia M.
Johnson, and each one of them, his or her attorneys-in-fact,
each with the power of substitution, for him or her in any and
all capacities, to sign any and all amendments to this
Registration Statement and to file the same, with exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and
confirming all that each said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
|
|
Signature
|
|
Capacity
|
|
Date
|
|
|
|
|
|
|
/s/ Joia
M. Johnson
Joia
M. Johnson
|
|
President and Director
(principal executive officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Dale
W. Boyles
Dale
W. Boyles
|
|
Vice President and Controller
(principal financial officer and principal accounting officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Catherine
A. Meeker
Catherine
A. Meeker
|
|
Director
|
|
August 1, 2008
|
II-24
SIGNATURES
Pursuant to the requirements of the Securities Act, Seamless
Textiles, LLC has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Winston-Salem, State of North
Carolina on August 1, 2008.
SEAMLESS TEXTILES, LLC
Joia M. Johnson
President
POWER OF
ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints jointly and
severally, Richard A. Noll, E. Lee Wyatt Jr. and Joia M.
Johnson, and each one of them, his or her attorneys-in-fact,
each with the power of substitution, for him or her in any and
all capacities, to sign any and all amendments to this
Registration Statement and to file the same, with exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and
confirming all that each said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
|
|
Signature
|
|
Capacity
|
|
Date
|
|
|
|
|
|
|
/s/ Joia
M. Johnson
Joia
M. Johnson
|
|
President and Manager
(principal executive officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Dale
W. Boyles
Dale
W. Boyles
|
|
Vice President and Controller
(principal financial officer and principal accounting officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Catherine
A. Meeker
Catherine
A. Meeker
|
|
Manager
|
|
August 1, 2008
|
II-25
SIGNATURES
Pursuant to the requirements of the Securities Act, UPCR, Inc.
has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the
City of Winston-Salem, State of North Carolina on August 1,
2008.
UPCR, INC.
Joia M. Johnson
President
POWER OF
ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints jointly and
severally, Richard A. Noll, E. Lee Wyatt Jr. and Joia M.
Johnson, and each one of them, his or her attorneys-in-fact,
each with the power of substitution, for him or her in any and
all capacities, to sign any and all amendments to this
Registration Statement and to file the same, with exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and
confirming all that each said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
|
|
Signature
|
|
Capacity
|
|
Date
|
|
|
|
|
|
|
/s/ Joia
M. Johnson
Joia
M. Johnson
|
|
President and Director
(principal executive officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Dale
W. Boyles
Dale
W. Boyles
|
|
Vice President and Controller
(principal financial officer and principal accounting officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Catherine
A. Meeker
Catherine
A. Meeker
|
|
Director
|
|
August 1, 2008
|
II-26
SIGNATURES
Pursuant to the requirements of the Securities Act, UPEL, Inc.
has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the
City of Winston-Salem, State of North Carolina on August 1,
2008.
UPEL, INC.
Joia M. Johnson
President
POWER OF
ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints jointly and
severally, Richard A. Noll, E. Lee Wyatt Jr. and Joia M.
Johnson, and each one of them, his or her attorneys-in-fact,
each with the power of substitution, for him or her in any and
all capacities, to sign any and all amendments to this
Registration Statement and to file the same, with exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and
confirming all that each said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
|
|
Signature
|
|
Capacity
|
|
Date
|
|
|
|
|
|
|
/s/ Joia
M. Johnson
Joia
M. Johnson
|
|
President and Director
(principal executive officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Dale
W. Boyles
Dale
W. Boyles
|
|
Vice President and Controller
(principal financial officer and principal accounting officer)
|
|
August 1, 2008
|
|
|
|
|
|
/s/ Catherine
A. Meeker
Catherine
A. Meeker
|
|
Director
|
|
August 1, 2008
|
II-27
EXHIBIT INDEX
|
|
|
|
|
Exhibit No.
|
|
Description
|
|
|
1
|
.1
|
|
Form of Underwriting Agreement.(1)
|
|
3
|
.1
|
|
Articles of Amendment and Restatement of Hanesbrands Inc.
(incorporated by reference from Exhibit 3.1 to the
Registrants Current Report on Form 8-K filed with the
Securities and Exchange Commission on September 5, 2006,
Commission File No. 001-32891).
|
|
3
|
.2
|
|
Articles Supplementary (Junior Participating Preferred Stock,
Series A) (incorporated by reference from Exhibit 3.2 to the
Registrants Current Report on Form 8-K filed with the
Securities and Exchange Commission on September 5, 2006,
Commission File No. 001-32891).
|
|
3
|
.3
|
|
Amended and Restated Bylaws of Hanesbrands Inc. (incorporated by
reference from Exhibit 3.1 to the Registrants Current
Report on Form 8-K filed with the Securities and Exchange
Commission on September 27, 2007, Commission File No. 001-32891).
|
|
4
|
.1
|
|
Rights Agreement between Hanesbrands Inc. and Computershare
Trust Company, N.A., Rights Agent. (incorporated by reference
from Exhibit 4.1 to the Registrants Current Report on Form
8-K filed
with the Securities and Exchange Commission on September 5,
2006, Commission File No. 001-32891).
|
|
4
|
.2
|
|
Form of Rights Certificate (incorporated by reference from
Exhibit 4.2 to the Registrants Current Report on Form 8-K
filed with the Securities and Exchange Commission on September
5, 2006, Commission File No. 001-32891).
|
|
4
|
.3
|
|
Indenture, dated as of August 1, 2008, among Hanesbrands
Inc., certain subsidiaries of Hanesbrands Inc., and Branch
Banking and Trust Company, as Trustee.
|
|
4
|
.4
|
|
Form of Debt Securities.(1)
|
|
4
|
.5
|
|
Specimen Preferred Stock Certificate.(1)
|
|
4
|
.6
|
|
Form of Warrant.(1)
|
|
4
|
.7
|
|
Form of Depositary Agreement.(1)
|
|
4
|
.8
|
|
Form of Stock Purchase Contract (including form of stock
purchase contract certificate) and, if applicable, Collateral or
Depositary Agreements.(1)
|
|
4
|
.9
|
|
Form of Unit Agreement (including form of unit certificate).(1)
|
|
5
|
.1
|
|
Opinion of Kirkland & Ellis LLP.
|
|
5
|
.2
|
|
Opinion of Venable LLP.
|
|
12
|
.1
|
|
Calculation of ratio of earnings to fixed charges.
|
|
23
|
.1
|
|
Consent of PricewaterhouseCoopers LLP.
|
|
23
|
.2
|
|
Consent of Kirkland & Ellis LLP (set forth in Exhibit 5.1).
|
|
23
|
.3
|
|
Consent of Venable LLP (set forth in Exhibit 5.2).
|
|
24
|
.1
|
|
Powers of attorney (included on the signature page of the
Registration Statement).
|
|
25
|
.1
|
|
Statement of Eligibility under the Trust Indenture Act of 1939
of Branch Banking and Trust Company, as Trustee under the
Indenture.
|
|
|
|
(1) |
|
To be filed, if necessary, by a post effective amendment to the
registration statement or as an exhibit to a document
incorporated by reference herein. |
Exhibit 4.3
Exhibit 4.3
Hanesbrands Inc.
INDENTURE
Dated as of August 1, 2008
Branch Banking and Trust Company
Trustee
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
Page |
|
ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE |
|
|
1 |
|
|
|
|
|
|
Section 1.1. Definitions |
|
|
1 |
|
Section 1.2. Other Definitions |
|
|
5 |
|
Section 1.3. Incorporation by Reference of Trust Indenture Act |
|
|
6 |
|
Section 1.4. Rules of Construction |
|
|
6 |
|
|
|
|
|
|
ARTICLE II. THE SECURITIES |
|
|
7 |
|
|
|
|
|
|
Section 2.1. Issuable in Series |
|
|
7 |
|
Section 2.2. Establishment of Terms of Series of Securities |
|
|
7 |
|
Section 2.3. Execution and Authentication |
|
|
9 |
|
Section 2.4. Registrar and Paying Agent |
|
|
10 |
|
Section 2.5. Paying Agent to Hold Money in Trust |
|
|
11 |
|
Section 2.6. Securityholder Lists |
|
|
11 |
|
Section 2.7. Transfer and Exchange |
|
|
12 |
|
Section 2.8. Mutilated, Destroyed, Lost and Stolen Securities |
|
|
12 |
|
Section 2.9. Outstanding Securities |
|
|
13 |
|
Section 2.10. Treasury Securities |
|
|
13 |
|
Section 2.11. Temporary Securities |
|
|
13 |
|
Section 2.12. Cancellation |
|
|
14 |
|
Section 2.13. Defaulted Interest |
|
|
14 |
|
Section 2.14. Special Record Dates |
|
|
14 |
|
Section 2.15. Global Securities |
|
|
15 |
|
Section 2.16. CUSIP Numbers |
|
|
16 |
|
|
|
|
|
|
ARTICLE III. REDEMPTION |
|
|
16 |
|
|
|
|
|
|
Section 3.1. Notice to Trustee |
|
|
16 |
|
Section 3.2. Selection of Securities to be Redeemed or Repurchased |
|
|
16 |
|
Section 3.3. Notice of Redemption |
|
|
17 |
|
Section 3.4. Effect of Notice of Redemption |
|
|
17 |
|
Section 3.5. Deposit of Redemption Price |
|
|
18 |
|
Section 3.6. Securities Redeemed in Part |
|
|
18 |
|
|
|
|
|
|
ARTICLE IV. COVENANTS |
|
|
18 |
|
|
|
|
|
|
Section 4.1. Payment of Principal and Interest |
|
|
18 |
|
Section 4.2. Maintenance of Office or Agency |
|
|
18 |
|
Section 4.3. SEC Reports |
|
|
19 |
|
Section 4.4. Compliance Certificate |
|
|
20 |
|
Section 4.5. Taxes
|
|
|
20 |
|
Section 4.6. Stay, Extension and Usury Laws |
|
|
20 |
|
Section 4.7. Corporate Existence |
|
|
21 |
|
|
|
|
|
|
ARTICLE V. SUCCESSORS |
|
|
21 |
|
|
|
|
|
|
Section 5.1. Merger, Consolidation, or Sale of Assets |
|
|
21 |
|
i
|
|
|
|
|
|
|
|
Page |
|
Section 5.2. Successor Corporation Substituted |
|
|
22 |
|
|
|
|
|
|
ARTICLE VI. DEFAULTS AND REMEDIES |
|
|
22 |
|
|
|
|
|
|
Section 6.1. Events of Default |
|
|
22 |
|
Section 6.2. Acceleration |
|
|
24 |
|
Section 6.3. Other Remedies |
|
|
24 |
|
Section 6.4. Waiver of Past Defaults |
|
|
24 |
|
Section 6.5. Control by Majority |
|
|
25 |
|
Section 6.6. Limitation on Suits |
|
|
25 |
|
Section 6.7. Rights of Holders of Securities to Receive Payment |
|
|
25 |
|
Section 6.8. Collection Suit by Trustee |
|
|
26 |
|
Section 6.9. Trustee May File Proofs of Claim |
|
|
26 |
|
Section 6.10. Priorities |
|
|
26 |
|
Section 6.11. Undertaking for Costs |
|
|
27 |
|
|
|
|
|
|
ARTICLE VII. TRUSTEE |
|
|
27 |
|
|
|
|
|
|
Section 7.1. Duties of Trustee |
|
|
27 |
|
Section 7.2. Rights of Trustee |
|
|
28 |
|
Section 7.3. Individual Rights of Trustee |
|
|
30 |
|
Section 7.4. Trustees Disclaimer |
|
|
30 |
|
Section 7.5. Notice of Defaults |
|
|
30 |
|
Section 7.6. Reports by Trustee to Holders |
|
|
30 |
|
Section 7.7. Compensation and Indemnity |
|
|
30 |
|
Section 7.8. Replacement of Trustee |
|
|
31 |
|
Section 7.9. Successor Trustee by Merger, etc. |
|
|
32 |
|
Section 7.10. Eligibility; Disqualification |
|
|
32 |
|
Section 7.11. Preferential Collection of Claims Against Company |
|
|
32 |
|
|
|
|
|
|
ARTICLE VIII. LEGAL DEFEASANCE AND COVENANT DEFEASANCE |
|
|
32 |
|
|
|
|
|
|
Section 8.1. Option to Effect Legal Defeasance or Covenant Defeasance |
|
|
32 |
|
Section 8.2. Legal Defeasance and Discharge |
|
|
33 |
|
Section 8.3. Covenant Defeasance |
|
|
33 |
|
Section 8.4. Conditions to Legal or Covenant Defeasance |
|
|
34 |
|
Section 8.5. Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions |
|
|
35 |
|
Section 8.6. Repayment to Company |
|
|
36 |
|
Section 8.7. Reinstatement |
|
|
36 |
|
|
|
|
|
|
ARTICLE IX. AMENDMENTS AND WAIVERS |
|
|
36 |
|
|
|
|
|
|
Section 9.1. Without Consent of Holders |
|
|
36 |
|
Section 9.2. With Consent of Holders |
|
|
37 |
|
Section 9.3. Limitations |
|
|
38 |
|
Section 9.4. Compliance with Trust Indenture Act |
|
|
38 |
|
Section 9.5. Revocation and Effect of Consents |
|
|
39 |
|
Section 9.6. Notation on or Exchange of Securities |
|
|
39 |
|
Section 9.7. Trustee Protected |
|
|
39 |
|
|
|
|
|
|
ARTICLE X. GUARANTEES |
|
|
39 |
|
|
|
|
|
|
Section 10.1.
Guarantees |
|
|
39 |
|
ii
|
|
|
|
|
|
|
|
Page |
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ARTICLE XI. SATISFACTION AND DISCHARGE |
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40 |
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Section 11.1. Satisfaction and Discharge |
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40 |
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Section 11.2. Application of Trust Money |
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41 |
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ARTICLE XII. MISCELLANEOUS |
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41 |
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Section 12.1. Trust Indenture Act Controls |
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41 |
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Section 12.2. Notices |
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41 |
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Section 12.3. Communication by Holders with Other Holders |
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42 |
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Section 12.4. Certificate and Opinion as to Conditions Precedent |
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42 |
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Section 12.5. Statements Required in Certificate or Opinion |
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43 |
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Section 12.6. Rules by Trustee and Agents |
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43 |
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Section 12.7. Legal Holidays |
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43 |
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Section 12.8. No Recourse Against Others |
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43 |
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Section 12.9. Counterparts |
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43 |
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Section 12.10. Governing Laws |
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44 |
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Section 12.11. No Adverse Interpretation of Other Agreements |
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44 |
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Section 12.12. Successors |
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44 |
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Section 12.13. Severability |
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44 |
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Section 12.14. Table of Contents, Headings, Etc. |
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44 |
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Section 12.15. Securities in a Foreign Currency |
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44 |
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Section 12.16. Judgment Currency |
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45 |
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ARTICLE XIII. SINKING FUNDS |
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45 |
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Section 13.1. Applicability of Article |
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45 |
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Section 13.2. Satisfaction of Sinking Fund Payments with Securities |
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46 |
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Section 13.3. Redemption of Securities for Sinking Fund |
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46 |
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iii
HANESBRANDS INC.
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of August 1, 2008
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§ 310(a)(1) |
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7.10 |
(a)(2) |
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7.10 |
(a)(3) |
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Not Applicable |
(a)(4) |
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Not Applicable |
(a)(5) |
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7.10 |
(b) |
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7.10 |
§ 311(a) |
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7.11 |
(b) |
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7.11 |
(c) |
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Not Applicable |
§ 312(a) |
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2.6 |
(b) |
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12.3 |
(c) |
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12.3 |
§ 313(a) |
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7.6 |
(b)(1) |
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7.6 |
(b)(2) |
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7.6 |
(c)(1) |
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7.6 |
(d) |
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7.6 |
§ 314(a) |
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4.3, 4.4 |
(b) |
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Not Applicable |
(c)(1) |
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12.4 |
(c)(2) |
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12.4 |
(c)(3) |
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Not Applicable |
(d) |
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Not Applicable |
(e) |
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12.5 |
(f) |
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Not Applicable |
§ 315(a) |
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7.1 |
(b) |
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7.5 |
(c) |
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7.1 |
(d) |
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7.1 |
(e) |
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6.11 |
§ 316(a) |
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2.10 |
(a)(1)(A) |
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6.5 |
(a)(1)(B) |
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6.4 |
(b) |
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6.7 |
(c) |
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2.14, 9.5(b) |
§ 317(a)(1) |
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6.8 |
(a)(2) |
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6.9 |
(b) |
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2.5 |
§ 318(a) |
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12.1 |
iv
Note: This reconciliation and tie shall not, for any purpose, be deemed to be part of the
Indenture.
v
Indenture dated as of August 1, 2008 between Hanesbrands Inc., a Maryland corporation
(Company), and Branch Banking and Trust Company, as trustee (Trustee).
Each party agrees as follows for the benefit of the other party and for the equal and ratable
benefit of the Holders of the Securities issued under this Indenture.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
Additional Amounts means any additional amounts which are required hereby or by any
Security, under circumstances specified herein or therein, to be paid by the Company in respect of
certain taxes imposed on Holders specified herein or therein and which are owing to such Holders.
Affiliate of any specified person means any other person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified person. For the
purposes of this definition, control (including, with correlative meanings, the terms controlled
by and under common control with), as used with respect to any person, shall mean the
possession, directly or indirectly, of the power to direct or cause the direction of the management
or policies of such person, whether through the ownership of voting securities or by agreement or
otherwise.
Agent means any Registrar, Paying Agent or Service Agent.
Authorized Newspaper means a newspaper in an official language of the country of publication
customarily published at least once a day for at least five days in each calendar week and of
general circulation in the place in connection with which the term is used. If it shall be
impractical in the opinion of the Trustee to make any publication of any notice required hereby in
an Authorized Newspaper, any publication or other notice in lieu thereof that is made or given by
the Trustee shall constitute a sufficient publication of such notice.
Bearer means anyone in possession from time to time of a Bearer Security.
Bearer Security means any Security, including any interest coupon appertaining thereto, that
does not provide for the identification of the Holder thereof.
Board of Directors means the Board of Directors of the Company or any duly authorized
committee thereof.
Board Resolution means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been adopted by the Board of Directors or pursuant to
authorization by the Board of Directors and to be in full force and effect on the date of the
certificate and delivered to the Trustee.
Business Day means, unless otherwise provided by Board Resolution, Officers Certificate or
supplemental indenture hereto for a particular Series, any day except a Saturday,
Sunday or a legal holiday in The City of New York on which banking institutions are authorized
or required by law, regulation or executive order to close.
Capital Stock means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock;
(3) in the case of a partnership or limited liability company, partnership interests (whether
general or limited) or membership interests; and
(4) any other interest or participation that confers on a person the right to receive a share
of the profits and losses of, or distributions of assets of, the issuing person, but excluding from
all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt
securities include any right of participation with Capital Stock.
Company means the party named as such above until a successor replaces it and thereafter
means the successor.
Company Order means a written order signed in the name of the Company by two Officers, one
of whom must be the Companys principal executive officer, principal financial officer or principal
accounting officer.
Company Request means a written request signed in the name of the Company by its Chief
Executive Officer, the President or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Secretary or an Assistant Secretary, and delivered to the Trustee.
Corporate Trust Office means the office of the Trustee at which at any particular time its
corporate trust business shall be principally administered.
Default means any event which is, or after notice or passage of time or both would be, an
Event of Default.
Depository means, with respect to the Securities of any Series issuable or issued in whole
or in part in the form of one or more Global Securities, the person designated as Depository for
such Series by the Company, which Depository shall be a clearing agency registered under the
Exchange Act; and if at any time there is more than one such person, Depository as used with
respect to the Securities of any Series shall mean the Depository with respect to the Securities of
such Series.
Discount Security means any Security that provides for an amount less than the stated
principal amount thereof to be due and payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.2.
Dollars
and $ means the currency of The United States of America.
2
Equity Interests means Capital Stock and all warrants, options or other rights to acquire
Capital Stock (but excluding any debt security that is convertible into, or exchangeable for,
Capital Stock).
Exchange Act means the Securities Exchange Act of 1934, as amended.
Foreign Currency means any currency or currency unit issued by a government other than the
government of The United States of America.
GAAP means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by a significant segment of the
accounting profession, which are in effect from time to time.
Global Security or Global Securities means a Security or Securities, as the case may be,
in the form established pursuant to Section 2.2 evidencing all or part of a Series of Securities,
issued to the Depository for such Series or its nominee, and registered in the name of such
Depository or nominee.
Government Securities means direct obligations of, or obligations guaranteed by, the United
States of America, and the payment for which the United States pledges its full faith and credit.
Guarantor means any person that issues a guarantee of the Securities, either on the Issue
Date or after the Issue Date in accordance with the terms of this Indenture; provided, that upon
the release and discharge of such person from its guarantee in accordance with this Indenture, such
person shall cease to be a Guarantor.
Hedging Obligations means, with respect to any specified person, the obligations of such
person under:
(1) currency exchange, interest rate or commodity swap agreements, currency exchange, interest
rate or commodity cap agreements and currency exchange, interest rate or commodity collar
agreements and
(2) (i) agreements or arrangements designed to protect such person against fluctuations in
currency exchange, interest rates, commodity prices or commodity transportation or transmission
pricing or availability; (ii) any netting arrangements, power purchase and sale agreements, fuel
purchase and sale agreements, swaps, options and other agreements, in each case, that fluctuate in
value with fluctuations in energy, power or gas prices; and (iii) agreements or arrangements for
commercial or trading activities with respect to the purchase, transmission, distribution, sale,
lease or hedge of any energy related commodity or service.
Holder or Securityholder means a person in whose name a Security is registered or the
holder of a Bearer Security.
3
Indenture means this Indenture as amended or supplemented from time to time and shall
include the form and terms of particular Series of Securities established as contemplated
hereunder.
interest with respect to any Discount Security which by its terms bears interest only after
Maturity, means interest payable after Maturity.
Issue Date means with respect to any Series of Securities the first date such Securities are
issued under this Indenture.
Lien means, with respect to any asset:
(1) any mortgage, deed of trust, deed to secure debt, lien (statutory or otherwise), pledge,
hypothecation, encumbrance, restriction, collateral assignment, charge or security interest in, on
or of such asset;
(2) the interest of a vendor or a lessor under any conditional sale agreement, capital lease
or title retention agreement (or any financing lease having substantially the same economic effect
as any of the foregoing) relating to such asset; and
(3) in the case of Equity Interests or debt securities, any purchase option, call or similar
right of a third party with respect to such Equity Interests or debt securities.
Maturity, when used with respect to any Security or installment of principal thereof, means
the date on which the principal of such Security or such installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, notice of option to elect repayment or otherwise.
Officer means the Chief Executive Officer, the Chief Financial Officer, the President, any
Vice-President, the Treasurer, the Secretary, any Assistant Treasurer or any Assistant Secretary of
the Company.
Officers Certificate means a certificate signed by two Officers, one of whom must be the
Companys principal executive officer, principal financial officer or principal accounting officer.
Opinion of Counsel means a written opinion of legal counsel who is acceptable to the
Trustee. The counsel may be an employee of or counsel to the Company.
person means any individual, corporation, partnership, joint venture, association, limited
liability company, joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
principal of a Security means the principal of the Security plus, when appropriate, the
premium, if any, on, and any Additional Amounts in respect of, the Security.
Responsible Officer means any officer of the Trustee in its Corporate Trust Office and also
means, with respect to a particular corporate trust matter, any other officer to
4
whom any corporate trust matter is referred because of his or her knowledge of and familiarity
with a particular subject.
SEC means the Securities and Exchange Commission.
Securities means the debentures, notes or other debt instruments of the Company of any
Series authenticated and delivered under this Indenture.
Series or Series of Securities means each series of debentures, notes or other debt
instruments of the Company created pursuant to Sections 2.1 and 2.2 hereof.
Stated Maturity when used with respect to any Security or any installment of principal
thereof or interest thereon, means the date specified in such Security as the fixed date on which
the principal of such Security or such installment of principal or interest is due and payable.
Subsidiary of any specified person means any corporation, association or other business
entity of which more than 50% of the total voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such
person or one or more of the other Subsidiaries of that person or a combination thereof.
TIA means the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) as in effect on the
date of this Indenture; provided, however, that in the event the Trust Indenture
Act of 1939 is amended after such date, TIA means, to the extent required by any such amendment,
the Trust Indenture Act as so amended.
Trustee means the person named as the Trustee in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Trustee shall mean each person who is then a Trustee hereunder, and if
at any time there is more than one such person, Trustee as used with respect to the Securities of
any Series shall mean the Trustee with respect to Securities of that Series.
Section 1.2. Other Definitions.
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DEFINED IN |
TERM |
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SECTION |
Bankruptcy Law |
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6.1 |
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Custodian |
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6.1 |
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Event of Default |
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6.1 |
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Journal |
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12.15 |
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Judgment Currency |
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12.16 |
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Legal Holiday |
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12.7 |
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mandatory sinking fund payment |
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13.1 |
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Market Exchange Rate |
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12.15 |
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New York Banking Day |
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12.16 |
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5
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DEFINED IN |
TERM |
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SECTION |
optional sinking fund payment |
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13.1 |
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Paying Agent |
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2.4 |
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Registrar |
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2.4 |
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Required Currency |
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12.16 |
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Service Agent |
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2.4 |
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successor person |
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5.1 |
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Section 1.3. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture. The following TIA terms used in this Indenture
have the following meanings:
Commission means the SEC.
indenture securities means the Securities.
indenture security holder means a Securityholder.
indenture to be qualified means this Indenture.
indenture trustee or institutional trustee means the Trustee.
obligor on the indenture securities means the Company and any successor
obligor upon the Securities.
All other terms used in this Indenture that are defined by the TIA, defined by TIA reference
to another statute or defined by SEC rule under the TIA and not otherwise defined herein are used
herein as so defined.
Section 1.4. Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it in
accordance with generally accepted accounting principles;
(c) references to generally accepted accounting principles and GAAP shall mean
generally accepted accounting principles in effect as of the time when and for the period as
to which such accounting principles are to be applied;
(d) or is not exclusive;
(e) words in the singular include the plural, and in the plural include the
singular; and
(f) provisions apply to successive events and transactions.
6
ARTICLE II.
THE SECURITIES
Section 2.1. Issuable in Series.
The aggregate principal amount of Securities that may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued in one or more Series. All Securities of
a Series shall be identical except as may be set forth in a Board Resolution, a supplemental
indenture or an Officers Certificate detailing the adoption of the terms thereof pursuant to the
authority granted under a Board Resolution. In the case of Securities of a Series to be issued from
time to time, the Board Resolution, Officers Certificate or supplemental indenture detailing the
adoption of the terms thereof pursuant to authority granted under a Board Resolution may provide
for the method by which specified terms (such as interest rate, maturity date, record date or date
from which interest shall accrue) are to be determined. Securities may differ between Series in
respect of any matters, provided that all Series of Securities shall be equally and ratably
entitled to the benefits of the Indenture.
Section 2.2. Establishment of Terms of Series of Securities.
At or prior to the issuance of any Securities within a Series, the following shall be
established by or pursuant to a Board Resolution, and set forth or determined in the manner
provided in a Board Resolution, supplemental indenture or an Officers Certificate pursuant to
authority granted under a Board Resolution:
(a) the title of the Series (which shall distinguish the Securities of that
particular Series from the Securities of any other Series);
(b) the price or prices (expressed as a percentage of the principal amount thereof)
at which the Securities of the Series will be issued;
(c) any limit upon the aggregate principal amount of the Securities of the Series
which may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Securities of the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6);
(d) whether the Securities rank as senior subordinated Securities or subordinated
Securities or any combination thereof and the terms of any such subordination;
(e) the form and terms of any guarantee of any Securities of the series;
(f) the terms and conditions, if any, upon which the Securities of the series shall
be exchanged for or converted into other securities of the Company or securities of another
person;
(g) the provisions, if any, relating to any security provided for the Securities of
the Series;
7
(h) the date or dates on which the principal of the Securities of the Series is
payable;
(i) the rate or rates (which may be fixed or variable) per annum or, if applicable,
the method used to determine such rate or rates (including, but not limited to, any currency
exchange rate, commodity, commodity index, stock exchange index or financial index) at which
the Securities of the Series shall bear interest, if any, the date or dates from which such
interest, if any, shall accrue, or the method for determining the date or dates from which
interest will accrue, the date or dates on which such interest, if any, shall commence and
be payable and any regular record date for the interest payable on any interest payment
date;
(j) the manner in which the amounts of payment of principal of or interest, if any,
on the Securities of the Series will be determined, if such amounts may be determined by
reference to an index based on a currency or currencies or by reference to a currency
exchange rate, commodity, commodity index, stock exchange index or financial index;
(k) the place or places where the principal of and interest, if any, on the
Securities of the Series shall be payable, where the Securities of such Series may be
surrendered for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of such Series and this Indenture may be
served, and the method of such payment, if by wire transfer, mail or other means;
(l) if applicable, the period or periods within which, the price or prices at which
and the terms and conditions upon which the Securities of the Series may be redeemed, in
whole or in part, at the option of the Company;
(m) the obligation, if any, of the Company to redeem or purchase the Securities of
the Series pursuant to any sinking fund or analogous provisions or at the option of a Holder
thereof and the period or periods within which, the price or prices at which and the terms
and conditions upon which Securities of the Series shall be redeemed or purchased, in whole
or in part, pursuant to such obligation;
(n) if other than denominations of $1,000 and any integral multiple thereof, the
denominations in which the Securities of the Series shall be issuable;
(o) the forms of the Securities of the Series in bearer or fully registered form
(and, if in fully registered form, whether the Securities of the Series shall be issued in
whole or in part in the form of a Global Security or Securities, and the terms and
conditions, if any, upon which such Global Security or Securities may be exchanged in whole
or in part for other individual Securities;
(p) any depositories, interest rate calculation agents, exchange rate calculation
agents or other agents with respect to Securities of such Series if other than those
appointed herein;
(q) the Trustee for the series of Securities;
8
(r) if other than the principal amount thereof, the portion of the principal amount
of the Securities of the Series that shall be payable upon declaration of acceleration of
the maturity thereof pursuant to Section 6.2;
(s) any addition to or change in the covenants set forth in Articles IV or V which
applies to Securities of the Series;
(t) any addition to or change in the Events of Default which applies to any
Securities of the Series and any change in the right of the Trustee or the requisite Holders
of such Securities to declare the principal amount thereof due and payable pursuant to
Section 6.2;
(u) the currency of denomination of the Securities of the Series, which may be
Dollars or any Foreign Currency, and if such currency of denomination is a composite
currency, the agency or organization, if any, responsible for overseeing such composite
currency;
(v) the designation of the currency, currencies or currency units in which payment
of the principal of and interest, if any, on the Securities of the Series will be made;
(w) if payments of principal of or interest, if any, on the Securities of the Series
are to be made in one or more currencies or currency units other than that or those in which
such Securities are denominated, the manner in which the exchange rate with respect to such
payments will be determined; and
(x) any other terms of the Securities of the Series (which terms may modify,
supplement or delete any provision of this Indenture with respect to such Series; provided,
however, that no such term may modify or delete any provision hereof if imposed by the TIA;
and provided, further, that any modification or deletion of the rights, duties or immunities
of the Trustee hereunder shall have been consented to in writing by the Trustee).
All Securities of any one Series need not be issued at the same time and may be issued from
time to time, consistent with the terms of this Indenture, if so provided by or pursuant to the
Board Resolution, supplemental indenture hereto or Officers Certificate referred to above, and the
authorized principal amount of any Series may not be increased to provide for issuances of
additional Securities of such Series, unless otherwise provided in such Board Resolution,
supplemental indenture or Officers Certificate.
Section 2.3. Execution and Authentication.
Two Officers shall sign the Securities for the Company by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds that office at the time the
Security is authenticated, the Security shall nevertheless be valid.
9
A Security shall not be valid until authenticated by the manual signature of the Trustee or an
authenticating agent. The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall at any time, and from time to time, authenticate Securities for original
issue in the principal amount provided in the Board Resolution, supplemental indenture hereto or
Officers Certificate, upon receipt by the Trustee of a Company Order. Such Company Order may
authorize authentication and delivery pursuant to oral or electronic instructions from the Company
or its duly authorized agent or agents, which oral instructions shall be promptly confirmed in
writing. Each Security shall be dated the date of its authentication unless otherwise provided by
a Board Resolution, a supplemental indenture hereto or an Officers Certificate.
The aggregate principal amount of Securities of any Series outstanding at any time may not
exceed any limit upon the maximum principal amount for such Series set forth in the Board
Resolution, supplemental indenture hereto or Officers Certificate delivered pursuant to Section
2.2, except as provided in Section 2.8.
Prior to the issuance of Securities of any Series, the Trustee shall have received and
(subject to Section 7.2) shall be fully protected in relying on: (a) the Board Resolution,
supplemental indenture hereto or Officers Certificate establishing the form of the Securities of
that Series or of Securities within that Series and the terms of the Securities of that Series or
of Securities within that Series, (b) an Officers Certificate complying with Section 11.4, and (c)
an Opinion of Counsel complying with Section 11.4.
The Trustee shall have the right to decline to authenticate and deliver any Securities of such
Series: (a) if the Trustee, being advised by counsel, determines that such action may not be taken
lawfully; or (b) if the Trustee in good faith by its board of directors or trustees, executive
committee or a trust committee of directors and/or vice-presidents shall determine that such action
would expose the Trustee to personal liability to Holders of any then outstanding Series of
Securities.
The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Securities. An authenticating agent may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with the Company or an
Affiliate of the Company.
Section 2.4. Registrar and Paying Agent.
The Company shall maintain, with respect to each Series of Securities, at the place or places
specified with respect to such Series pursuant to Section 2.2, an office or agency where Securities
of such Series may be presented or surrendered for payment (Paying Agent), where Securities of
such Series may be surrendered for registration of transfer or exchange (Registrar) and where
notices and demands to or upon the Company in respect of the Securities of such Series and this
Indenture may be served (Service Agent). The Registrar shall keep a register with respect to
each Series of Securities and to their transfer and exchange. The Company will give prompt written
notice to the Trustee of the name and address, and any
10
change in the name or address, of each Registrar, Paying Agent or Service Agent. If at any
time the Company shall fail to maintain any such required Registrar, Paying Agent or Service Agent
or shall fail to furnish the Trustee with the name and address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more co-registrars, additional paying
agents or additional service agents and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligations to maintain a Registrar, Paying Agent and Service Agent in
each place so specified pursuant to Section 2.2 for Securities of any Series for such purposes.
The Company will give prompt written notice to the Trustee of any such designation or rescission
and of any change in the name or address of any such co-registrar, additional paying agent or
additional service agent. The term Registrar includes any co-registrar; the term Paying Agent
includes any additional paying agent; and the term Service Agent includes any additional service
agent.
The Company hereby appoints the Trustee the initial Registrar, Paying Agent and Service Agent
for each Series unless another Registrar, Paying Agent or Service Agent, as the case may be, is
appointed prior to the time Securities of that Series are first issued.
Section 2.5. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to agree in writing that
the Paying Agent will hold in trust, for the benefit of Securityholders of any Series of
Securities, or the Trustee, all money held by the Paying Agent for the payment of principal of or
interest on the Series of Securities, and will notify the Trustee of any default by the Company in
making any such payment. While any such default continues, the Trustee may require a Paying Agent
to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if
other than the Company or a Subsidiary of the Company) shall have no further liability for the
money. If the Company or a Subsidiary of the Company acts as Paying Agent, it shall segregate and
hold in a separate trust fund for the benefit of Securityholders of any Series of Securities all
money held by it as Paying Agent.
Section 2.6. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Securityholders of each Series of Securities and
shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the Company shall
furnish to the Trustee at least ten days before each interest payment date and at such other times
as the Trustee may request in writing a list, in such form and as of such date as the Trustee may
reasonably require, of the names and addresses of Securityholders of each Series of Securities.
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Section 2.7. Transfer and Exchange.
Where Securities of a Series are presented to the Registrar or a co-registrar with a request
to register a transfer or to exchange them for an equal principal amount of Securities of the same
Series, the Registrar shall register the transfer or make the exchange if its requirements for such
transactions are met. To permit registrations of transfers and exchanges, the Trustee shall
authenticate Securities at the Registrars request. No service charge shall be made for any
registration of transfer or exchange (except as otherwise expressly permitted herein), but the
Company may require payment of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer tax or similar governmental
charge payable upon exchanges pursuant to Sections 2.11, 3.6 or 9.6).
Neither the Company nor the Registrar shall be required (a) to issue, register the transfer
of, or exchange Securities of any Series for the period beginning at the opening of business
fifteen days immediately preceding the mailing of a notice of redemption of Securities of that
Series selected for redemption and ending at the close of business on the day of such mailing, or
(b) to register the transfer of or exchange Securities of any Series selected, called or being
called for redemption as a whole or the portion being redeemed of any such Securities selected,
called or being called for redemption in part.
Section 2.8. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the
Trustee shall authenticate and make available for delivery in exchange therefor a new Security of
the same Series and of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall authenticate and make
available for delivery, in lieu of any such destroyed, lost or stolen Security, a new Security of
the same Series and of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a new Security, pay
such Security.
Upon the issuance of any new Security under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any Series issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security shall constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security shall be at any time
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enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that Series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities.
Section 2.9. Outstanding Securities.
Subject to Section 2.10, the Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest on a Global Security effected by the Trustee in
accordance with the provisions hereof and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases to be outstanding until the
Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide
purchaser.
If the Paying Agent (other than the Company, a Subsidiary of the Company or an Affiliate of
the Company) holds on the Maturity of Securities of a Series money sufficient to pay such
Securities payable on that date, then on and after that date such Securities of the Series cease to
be outstanding and interest on them ceases to accrue.
A Security does not cease to be outstanding because the Company or an Affiliate of the Company
holds the Security.
In determining whether the Holders of the requisite principal amount of outstanding Securities
have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of a Discount Security that shall be deemed to be outstanding for such purposes
shall be the amount of the principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity thereof pursuant to Section 6.2.
Section 2.10. Treasury Securities.
In determining whether the Holders of the required principal amount of Securities of a Series
have concurred in any request, demand, authorization, direction, notice, consent or waiver,
Securities of a Series owned by the Company or an Affiliate of the Company shall be disregarded,
except that for the purposes of determining whether the Trustee shall be protected in relying on
any such request, demand, authorization, direction, notice, consent or waiver only Securities of a
Series that the Trustee knows are so owned shall be so disregarded.
Section 2.11. Temporary Securities.
Until definitive Securities are ready for delivery, the Company may prepare and the Trustee
shall authenticate temporary Securities upon a Company Order. Temporary Securities shall be
substantially in the form of definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. Without unreasonable delay, the
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Company shall prepare and the Trustee upon request shall authenticate definitive Securities of
the same Series and date of maturity in exchange for temporary Securities. Until so exchanged,
temporary securities shall have the same rights under this Indenture as the definitive Securities.
Section 2.12. Cancellation.
The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar
and the Paying Agent shall forward to the Trustee any Securities surrendered to them for
registration of transfer, exchange or payment. The Trustee shall cancel all Securities surrendered
for transfer, exchange, payment, replacement or cancellation and deliver such canceled Securities
to the Company, unless the Company otherwise directs; provided that the Trustee shall not
be required to destroy Securities. The Company may not issue new Securities to replace Securities
that it has paid or delivered to the Trustee for cancellation.
Section 2.13. Defaulted Interest.
If the Company defaults in a payment of interest on a Series of Securities, it shall pay the
defaulted interest, plus, to the extent permitted by law, any interest payable on the defaulted
interest, to the persons who are Securityholders of the Series on a subsequent special record date.
The Company shall fix the record date and payment date. At least 10 days before the record date,
the Company shall mail to the Trustee and to each Securityholder of the Series a notice that states
the record date, the payment date and the amount of interest to be paid. The Company may pay
defaulted interest in any other lawful manner.
Section 2.14. Special Record Dates.
(a) The Company may, but shall not be obligated to, set a record date for the purpose of
determining the identity of Holders entitled to consent to any supplement, amendment or waiver
permitted by this Indenture. If a record date is fixed, the Holders of such Series and Securities
outstanding on such record date, and no other Holders, shall be entitled to consent to such
supplement, amendment or waiver or revoke any consent previously given, whether or not such Holders
remain Holders after such record date. No consent shall be valid or effective for more than 90 days
after such record date unless consents from Holders of the principal amount of such Series and
Securities required hereunder for such amendment or waiver to be effective shall have also been
given and not revoked within such 90-day period.
(b) The Company may, but shall not be obligated to, fix any day as a record date for the
purpose of determining the Holders of any Series of Securities entitled to join in the giving or
making of any notice of Default, any declaration of acceleration, any request to institute
proceedings or any other similar direction. If a record date is fixed, the Holders of such Series
and Securities outstanding on such record date, and no other Holders, shall be entitled to join in
such notice, declaration, request or direction, whether or not such Holders remain Holders after
such record date; provided, however, that no such action shall be effective hereunder unless taken
on or prior to the date 90 days after such record date.
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Section 2.15. Global Securities.
2.15.1. Terms of Securities. A Board Resolution, a supplemental indenture hereto
or an Officers Certificate shall establish whether the Securities of a Series shall be issued in
whole or in part in the form of one or more Global Securities and the Depository for such Global
Security or Securities.
2.15.2. Transfer and Exchange. Notwithstanding any provisions to the contrary
contained in Section 2.7 of the Indenture and in addition thereto, any Global Security shall be
exchangeable pursuant to Section 2.7 of the Indenture for Securities registered in the names of
Holders other than the Depository for such Security or its nominee only if (i) such Depository
notifies the Company that it is unwilling or unable to continue as Depository for such Global
Security or if at any time such Depository ceases to be a clearing agency registered under the
Exchange Act, and, in either case, the Company fails to appoint a successor Depository registered
as a clearing agency under the Exchange Act within 90 days of such event, (ii) the Company executes
and delivers to the Trustee an Officers Certificate to the effect that such Global Security shall
be so exchangeable or (iii) an Event of Default with respect to the Securities represented by such
Global Security shall have happened and be continuing. Any Global Security that is exchangeable
pursuant to the preceding sentence shall be exchangeable for Securities registered in such names as
the Depository shall direct in writing in an aggregate principal amount equal to the principal
amount of the Global Security with like tenor and terms.
Except as provided in this Section 2.15.2, a Global Security may not be transferred except as
a whole by the Depository with respect to such Global Security to a nominee of such Depository, by
a nominee of such Depository to such Depository or another nominee of such Depository or by the
Depository or any such nominee to a successor Depository or a nominee of such a successor
Depository.
2.15.3. Legend. Any Global Security issued hereunder shall bear a legend in
substantially the following form:
Unless this certificate is presented by an authorized representative of The Depository Trust
Company, a New York corporation (DTC), New York, New York, to the issuer or its agent for
registration of transfer, exchange or payment, and any certificate issued is registered in the name
of Cede & Co. or such other name as may be requested by an authorized representative of DTC (and
any payment is made to Cede & Co. or such other entity as may be requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co. has an interest herein.
Transfer of this Global Security shall be limited to transfers in whole, but not in part, to
nominees of DTC or to a successor thereof or such successors nominee and limited to transfers made
in accordance with the restrictions set forth in the Indenture referred to herein.
2.15.4. Acts of Holders. The Depository, as a Holder, may appoint agents and
otherwise authorize participants to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action which a Holder is entitled to give or take under the
Indenture.
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2.15.5. Payments. Notwithstanding the other provisions of this Indenture, unless
otherwise specified as contemplated by Section 2.2, payment of the principal of and interest, if
any, on any Global Security shall be made to the Holder thereof.
2.15.6. Consents, Declaration and Directions. Except as provided in Section
2.15.5, the Company, the Trustee and any Agent shall treat a person as the Holder of such principal
amount of outstanding Securities of such Series represented by a Global Security as shall be
specified in a written statement of the Depository with respect to such Global Security, for
purposes of obtaining any consents, declarations, waivers or directions required to be given by the
Holders pursuant to this Indenture.
Section 2.16. CUSIP Numbers.
The Company in issuing the Securities may use CUSIP numbers (if then generally in use), and,
if so, the Trustee shall use CUSIP numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other elements of identification printed on
the Securities, and any such redemption shall not be affected by any defect in or omission of such
numbers.
ARTICLE III.
REDEMPTION
Section 3.1. Notice to Trustee.
The Company may, with respect to any Series of Securities, reserve the right to redeem and pay
the Series of Securities or may covenant to redeem and pay the Series of Securities or any part
thereof prior to the Stated Maturity thereof at such time and on such terms as provided for in such
Securities. If a Series of Securities is redeemable and the Company wants or is obligated to
redeem prior to the Stated Maturity thereof all or part of the Series of Securities pursuant to the
terms of such Securities, it shall notify the Trustee of the redemption date and the principal
amount of Series of Securities to be redeemed. The Company shall give the notice at least 45 days
before the redemption date (or such shorter notice as may be acceptable to the Trustee).
Section 3.2. Selection of Securities to be Redeemed or Repurchased.
Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental
indenture or an Officers Certificate, if less than all the Securities of a Series are to be
redeemed or repurchased, the Trustee shall select the Securities of the Series to be redeemed or
repurchased on a pro rata basis unless otherwise required by law or applicable stock exchange
requirements.
In the event of partial redemption or purchase by lot, the Trustee shall make the selection
from Securities of the Series outstanding not previously called for redemption or repurchase. The
Trustee may select for redemption or repurchase portions of the principal of Securities of the
Series that have denominations larger than $1,000, or with respect to Securities
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of any Series issuable in other denominations pursuant to Section 2.2 the minimum principal
denomination for such series. Securities of the Series and portions of them it selects shall be in
amounts of $1,000 or whole multiples of $1,000 or, with respect to Securities of any Series
issuable in other denominations pursuant to Section 2.2, the minimum principal denomination for
each Series and integral multiples thereof. Provisions of this Indenture that apply to Securities
of a Series called for redemption or repurchase also apply to portions of Securities of that Series
called for redemption or repurchase.
Section 3.3. Notice of Redemption.
Unless otherwise indicated for a particular Series by Board Resolution, a supplemental
indenture hereto or an Officers Certificate, at least 30 days but not more than 60 days before a
redemption date, the Company shall mail a notice of redemption by first-class mail to each Holder
whose Securities are to be redeemed and if any Bearer Securities are outstanding, publish on one
occasion a notice in an Authorized Newspaper, except that redemption notices may be mailed more
than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of
the Series of Securities or a satisfaction and discharge of this Indenture pursuant to Articles 8
or 11 hereof.
The notice shall identify the Securities of the Series to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) the name and address of the Paying Agent;
(d) that Securities of the Series called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(e) that interest on Securities of the Series called for redemption ceases to accrue
on and after the redemption date;
(f) the CUSIP number, if any; and
(g) any other information as may be required by the terms of the particular Series
or the Securities of a Series being redeemed.
At the Companys request, the Trustee shall give the notice of redemption in the Companys
name and at its expense.
Section 3.4. Effect of Notice of Redemption.
Once notice of redemption is mailed or published as provided in Section 3.3, Securities of a
Series called for redemption become due and payable on the redemption date and at the redemption
price. A notice of redemption may not be conditional. Upon surrender to the Paying Agent, such
Securities shall be paid at the redemption price plus accrued interest to the
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redemption date; provided that installments of interest whose Stated Maturity is on or
prior to the redemption date shall be payable to the Holders of such Securities (or one or more
predecessor Securities) registered at the close of business on the relevant record date therefor
according to their terms and the terms of this Indenture.
Section 3.5. Deposit of Redemption Price.
On or before the redemption date, the Company shall deposit with the Paying Agent money
sufficient to pay the redemption price of and accrued interest, if any, on all Securities to be
redeemed on that date.
Section 3.6. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Trustee shall authenticate for the
Holder a new Security of the same Series and the same maturity equal in principal amount to the
unredeemed portion of the Security surrendered.
ARTICLE IV.
COVENANTS
Section 4.1. Payment of Principal and Interest.
The Company covenants and agrees for the benefit of the Holders of each Series of Securities
that it will pay or cause to be paid the principal of, premium, if any, and interest on, the
Securities of that Series on the dates and in the manner provided in such Securities. Principal,
premium, if any, and interest on any Series of Securities will be considered paid on the date due
if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of 12:00 p.m.
Eastern Time on the due date money deposited by the Company in immediately available funds and
designated for and sufficient to pay all principal, premium, if any, and interest then due.
The Company covenants and agrees for the benefit of the Holders of each Series of Securities
that it will pay interest (including post-petition interest in any proceeding under any Bankruptcy
Law) on overdue principal with respect to such Securities at the rate equal to 1% per annum in
excess of the then applicable interest rate on such Securities to the extent lawful; it will pay
interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest (without regard to any applicable grace period) at the same rate to the
extent lawful.
Section 4.2. Maintenance of Office or Agency.
The Company covenants and agrees for the benefit of the Holders of each Series of Securities
that it will maintain an office or agency (which may be an office of the Trustee for such
Securities or an affiliate of such Trustee, Registrar for such Securities or co-registrar) where
such Securities may be surrendered for registration of transfer or for exchange and where notices
and demands to or upon the Company in respect of such Securities and this Indenture may be served.
The Company will give prompt written notice to the Trustee for such Securities of the location, and
any change in the location, of such office or agency. If at any time the Company
18
fails to maintain any such required office or agency or fails to furnish such Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of such Trustee.
The Company may also from time to time designate one or more other offices or agencies where
Holders of a Series of Securities may be presented or surrendered for any or all such purposes and
may from time to time rescind such designations. The Company will give prompt written notice to
the Trustee for such Series of Securities of any such designation or rescission and of any change
in the location of any such other office or agency.
With respect to each Series of Securities, the Company hereby designates the Corporate Trust
Office of the Trustee for such Securities as one such office or agency of the Company in accordance
with Section 2.5 hereof.
Section 4.3. SEC Reports.
(a) Whether or not required by the rules and regulations of the Commission, so long as any
Series of Securities are outstanding, if not filed electronically through the SECs Electronic Data
Gathering, Analysis, and Retrieval System (or any successor system), the Company will furnish to
the Holders of such Securities or cause the Trustee with respect to such Series of Securities
(provided that the Company shall reimburse the Trustee for its out-of-pocket expenses associated
therewith) to furnish to the Holders of such Securities, within the time periods specified in the
Commissions rules and regulations:
(1) all quarterly and annual reports that would be required to be filed with the Commission on
Forms 10-Q and 10-K if the Company were required to file reports, including a Managements
Discussion and Analysis of Financial Condition and Results of Operations and, with respect to the
annual information only, a report thereon by the Companys independent registered public accounting
firm; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the
Company were required to file such reports.
In addition, the Company will file a copy of each of the reports referred to in clauses (1)
and (2) above with the Commission for public availability within the time periods specified in the
rules and regulations applicable to such reports (unless the SEC will not accept such a filing) and
will post the reports on its website within those time periods. The Company will at all times
comply with TIA § 314(a).
If, at any time, the Company is no longer subject to the periodic reporting requirements of
the Exchange Act for any reason, the Company will nevertheless continue filing the reports
specified in the preceding paragraph with the Commission within the time periods specified above
unless the Commission will not accept such a filing. The Company will not take any action for the
purpose of causing the Commission not to accept any such filings. If, notwithstanding the
foregoing, the Commission will not accept the Companys filings for any reason, the Company will
post the reports referred to in the preceding paragraph on its website within the time periods that
would apply if the Company were required to file those reports with the Commission.
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(b) For so long as any Series of Securities remain outstanding, if at any time they are not
required to file with the Commission the reports required by paragraphs (a) and (b) of this Section
4.3, the Company and any guarantors of such Securities will furnish to the Holders of such
Securities and to securities analysts and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
Section 4.4. Compliance Certificate.
(a) The Company and each guarantor of any Series of Securities (to the extent that such
guarantor is so required under the TIA) shall deliver to the Trustee with respect to such Series,
within 120 days after the end of each fiscal year, an Officers Certificate stating that a review
of the activities of the Company and its Subsidiaries during the preceding fiscal year has been
made under the supervision of the signing Officers with a view to determining whether the Company
has kept, observed, performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of his or her knowledge
the Company has kept, observed, performed and fulfilled each and every covenant contained in this
Indenture and is not in default in the performance or observance of any of the terms, provisions
and conditions of this Indenture (or, if a Default or Event of Default has occurred, describing all
such Defaults or Events of Default of which he or she may have knowledge and what action the
Company is taking or proposes to take with respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by reason of which payments on account of
the principal of or interest, if any, on the Series of Securities is prohibited or if such event
has occurred, a description of the event and what action the Company is taking or proposes to take
with respect thereto.
(b) So long as any Series of Securities is outstanding, the Company will deliver to the
Trustee with respect to such Series, forthwith upon any Officer becoming aware of any Default or
Event of Default, an Officers Certificate specifying such Default or Event of Default and what
action the Company is taking or proposes to take with respect thereto.
Section 4.5. Taxes.
The Company covenants and agrees for the benefit of the Holders of each Series of Securities
that it will pay, and will cause each of its Subsidiaries to pay, prior to delinquency, all
material taxes, assessments, and governmental levies except such as are contested in good faith and
by appropriate proceedings or where the failure to effect such payment is not adverse in any
material respect to the Holders of such Securities.
Section 4.6. Stay, Extension and Usury Laws.
The Company covenants and agrees for the benefit of the Holders of each Series of Securities
(to the extent that it may lawfully do so) that it will not, and each guarantor of such Securities
will not, at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this Indenture; and the Company and each
such guarantor (to the extent that it may lawfully do so) hereby expressly
20
waives all benefit or advantage of any such law, and covenants that it will not, by resort to
any such law, hinder, delay or impede the execution of any power herein granted to the Trustee for
such Securities, but will suffer and permit the execution of every such power as though no such law
has been enacted.
Section 4.7. Corporate Existence.
Subject to Article V hereof, the Company covenants and agrees for the benefit of the Holders
of each Series of Securities that it shall do or cause to be done all things necessary to preserve
and keep in full force and effect:
(1) its corporate existence, and the corporate, partnership or other existence of each of its
Subsidiaries, in accordance with the respective organizational documents (as the same may be
amended from time to time) of the Company or any such Subsidiary; and
(2) the rights (charter and statutory), licenses and franchises of the Company and its
Subsidiaries; provided, however, that the Company shall not be required to preserve
any such right, license or franchise, or the corporate, partnership or other existence of any of
its Subsidiaries, if at least two Officers of the Company, one of which is the Chief Executive
Officer or the Chief Financial Officer, shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Subsidiaries, taken as a whole, and
that the loss thereof is not adverse in any material respect to the Holders of such Securities.
ARTICLE V.
SUCCESSORS
Section 5.1. Merger, Consolidation, or Sale of Assets.
The Company covenants and agrees for the benefit of the Holders of each Series of Securities
that it shall not, directly or indirectly: (i) consolidate or merge with or into another person
(whether or not the Company is the surviving corporation); or (2) sell, assign, transfer, convey or
otherwise dispose of all or substantially all of the properties or assets of the Company and its
Subsidiaries taken as a whole, in one or more related transactions, to another person, unless:
(1) either:
(A) the Company is the surviving corporation; or
(B) the person formed by or surviving any such consolidation or merger (if other than the
Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made
is a corporation organized or existing under the laws of the United States, any state of the United
States or the District of Columbia;
(2) the person formed by or surviving any such consolidation or merger (if other than the
Company) or the person to which such sale, assignment, transfer, conveyance or other disposition
has been made assumes all the obligations of the Company under such
21
Securities and this Indenture pursuant to agreements reasonably satisfactory to the Trustee
for such Securities; and
(3) immediately after such transaction, no Default or Event of Default exists.
In addition, the Company will not, directly or indirectly, lease all or substantially all of
its properties or assets, in one or more related transactions, to any other person. This Section
5.1 will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the
Company in another jurisdiction; or
(2) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other
disposition of assets between or among the Company and its Subsidiaries.
Section 5.2. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or
other disposition of all or substantially all of the properties or assets of the Company in a
transaction that is subject to, and that complies with the provisions of, Section 5.1 hereof, the
successor person formed by such consolidation or into or with which the Company is merged or to
which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed
to, and be substituted for (so that from and after the date of such consolidation, merger, sale,
assignment, transfer, lease, conveyance or other disposition, the provisions of this Indenture
referring to the Company shall refer instead to the successor person and not to the Company), and
may exercise every right and power of the Company under this Indenture with the same effect as if
such successor person had been named as the Company herein; provided, however, that
the predecessor Company shall not be relieved from the obligation to pay the principal of and
interest on any Series of Securities except in the case of a sale of all of the Companys assets in
a transaction that is subject to, and that complies with the provisions of, Section 5.1 hereof.
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.1. Events of Default.
Event of Default, wherever used herein with respect to Securities of any Series, means any
one of the following events, unless in the establishing Board Resolution, supplemental indenture or
Officers Certificate, it is provided that such Series shall not have the benefit of said Event of
Default:
(a) default in the payment of any interest on any Security of that Series when it
becomes due and payable, and continuance of such default for a period of 30 days; or
(b) default in payment when due of the principal of, or premium, if any, on any
Security of that Series; or
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(c) default in the deposit of any sinking fund payment, when and as due in respect
of any Security of that Series; or
(d) default in the performance or breach of any covenant or warranty of the Company
in this Indenture (other than a covenant or warranty that has been included in this
Indenture solely for the benefit of Series of Securities other than that Series), which
default continues uncured for the period and after the notice specified below;
(e) the Company pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an involuntary
case,
(iii) consents to the appointment of a Custodian of it or for all or
substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors, or
(v) generally is unable to pay its debts as the same become due; or
(f) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:
(i) is for relief against the Company in an involuntary case,
(ii) appoints a Custodian of the Company or for all or substantially all of its
property, or
(iii) orders the liquidation of the Company, and the order or decree remains
unstayed and in effect for 60 days; or
(g) any other Event of Default provided with respect to Securities of that Series,
which is specified in a Board Resolution, a supplemental indenture hereto or an Officers
Certificate, in accordance with Section 2.2.
The term Bankruptcy Law means title 11, U.S. Code or any similar Federal or State law for
the relief of debtors. The term Custodian means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
A Default under clause (d) above is not an Event of Default with respect to a particular
series of Securities until the Trustee or the Holders of more than 50% in principal amount of the
then outstanding Securities of that series notify the Company of the Default and the Company does
not cure the Default within 60 days after receipt of the notice. The notice must specify the
Default, demand that it be remedied and state that the notice is a Notice of Default. Such notice
shall be given by the Trustee if so requested in writing by the Holders of more than 50% of the
principal amount of the then outstanding Securities of that series.
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Section 6.2. Acceleration.
If an Event of Default with respect to Securities of any Series at the time outstanding occurs
and is continuing (other than an Event of Default referred to in Section 6.1(e) or (f)) then in
every such case the Trustee or the Holders of more than 50% in principal amount of the outstanding
Securities of that Series may declare the principal amount (or, if any Securities of that Series
are Discount Securities, such portion of the principal amount as may be specified in the terms of
such Securities) of and accrued and unpaid interest, if any, on all of the Securities of that
Series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal amount (or specified amount) and
accrued and unpaid interest, if any, shall become immediately due and payable. If an Event of
Default specified in Section 6.1(e) or (f) shall occur, the principal amount (or specified amount)
of and accrued and unpaid interest, if any, on all outstanding Securities shall ipso facto become
and be immediately due and payable without any declaration or other act on the part of the Trustee
or any Holder.
At any time after such a declaration of acceleration with respect to any Series has been made,
the Holders of a majority in principal amount of the outstanding Securities of that Series, by
written notice to the Company and the Trustee, may rescind and annul such declaration and its
consequences if the rescission would not conflict with any judgment or decree and if all existing
Events of Default (except nonpayment of principal, interest or premium that has become due solely
because of the acceleration) have been cured or waived.
No such rescission shall affect any subsequent Default or impair any right consequent thereon.
Section 6.3. Other Remedies.
If an Event of Default with respect to Securities of any Series at the time outstanding occurs
and is continuing, the Trustee may pursue any available remedy to collect the payment of principal,
premium, if any, and interest on such Securities or to enforce the performance of any provision of
such Securities or this Indenture.
The Trustee for such Securities may maintain a proceeding even if it does not possess any of
such Securities or does not produce any of them in the proceeding. A delay or omission by the
Trustee or any Holder of Securities in exercising any right or remedy accruing upon an Event of
Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event
of Default. All remedies are cumulative to the extent permitted by law.
Section 6.4. Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of the then outstanding
Securities of any Series by notice to the Trustee for such Securities may on behalf of the Holders
of all of such Securities waive an existing Default or Event of Default with respect to such
Securities and its consequences hereunder, except a continuing Default or Event of Default in the
payment of the principal of, premium, if any, or interest on, such Securities (including in
connection with an offer to purchase); provided, however, that the Holders of a
majority in
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aggregate principal amount of the then outstanding Securities of any Series may rescind an
acceleration of such Securities and its consequences, including any related payment default that
resulted from such acceleration. Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
Section 6.5. Control by Majority.
Holders of a majority in aggregate principal amount of the then outstanding Securities of any
Series may direct the time, method and place of conducting any proceeding for exercising any remedy
available to the Trustee for such Securities or exercising any trust or power conferred on it.
However, the Trustee for any Series of Securities may refuse to follow any direction that conflicts
with law or this Indenture that such Trustee determines may be unduly prejudicial to the rights of
other Holders of such Securities or that may involve the Trustee in personal liability.
Section 6.6. Limitation on Suits.
A Holder of any Series of Securities may pursue a remedy with respect to this Indenture or
such Securities only if:
(1) such Holder gives to the Trustee for such Securities written notice that an Event of
Default is continuing;
(2) Holders of more than 50% in aggregate principal amount of the then outstanding Securities
of such Series make a written request to the Trustee for such Securities to pursue the remedy;
(3) such Holder or Holders offer and, if requested, provide to the Trustee for such Securities
security or indemnity reasonably satisfactory to such Trustee against any loss, liability or
expense;
(4) such Trustee does not comply with the request within 60 days after receipt of the request
and the offer of security or indemnity; and
(5) during such 60-day period, Holders of a majority in aggregate principal amount of the then
outstanding Securities of such Series do not give such Trustee a direction inconsistent with such
request.
A Holder of any Series of Securities may not use this Indenture to prejudice the rights of
another Holder of such Series of Securities or to obtain a preference or priority over another
Holder of Securities of such Series.
Section 6.7. Rights of Holders of Securities to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder of a Security
of any Series to receive payment of principal, premium, if any, and interest on such
25
Securities, on or after the respective due dates expressed in such Securities (including, if
applicable, in connection with an offer to purchase), or to bring suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or affected without the
consent of such Holder.
Section 6.8. Collection Suit by Trustee.
If an Event of Default specified in Section 6.1(a), (b) or (c) hereof with respect to
Securities of any Series occurs and is continuing, the Trustee for such Securities is authorized to
recover judgment in its own name and as trustee of an express trust against the Company for the
whole amount of principal of, premium, if any, and interest remaining unpaid on, such Securities
and interest on overdue principal and, to the extent lawful, interest and such further amount as
shall be sufficient to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of such Trustee, its agents and counsel.
Section 6.9. Trustee May File Proofs of Claim.
The Trustee for each Series of Securities is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims of such Trustee
(including any claim for the reasonable compensation, expenses, disbursements and advances of such
Trustee, its agents and counsel) and the Holders of the Securities for which it acts as trustee
allowed in any judicial proceedings relative to the Company (or any other obligor upon such
Securities), its creditors or its property and shall be entitled and empowered to collect, receive
and distribute any money or other property payable or deliverable on any such claims and any
custodian in any such judicial proceeding is hereby authorized by each Holder of such Securities to
make such payments to such Trustee, and in the event that such Trustee shall consent to the making
of such payments directly to such Holders, to pay to such Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and
counsel, and any other amounts due such Trustee under the Indenture. To the extent that the
payment of any such compensation, expenses, disbursements and advances of such Trustee, its agents
and counsel, and any other amounts due such Trustee out of the estate in any such proceeding, shall
be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out
of, any and all distributions, dividends, money, securities and other properties that such Holders
may be entitled to receive in such proceeding whether in liquidation or under any plan of
reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize
such Trustee to authorize or consent to or accept or adopt on behalf of any Holder for which it
acts as trustee any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of such Holder, or to authorize such Trustee to vote in respect of the
claim of any such Holder in any such proceeding.
Section 6.10. Priorities.
If the Trustee of any Series of Securities collects any money pursuant to this Article 6, it
shall pay out the money in the following order:
26
First: to the Trustee, its agents and attorneys for amounts due under the Indenture,
including payment of all compensation, expenses and liabilities incurred, and all advances made, by
the Trustee and the costs and expenses of collection;
Second: to Holders of such Securities for amounts due and unpaid on such Securities
for principal, premium, if any, and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for principal, premium, if any and
interest, respectively; and
Third: to the Company or to such party as a court of competent jurisdiction shall
direct.
The Trustee may fix a record date and payment date for any payment to Holders of Securities
pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against any Trustee for any action taken or omitted by it as a trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys
fees, against any party litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder of a Security pursuant to Section 6.7 hereof, or a suit by Holders of
more than 10% in aggregate principal amount of the then outstanding Securities of any Series.
ARTICLE VII.
TRUSTEE
Section 7.1. Duties of Trustee.
(a) Subject to Section 7.2(i), if an Event of Default has occurred and is
continuing, the Trustee shall exercise the rights and powers vested in it by this 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.
(b) Except during the continuance of an Event of Default:
(i) The Trustee need perform only those duties that are specifically set forth
in this Indenture and no others.
(ii) In the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon Officers Certificates or Opinions of Counsel furnished to
the Trustee and conforming to the requirements of this Indenture; however,
in the case of any such Officers Certificates or Opinions of Counsel which by any
provisions hereof are specifically required to be furnished to the
27
Trustee, the Trustee shall examine such Officers Certificates and Opinions of
Counsel to determine whether or not they conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(i) This paragraph does not limit the effect of paragraph (b) of this Section.
(ii) The Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer, unless it is proved that the Trustee was negligent
in ascertaining the pertinent facts.
(iii) The Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it with respect to Securities of any Series in
good faith in accordance with the direction of the Holders of a majority in
principal amount of the outstanding Securities of such Series relating to the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such Series.
(d) Every provision of this Indenture that in any way relates to the Trustee is
subject to paragraph (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right or power at the
request or direction of any Holder unless it receives indemnity satisfactory to it against
any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received by it except
as the Trustee may agree in writing with the Company. Money held in trust by the Trustee
need not be segregated from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to risk its own funds
or otherwise incur any financial liability in the performance of any of its duties, or in
the exercise of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk is not
reasonably assured to it.
(h) The Paying Agent, the Registrar and any authenticating agent shall be entitled
to the protections, immunities and standard of care as are set forth in paragraphs (a), (b)
and (c) of this Section with respect to the Trustee.
Section 7.2. Rights of Trustee.
(a) The Trustee may rely on and shall be protected in acting or refraining from
acting upon any document believed by it to be genuine and to have been signed or
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presented by the proper person. The Trustee need not investigate any fact or matter
stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an Officers
Certificate. The Trustee shall not be liable for any action it takes or omits to take in
good faith in reliance on such Officers Certificate.
(c) The Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care. No Depository shall be
deemed an agent of the Trustee and the Trustee shall not be responsible for any act or
omission by any Depository.
(d) The Trustee shall not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within its rights or powers, provided
that the Trustees conduct does not constitute negligence or bad faith.
(e) The Trustee may consult with counsel and the advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder without negligence and in good faith and
in reliance thereon.
(f) The Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders of
Securities unless such Holders 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 or direction.
(g) The Trustee may consult with counsel of its selection and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder without negligence and in
good faith and in reliance thereon.
(h) The Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit.
(i) The Trustee shall not be deemed to have notice of any Default or Event of
Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless
written notice of any event which is in fact such a default is received by the Trustee at
the Corporate Trust Office of the Trustee, and such notice references the Securities
generally or the Securities of a particular Series and this Indenture.
(j) The Trustee shall not be required to provide any bond or surety with respect to
the execution of these trusts and powers.
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Section 7.3. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company or an Affiliate of the Company with the same
rights it would have if it were not Trustee. Any Agent may do the same with like rights. The
Trustee is also subject to Sections 7.10 and 7.11.
Section 7.4. Trustees Disclaimer.
The Trustee makes no representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Companys use of the proceeds from the Securities,
and it shall not be responsible for any statement in the Securities other than its authentication.
Section 7.5. Notice of Defaults.
If a Default or Event of Default occurs and is continuing with respect to the Securities of
any Series and if it is known to a Responsible Officer of the Trustee, the Trustee shall mail to
each Securityholder of the Securities of that Series and, if any Bearer Securities are outstanding,
publish on one occasion in an Authorized Newspaper, notice of a Default or Event of Default within
90 days after it occurs or, if later, after a Responsible Officer of the Trustee has knowledge of
such Default or Event of Default. Except in the case of a Default or Event of Default in payment
of principal of or interest on any Security of any Series, the Trustee may withhold the notice if
and so long as its corporate trust committee or a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of Securityholders of that Series.
Section 7.6. Reports by Trustee to Holders.
Within 60 days after May 15 in each year, the Trustee shall transmit by mail to all
Securityholders, as their names and addresses appear on the register kept by the Registrar and, if
any Bearer Securities are outstanding, publish in an Authorized Newspaper, a brief report dated as
of such May 15, in accordance with, and to the extent required under, TIA § 313.
A copy of each report at the time of its mailing to Securityholders of any Series shall be
filed by the Trustee with the SEC and each stock exchange on which the Securities of that Series
are listed. The Company shall promptly notify the Trustee when Securities of any Series are listed
on any stock exchange.
Section 7.7. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time compensation for its services as the
Company and the Trustee shall from time to time agree upon in writing. The Trustees compensation
shall not be limited by any law on compensation of a trustee of an express trust. The Company
shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred by it.
Such expenses shall include the reasonable compensation and expenses of the Trustees agents and
counsel.
The Company shall indemnify each of the Trustee and any predecessor Trustee (including the
cost of defending itself) against any loss, liability or expense, including taxes
30
(other than taxes based upon, measured by or determined by the income of the Trustee) incurred
by it except as set forth in the next paragraph in the performance of its duties under this
Indenture as Trustee or Agent. The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity. The Company shall defend the claim and the Trustee shall cooperate in
the defense. The Trustee may have one separate counsel and the Company shall pay the reasonable
fees and expenses of such counsel. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld. This indemnification shall apply to
officers, directors, employees, shareholders and agents of the Trustee.
The Company need not reimburse any expense or indemnify against any loss or liability incurred
by the Trustee or by any officer, director, employee, shareholder or agent of the Trustee through
negligence or bad faith.
To secure the Companys payment obligations in this Section, the Trustee shall have a lien
prior to the Securities of any Series on all money or property held or collected by the Trustee,
except that held in trust to pay principal of and interest on particular Securities of that Series.
When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.1(e) or (f) occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.
The provisions of this Section shall survive the termination of this Indenture.
Section 7.8. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor Trustee shall become
effective only upon the successor Trustees acceptance of appointment as provided in this Section.
The Trustee may resign with respect to the Securities of one or more Series by so notifying
the Company at least 30 days prior to the date of the proposed resignation. The Holders of a
majority in principal amount of the Securities of any Series may remove the Trustee with respect to
that Series by so notifying the Trustee and the Company. The Company may remove the Trustee with
respect to Securities of one or more Series if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is
entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Company shall promptly appoint a successor Trustee. Within one year after
31
the successor Trustee takes office, the Holders of a majority in principal amount of the then
outstanding Securities may appoint a successor Trustee to replace the successor Trustee appointed
by the Company.
If a successor Trustee with respect to the Securities of any one or more Series does not take
office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of at least 10% in principal amount of the Securities of the applicable
Series may petition any court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Immediately after that, the retiring Trustee shall transfer all
property held by it as Trustee to the successor Trustee subject to the lien provided for in Section
7.7, the resignation or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee with respect to each Series of
Securities for which it is acting as Trustee under this Indenture. A successor Trustee shall mail
a notice of its succession to each Securityholder of each such Series and, if any Bearer Securities
are outstanding, publish such notice on one occasion in an Authorized Newspaper. Notwithstanding
replacement of the Trustee pursuant to this Section 7.8, the Companys obligations under Section
7.7 hereof shall continue for the benefit of the retiring Trustee with respect to expenses and
liabilities incurred by it prior to such replacement.
Section 7.9. Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation, the successor corporation without any
further act shall be the successor Trustee.
Section 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the requirements of TIA § 310(a)(1),
(2) and (5). The Trustee shall always have a combined capital and surplus of at least $25,000,000
as set forth in its most recent published annual report of condition. The Trustee shall comply
with TIA § 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA § 311(a), excluding any creditor relationship listed in TIA §
311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent
indicated.
ARTICLE VIII.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.1. Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may at any time elect to have either Section 8.2 or 8.3 hereof be applied to all
outstanding Securities of any Series upon compliance with the conditions set forth below in this
Article 8.
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Section 8.2. Legal Defeasance and Discharge.
Upon the Companys exercise under Section 8.1 hereof of the option applicable to this Section
8.2, the Company and each guarantor, if any, of such Securities will, subject to the satisfaction
of the conditions set forth in Section 8.4 hereof, be deemed to have been discharged from its or
their obligations with respect to all outstanding Securities of such Series (including the related
guarantees, if any) on the date the conditions set forth below are satisfied (hereinafter, Legal
Defeasance). For this purpose, Legal Defeasance means that the Company and such guarantors will
be deemed to have paid and discharged the entire indebtedness represented by the outstanding
Securities of such Series (including the related guarantees, if any), which will thereafter be
deemed to be outstanding only for the purposes of Section 8.5 hereof and the other Sections of
this Indenture referred to in clauses (1) and (2) below, and to have satisfied all its or their
other obligations under such Securities, such guarantees, if any, and this Indenture (and the
Trustee for such Securities, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following provisions which will survive until
otherwise terminated or discharged hereunder:
(1) the rights of Holders of outstanding Securities of such Series to receive payments in
respect of the principal of, or interest or premium, if any, on, such Securities when such payments
are due from the trust referred to in Section 8.4 hereof;
(2) the Companys obligations with respect to such Securities under Article 2 and Section 4.2
hereof;
(3) the rights, powers, trusts, duties and immunities of the Trustee for such Securities
hereunder and the Companys and the guarantors, if any, obligations in connection therewith; and
(4) this Article 8.
Subject to compliance with this Article 8, the Company may exercise its option under this
Section 8.2 notwithstanding the prior exercise of its option under Section 8.3 hereof.
Section 8.3. Covenant Defeasance.
Upon the Companys exercise under Section 8.1 hereof of the option applicable to this Section
8.3, the Company and each of the guarantors, if any, will, subject to the satisfaction of the
conditions set forth in Section 8.4 hereof, be released from each of their or its obligations under
the covenants contained in Sections 4.3, 4.4, 4.5, 4.6 and 4.7, Section 5.1, and covenants
specified in a Board Resolution, a supplemental indenture hereto or an Officers Certificate, in
accordance with Section 2.2, with respect to the outstanding Securities of the applicable Series on
and after the date the conditions set forth in Section 8.4 hereof are satisfied (hereinafter,
Covenant Defeasance), and such Securities will thereafter be deemed not outstanding for the
purposes of any direction, waiver, consent or declaration or act of Holders of such Securities
33
(and the consequences of any thereof) in connection with such covenants, but will continue to
be deemed outstanding for all other purposes hereunder (it being understood that such Securities
will not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance
means that, with respect to the outstanding Securities of such Series, the Company may omit to
comply with and will have no liability in respect of any term, condition or limitation set forth in
any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any other provision herein
or in any other document and such omission to comply will not constitute a Default or an Event of
Default under Section 6.1 hereof, but, except as specified above, the remainder of this Indenture
and such Securities will be unaffected thereby. In addition, upon the Companys exercise under
Section 8.1 hereof of the option applicable to this Section 8.3, subject to the satisfaction of the
conditions set forth in Section 8.4 hereof, Sections 6.1(d) or 6.1(g) hereof will not constitute
Events of Default.
Section 8.4. Conditions to Legal or Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 8.2
or 8.3 hereof with respect to Securities of any Series:
(1) the Company must irrevocably deposit with the Trustee for such Securities, in trust, for
the benefit of the Holders of such Securities, cash in U.S. dollars, non-callable Government
Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a
nationally recognized investment bank, appraisal firm, or firm of independent public accountants,
to pay the principal of, premium, if any, and interest on, the outstanding Securities of such
Series on the stated date for payment thereof or on the applicable redemption date, as the case may
be, and the Company must specify whether such Securities are being defeased to such stated date for
payment or to a particular redemption date;
(2) in the case of an election under Section 8.2 hereof, the Company must deliver to the
Trustee for such Securities an Opinion of Counsel confirming that:
(A) the Company has received from, or there has been published by, the Internal Revenue
Service a ruling; or
(B) since the date of this Indenture, there has been a change in the applicable federal income
tax law,
in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that,
the Holders of the outstanding Securities of such Series will not recognize income, gain or loss
for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as would have been the
case if such Legal Defeasance had not occurred;
(3) in the case of an election under Section 8.3 hereof, the Company must deliver to the
Trustee for such Securities an Opinion of Counsel confirming that the Holders of such Securities
will not recognize income, gain or loss for federal income tax purposes as a result of such
Covenant Defeasance and will be subject to federal income tax on the same amounts, in
34
the same manner and at the same times as would have been the case if such Covenant Defeasance
had not occurred;
(4) no Default or Event of Default with respect to such Securities shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of Default resulting from the
borrowing of funds to be applied to such deposit) and the deposit will not result in a breach or
violation of, or constitute a default under, any other instrument to which the Company or any
guarantor of such Securities is a party or by which the Company or any such guarantor is bound;
(5) such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of,
or constitute a default under, any material agreement or instrument (other than this Indenture) to
which the Company or any of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;
(6) the Company must deliver to the Trustee for such Securities an Officers Certificate
stating that the deposit was not made by the Company with the intent of preferring the Holders of
such Securities over the other creditors of the Company with the intent of defeating, hindering,
delaying or defrauding any creditors of the Company or others; and
(7) the Company must deliver to the Trustee for such Securities an Officers Certificate and
an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance
or the Covenant Defeasance have been complied with.
Section 8.5. Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions.
Subject to Section 8.6 hereof, all money and non-callable Government Securities (including the
proceeds thereof) deposited with a Trustee (or other qualifying trustee, collectively for purposes
of this Section 8.5, the Trustee) pursuant to Section 8.4 hereof in respect of the outstanding
Securities of any Series will be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the
Holders of such Securities of all sums due and to become due thereon in respect of principal,
premium, if any, and interest, but such money need not be segregated from other funds except to the
extent required by law.
The Company will pay and indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against the cash or non-callable Government Securities deposited pursuant to Section
8.4 hereof or the principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the outstanding Securities of the
applicable Series.
Notwithstanding anything in this Article 8 to the contrary, the Trustee will deliver or pay to
the Company from time to time upon the request of the Company any money or non-callable Government
Securities held by it as provided in Section 8.4 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
35
8.4(1) hereof), are in excess of the amount thereof that would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.6. Repayment to Company.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, premium, if any, or interest on, any Series of
Securities and remaining unclaimed for two years after such principal, premium, if any, or interest
has become due and payable shall be paid to the Company on its request or (if then held by the
Company) will be discharged from such trust; and the Holders of such Securities will thereafter be
permitted to look only to the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof,
will thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the Company cause to be
published once, in the New York Times and The Wall Street Journal (national edition), notice that
such money remains unclaimed and that, after a date specified therein, which will not be less than
30 days from the date of such notification or publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
Section 8.7. Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. dollars or non-callable Government
Securities in accordance with Section 8.2 or 8.3 hereof, as the case may be, by reason of any order
or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Companys and any applicable guarantors obligations under this
Indenture and the applicable Securities and the guarantees will be revived and reinstated as though
no deposit had occurred pursuant to Section 8.2 or 8.3 hereof until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section 8.2 or 8.3 hereof, as
the case may be; provided, however, that, if the Company makes any payment of
principal of, premium, if any, or interest on, any such Securities following the reinstatement of
its obligations, the Company will be subrogated to the rights of the Holders of such Securities to
receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE IX.
AMENDMENTS AND WAIVERS
Section 9.1. Without Consent of Holders.
Notwithstanding Section 9.2 of this Indenture, the Company and the Trustee may amend or
supplement this Indenture or the Securities of one or more Series without the consent of any
Securityholder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Securities in addition to or in place of
certificated Securities;
36
(c) to provide for the assumption of the Companys obligations to the Holders of the
Securities by a successor to the Company pursuant to Article 5 hereof;
(d) to make any change that would provide any additional rights or benefits to the
Holders of Securities or that does not adversely affect the legal rights hereunder of any
Securityholder;
(e) to comply with requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the TIA;
(f) to provide for the issuance of and establish the form and terms and conditions
of Securities of any Series as permitted by this Indenture; or
(g) to evidence and provide for the acceptance of appointment hereunder by a
successor Trustee with respect to the Securities of one or more Series and to add to or
change any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee.
Upon the request of the Company and upon receipt by the Trustee of the documents described in
Section 7.2 hereof, the Trustee will join with the Company in the execution of any amended or
supplemental indenture authorized or permitted by the terms of this Indenture and to make any
further appropriate agreements and stipulations that may be therein contained, but the Trustee will
not be obligated to enter into such amended or supplemental indenture that affects its own rights,
duties or immunities under this Indenture or otherwise.
Section 9.2. With Consent of Holders.
The Company and the Trustee may enter into a supplemental indenture with the written consent
of the Holders of at least a majority in principal amount of the outstanding Securities of each
Series affected by such supplemental indenture (including consents obtained in connection with a
tender offer or exchange offer for the Securities of such Series), for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture or of modifying in any manner the rights of the Securityholders of
each such Series. Except as provided in Section 6.4, the Holders of at least a majority in
principal amount of the outstanding Securities of each Series by notice to the Trustee (including
consents obtained in connection with a tender offer or exchange offer for the Securities of such
Series) may waive compliance by the Company with any provision of this Indenture or the Securities
with respect to such Series.
It shall not be necessary for the consent of the Holders of Securities under this Section 9.2
to approve the particular form of any proposed supplemental indenture or waiver, but it shall be
sufficient if such consent approves the substance thereof. Upon the request of the Company and
upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the
Holders of Securities as aforesaid, and upon receipt by the Trustee of the documents described in
Section 7.2 hereof, the Trustee will join with the Company in the execution of such amended or
supplemental indenture unless such amended or supplemental indenture directly affects the Trustees
own rights, duties or immunities under this Indenture or
37
otherwise, in which case the Trustee may in its discretion, but will not be obligated to,
enter into such amended or supplemental Indenture.
After a supplemental indenture or waiver under this section becomes effective, the Company
shall mail to the Holders of Securities affected thereby and, if any Bearer Securities affected
thereby are outstanding, publish on one occasion in an Authorized Newspaper, a notice briefly
describing the supplemental indenture or waiver. Any failure by the Company to mail or publish
such notice, or any defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture or waiver.
Section 9.3. Limitations.
Without the consent of each Securityholder affected, an amendment or waiver may not:
(a) change the amount of Securities whose Holders must consent to an amendment,
supplement or waiver;
(b) reduce the rate of or extend the time for payment of interest (including default
interest) on any Security;
(c) reduce the principal or change the Stated Maturity of any Security or reduce the
amount of, or postpone the date fixed for, the payment of any sinking fund or analogous
obligation;
(d) reduce the principal amount of Discount Securities payable upon acceleration of
the maturity thereof;
(e) waive a Default or Event of Default in the payment of the principal of or
interest, if any, on any Security (except a rescission of acceleration of the Securities of
any Series by the Holders of at least a majority in principal amount of the outstanding
Securities of such Series and a waiver of the payment default that resulted from such
acceleration);
(f) make the principal of or interest, if any, on any Security payable in any
currency other than that stated in the Security;
(g) make any change in Sections 6.4, 6.7 or 9.3 (this sentence); or
(h) waive a redemption payment with respect to any Security or change any of the
provisions with respect to the redemption of any Securities.
Section 9.4. Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Securities of one or more Series shall be set forth
in a supplemental indenture hereto that complies with the TIA as then in effect.
38
Section 9.5. Revocation and Effect of Consents.
(a) Until an amendment or waiver becomes effective, a consent to it by a Holder of a
Security is a continuing consent by the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the consenting Holders Security, even
if notation of the consent is not made on any Security. However, any such Holder or
subsequent Holder may revoke the consent as to his Security or portion of a Security if the
Trustee receives the notice of revocation before the date the amendment or waiver becomes
effective.
(b) The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment, supplement or
waiver which record date shall be at least 30 days prior to the first solicitation of such
consent. If a record date is fixed, then notwithstanding the last sentence of the
immediately preceding paragraph, those persons who were Holders at such record date (or
their duly designated proxies), and only those persons, shall be entitled to revoke any
consent previously given, whether or not such persons continue to be Holders after such
record date. No such consent shall be valid or effective for more than 90 days after such
record date. The Company shall inform the Trustee in writing of the fixed record date if
applicable.
(c) Any amendment or waiver once effective shall bind every Securityholder of each
Series affected by such amendment or waiver unless it is of the type described in any of
clauses (a) through (h) of Section 9.3. In that case, the amendment or waiver shall bind
each Holder of a Security who has consented to it and every subsequent Holder of a Security
or portion of a Security that evidences the same debt as the consenting Holders Security.
Section 9.6. Notation on or Exchange of Securities.
The Trustee may place an appropriate notation about an amendment or waiver on any Security of
any Series thereafter authenticated. The Company in exchange for Securities of that Series may
issue and the Trustee shall authenticate upon request new Securities of that Series that reflect
the amendment or waiver.
Section 9.7. Trustee Protected.
In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 7.1) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee shall sign all supplemental indentures,
except that the Trustee need not sign any supplemental indenture that adversely affects its rights.
ARTICLE X.
GUARANTEES
Section 10.1 Guarantees.
Any Series of Securities may be guaranteed by one or more of the Guarantors. The terms and the
form of any such Guarantee will be established in the manner contemplated by Section 2.2 for that
particular Series of Securities.
39
ARTICLE XI.
SATISFACTION AND DISCHARGE
Section 11.1. Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further effect as to a Series of
Securities issued hereunder, when:
(a) either:
(i) all such Securities that have been authenticated, except lost, stolen or destroyed
Securities that have been replaced or paid and Securities for whose payment money has
theretofore been deposited in trust and thereafter repaid to the Company, have been
delivered to the Trustee for cancellation; or
(ii) all such Securities that have not been delivered to the Trustee for cancellation
have become due and payable by reason of the mailing of a notice of redemption or otherwise
or will become due and payable within one year and the Company has irrevocably deposited or
caused to be deposited with the Trustee as trust funds in trust solely for the benefit of
the Holders of such Securities, cash in U.S. dollars, non-callable Government Securities, or
a combination thereof, in such amounts as will be sufficient, without consideration of any
reinvestment of interest, to pay and discharge the entire indebtedness on such Securities
not delivered to the Trustee for cancellation for principal, premium, if any, and accrued
interest to the date of maturity or redemption;
(b) no Default or Event of Default has occurred and is continuing on the date of
such deposit (other than a Default or Event of Default resulting from the borrowing of funds
to be applied to such deposit) and the deposit will not result in a breach or violation of,
or constitute a default under, any other instrument to which the Company or any guarantor of
such Securities is a party or by which the Company or any such guarantor is bound;
(c) the Company or any guarantor of such Securities has paid or caused to be paid
all sums payable by it under this Indenture; and
(d) the Company has delivered irrevocable instructions to the Trustee for such
Securities under this Indenture to apply the deposited money toward the payment of such
Securities at maturity or on the redemption date, as the case may be.
In addition, the Company must deliver an Officers Certificate and an Opinion of Counsel to the
Trustee for such Securities stating that all conditions precedent to satisfaction and discharge
have been satisfied, and all fees and expenses of the Trustee shall have been paid.
40
Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited
with the Trustee pursuant to subclause (b) of clause (1) of this Section 11.1, the provisions of
Sections 11.2 and 8.6 hereof will survive. In addition, nothing in this Section 11.1 will be
deemed to discharge those provisions of Section 7.7 hereof, that, by their terms, survive the
satisfaction and discharge of this Indenture.
Section 11.2. Application of Trust Money.
Subject to the provisions of Section 8.6 hereof, all money deposited with a Trustee pursuant
to Section 11.1 hereof shall be held in trust and applied by it, in accordance with the provisions
of the Securities with respect to with such deposit was made and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as its own Paying Agent)
as such Trustee may determine, to the persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with such Trustee; but such money
need not be segregated from other funds except to the extent required by law.
If such Trustee or Paying Agent is unable to apply any money or Government Securities in
accordance with Section 11.1 hereof by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Companys and any applicable guarantors obligations under this Indenture and
the applicable Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 11.1 hereof; provided that if the Company has made any payment of
principal of, premium, if any, or interest on, any Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the money or Government Securities held by the Trustee or Paying Agent.
ARTICLE XII.
MISCELLANEOUS
Section 12.1. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or conflicts with another provision
which is required or deemed to be included in this Indenture by the TIA, such required or deemed
provision shall control.
Section 12.2. Notices.
Any notice or communication by the Company or the Trustee to the other, or by a Holder to the
Company or the Trustee, is duly given if in writing and delivered in person or mailed by
first-class mail:
if to the Company:
Hanesbrands Inc.
1000 East Hanes Mill Road
Winston Salem, North Carolina 27105
41
Attention: Richard D. Moss
Telephone: (336) 519-4332
Facsimile: (336) 714-3856
if to the Trustee:
Branch Banking and Trust Company
223 West Nash Street
Wilson, North Carolina 27893
Attention: Corporate Trust Administration
Telephone: (252) 246-4679
Facsimile: (252) 246-4303
The Company or the Trustee by notice to the other may designate additional or different
addresses for subsequent notices or communications.
Any notice or communication to a Securityholder shall be mailed by first-class mail to his
address shown on the register kept by the Registrar and, if any Bearer Securities are outstanding,
published in an Authorized Newspaper. Failure to mail a notice or communication to a
Securityholder of any Series or any defect in it shall not affect its sufficiency with respect to
other Securityholders of that or any other Series.
If a notice or communication is mailed or published in the manner provided above, within the
time prescribed, it is duly given, whether or not the Securityholder receives it.
If the Company mails a notice or communication to Securityholders, it shall mail a copy to the
Trustee and each Agent at the same time.
Section 12.3. Communication by Holders with Other Holders.
Securityholders of any Series may communicate pursuant to TIA § 312(b) with other
Securityholders of that Series or any other Series with respect to their rights under this
Indenture or the Securities of that Series or all Series. The Company, the Trustee, the Registrar
and anyone else shall have the protection of TIA § 312(c).
Section 12.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any action under this
Indenture, the Company shall furnish to the Trustee:
(a) an Officers Certificate stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to the proposed action
have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
42
Section 12.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) shall comply
with the provisions of TIA § 314(e) and shall include:
(a) a statement that the person making such certificate or opinion has read such
covenant or condition;
(b) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such person, such condition
or covenant has been complied with.
Section 12.6. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or a meeting of Securityholders of one or
more Series. Any Agent may make reasonable rules and set reasonable requirements for its
functions.
Section 12.7. Legal Holidays.
Unless otherwise provided by Board Resolution, Officers Certificate or supplemental indenture
hereto for a particular Series, a Legal Holiday is any day that is not a Business Day. If a
payment date is a Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening
period.
Section 12.8. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company shall not have any
liability for any obligations of the Company under the Securities or the Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. Each Securityholder by
accepting a Security waives and releases all such liability. The waiver and release are part of
the consideration for the issue of the Securities.
Section 12.9. Counterparts.
This Indenture may be executed in any number of counterparts and by the parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
43
Section 12.10. Governing Laws.
THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE,
THE SECURITIES AND ANY GUARANTEES OF THE SECURITIES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES
OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
Section 12.11. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt agreement of the
Company or a Subsidiary of the Company. Any such indenture, loan or debt agreement may not be used
to interpret this Indenture.
Section 12.12. Successors.
All agreements of the Company in this Indenture and the Securities shall bind its successor.
All agreements of the Trustee in this Indenture shall bind its successor.
Section 12.13. Severability.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 12.14. Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table, and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not to be considered a
part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 12.15. Securities in a Foreign Currency.
Unless otherwise specified in a Board Resolution, a supplemental indenture hereto or an
Officers Certificate delivered pursuant to Section 2.2 of this Indenture with respect to a
particular Series of Securities, whenever for purposes of this Indenture any action may be taken by
the Holders of a specified percentage in aggregate principal amount of Securities of all Series or
all Series affected by a particular action at the time outstanding and, at such time, there are
outstanding Securities of any Series which are denominated in a coin or currency other than
Dollars, then the principal amount of Securities of such Series which shall be deemed to be
outstanding for the purpose of taking such action shall be that amount of Dollars that could be
obtained for such amount at the Market Exchange Rate at such time. For purposes of this Section
11.15, Market Exchange Rate shall mean the noon Dollar buying rate in New York City for cable
transfers of that currency as published by the Federal Reserve Bank of New York. If such Market
Exchange Rate is not available for any reason with respect to such currency, the Trustee shall use,
in its sole discretion and without liability on its part, such quotation of the Federal Reserve
Bank of New York as of the most recent available date, or quotations from one or more major banks
in The City of New York or in the country of issue of the currency in
44
question or such other quotations as the Trustee, upon consultation with the Company, shall
deem appropriate. The provisions of this paragraph shall apply in determining the equivalent
principal amount in respect of Securities of a Series denominated in currency other than Dollars in
connection with any action taken by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee regarding the Market Exchange Rate or any
alternative determination provided for in the preceding paragraph shall be in its sole discretion
and shall, in the absence of manifest error, to the extent permitted by law, be conclusive for all
purposes and irrevocably binding upon the Company and all Holders.
Section 12.16. Judgment Currency.
The Company agrees, to the fullest extent that it may effectively do so under applicable law,
that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the principal of or interest or other amount on the Securities of any Series (the
Required Currency) into a currency in which a judgment will be rendered (the Judgment
Currency), the rate of exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required Currency with the
Judgment Currency on the day on which final unappealable judgment is entered, unless such day is
not a New York Banking Day, then, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the New York Banking Day preceding the day on which
final unappealable judgment is entered and (b) its obligations under this Indenture to make
payments in the Required Currency (i) shall not be discharged or satisfied by any tender, any
recovery pursuant to any judgment (whether or not entered in accordance with subsection (a)), in
any currency other than the Required Currency, except to the extent that such tender or recovery
shall result in the actual receipt, by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required Currency the amount, if
any, by which such actual receipt shall fall short of the full amount of the Required Currency so
expressed to be payable, and (iii) shall not be affected by judgment being obtained for any other
sum due under this Indenture. For purposes of the foregoing, New York Banking Day means any day
except a Saturday, Sunday or a legal holiday in The City of New York on which banking institutions
are authorized or required by law, regulation or executive order to close.
ARTICLE XIII.
SINKING FUNDS
Section 13.1. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for the retirement of
the Securities of a Series, except as otherwise permitted or required by any form of Security of
such Series issued pursuant to this Indenture.
45
The minimum amount of any sinking fund payment provided for by the terms of the Securities of
any Series is herein referred to as a mandatory sinking fund payment and any other amount
provided for by the terms of Securities of such Series is herein referred to as an optional
sinking fund payment. If provided for by the terms of Securities of any Series, the cash amount
of any sinking fund payment may be subject to reduction as provided in Section 13.2. Each sinking
fund payment shall be applied to the redemption of Securities of any Series as provided for by the
terms of the Securities of such Series.
Section 13.2. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any sinking fund payment with respect
to the Securities of any Series to be made pursuant to the terms of such Securities (1) deliver
outstanding Securities of such Series to which such sinking fund payment is applicable (other than
any of such Securities previously called for mandatory sinking fund redemption) and (2) apply as
credit Securities of such Series to which such sinking fund payment is applicable and which have
been repurchased by the Company or redeemed either at the election of the Company pursuant to the
terms of such Series of Securities (except pursuant to any mandatory sinking fund) or through the
application of permitted optional sinking fund payments or other optional redemptions pursuant to
the terms of such Securities, provided that such Securities have not been previously so
credited. Such Securities shall be received by the Trustee, together with an Officers Certificate
with respect thereto, not later than 15 days prior to the date on which the Trustee begins the
process of selecting Securities for redemption, and shall be credited for such purpose by the
Trustee at the price specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly. If as a result of
the delivery or credit of Securities in lieu of cash payments pursuant to this Section 13.2, the
principal amount of Securities of such Series to be redeemed in order to exhaust the aforesaid cash
payment shall be less than $100,000, the Trustee need not call Securities of such Series for
redemption, except upon receipt of a Company Order that such action be taken, and such cash payment
shall be held by the Trustee or a Paying Agent and applied to the next succeeding sinking fund
payment, provided, however, that the Trustee or such Paying Agent shall from time
to time upon receipt of a Company Order pay over and deliver to the Company any cash payment so
being held by the Trustee or such Paying Agent upon delivery by the Company to the Trustee of
Securities of that Series purchased by the Company having an unpaid principal amount equal to the
cash payment required to be released to the Company.
Section 13.3. Redemption of Securities for Sinking Fund.
Not less than 45 days (unless otherwise indicated in the Board Resolution, supplemental
indenture or Officers Certificate in respect of a particular Series of Securities) prior to each
sinking fund payment date for any Series of Securities, the Company will deliver to the Trustee an
Officers Certificate specifying the amount of the next ensuing mandatory sinking fund payment for
that Series pursuant to the terms of that Series, the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting of Securities of that Series pursuant to Section 13.2, and the optional
amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and the
Company shall thereupon be obligated to pay the amount therein specified.
46
Not less than 30 days (unless otherwise indicated in the Board Resolution, Officers
Certificate or supplemental indenture in respect of a particular Series of Securities) before each
such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 3.2 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the manner provided in
Section 3.3. Such notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 3.4, 3.5 and 3.6.
47
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed and
attested, all as of the day and year first above written.
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Hanesbrands Inc.
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By: |
/s/
Richard D. Moss |
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Name: |
Richard D. Moss |
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Its: |
Senior Vice President and Treasurer |
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Branch Banking and Trust Company
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By: |
/s/
Gregory Yanok |
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Name: |
Gregory Yanok |
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Its: |
Assistant Vice President |
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Exhibit 5.1
Exhibit 5.1
200 East Randolph Drive
Chicago, Illinois 60601
312 861-2000
Facsimile:
312 861-2200
www.kirkland.com
August 1, 2008
Hanesbrands Inc.
1000 East Hanes Mill Road
Winston-Salem, North Carolina 27105
Ladies and Gentlemen:
We are acting as special counsel to Hanesbrands Inc., a Maryland corporation (the
Company), in connection with the preparation of the Registration Statement on Form S-3
(such Registration Statement, as amended or supplemented, is hereinafter referred to as the
Registration Statement) filed with the Securities and Exchange Commission (the
Commission) on or about August 1, 2008 under the Securities Act of 1933, as amended (the
Securities Act), by the Company and certain of the Companys direct and indirect
subsidiaries which are co-registrants thereto (the Co-Registrants and together with the
Company, the Registrants). The Registration Statement relates to the issuance and sale
from time to time, pursuant to Rule 415 of the General Rules and Regulations promulgated under the
Securities Act, of an unspecified amount of the following securities: (i) shares of common stock,
par value $0.01 per share, of the Company (Common Stock); (ii) one or more series of
preferred stock, par value $0.01 per share, of the Company (Preferred Stock); (iii) one
or more series of senior or subordinated debt securities of the Company, which may be guaranteed by
one or more of the Company or the Co-Registrants (Debt Securities); (iv) warrants to
purchase Common Stock, Preferred Stock or Debt Securities (Warrants); (v) shares of
Preferred Stock represented by depositary shares, each of which will represent a fractional share
or multiple shares of Preferred Stock (Depositary Shares); (vi) stock purchase units
(Stock Purchase Units); and (vii) stock purchase contracts obligating holders to purchase
Common Stock at a future date or dates (Stock Purchase Contracts and together with the
Common Stock, Preferred Stock, Debt Securities, Warrants, Depositary Shares and Stock Purchase
Units, Securities). The Common Stock may be issued with associated rights under the
Rights Agreement dated September 1, 2006, between the Company and Computershare Trust Company,
N.A., as rights agent.
You have advised us that: (i) the Debt Securities will be issued under the indenture filed as
an exhibit to the Registration Statement (as amended or supplemented from time to time, the
Indenture), entered between the Company and Branch Banking and Trust Company, as trustee
(together with any successor trustee, the Trustee), dated August 1, 2008; (ii) the
Warrants will be issued under one or more warrant agreements by and between the Company and a
financial
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Hanesbrands Inc.
August 1, 2008
Page 2
institution named therein as the warrant agent (each, a Warrant Agent), in a
form that will be filed as an exhibit to a post-effective amendment to the Registration Statement
or incorporated by reference therein (each, a Warrant Agreement); (iii) the Depositary
Shares will be issued under one or more deposit agreements by and between the Company and a
financial institution named therein as the depositary (each, a Depositary), in a form
that will be filed as an exhibit to a post-effective amendment to the Registration Statement or
incorporated by reference therein (each, a Deposit Agreement); (iv) the Stock Purchase
Units will be issued under a stock purchase unit agreement by and between the Company and the other
parties named therein, in a form that will be filed as an exhibit to a post-effective amendment to
the Registration Statement or incorporated by reference therein (each, a Stock Purchase Unit
Agreement); and (v) the Stock Purchase Contracts will be issued under a stock purchase
contract by and between the Company and the other parties named therein, in a form that will be
filed as an exhibit to a post-effective amendment to the Registration Statement or incorporated by
reference therein (each, a Stock Purchase Contract). Each Warrant Agreement, Deposit
Agreement, Stock Purchase Unit Agreement and Stock Purchase Contract as well as the Indenture shall
be referred to herein as a Governing Document). Each Warrant Agent, Depositary,
counterparty to a Stock Purchase Unit Agreement or a Stock Purchase Contract and the Trustee shall
be referred to herein as a Governing Document Counterparty)
In connection with the registration of the Securities, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of such documents, corporate records and
other instruments as we have deemed necessary for the purposes of this opinion, including (i) the
organizational documents of the Registrants, (ii) minutes and records of the corporate proceedings
of the Registrants and (iii) the Registration Statement and the exhibits thereto.
For purposes of this opinion, we have assumed the authenticity of all documents submitted to
us as originals, the conformity to the originals of all documents submitted to us as copies and the
authenticity of the originals of all documents submitted to us as copies. We have also assumed the
legal capacity of all natural persons, the genuineness of the signatures of persons signing all
documents in connection with which this opinion is rendered, the authority of such persons signing
on behalf of the parties thereto other than the Registrants and the due authorization, execution
and delivery of all documents by the parties thereto other than the Registrants. We have not
independently established or verified any facts relevant to the opinions expressed herein, but have
relied upon statements and representations of the officers and other representatives of the
Registrants.
Hanesbrands Inc.
August 1, 2008
Page 3
We have also assumed that:
(i) the Registration Statement will have become effective and comply with all applicable laws;
(ii) the Registration Statement will be effective and will comply with all applicable laws at
the time the Securities are offered or issued as contemplated by the Registration Statement;
(iii) a prospectus supplement or term sheet (Prospectus Supplement) will have been
prepared and filed with the Commission describing the Securities offered thereby and will comply
with all applicable laws;
(iv) all Securities will be issued and sold in compliance with applicable federal and state
securities laws and in the manner stated in the Registration Statement and the appropriate
Prospectus Supplement;
(v) the Securities will be issued and sold in the form and containing the terms set forth in
the Registration Statement, the appropriate Prospectus Supplement and the relevant Governing
Document;
(vi) the Securities offered as well as the terms of the applicable Governing Document, as
executed and delivered, do not violate any law applicable to applicable Registrant or result in a
default under or breach of any agreement or instrument binding upon the applicable Registrant;
(vii) the applicable Registrant will have obtained any legally required consents, approvals,
authorizations and other orders of the Commission and any other regulatory authorities necessary to
issue and sell the Securities being offered and to execute and deliver the applicable Governing
Document;
(viii) the Securities offered as well as the terms of the applicable Governing Document, as
executed and delivered, comply with all requirements and restrictions, if any, applicable to the
applicable Registrant, whether imposed by any court or governmental or regulatory body having
jurisdiction over the applicable Registrant;
Hanesbrands Inc.
August 1, 2008
Page 4
(ix) a definitive purchase, underwriting, or similar agreement (each, a Purchase
Agreement) with respect to any Securities offered or issued will have been duly authorized and
validly executed and delivered by the Company and the other parties thereto; and
(x) any Securities issuable upon conversion, exchange, or exercise of any Security being
offered or issued will be duly authorized, created, and, if appropriate, reserved for issuance upon
such conversion, exchange, or exercise.
Based upon and subject to the foregoing qualifications, assumptions and limitations and the
further limitations set forth below, we are of the opinion that:
1. When, as and if (a) the terms of any particular series of Debt Securities have been duly
authorized and duly established in accordance with the Indenture and applicable law, (b) the
appropriate corporate or organizational action has been taken to authorize the form, terms,
execution and delivery of such Debt Securities (and any required amendment or supplement to the
Indenture), and (c) the applicable Debt Securities have been duly executed, attested, issued and
delivered by duly authorized officers against payment in accordance with such authorization, the
Indenture, the applicable Purchase Agreement and applicable law and authenticated by the Trustee,
such Debt Securities (including any Debt Securities duly executed and delivered (i) upon the
exchange or conversion of Debt Securities that are exchangeable or convertible into another series
of Debt Securities or (ii) upon the exercise of Warrants pursuant to the terms thereof that are
exercisable for the purchase of Debt Securities) will constitute valid and binding obligations of
the Company and, as applicable, any Co-Registrant delivering a guarantee, enforceable against the
Company in accordance with their terms.
2. When, as and if (a) the appropriate corporate action has been taken by the Company to
authorize the form, terms, execution and delivery of the Warrant Agreement (including a form of
certificate evidencing the Warrants), (b) Warrants with such terms have been duly executed,
attested, issued and delivered by duly authorized officers of the Company against payment in
accordance with such authorization, the applicable Purchase Agreement and applicable law, and (c)
the Securities issuable upon exercise of such Warrants have been duly authorized and reserved for
issuance by all necessary corporate or organizational action and, in the case of Warrants to
purchase Debt Securities, when the terms of such Debt Securities have been duly authorized and duly
established in accordance with the terms of the Indenture, applicable law and the appropriate
corporate or organizational action and, in the case of Warrants to purchase Common Stock or
Preferred Stock, that the exercise price of such Warrants consists of legal consideration in excess
of the par value of such securities, such Warrants will constitute
Hanesbrands Inc.
August 1, 2008
Page 5
valid and binding obligations of
the Company, enforceable against the Company in accordance with their terms.
3. When, as and if (a) the appropriate corporate action has been taken by the Company to
authorize the form, terms, execution and delivery of the Deposit Agreement (including a form of
certificate evidencing the Depositary Shares), (b) the Depositary Shares with such terms have been
duly executed, attested, issued and delivered by duly authorized officers of the Company against
payment in accordance with such authorization and the applicable Purchase Agreement, and (c) the
underlying Preferred Stock has been duly authorized, validly issued, fully paid and duly deposited
with the Depositary, such Depositary Shares will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms.
4. When, as and if (a) the appropriate corporate action has been taken by the Company to
authorize the form, terms, execution and delivery of the Stock Purchase Unit Agreement (including a
form of certificate evidencing the Stock Purchase Units), (b) the Stock Purchase Units with such
terms have been duly executed, attested, issued and delivered by duly authorized officers of the
Company against payment in accordance with such authorization and the applicable Purchase
Agreement, and (c) the underlying Common Stock has been duly authorized and reserved for issuance
by all necessary corporate action, such Stock Purchase Units will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with their terms.
5. When, as and if (a) the appropriate corporate action has been taken by the Company to
authorize the form, terms, execution and delivery of the Stock Purchase Contract (including a form
of certificate evidencing the Stock Purchase Contracts), (b) the Stock Purchase Contracts with such
terms have been duly executed, attested, issued and delivered by duly authorized officers of the
Company against payment in accordance with such authorization and the applicable Purchase
Agreement, and (c) the underlying Common Stock has been duly authorized and reserved for issuance
by all necessary corporate action, such Stock Purchase Contracts will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with their terms.
Our opinion expressed above is subject to the qualifications that we express no opinion as to
the applicability of, compliance with, or effect of (i) any bankruptcy, insolvency, reorganization,
fraudulent transfer, fraudulent conveyance, moratorium or other similar law affecting the
enforcement of creditors rights generally (including, without limitation,
Hanesbrands Inc.
August 1, 2008
Page 6
Sections 547 and 548 of
the United States Bankruptcy Code and Article 10 of the New York Debtor and Creditor Law), (ii)
general principles of equity (regardless of whether enforcement is considered in a proceeding in
equity or at law), (iii) public policy considerations which may limit the rights of parties to
obtain certain remedies, and (iv) any laws except the federal securities laws of the United States,
the laws of the State of New York and the General Corporation Law of the State of Delaware,
including the applicable provisions of the Delaware constitution and reported judicial decisions
interpreting these laws.
We express no opinion with respect to the enforceability of (i) consents to, or restrictions
upon, judicial relief or jurisdiction or venue; (ii) waivers of rights or defenses with respect to
stay, extension or usury laws; (iii) advance waivers of claims, defenses, rights granted by law, or
notice, opportunity for hearing, evidentiary requirements, statutes of limitation, trial by jury or
at law, or other procedural rights; (iv) waivers of broadly or vaguely stated rights; (v)
provisions for exclusivity, election or cumulation of rights or remedies; (vi) provisions
authorizing or validating conclusive or discretionary determinations; (vii) grants of setoff
rights; (viii) provisions to the effect that a guarantor is liable as a primary obligor, and not as
a surety; (ix) provisions for the payment of attorneys fees where such payment is contrary to law
or public policy; (x) proxies, powers and trusts; (xi) restrictions upon non-written modifications and waivers; (xii)
provisions prohibiting, restricting, or requiring consent to assignment or transfer of any right or
property; (xiii) any provision to the extent it requires any party to indemnify any other person
against loss in obtaining the currency due following a court judgment in another currency; and
(xiv) provisions for liquidated damages, default interest, late charges, monetary penalties,
make-whole premiums or other economic remedies to the extent such provisions are deemed to
constitute a penalty. In addition, we express no opinion with respect to (i) whether acceleration
of the Debt Securities may affect the collectibility of that portion of the stated principal amount
thereof that might be determined to constitute unearned interest thereon, (ii) compliance with laws
relating to permissible rates of interest or (iii) the creation, validity, perfection or priority
of any security interest or lien.
To the extent that the obligations of a Registrant under any Governing Document may be
dependent on such matters, we assume for purposes of this opinion that the applicable Governing
Document Counterparty is duly organized, validly existing and in good standing under the laws of
its jurisdiction of organization; that the applicable Governing Document Counterparty is duly
qualified to engage in the activities contemplated by applicable Governing Document; that the
applicable Governing Document has been duly authorized, executed and delivered by the applicable
Governing Document Counterparty and constitutes the legally valid and binding obligations of such
Governing Document Counterparty, enforceable against such Governing
Hanesbrands Inc.
August 1, 2008
Page 7
Document Counterparty in
accordance with its terms; that the applicable Governing Document Counterparty is in compliance,
generally and with respect to acting as trustee, warrant agent, depositary or other counterparty,
as the case may be, under the applicable Governing Document, with all applicable laws and
regulations; and that the applicable Governing Document Counterparty has the requisite
organizational and legal power and authority to perform its obligations under the applicable
Governing Document.
We hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to the
Registration Statement. We also consent to the reference to our firm under the heading Legal
Matters in the Registration Statement. In giving this consent, we do not thereby admit that we
are in the category of persons whose consent is required under Section 7 of the Securities Act or
the rules and regulations of the Commission.
We do not find it necessary for the purposes of this opinion, and accordingly we do not
purport to cover herein, the application of the securities or Blue Sky laws of the various states
to the sale of the Securities.
This opinion is limited to the specific issues addressed herein, and no opinion may be
inferred or implied beyond that expressly stated herein. We assume no obligation to revise or
supplement this opinion should the present federal securities laws, laws of the State of New York
or the General Corporation Law of the State of Delaware be changed by legislative action,
judicial decision or otherwise.
Hanesbrands Inc.
August 1, 2008
Page 8
This opinion is furnished to you in connection with the filing of the Registration Statement,
and is not to be used, circulated, quoted or otherwise relied upon for any other purpose.
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Sincerely,
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/s/ Kirkland & Ellis LLP
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Kirkland & Ellis LLP |
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Exhibit 5.2
Exhibit 5.2
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750 E. Pratt Street, Suite 900
Baltimore, Maryland 21202
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Telephone 410-244-7400
Facsimile 410-244-7742
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www.venable.com |
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August 1, 2008
Hanesbrands Inc.
1000 East Hanes Mill Road
Winston Salem, NC 27105
Re: Hanesbrands Inc.- Registration Statement on Form S-3
Ladies and Gentlemen:
We have served as Maryland counsel to Hanesbrands Inc., a Maryland corporation (the
Company), in connection with certain matters of Maryland law arising out of the registration by
the Company of securities (collectively, the Securities) consisting of: (i) debt securities (the
Debt Securities) of the Company; (ii) shares of common stock, par value $.01 per share (the
Common Stock), of the Company, including associated preferred stock purchase rights (the
Rights) to purchase one one-thousandth of a share of Junior Participating Preferred Stock, Series
A, $.01 par value per share, of the Company, the terms of which are set forth in a Rights
Agreement, dated as of September 1, 2006 (the Rights Agreement), between the Company and
Computershare Investor Services, LLC, as Rights Agent; (iii) shares of preferred stock, par value
$.01 per share (the Preferred Stock), of the Company; (iv) warrants (Warrants) to purchase
shares of Common Stock or Preferred Stock or Debt Securities; (v) depositary shares (the
Depositary Shares) of the Company, each representing a fraction of a share of Preferred Stock;
(vi) stock purchase contracts (Contracts) to purchase shares of Common Stock; and (vii) stock
purchase units (Units) that include Contracts and either Debt Securities or debt obligations of
third parties, each covered by the Registration Statement on Form S-3, and all amendments thereto
(the Registration Statement), as filed with the United States Securities and Exchange Commission
(the Commission) by the Company on or about the date hereof under the Securities Act of 1933, as
amended (the 1933 Act). Capitalized terms used but not defined herein shall have the meanings
assigned to them in the Registration Statement.
In connection with our representation of the Company, and as a basis for the opinion
hereinafter set forth, we have examined originals, or copies certified or otherwise identified to
our satisfaction, of the following documents (hereinafter collectively referred to as the
Documents):
1. The Registration Statement and the related form of prospectus included therein in the form
in which it was filed with the Commission under the 1933 Act;
Hanesbrands Inc.
August 1, 2008
Page 2
2. The charter of the Company (the Charter), certified by the State Department of
Assessments and Taxation of Maryland (the SDAT);
3. The Bylaws of the Company (the Bylaws), certified as of the date hereof by an officer of
the Company;
4. A certificate of the SDAT as to the good standing of the Company, dated as of a recent
date;
5. Resolutions (the Resolutions) adopted by the Board of Directors of the Company (the
Board), relating to the issuance of the Securities, certified as of a recent date by an officer
of the Company;
6. The Rights Agreement;
7. A certificate executed by an officer of the Company, dated as of the date hereof; and
8. Such other documents and matters as we have deemed necessary or appropriate to express the
opinion set forth below, subject to the assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed the following:
1. Each individual executing any of the Documents, whether on behalf of such individual or
another person, is legally competent to do so.
2. Each individual executing any of the Documents on behalf of a party (other than the
Company) is duly authorized to do so.
3. Each of the parties (other than the Company) executing any of the Documents has duly and
validly executed and delivered each of the Documents to which such party is a signatory, and such
partys obligations set forth therein are legal, valid and binding and are enforceable in
accordance with all stated terms.
4. All Documents submitted to us as originals are authentic. The form and content of all Documents
submitted to us as unexecuted drafts do not differ in any respect relevant to this
opinion from the form and content of such Documents as executed and delivered. All Documents
submitted to us as certified or photostatic copies conform to the original documents. All
signatures on all Documents are genuine. All public records reviewed or relied
Hanesbrands Inc.
August 1, 2008
Page 3
upon by us or on our behalf are true and complete. All representations, warranties,
statements and information contained in the Documents are true and complete. There has been no
oral or written modification of or amendment to any of the Documents, and there has been no waiver
of any provision of any of the Documents, by action or omission of the parties or otherwise.
5. Upon the issuance of any (i) shares of Common Stock, (ii) shares of Common Stock which may
be issued upon conversion of any shares of Preferred Stock convertible into Common Stock, (iii)
shares of Common Stock which may be issued upon conversion or exchange of any Debt Securities
convertible or exchangeable into Common Stock, or (iv) shares of Common Stock which may be issued
upon the exercise of any of the Contract, Units or Warrants (together, the Common Securities),
the total number of shares of Common Stock issued and outstanding will not exceed the number of
shares of Common Stock the Company is then authorized to issue under the Charter.
6. Upon the issuance of any (i) shares of Preferred Stock, (ii) shares of Preferred Stock
which may be issued upon conversion of any shares of Preferred Stock of another class or series,
(iii) shares of Preferred Stock which may be issued to underlie any Depositary Shares, (iv) shares
of Preferred Stock which may be issued upon conversion or exchange of any Debt Securities
convertible or exchangeable into Preferred Stock, or (v) shares of Preferred Stock which may be
issued upon the exercise of any of the Warrants (together, the Preferred Securities), the total
number of shares of Preferred Stock issued and outstanding will not exceed the number of shares of
Preferred Stock the Company is then authorized to issue under the Charter.
7. Any Securities convertible into or exercisable for any other Securities will be duly
converted or exercised in accordance with their terms.
8. The issuance, and certain terms, of the Securities to be issued by the Company from time to
time will be authorized and approved by the Board, or a duly authorized committee thereof, in
accordance with the Maryland General Corporation Law, the Charter, the Bylaws, the Registration
Statement and the Resolutions and, with respect to shares of Preferred Stock, Articles
Supplementary setting forth the number of shares and the terms of any class or series of Preferred
Stock to be issued by the Company will be filed with and accepted for record
by the SDAT prior to their issuance (such approvals and, if applicable, acceptance for record,
referred to herein as the Corporate Proceedings).
The phrase known to us is limited to the actual knowledge, without independent inquiry, of
the lawyers at our firm who have performed legal services on behalf of the Company.
Based upon the foregoing, and subject to the assumptions, limitations and qualifications
stated herein, it is our opinion that:
Hanesbrands Inc.
August 1, 2008
Page 4
1. The Company is a corporation duly incorporated and validly existing under the laws of the
State of Maryland and is in good standing with the SDAT.
2. Upon the completion of all Corporate Proceedings relating to the Debt Securities, the Debt
Securities will be duly authorized for issuance.
3. Upon the completion of all Corporate Proceedings relating to the Common Securities, the
Common Securities will be duly authorized for issuance and, when and if issued and delivered
against payment therefor in accordance with the Registration Statement, the Resolutions and the
Corporate Proceedings, will be validly issued, fully paid and nonassessable. The Rights have been
duly authorized and, when issued in accordance with the Charter, the Resolutions and the Rights
Agreement, will be validly issued.
4. Upon the completion of all Corporate Proceedings relating to the Preferred Securities, the
Preferred Securities will be duly authorized for issuance and, when and if issued and delivered
against payment therefor in accordance with the Registration Statement, the Resolutions and the
Corporate Proceedings, will be validly issued, fully paid and nonassessable.
5. Upon the completion of all Corporate Proceedings relating to the Warrants, the Warrants
will be duly authorized for issuance.
6. Upon the completion of all Corporate Proceedings relating to the Securities that are
Depositary Shares, the Depositary Shares will be duly authorized for issuance.
7. Upon the completion of all Corporate Proceedings relating to the Contracts, the Rights will
be duly authorized for issuance.
8. Upon the completion of all Corporate Proceedings relating to the Units, including all
Corporate Proceedings relating to the Securities sold together as Units, the Units will be duly
authorized for issuance.
The foregoing opinion is limited to the laws of the State of Maryland and we do not express
any opinion herein concerning any other law. We express no opinion as to the applicability or
effect of any federal or state securities laws, including the securities laws of the State of
Maryland, or as to federal or state laws regarding fraudulent transfers. To the extent that any
matter as to which our opinion is expressed herein would be governed by any jurisdiction other than
the State of Maryland, we do not express any opinion on such matter. The opinion expressed herein
is subject to the effect of judicial decisions which may permit the introduction of parol evidence
to modify the terms or the interpretation of agreements.
Hanesbrands Inc.
August 1, 2008
Page 5
The opinion expressed herein is limited to the matters specifically set forth herein and no
other opinion shall be inferred beyond the matters expressly stated. We assume no obligation to
supplement this opinion if any applicable law changes after the date hereof or if we become aware
of any fact that might change the opinion expressed herein after the date hereof.
This opinion is being furnished to you for submission to the Commission as an exhibit to the
Registration Statement. We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of the name of our firm therein. In giving this consent, we
do not admit that we are within the category of persons whose consent is required by Section 7 of
the 1933 Act.
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Very truly yours,
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/s/ Venable LLP |
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Exhibit 12.1
Exhibit 12.1
Hanesbrands Inc.
Ratio of Earnings to Fixed Charges(1)
(Dollars in thousands)
(Unaudited)
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Six-Months Ended |
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Year Ended |
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Six-Months Ended |
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Year Ended |
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June 28, 2008 |
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December 29, 2007 |
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December 30, 2006 |
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July 1, 2006 |
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July 2, 2005 |
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July 3, 2004 |
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June 28, 2003 |
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Earnings as defined: |
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Income from continuing
operations before income tax
expense, minority interest and
income/loss from equity
investees |
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$ |
123,419 |
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$ |
185,321 |
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$ |
112,830 |
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$ |
417,543 |
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$ |
343,099 |
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$ |
397,512 |
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$ |
545,838 |
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Fixed charges |
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89,399 |
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223,395 |
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90,168 |
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44,366 |
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52,596 |
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52,743 |
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59,538 |
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Amortization of capitalized
interest |
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|
1,691 |
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|
|
3,676 |
|
|
|
2,024 |
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|
4,227 |
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|
5,000 |
|
|
|
6,438 |
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|
|
7,990 |
|
Distributed income of equity
investees |
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3,030 |
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3,943 |
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4,929 |
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Interest capitalized |
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(1,540 |
) |
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(2,184 |
) |
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(1,904 |
) |
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(4,656 |
) |
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(1,694 |
) |
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(1,353 |
) |
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(1,839 |
) |
Minority interest in pre-tax
income |
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(567 |
) |
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(1,195 |
) |
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(910 |
) |
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(1,224 |
) |
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(55 |
) |
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|
100 |
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Total earnings, as defined |
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$ |
212,402 |
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$ |
409,013 |
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$ |
202,208 |
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$ |
460,256 |
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|
$ |
401,976 |
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|
$ |
459,383 |
|
|
$ |
616,456 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fixed charges, as defined: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest Expense |
|
$ |
77,999 |
|
|
$ |
201,131 |
|
|
$ |
78,692 |
|
|
$ |
26,075 |
|
|
$ |
35,244 |
|
|
$ |
37,411 |
|
|
$ |
44,245 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amortized premiums, discounts
and capitalized expenses
related to indebtedness |
|
|
3,105 |
|
|
|
6,475 |
|
|
|
2,279 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest factor in rental
expenses |
|
|
8,385 |
|
|
|
15,789 |
|
|
|
9,197 |
|
|
|
18,291 |
|
|
|
17,352 |
|
|
|
15,332 |
|
|
|
15,293 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total fixed charges, as
defined |
|
$ |
89,399 |
|
|
$ |
223,395 |
|
|
$ |
90,168 |
|
|
$ |
44,366 |
|
|
$ |
52,596 |
|
|
$ |
52,743 |
|
|
$ |
59,538 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ratio of earnings to fixed charges: |
|
|
2.38 |
|
|
|
1.83 |
|
|
|
2.24 |
|
|
|
10.37 |
|
|
|
7.64 |
|
|
|
8.71 |
|
|
|
10.35 |
|
|
|
|
(1) |
|
The Ratio of Earnings to Fixed Charges should be read in
conjunction with the Consolidated Financial Statements and Managements
Discussion and Analysis of Financial Condition and Results of Operations
incorporated by reference into the registration statement along with which this
exhibit has been filed. The interest expense included in the fixed charges
calculation above excludes interest expense relating to the Companys uncertain
tax positions. The percentage of rent included in the calculation is a
reasonable approximation of the interest factor. |
Exhibit 23.1
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form
S-3 of our report dated February 8, 2008 relating to the financial statements, financial
statement schedule and the effectiveness of internal control over financial reporting,
which appears in Hanesbrands Inc.s Annual Report on Form 10-K for the fiscal year ended
December 29, 2007. We also consent to the reference to us under the heading Experts in
such Registration Statement.
/s/ PricewaterhouseCoopers LLP
Greensboro, North Carolina
August 1, 2008
Exhibit 25.1
Exhibit 25.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
Statement of Eligibility Under the
Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee
o Check if an application to determine eligibility of a trustee
pursuant to section 305(b)(2)
Branch Banking and Trust Company
(Exact name of trustee as specified in its charter)
|
|
|
North Carolina
|
|
56-0149200 |
(Jurisdiction of incorporation or organization
if not a U.S. national bank)
|
|
(I.R.S. Employer Identification Number) |
223 West Nash Street
Wilson, North Carolina 27893
(Address of principal executive offices) (Zip Code)
Frances B. Jones, Esq.
c/o BB&T Corporation
200 West Second Street
Winston-Salem, North Carolina 27101
(336) 733-2000
(Name, address and telephone number of agent for service)
Hanesbrands Inc.
(Exact name of obligor as specified in its charter)
|
|
|
Maryland
|
|
20-3552316 |
(State or other jurisdiction of
incorporation or organization)
|
|
(I.R.S. Employer Identification Number) |
1000 East Hanes Mill Road
Winston-Salem, North Carolina 27105
(Address of principal executive offices) (Zip Code)
|
|
|
|
|
BA International, L.L.C.
|
|
Delaware
|
|
20-3151349 |
Caribesock, Inc.
|
|
Delaware
|
|
36-4311677 |
Caribetex, Inc.
|
|
Delaware
|
|
36-4147282 |
CASA International, LLC
|
|
Delaware
|
|
01-0863412 |
Ceibena Del, Inc.
|
|
Delaware
|
|
36-4165547 |
Hanes Menswear, LLC
|
|
Delaware
|
|
66-0320041 |
Hanes Puerto Rico, Inc.
|
|
Delaware
|
|
36-3726350 |
Hanesbrands Direct, LLC
|
|
Colorado
|
|
20-5720114 |
Hanesbrands Distribution, Inc.
|
|
Delaware
|
|
36-4500174 |
HBI Branded Apparel Enterprises, LLC
|
|
Delaware
|
|
20-5720055 |
HBI Branded Apparel Limited, Inc.
|
|
Delaware
|
|
35-2274670 |
HbI International, LLC
|
|
Delaware
|
|
01-0863413 |
HBI Sourcing, LLC
|
|
Delaware
|
|
20-3552316 |
Inner Self LLC
|
|
Delaware
|
|
36-4413117 |
Jasper-Costa Rica, L.L.C.
|
|
Delaware
|
|
51-0374405 |
Playtex Dorado, LLC
|
|
Delaware
|
|
13-2828179 |
Playtex Industries, Inc.
|
|
Delaware
|
|
51-0313092 |
Seamless Textiles, LLC
|
|
Delaware
|
|
36-4311900 |
UPCR, Inc.
|
|
Delaware
|
|
36-4165638 |
UPEL, Inc.
|
|
Delaware
|
|
36-4165642 |
(Exact Name of co-obligors as specified in
their charters)
|
|
(State or other
jurisdiction of
incorporation or
organization)
|
|
(I.R.S Employer
Identification
Number) |
c/o Hanesbrands Inc.
1000 East Hanes Mill Road
Winston-Salem, North Carolina 27105
(Address of principal executive offices) (Zip Code)
Debt Securities
Guarantees of Debt Securities
(Title of the indenture securities)
1. General information.
Furnish the following information as to the trustee:
|
(a) |
|
Name and address of each examining or supervising authority to which it is subject. |
|
|
|
NORTH CAROLINA COMMISSIONER OF BANKS
|
|
RALEIGH, NORTH CAROLINA 27603 |
|
|
|
FEDERAL RESERVE BANK
|
|
RICHMOND, VIRGINIA 23219 |
|
|
|
FEDERAL DEPOSIT INSURANCE CORPORATION
|
|
WASHINGTON, D.C. 20429 |
|
(b) |
|
Whether it is authorized to exercise corporate trust powers. |
YES.
2. Affiliations with obligor.
If the obligor is an affiliate of the trustee, describe each such affiliation.
NONE.
3-12. |
|
NO RESPONSES ARE INCLUDED FOR ITEMS 3 THROUGH 12. RESPONSES TO THOSE ITEMS ARE NOT REQUIRED
BECAUSE, AS PROVIDED IN GENERAL INSTRUCTION B AND AS SET FORTH IN ITEMS 13(a) AND 13(b) BELOW,
TO THE BEST OF THE TRUSTEES KNOWLEDGE, THE OBLIGOR IS NOT IN DEFAULT ON ANY SECURITIES ISSUED
UNDER INDENTURES UNDER WHICH BRANCH BANKING AND TRUST COMPANY IS A TRUSTEE. |
13. Defaults by the Obligor.
|
(a) |
|
State whether there is or has been a default with respect to the securities
under this indenture. Explain the nature of any such default. |
TO THE BEST OF THE TRUSTEES KNOWLEDGE, THERE IS NOT AND HAS NOT BEEN ANY DEFAULT
UNDER THIS INDENTURE.
|
(b) |
|
If the trustee is a trustee under another indenture under which any other
securities, or certificates of interest or participation in any other securities, of the
obligor are
outstanding, or is trustee for more than one outstanding series of securities under
the indenture, state whether there has been a default under any such indenture or
series, identify the indenture or series affected, and explain the nature of any such
default. |
TO THE BEST OF THE TRUSTEES KNOWLEDGE, THERE HAS NOT BEEN ANY SUCH DEFAULT.
14-15. |
|
NO RESPONSES ARE INCLUDED FOR ITEMS 14 AND 15. RESPONSES TO THOSE ITEMS ARE NOT REQUIRED
BECAUSE, AS PROVIDED IN GENERAL INSTRUCTION B AND AS SET FORTH IN ITEMS 13(a) AND 13(b) ABOVE,
TO THE BEST OF THE TRUSTEES KNOWLEDGE, THE OBLIGOR IS NOT IN DEFAULT ON ANY SECURITIES ISSUED
UNDER INDENTURES UNDER WHICH BRANCH BANKING AND TRUST COMPANY IS A TRUSTEE. |
16. List of exhibits.
List below all exhibits filed as a part of this statement of eligibility; exhibits
identified by an asterisk or asterisks are filed with the Securities and Exchange Commission
and are incorporated herein by reference as exhibits hereto pursuant to Rule 7a-29 under the
Trust Indenture Act of 1939, as amended.
|
|
|
1.*
|
|
A copy of the restated articles of incorporation of Branch Banking and Trust
Company. |
|
|
|
2.*
|
|
A copy of the certificate of authority of the trustee to commence business. |
|
|
|
3.**
|
|
A copy of the authorization of the trustee to exercise corporate trust powers. |
|
|
|
4.*
|
|
A copy of the existing by-laws of the trustee as now in effect. |
|
|
|
5.
|
|
Not applicable. |
|
|
|
6.
|
|
The consent of the trustee required by Section 321(b) of the Trust Indenture Act
of 1939. |
|
|
|
7.
|
|
A copy of the latest report of condition of the trustee published pursuant to law
or the requirements of its supervising or examining authority. |
|
|
|
8.
|
|
Not applicable. |
|
|
|
9.
|
|
Not applicable. |
|
|
|
* |
|
Incorporated by reference to the exhibit of the same number to the trustees Statement of
Eligibility on Form T-1 filed as Exhibit 25.1 to the Registration Statement on Form S-3ASR
(Commission File No. 333-142343) filed on April 25, 2007. |
|
** |
|
Incorporated by reference to the exhibit of the same number to the trustees Statement of
Eligibility on Form T-1 filed as Exhibit 25.1 to the Registration Statement on Form S-3ASR
(Commission File No. 333-149371) filed on February 22, 2008. |
Signature
Pursuant to the requirements of the Trust Indenture Act of 1939 the trustee, Branch Banking
and Trust Company, a state banking corporation organized and existing under the laws of the State
of North Carolina, has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Wilson and the State of North Carolina,
on the 1st day of August, 2008.
|
|
|
|
|
|
Branch Banking and Trust Company
|
|
|
By: |
/s/ Gregory Yanok
|
|
|
|
Gregory Yanok |
|
|
|
Assistant Vice President |
|
|
Exhibit 1 to Form T-1
ARTICLES OF ASSOCIATION
OF
BRANCH BANKING AND TRUST COMPANY
Incorporated by reference to the exhibit of the same number to the trustees
Statement of Eligibility on Form T-1 filed as Exhibit 25.1 to the
Registration Statement on Form S-3ASR
(Commission File No. 333-142343) filed on April 25, 2007.
Exhibit 2 to Form T-1
CERTIFICATE OF AUTHORITY OF
BRANCH BANKING AND TRUST COMPANY
TO COMMENCE BUSINESS
Incorporated by reference to the exhibit of the same number to the trustees
Statement of Eligibility on Form T-1 filed as Exhibit 25.1 to the
Registration Statement on Form S-3ASR
(Commission File No. 333-142343) filed on April 25, 2007.
Exhibit 3 to Form T-1
AUTHORIZATION OF
BRANCH BANKING AND TRUST COMPANY
TO EXERCISE CORPORATE TRUST POWERS
Incorporated by reference to the exhibit of the same number to the trustees Statement of
Eligibility on Form T-1 filed as Exhibit 25.1 to the Registration Statement on Form S-3ASR
(Commission File No. 333-149371) filed on February 22, 2008.
Exhibit 4 to Form T-1
BYLAWS OF
BRANCH BANKING AND TRUST COMPANY
Incorporated by reference to the exhibit of the same number to the trustees
Statement of Eligibility on Form T-1 filed as Exhibit 25.1 to the
Registration Statement on Form S-3ASR
(Commission File No. 333-142343) filed on April 25, 2007.
Exhibit 5 to Form T-1
(Intentionally Omitted. Not Applicable.)
Exhibit 6 to Form T-1
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act of 1939, in
connection with the proposed issuance of the Debt Securities of Hanesbrands Inc. and Guarantees of
Debt Securities, Branch Banking and Trust Company hereby consents that reports of examinations by
Federal, State, Territorial or District Authorities may be furnished by such authorities to the
Securities and Exchange Commission upon request therefor.
|
|
|
|
|
|
Branch Banking and Trust Company
|
|
August 1, 2008 |
By: |
/s/ Gregory Yanok
|
|
|
|
Gregory Yanok |
|
|
|
Assistant Vice President |
|
|
Exhibit 7 to Form T-1
REPORT OF CONDITION
BRANCH BANKING AND TRUST COMPANY
At the close of business March 31, 2008, published in accordance with Federal regulatory
authority instructions.
|
|
|
|
|
|
|
Dollar Amounts |
|
|
|
in Thousands |
|
ASSETS |
|
|
|
|
Cash and balances due from depository institutions: |
|
|
|
|
Noninterest-bearing balance and currency and coin (1) |
|
|
1,843,524 |
|
Interest-bearing balances (2) |
|
|
332,314 |
|
Securities: |
|
|
|
|
Held-to-maturity securities |
|
|
0 |
|
Available-for-sale securities |
|
|
22,752,996 |
|
Federal funds sold and securities purchased under agreements to resell: |
|
|
|
|
Federal funds sold in domestic offices |
|
|
109,769 |
|
Securities purchased under agreements to resell (3) |
|
|
0 |
|
Loans and lease financing receivables: |
|
|
|
|
Loans and leases held for sale |
|
|
1,822,226 |
|
Loans and leases, net of unearned income |
|
|
89,705,531 |
|
LESS: Allowance for loan and lease losses |
|
|
957,324 |
|
Loans and leases, net of unearned income and allowance |
|
|
88,748,207 |
|
Trading assets |
|
|
548,302 |
|
Premises and fixed assets (including capitalized leases) |
|
|
1,512,686 |
|
Other real estate owned |
|
|
198,811 |
|
Investments in unconsolidated subsidiaries and associated companies |
|
|
1,260 |
|
Not applicable
|
|
|
|
|
Intangible assets: |
|
|
|
|
Goodwill |
|
|
5,002,016 |
|
Other intangible assets |
|
|
929,717 |
|
Other assets: |
|
|
8,114,087 |
|
|
|
|
|
|
|
|
|
|
Total assets |
|
|
131,915,915 |
|
|
|
|
|
|
|
|
(1) |
|
Includes cash items in process of collection and unposted debits. |
|
(2) |
|
Includes time certificates of deposit not held for trading. |
|
(3) |
|
Includes all securities resale agreements in domestic and foreign offices, regardless of maturity. |
|
|
|
|
|
|
|
Dollar Amounts |
|
|
|
in Thousands |
|
LIABILITIES |
|
|
|
|
Deposits: |
|
|
|
|
In domestic offices |
|
|
81,173,210 |
|
Noninterest-bearing (1) |
|
|
13,480,181 |
|
Interest-bearing |
|
|
67,693,029 |
|
In foreign offices, Edge and Agreement subsidiaries, and IBFs: |
|
|
6,650,885 |
|
Noninterest-bearing |
|
|
22,925 |
|
Interest-bearing |
|
|
6,627,960 |
|
Federal funds purchased and securities sold under agreements to repurchase: |
|
|
|
|
Federal funds purchased in domestic offices (2) |
|
|
1,640,607 |
|
Securities sold under agreements to repurchase (3) |
|
|
1,566,083 |
|
Trading liabilities |
|
|
271,713 |
|
Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases) |
|
|
20,632,090 |
|
Not applicable |
|
|
|
|
Not applicable |
|
|
|
|
Subordinated notes and debentures (4) |
|
|
1,360,886 |
|
Other liabilities |
|
|
4,760,359 |
|
|
|
|
|
|
|
|
|
|
Total liabilities |
|
|
118,055,833 |
|
|
|
|
|
|
|
|
|
|
Minority interest in consolidated subsidiaries |
|
|
27,042 |
|
|
|
|
|
|
EQUITY CAPITAL |
|
|
|
|
Perpetual preferred stock and related surplus |
|
|
2,000 |
|
Common stock |
|
|
24,437 |
|
Surplus (excludes all surplus related to preferred stock) |
|
|
|
|
Not Available |
|
|
10,366,394 |
|
Retained earnings |
|
|
3,538,748 |
|
Accumulated other comprehensive income (5) |
|
|
(98,539 |
) |
Other equity capital components (6) |
|
|
0 |
|
Total equity capital |
|
|
13,833,040 |
|
|
|
|
|
|
|
|
|
|
Total liabilities, minority interest, and equity capital |
|
|
131,915,915 |
|
|
|
|
|
|
|
|
(1) |
|
Includes total demand deposits and noninterest-bearing time and savings deposits. |
|
(2) |
|
Report overnight Federal Home Loan Bank advances in Schedule RC, item 16, Other borrowed money. |
|
(3) |
|
Includes all securities repurchase agreements in domestic and foreign offices, regardless of maturity. |
|
(4) |
|
Includes limited-life preferred stock and related surplus. |
|
(5) |
|
Includes net unrealized holding gains (losses) on available-for-sale securities, accumulated net gains (losses) on cash flow hedges,
cumulative foreign currency translation adjustments, and minimum pension liability adjustments. |
|
(6) |
|
Includes treasury stock and unearned Employee Stock Ownership Plan shares. |
Exhibit 8 to Form T-1
(Intentionally Omitted. Not Applicable.)
Exhibit 9 to Form T-1
(Intentionally Omitted. Not Applicable.)