<PAGE>
FILED PURSUANT TO RULE 424(b)(3)
SEC FILE NO. 33-58177
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A REGIS- +
+TRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE SECU- +
+RITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY OF- +
+FERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES +
+EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE SO- +
+LICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES +
+IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL +
+PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH +
+STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Subject to Completion, dated June 5, 1995
PROSPECTUS SUPPLEMENT
(To Prospectus dated June 5, 1995)
[LOGO OF TYSON FOODS APPEARS HERE]
TYSON FOODS, INC.
$150,000,000
% Notes due 2005
Interest payable June and December
ISSUE PRICE: %
Interest on the % Notes due 2005 (the "Notes") is payable semiannually on
June and December of each year, beginning , 1995. The Notes will not
be redeemable prior to maturity and will not be subject to any sinking fund.
The Notes will be represented by one or more Global Securities registered in
the name of The Depository Trust Company (the "Depositary") or its nominee.
Interests in the Global Securities will be shown on, and transfer thereof will
be effected only through, records maintained by the Depositary and its
participants. Except as provided herein, Notes in definitive form will not be
issued. See "Description of Notes."
The Notes will trade in the Depositary's Same-Day Funds Settlement System until
maturity, and secondary market trading activity in the Notes will therefore
settle in immediately available funds. All payments of principal and interest
will be made by the Company in immediately available funds. See "Description of
Notes--Same-Day Settlement and Payment."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
UNDERWRITING
PRICE TO DISCOUNTS AND PROCEEDS TO
PUBLIC(1) COMMISSIONS(2) COMPANY(1)(3)
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
Per Note % % %
- --------------------------------------------------------------------------------
Total $ $ $
- --------------------------------------------------------------------------------
</TABLE>
(1) Plus accrued interest, if any, from June , 1995.
(2) The Company has agreed to indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933, as
amended. See "Underwriting."
(3) Before deducting expenses payable by the Company, estimated at $ .
The Notes are offered, subject to prior sale, when, as and if accepted by the
Underwriters and subject to approval of certain legal matters by Davis Polk &
Wardwell, counsel for the Underwriters. It is expected that delivery of the
Notes will be made on or about June , 1995 through the facilities of the
Depositary, against payment therefor in same-day funds.
J.P. MORGAN SECURITIES INC.
CS FIRST BOSTON
MERRILL LYNCH & CO.
BA SECURITIES, INC.
A.G. EDWARDS & SONS, INC.
NATWEST CAPITAL MARKETS LIMITED
STEPHENS INC.
June , 1995
<PAGE>
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE NOTES OFFERED
HEREBY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET.
SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS SUPPLEMENT OR THE PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION
OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS
PROSPECTUS SUPPLEMENT AND THE PROSPECTUS DO NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES
DESCRIBED IN THIS PROSPECTUS SUPPLEMENT OR AN OFFER TO SELL OR THE SOLICITATION
OF AN OFFER TO BUY SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR
SOLICITATION IS UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS SUPPLEMENT OR
THE PROSPECTUS, NOR ANY SALE MADE HEREUNDER AND THEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE INFORMATION CONTAINED
OR INCORPORATED BY REFERENCE HEREIN OR THEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THE DATE OF SUCH INFORMATION.
----------------
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Use of Proceeds............................................................ S-3
Capitalization............................................................. S-3
Selected Consolidated Financial Data....................................... S-4
Description of Notes....................................................... S-5
Underwriting............................................................... S-6
PROSPECTUS
Available Information...................................................... 2
Incorporation of Certain Documents by Reference............................ 2
The Company................................................................ 3
Ratio of Earnings to Fixed Charges......................................... 4
Use of Proceeds............................................................ 4
Description of Debt Securities............................................. 4
Plan of Distribution....................................................... 16
Legal Matters.............................................................. 17
Experts.................................................................... 17
</TABLE>
S-2
<PAGE>
USE OF PROCEEDS
The net proceeds from the offering of the Notes will be used by the Company
to repay a portion of the borrowings under its commercial paper program. As of
April 1, 1995, the Company's weighted average interest rate on its commercial
paper was 6.13% with maturities ranging from 1 to 90 days. The reduction of the
Company's commercial paper borrowings will increase availability under its
revolving credit facilities which currently support such commercial paper
borrowings and bear interest at floating rates (weighted average rate,
excluding commercial paper, of 6.17% at April 1, 1995). The Company may use
funds borrowed under its revolving credit facilities to finance acquisitions
and for general corporate purposes. Pending application of the net proceeds
from the offering of the Notes, such proceeds may be invested in short-term
interest-bearing securities.
CAPITALIZATION
The following table sets forth the Company's consolidated capitalization at
April 1, 1995, and as adjusted to give effect to the sale of the Notes offered
hereby and the application of the net proceeds therefrom (estimated at $
million) to the repayment of commercial paper.
<TABLE>
<CAPTION>
APRIL 1, 1995
-----------------------
(UNAUDITED)
ACTUAL AS ADJUSTED
---------- -----------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
SHORT-TERM DEBT........................................ $ 98,891
LONG-TERM DEBT(1):
Commercial paper and bank borrowings................. 1,037,401
Other long-term debt................................. 72,502
Institutional notes.................................. 348,700
Notes offered hereby................................. --
SHAREHOLDERS' EQUITY:
Common stock ($.10 par value):
Class A--Authorized 900,000,000 shares; issued
79,686,965 shares................................. 7,969
Class B--Authorized 900,000,000 shares; issued
68,454,738 shares................................. 6,846
Capital in excess of par value..................... 389,870
Retained earnings.................................. 1,051,129
Currency translation adjustment.................... (4,112)
---------- ----
1,451,702
Less treasury stock--3,951,096 shares, at cost..... 92,647
Less unamortized deferred compensation............. 2,970
---------- ----
Total Shareholders' Equity............................. 1,356,085
</TABLE>
- --------
(1) See Note 5 of Notes to Consolidated Financial Statements incorporated
herein by reference to the Company's Annual Report to Shareholders for the
fiscal year ended October 1, 1994.
S-3
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA
The following table sets forth certain selected financial data derived from
the audited consolidated financial statements of the Company for the five
fiscal years ended October 1, 1994, and from unaudited financial statements for
the six months ended April 2, 1994 and April 1, 1995, respectively. The Company
believes that all adjustments necessary for the fair presentation thereof have
been made to the unaudited financial data. The results for the interim period
ended April 1, 1995 are not necessarily indicative of the results for the full
year. The following information should be read in conjunction with the
consolidated financial statements and related notes incorporated by reference
in the accompanying Prospectus. See "Incorporation of Certain Documents by
Reference" in the accompanying Prospectus.
<TABLE>
<CAPTION>
SIX MONTHS ENDED
----------------------
FISCAL YEAR ENDED
---------------------------------------------------------- APRIL 2, APRIL 1,
1990 1991 1992 1993 1994 1994 1995
---------- ---------- ---------- ---------- ---------- ---------- ----------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Sales................... $3,825,274 $3,922,054 $4,168,840 $4,707,396 $5,110,270 $2,414,693 $2,669,449
Cost of Sales........... 3,081,739 3,147,475 3,390,343 3,796,539 4,149,050 1,974,798 2,130,506
---------- ---------- ---------- ---------- ---------- ---------- ----------
Gross Margin............ 743,535 774,579 778,497 910,857 961,220 439,895 538,943
Operating Expenses(1)... 423,422 441,379 446,825 535,315 766,028 262,625 308,547
Interest Expense........ 128,561 95,459 76,887 72,811 86,063 37,099 53,464
Other Expense (Income).. (8,517) (4,782) (6,254) (6,904) (9,488) (3,272) 1,846
Foreign Currency
Exchange Loss(2)....... -- -- -- -- -- -- 19,880
---------- ---------- ---------- ---------- ---------- ---------- ----------
Income Before Taxes on
Income................. 200,069 242,523 261,039 309,635 118,617 143,443 155,206
Provisions for Income
Taxes.................. 80,054 97,025 100,505 129,301 120,745 55,943 59,436
Minority Interest in Net
Loss of Consolidated
Subsidiary............. -- -- -- -- -- -- 6,908
---------- ---------- ---------- ---------- ---------- ---------- ----------
Net Income (Loss)(1).... $ 120,015 $ 145,498 $ 160,534 $ 180,334 $ (2,128) $ 87,500 $ 102,678
========== ========== ========== ========== ========== ========== ==========
Ratio of Earnings to
Fixed Charges.......... 2.40 3.14 3.76 4.47 2.13 4.06 3.58
CASH FLOW DATA:
Cash Provided by (Used
For) Operating
Activities............. $ 357,053 $ 297,074 $ 265,880 $ 308,402 $ 50,267 $ (213,874) $ 122,002
Cash Used in Investing
Activities............. (136,202) (205,706) (104,684) (302,688) (310,249) (155,019) (190,912)
Cash Provided by (Used
For) Financing
Activities............. (260,398) (82,858) (159,589) (11,227) 265,455 379,926 86,595
Effect of Exchange Rate
Change on Cash......... -- -- -- -- -- -- (5,004)
Increase (Decrease) in
Cash................... (39,547) 8,510 1,607 (5,513) 5,473 11,033 12,681
Cash and Cash
Equivalents at
Beginning of Period.... 56,490 16,943 25,453 27,060 21,547 21,547 27,020
Cash and Cash
Equivalents at End of
Period................. 16,943 25,453 27,060 21,547 27,020 32,580 39,701
BALANCE SHEET DATA (AT
END OF PERIOD):
Total Assets............ $2,501,062 $2,645,751 $2,617,679 $3,253,504 $3,668,000 $3,708,619 $3,801,385
Net Property, Plant and
Equipment.............. 1,071,116 1,161,952 1,142,187 1,435,298 1,609,997 1,472,313 1,664,731
Capital Expenditures.... 163,846 213,576 107,990 225,305 232,108 102,370 181,483
Working Capital......... 102,697 111,930 214,070 285,050 721,484 622,287 798,360
Long-Term Debt.......... 950,407 845,914 726,515 920,465 1,381,481 1,223,637 1,458,603
Short-Term Debt......... 70,058 137,909 98,996 103,787 73,537 183,969 98,891
Shareholders' Equity.... 662,988 822,491 980,189 1,360,746 1,289,423 1,446,618 1,356,085
</TABLE>
- --------
(1) Fiscal 1994 operating results include a write-down of approximately $214
million comprised of $191 million for the excess of investments over net
assets acquired of Arctic Alaska Fisheries Corporation ("Arctic") plus
approximately $23 million for impaired long-lived assets of Arctic. See
Note 2 of Notes to Consolidated Financial Statements incorporated herein by
reference to the Company's Annual Report to Shareholders for the fiscal
year ended October 1, 1994.
(2) Foreign currency exchange loss is attributable to Trasgo S.A. de C.V., the
Company's 50.1% owned Mexican subsidiary, and resulted from the devaluation
of the Mexican peso. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations--Results of Operations" incorporated
herein by reference to the Company's Quarterly Reports on Form 10-Q for the
quarters ended December 31, 1994 and April 1, 1995.
S-4
<PAGE>
DESCRIPTION OF NOTES
The following description of the particular terms of the Notes supplements
and, to the extent inconsistent therewith, replaces the description of the
general terms and provisions of the Debt Securities set forth in the
accompanying Prospectus, to which description reference is hereby made.
Whenever a defined term is referred to and not herein defined, the definition
thereof is contained in the accompanying Prospectus or in the Indenture
referred to therein.
GENERAL
The Notes constitute a single series of Debt Securities to be issued
pursuant to an Indenture, dated as of June 1, 1995, between the Company and
The Chase Manhattan Bank, N.A. The Notes will be limited to $150,000,000 in
aggregate principal amount and will mature on June , 2005. The Notes will
not be redeemable prior to maturity and will not be subject to any sinking
fund.
The Notes will bear interest at the rate per annum set forth on the cover
page of this Prospectus Supplement from June , 1995 or from the most recent
interest payment date to which interest has been paid or provided for, payable
semiannually in arrears on June and December of each year, commencing
, 1995, to the persons in whose names the Notes are registered at the
close of business on the immediately preceding and , respectively,
whether or not such day is a Business Day.
The Notes will (i) rank equally with other unsecured and unsubordinated
obligations of the Company (excluding subsidiary debt) for borrowed money, of
which approximately $1,460,519,006 was outstanding at April 1, 1995, (ii) be
effectively subordinated (with respect to underlying collateral) to secured
indebtedness of the Company (excluding subsidiary debt), of which $30,615,528
was outstanding at April 1, 1995 and (iii) be structurally subordinated to all
indebtedness of the Company's subsidiaries, of which $66,359,375 was
outstanding at April 1, 1995.
BOOK-ENTRY SYSTEM
Upon issuance, the Notes will be represented by one or more Global
Securities deposited with, or on behalf of, The Depository Trust Company, New
York, New York, which will act as Depositary with respect to the Notes (the
"Depositary"). The Global Securities representing the Notes will be registered
in the name of the Depositary or its nominee. Except under the circumstances
described in the accompanying Prospectus under "Description of Debt
Securities--Book-Entry System," the Notes will not be issuable in definitive
form. So long as the Notes are represented by one or more Global Securities,
the Depositary or its nominee will be considered the sole owner or holder of
the Notes for all purposes under the Indenture, and the beneficial owners of
the Notes will be entitled only to those rights and benefits afforded to them
in accordance with the Depositary's regular operating procedures. See
"Description of Debt Securities--Book-Entry System" in the Prospectus.
A further description of the Depositary's procedures with respect to Global
Securities is set forth in the accompanying Prospectus under "Description of
Debt Securities--Book-Entry System." The Depositary has confirmed to the
Company, the Underwriters and the Trustee that it intends to follow such
procedures with respect to the Notes.
SAME-DAY SETTLEMENT AND PAYMENT
Settlement for the Notes will be made by the Underwriters in immediately
available funds. So long as the Notes are represented by Global Securities,
all payments of principal and interest will be made by the Company in
immediately available funds.
Secondary trading in long-term notes and debentures of corporate issuers is
generally settled in clearinghouse or next-day funds. In contrast, so long as
the Notes are represented by Global Securities
S-5
<PAGE>
registered in the name of the Depositary or its nominee, the Notes will trade
in the Depositary's Same-Day Funds Settlement System, and secondary market
trading activity in the Notes will therefore be required by the Depositary to
settle in immediately available funds. No assurance can be given as to the
effect, if any, of settlement in immediately available funds on trading
activity in the Notes.
UNDERWRITING
Subject to the terms and conditions set forth in the Underwriting Agreement
dated the date hereof, the Company has agreed to sell to each of the
Underwriters named below, for whom J.P. Morgan Securities Inc., CS First Boston
Corporation and Merrill Lynch, Pierce, Fenner & Smith Incorporated are acting
as Representatives, and each of the Underwriters has severally agreed to
purchase, the principal amount of the Notes set forth opposite its name below:
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT
NAME OF NOTES
---- ----------------
<S> <C>
J.P. Morgan Securities Inc. ................................ $ 40,000,000
CS First Boston Corporation................................. 40,000,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated.......... 40,000,000
BA Securities, Inc. ........................................ 7,500,000
A.G. Edwards & Sons, Inc. .................................. 7,500,000
NatWest Capital Markets Limited............................. 7,500,000
Stephens Inc. .............................................. 7,500,000
------------
Total..................................................... $150,000,000
============
</TABLE>
Under the terms and conditions of the Underwriting Agreement, the
Underwriters are obligated to take and pay for all of the Notes if any are
taken.
The Underwriters initially propose to offer the Notes directly to the public
at the public offering price set forth on the cover page of this Prospectus
Supplement and to certain dealers at such price less a concession not in excess
of . % of the principal amount of the Notes. The Underwriters may allow, and
such dealers may reallow, a concession not in excess of . % of the principal
amount of the Notes to certain other dealers. After the initial public
offering, the public offering price and such concessions may be changed.
The Company does not intend to apply for listing of the Notes on a national
securities exchange, but has been advised by the Representatives that they
intend to make a market in the Notes. The Representatives are not obligated,
however, to make a market in the Notes and may discontinue market making at any
time without notice. No assurance can be given as to the liquidity of, or
trading markets for, the Notes.
The Company has agreed to indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933, as
amended.
In the ordinary course of their respective businesses, the Underwriters and
certain of their affiliates have engaged, and may in the future engage, in
investment banking and/or commercial banking transactions with the Company.
S-6
<PAGE>
PROSPECTUS
$500,000,000
TYSON FOODS, INC.
DEBT SECURITIES
----------------
Tyson Foods, Inc. (the "Company") intends to issue from time to time debt
securities (the "Debt Securities"), which will be direct, unsecured obligations
of the Company and offered to the public on terms determined by market
conditions at the time of sale. The Company may sell Debt Securities for
proceeds of up to $500,000,000, or the equivalent thereof in one or more
foreign currencies or composite currencies, (i) directly to purchasers, (ii)
through agents designated from time to time, (iii) to dealers, or (iv) through
underwriters or a group of underwriters.
The Debt Securities may be issued in one or more series with the same or
various maturities at or above par or with an original issue discount. The
specific designation, aggregate principal amount, authorized denominations,
purchase price, maturity, rate (or method of calculation) and time of payment
of any interest, any terms for redemption or repurchase or conversion, the
currency or composite currency in which the Debt Securities shall be
denominated or payable, any listing on a securities exchange, whether the Debt
Securities will be issued in the form of a Global Security or securities, or
other specific terms of the Debt Securities in respect of which this Prospectus
is being delivered ("Offered Securities") are set forth in the accompanying
supplement to the Prospectus (the "Prospectus Supplement"), together with the
terms of offering of the Offered Securities. Unless otherwise indicated in the
Prospectus Supplement, the Company does not intend to list any of the Debt
Securities on a national securities exchange. See "Plan of Distribution."
----------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS OR ANY SUPPLEMENT HERETO. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
----------------
The date of this Prospectus is June 5, 1995.
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS NOT CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS
OR THE ACCOMPANYING PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR ANY AGENT, DEALER OR UNDERWRITER. NEITHER THE DELIVERY OF
THIS PROSPECTUS OR THE ACCOMPANYING PROSPECTUS SUPPLEMENT NOR ANY SALE MADE
HEREUNDER OR THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION
THAT THE INFORMATION CONTAINED HEREIN OR IN THE ACCOMPANYING PROSPECTUS
SUPPLEMENT IS CORRECT AS OF ANY DATE SUBSEQUENT TO THE DATE HEREOF OR THEREOF
OR THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE
HEREOF OR THEREOF. NEITHER THIS PROSPECTUS NOR THE ACCOMPANYING PROSPECTUS
SUPPLEMENT CONSTITUTES AN OFFER TO SELL OR SOLICITATION OF AN OFFER TO BUY DEBT
SECURITIES IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT
AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT
QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER
OR SOLICITATION.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements and other
information can be inspected and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549 and at the following regional offices of the Commission: Seven World
Trade Center, Suite 1300, New York, New York 10048, and Citicorp Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such
material can be obtained by mail at prescribed rates from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549.
This Prospectus constitutes a part of a Registration Statement on Form S-3,
as amended (the "Registration Statement") filed by the Company with the
Commission under the Securities Act of 1933, as amended (the "Securities Act").
This Prospectus and the accompanying Prospectus Supplement omit certain of the
information contained in the Registration Statement in accordance with the
rules and regulations of the Commission. Reference is hereby made to the
Registration Statement and related exhibits for further information with
respect to the Company and the Debt Securities. 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 Commission.
Each such statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed by the Company with the Commission
are incorporated by reference in this Prospectus:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
October 1, 1994; and
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
December 31, 1994 and April 1, 1995.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14, or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the termination of the offering hereunder shall be deemed to be incorporated
by reference in this Prospectus and to be a part hereof from the date of the
filing of such documents.
Any statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of the Registration Statement and this Prospectus to the extent
that a statement contained herein or in any subsequently filed document which
2
<PAGE>
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of the
Registration Statement or this Prospectus.
The Company will provide, without charge, to each person to whom this
Prospectus is delivered, on the written or oral request of any such person, a
copy of any or all of the documents which have been incorporated herein by
reference, other than exhibits to such documents (unless such exhibits are
specifically incorporated by reference into such documents). Requests should be
directed to Corporate Secretary, Tyson Foods, Inc., 2210 West Oaklawn Drive,
Springdale, Arkansas 72762-6999, telephone: (501) 290-4000.
THE COMPANY
Tyson Foods, Inc. and its various subsidiaries produce, market and distribute
a variety of food products consisting of value-enhanced poultry; fresh and
frozen poultry; value-enhanced beef and pork products; fresh and frozen pork
products; value-enhanced seafood products; fresh and frozen seafood products;
and flour and corn tortillas, chips and other Mexican food-based products. The
Company also has live swine, animal feed and pet food operations. The Company's
integrated operations consist of breeding and rearing chickens and hogs,
harvesting seafood, as well as the processing, further processing and marketing
of these food products. Additionally, the Company processes and markets beef
products.
The Company's products are marketed and sold to national and regional grocery
chains, regional grocery wholesalers, clubs and warehouse stores, military
commissaries, industrial food processing companies, national and regional chain
restaurants or their distributors, international export companies and domestic
distributors who service restaurants, food service operations such as plant and
school cafeterias, convenience stores, hospitals and other vendors. Sales are
made by the Company's sales staffs located in Springdale, Arkansas, in regions
throughout the United States and in several foreign countries. Additionally,
sales to the United States military and a portion of sales to international
markets are made through independent brokers and trading companies.
As of May 5, 1995, Don Tyson, Senior Chairman of the Board of Directors of
the Company, directly and through the Tyson Limited Partnership, of which he is
the managing general partner, beneficially owned 1.3% and 99.9% of the
Company's Class A Common Stock, $.10 par value per share, and Class B Common
Stock, $.10 par value per share, respectively, which represented approximately
90% of the combined voting power of the shares of such Class A Common Stock and
Class B Common Stock on such date.
The Company commenced business in 1935, was incorporated in Arkansas in 1947,
and was reincorporated in Delaware in 1986. The Company's executive offices are
located at 2210 West Oaklawn Drive, Springdale, Arkansas 72762-6999 and its
telephone number is (501) 290-4000.
3
<PAGE>
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for the
Company for each of the last five fiscal years ended October 1, 1994 and for
the six months ended April 1, 1995. For the purposes of calculating the ratio
of earnings to fixed charges, "earnings" consist of income from continuing
operations before income taxes and fixed charges (excluding capitalized
interest). "Fixed charges" consist of (i) interest on indebtedness, whether
expensed or capitalized, but excluding interest to fifty-percent-owned
subsidiaries (ii) the Company's proportionate share of interest of fifty-
percent-owned subsidiaries, (iii) that portion of rental expense the Company
believes to be representative of interest (one-third of rental expense) and
(iv) amortization of debt discount and expense.
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
SIX MONTHS ENDED ---------------------------------------------------------------------
APRIL 1, 1995 1994 1993 1992 1991 1990
---------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
3.58 2.13 4.47 3.76 3.14 2.40
</TABLE>
USE OF PROCEEDS
The Company intends to use the net proceeds from the sale of the Debt
Securities to refinance existing indebtedness, to finance acquisitions, as
opportunities may arise, and for other general corporate purposes. Further
details relating to the uses of the net proceeds of any such offering will be
set forth in the applicable Prospectus Supplement. The Company expects to
engage in additional financing as needs arise.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be issued under an Indenture dated as of June 1,
1995 (hereinafter referred to as the "Indenture"), between the Company and The
Chase Manhattan Bank, N.A., as Trustee (hereinafter referred to as the
"Trustee"). The following statements are subject to the detailed provisions of
the Indenture, a copy of which is filed as an exhibit to the Registration
Statement and which is also available for inspection at the office of the
Trustee. Section references are to the Indenture. The following summarizes the
material terms of the Indenture; however, the following summaries of certain
provisions of the Indenture do not purport to be complete, and wherever
particular provisions of the Indenture are referred to, such provisions,
including definitions of certain terms, are incorporated by reference as part
of such summaries or terms, which are qualified in their entirety by such
reference to the provisions of the Indenture.
GENERAL
The Indenture does not limit the aggregate principal amount of Debt
Securities which may be issued thereunder and provides that the Debt Securities
may be issued from time to time in one or more series. The Debt Securities will
be direct, unsecured and unsubordinated obligations of the Company. Except as
described under "Certain Covenants," the Indenture does not limit other
indebtedness or securities which may be incurred or issued by the Company or
any of its subsidiaries or contain financial or similar restrictions on the
Company or any of its subsidiaries. The Company's rights and the rights of its
creditors, including holders of Debt Securities, to participate in any
distribution of assets of any subsidiary upon the latter's liquidation or
reorganization or otherwise are effectively subordinated to the claims of the
subsidiary's creditors, except to the extent that the Company or any of its
creditors may itself be a creditor of that subsidiary.
The Prospectus Supplement which accompanies this Prospectus sets forth where
applicable the following terms of and information relating to the Offered
Securities offered thereby: (i) the designation of the Offered Securities; (ii)
the aggregate principal amount of the Offered Securities; (iii) the date or
dates on which
4
<PAGE>
principal of, and premium, if any, on the Offered Securities is payable; (iv)
the rate or rates at which the Offered Securities shall bear interest, if any,
or the method by which such rate shall be determined, and the basis on which
interest shall be calculated if other than a 360-day year consisting of twelve
30-day months, the date or dates from which such interest will accrue and on
which such interest will be payable and the related record dates; (v) if other
than the offices of the Trustee, the place where the principal of and any
premium or interest on the Offered Securities will be payable; (vi) any
redemption, repayment or sinking fund provisions; (vii) if other than
denominations of $1,000 or multiples thereof, the denominations in which the
Offered Securities will be issuable; (viii) if other than the principal amount
thereof, the portion of the principal amount due upon acceleration; (ix) if
other than U.S. dollars, the currency or currencies (including composite
currencies) in which the Offered Securities are denominated or payable; (x)
whether the Offered Securities shall be issued in the form of a Global Security
or securities; (xi) any other specific terms of the Offered Securities; and
(xii) the identity of any trustees, depositories, authenticating or paying
agents, transfer agents or registrars with respect to the Offered Securities.
(Section 2.3)
The Debt Securities will be issued either in certificated, fully registered
form, without coupons, or as global securities under a book-entry system, as
specified in the accompanying Prospectus Supplement. See "--Book-Entry System."
Unless otherwise specified in the accompanying Prospectus Supplement,
principal and premium, if any, will be payable, and the Debt Securities will be
transferable and exchangeable without any service charge, at the office of the
Trustee. However, the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection with any such
transfer or exchange. (Sections 2.7, 4.1 and 4.2)
Unless otherwise specified in the accompanying Prospectus Supplement,
interest on any series of Debt Securities will be payable on the interest
payment dates set forth in the accompanying Prospectus Supplement to the
persons in whose names the Debt Securities are registered at the close of
business on the related record date and will be paid, at the option of the
Company, by wire transfer or by checks mailed to such persons. (Sections 2.7,
4.1 and 4.2)
If the Debt Securities are issued as Original Issue Discount Securities
(bearing no interest or interest at a rate which at the time of issuance is
below market rates) to be sold at a substantial discount below their stated
principal amount, the federal income tax consequences and other special
considerations applicable to such Original Issue Discount Securities will be
generally described in the Prospectus Supplement.
Unless otherwise described in the accompanying Prospectus Supplement, there
are no covenants or provisions contained in the Indenture which afford the
holders of the Debt Securities protection in the event of a highly leveraged
transaction involving the Company.
BOOK-ENTRY SYSTEM
If so specified in the accompanying Prospectus Supplement, Debt Securities of
any series may be issued under a book-entry system in the form of one or more
global securities (each a "Global Security"). Each Global Security will be
deposited with, or on behalf of, a depositary, which, unless otherwise
specified in the accompanying Prospectus Supplement, will be The Depository
Trust Company, New York, New York (the "Depositary"). The Global Securities
will be registered in the name of the Depositary or its nominee.
The Depositary has advised the Company that the Depositary is a limited
purpose trust company organized under the laws of the State of New York, a
"banking organization" within the meaning of the New York banking law, a member
of the Federal Reserve System, a "clearing corporation" within the meaning of
the New York Uniform Commercial Code, and a "clearing agency" registered
pursuant to the provisions of section 17A of the Exchange Act. The Depositary
was created to hold securities of its participants and to facilitate the
clearance and settlement of securities transactions among its participants
5
<PAGE>
through electronic book-entry changes in accounts of the participants, thereby
eliminating the need for physical movement of securities certificates. The
Depositary's participants include securities brokers and dealers, banks, trust
companies, clearing corporations, and certain other organizations, some of whom
(and/or their representatives) own the Depositary. Access to the Depositary's
book-entry system is also available to others, such as banks, brokers, dealers
and trust companies that clear through or maintain a custodial relationship
with a participant, either directly or indirectly.
Upon the issuance of a Global Security in registered form, the Depositary
will credit, on its book-entry registration and transfer system, the respective
principal amounts of the Debt Securities represented by such Global Security to
the accounts of participants. The accounts to be credited will be designated by
the underwriters, dealers or agents, if any, or by the Company, if such Debt
Securities are offered and sold directly by the Company. Ownership of
beneficial interests in the Global Security will be limited to participants or
persons that may hold interests through participants. Ownership of beneficial
interests by participants in the Global Security will be shown on, and the
transfer of that ownership interest will be effected only through, records
maintained by such participants. The laws of some jurisdictions may require
that certain purchasers of securities take physical delivery of such securities
in definitive form. Such laws may impair the ability to transfer beneficial
interest in a Global Security.
So long as the Depositary or its nominee is the registered owner of a Global
Security, it will be considered the sole owner or holder of the Debt Securities
represented by such Global Security for all purposes under the Indenture.
Except as set forth below, owners of beneficial interests in such Global
Security will not be entitled to have the Debt Securities represented thereby
registered in their names, will not receive or be entitled to receive physical
delivery of certificates representing the Debt Securities and will not be
considered the owners or holders thereof under the Indenture. Accordingly, each
person owning a beneficial interest in such Global Security must rely on the
procedures of the Depositary 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. The Company understands
that under existing practice, in the event that the Company requests any action
of the holders or a beneficial owner desires to take any action a holder is
entitled to take, the Depositary would act upon the instructions of, or
authorize, the participant to take such action.
Payment of principal of, premium, if any, and interest on Debt Securities
represented by a Global Security will be made to the Depositary or its nominee,
as the case may be, as the registered owner and holder of the Global Security
representing such Debt Securities. None of the Company, the Trustee, any paying
agent or registrar for such Debt Securities will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests in the Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
The Company has been advised by the Depositary that the Depositary will
credit participants' accounts with payments of principal, premium, if any, or
interest on the payment date thereof in amounts proportionate to their
respective beneficial interests in the principal amount of the Global Security
as shown on the records of the Depositary. The Company expects that payments by
participants to owners of beneficial interests in the Global Security held
through such participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts
of customers registered in "street name," and will be the responsibility of
such participants.
A Global Security may not be transferred except as a whole by the Depositary
to a nominee or successor of the Depositary or by a nominee of the Depositary
to another nominee of the Depositary. A Global Security representing all but
not part of the Debt Securities being offered hereby is exchangeable for Debt
Securities in definitive form of like tenor and terms if (i) the Depositary
notifies the Company that it is unwilling or unable to continue as depositary
for such Global Security or if at any time the Depositary is no longer eligible
to be or in good standing as a clearing agency registered under the Exchange
Act, and in either case, a successor depositary is not appointed by the Company
within 90 days of receipt by the Company of such notice or of the Company
becoming aware of such ineligibility, or (ii) the Company in its sole
discretion at
6
<PAGE>
any time determines not to have all of the Debt Securities represented by a
Global Security and notifies the Trustee thereof. A Global Security
exchangeable pursuant to the preceding sentence shall be exchangeable for Debt
Securities registered in such names and in such authorized denominations as the
Depositary for such Global Security shall direct. (Section 2.7)
CERTAIN COVENANTS
Restrictions on Liens. The Indenture provides that the Company will not, and
will not permit any Restricted Subsidiary (as hereinafter defined) to, create,
incur or suffer to exist any mortgage or pledge, as security for any
indebtedness, on or of any shares of stock, indebtedness or other obligations
of a Subsidiary (as hereinafter defined) or any Principal Property (as
hereinafter defined) of the Company or a Restricted Subsidiary, whether such
shares of stock, indebtedness or other obligations of a Subsidiary or Principal
Property is owned at the date of the Indenture or thereafter acquired, unless
the Company secures or causes such Restricted Subsidiary to secure the
outstanding Debt Securities equally and ratably with all indebtedness secured
by such mortgage or pledge, so long as such indebtedness shall be so secured.
This covenant will not apply in the case of: (i) the creation of any mortgage,
pledge or other lien on any shares of stock, indebtedness or other obligations
of a Subsidiary or any Principal Property acquired after the date of the
Indenture (including acquisitions by way of merger or consolidation) by the
Company or a Restricted Subsidiary contemporaneously with such acquisition, or
within 180 days thereafter, to secure or provide for the payment or financing
of any part of the purchase price thereof, or the assumption of any mortgage,
pledge or other lien upon any shares of stock, indebtedness or other
obligations of a Subsidiary or any Principal Property acquired after the date
of the Indenture existing at the time of such acquisition, or the acquisition
of any shares of stock, indebtedness or other obligations of a Subsidiary or
any Principal Property subject to any mortgage, pledge or other lien without
the assumption thereof, provided that every such mortgage, pledge or lien
referred to in this clause (i) will attach only to the shares of stock,
indebtedness or other obligations of a Subsidiary or any Principal Property so
acquired and fixed improvements thereon; (ii) any mortgage, pledge or other
lien on any shares of stock, indebtedness or other obligations of a Subsidiary
or any Principal Property existing at the date of this Indenture; (iii) any
mortgage, pledge or other lien on any shares of stock, indebtedness or other
obligations of a Subsidiary or any Principal Property in favor of the Company
or any Restricted Subsidiary; (iv) any mortgage, pledge or other lien on
Principal Property being constructed or improved securing loans to finance such
construction or improvements; (v) any mortgage, pledge or other lien on shares
of stock, indebtedness or other obligations of a Subsidiary or any Principal
Property incurred in connection with the issuance of tax-exempt governmental
obligations; and (vi) any renewal of or substitution for any mortgage, pledge
or other lien permitted by any of the preceding clauses (i) through (v),
provided, in the case of a mortgage, pledge or other lien permitted under
clause (i), (ii) or (iv), the indebtedness secured is not increased nor the
lien extended to any additional shares of stock, indebtedness or other
obligations of a Subsidiary or any additional Principal Property.
Notwithstanding the foregoing, the Company or any Restricted Subsidiary may
create or assume liens in addition to those permitted by this paragraph, and
renew, extend or replace such liens, provided that at the time of such
creation, assumption, renewal, extension or replacement, and after giving
effect thereto, Exempted Debt (as hereinafter defined) does not exceed 10% of
Consolidated Net Tangible Assets (as hereinafter defined). (Section 4.3)
Restrictions on Sale and Lease-Back Transactions. The Indenture provides that
the Company will not, and will not permit any Restricted Subsidiary to, sell or
transfer, directly or indirectly, except to the Company or a Restricted
Subsidiary, any Principal Property as an entirety, or any substantial portion
thereof, with the intention of taking back a lease of such property, except a
lease for a period of three years or less at the end of which it is intended
that the use of such property by the lessee will be discontinued; provided
that, notwithstanding the foregoing, the Company or any Restricted Subsidiary
may sell any such Principal Property and lease it back for a longer period (i)
if the Company or such Restricted Subsidiary would be entitled, pursuant to the
provisions described above under "--Restrictions on Liens," to create a
mortgage on the property to be leased securing Funded Debt (as hereinafter
defined) in an amount equal to the Attributable Debt (as hereinafter defined)
with respect to such sale and lease-back transaction without equally
7
<PAGE>
and ratably securing the outstanding Debt Securities or (ii) if (A) the Company
promptly informs the Trustee of such transaction, (B) the net proceeds of such
transaction are at least equal to the fair value (as determined by board
resolution of the Company) of such property and (C) the Company causes an
amount equal to the net proceeds of the sale to be applied to the retirement,
within 180 days after receipt of such proceeds, of Funded Debt incurred or
assumed by the Company or a Restricted Subsidiary (including the Debt
Securities); provided further that, in lieu of applying all of or any part of
such net proceeds to such retirement, the Company may, within 75 days after
such sale, deliver or cause to be delivered to the applicable trustee for
cancellation either debentures or notes evidencing Funded Debt of the Company
(which may include the outstanding Debt Securities) or of a Restricted
Subsidiary previously authenticated and delivered by the applicable trustee,
and not theretofore tendered for sinking fund purposes or called for a sinking
fund or otherwise applied as a credit against an obligation to redeem or retire
such notes or debentures, and an officers' certificate (which will be delivered
to the Trustee and each paying agent and which need not contain the statements
prescribed by the second paragraph of Section 10.4 of the Indenture) stating
that the Company elects to deliver or cause to be delivered such debentures or
notes in lieu of retiring Funded Debt as hereinabove provided. If the Company
shall so deliver debentures or notes to the applicable trustee and the Company
shall duly deliver such officers' certificate, the amount of cash which the
Company will be required to apply to the retirement of Funded Debt under this
provision of the Indenture shall be reduced by an amount equal to the aggregate
of the then applicable optional redemption prices (not including any optional
sinking fund redemption prices) of such debentures or notes or, if there are no
such redemption prices, the principal amount of such debentures or notes;
provided, that in the case of debentures or notes which provide for an amount
less than the principal amount thereof to be due and payable upon a declaration
of the maturity thereof, such amount of cash shall be reduced by the amount of
principal of such debentures or notes that would be due and payable as of the
date of such application upon a declaration of acceleration of the maturity
thereof pursuant to the terms of the indenture pursuant to which such
debentures or notes were issued. Notwithstanding the foregoing, the Company or
any Restricted Subsidiary may enter into sale and lease-back transactions in
addition to those permitted by this paragraph and without any obligation to
retire any outstanding Debt Securities or other Funded Debt, provided that at
the time of entering into such sale and lease-back transactions and after
giving effect thereto, Exempted Debt does not exceed 10% of Consolidated Net
Tangible Assets. (Section 4.4)
CERTAIN DEFINITIONS
The term "Attributable Debt" as defined in the Indenture means, as to any
particular lease under which any Person is at the time liable, other than a
capital lease, and at any date as of which the amount thereof is to be
determined, the total net amount of rent required to be paid by such Person
under such lease during the initial term thereof as determined in accordance
with generally accepted accounting principles, discounted from the last date of
such initial term to the date of determination at a rate per annum equal to the
discount rate which would be applicable to a capital lease with like term in
accordance with generally accepted accounting principles. The net amount of
rent required to be paid under any such lease for any such period shall be the
aggregate amount of rent payable by the lessee with respect to such period
after excluding amounts required to be paid on account of insurance, taxes,
assessments, utility, operating and labor costs and similar charges. In the
case of any lease which is terminable by the lessee upon the payment of a
penalty, such net amount shall also include the amount of such penalty, but no
rent shall be considered as required to be paid under such lease subsequent to
the first date upon which it may be so terminated. "Attributable Debt" means,
as to a capital lease under which any Person is at the time liable and at any
date as of which the amount thereof is to be determined, the capitalized amount
thereof that would appear on the face of a balance sheet of such Person in
accordance with generally accepted accounting principles.
The term "Consolidated Net Tangible Assets" as defined in the Indenture means
the excess over the current liabilities of the Company of all of its assets as
determined by the Company and as would be set forth in a consolidated balance
sheet of the Company and its Subsidiaries, on a consolidated basis, in
accordance with generally accepted accounting principles as of a date within 90
days of the date of such determination, after deducting goodwill, trademarks,
patents, other like intangibles and minority interests of others.
8
<PAGE>
The term "Exempted Debt" as defined in the Indenture means the sum, without
duplication, of the following items outstanding as of the date Exempted Debt is
being determined: (i) indebtedness of the Company and its Restricted
Subsidiaries incurred after the date of the Indenture and secured by liens
created, assumed or otherwise incurred or permitted to exist pursuant to the
provision described in the last sentence under "--Certain Covenants--
Restrictions on Liens" and (ii) Attributable Debt of the Company and its
Restricted Subsidiaries in respect of all sale and lease-back transactions with
regard to any Principal Property entered into pursuant to the provision
described in the last sentence under "--Certain Covenants--Restrictions on Sale
and Lease-Back Transactions."
The term "Funded Debt" as defined in the Indenture means all indebtedness for
money borrowed, including purchase money indebtedness, having a maturity of
more than one year from the date of its creation or having a maturity of less
than one year but by its terms being renewable or extendible, at the option of
the obligor in respect thereof, beyond one year from its creation.
The term "Principal Property" as defined in the Indenture means (i) land,
land improvements, buildings and associated factory and laboratory equipment
owned or leased pursuant to a capital lease and used by the Company or a
Restricted Subsidiary primarily for processing, producing, packaging or storing
its products, raw materials, inventories or other materials and supplies and
located within the United States of America and having an acquisition cost plus
capitalized improvements in excess of 1% of Consolidated Net Tangible Assets as
of the date of such determination, (ii) certain property referred to in the
Indenture and (iii) any asset held by Tyson Holding Company, Inc., but shall
not include any such property or assets described in clauses (i), (ii) or (iii)
that is financed through the issuance of tax exempt governmental obligations,
or any such property or assets that has been determined by board resolution of
the Company not to be of material importance to the respective businesses
conducted by the Company or such Restricted Subsidiary, effective as of the
date such resolution is adopted.
The term "Restricted Subsidiary" as defined in the Indenture means any
Subsidiary organized and existing under the laws of the United States of
America and the principal business of which is carried on within the United
States of America which owns or is a lessee pursuant to a capital lease of any
Principal Property or owns shares of capital stock or indebtedness of another
Restricted Subsidiary other than: (i) each Subsidiary the major part of whose
business consists of finance, banking, credit, leasing, insurance, financial
services or other similar operations, or any combination thereof; and (ii) each
Subsidiary formed or acquired after the date of the Indenture for the purpose
of acquiring the business or assets of another person and which does not
acquire all or any substantial part of the business or assets of the Company or
any Restricted Subsidiary; provided, however, the Board of Directors of the
Company may declare any such Subsidiary to be a Restricted Subsidiary effective
as of the date such resolution is adopted.
The term "Subsidiary" as defined in the Indenture means, with respect to any
Person, any corporation, association or other business entity of which more
than 50% of the outstanding Voting Stock (as defined in the Indenture) is owned
directly or indirectly, by such Person and one or more other Subsidiaries of
such Person.
RESTRICTIONS ON CONSOLIDATIONS, MERGERS AND SALES OF ASSETS
The Indenture provides that the Company will not consolidate with, merge with
or into, or sell, convey, transfer, lease or otherwise dispose of all or
substantially all of its property and assets (as an entirety or substantially
an entirety in one transaction or a series of related transactions) to, any
Person (other than a consolidation with or merger with or into a Subsidiary) or
permit any Person to merge with or into the Company unless: (a) either (i) the
Company will be the continuing Person or (ii) the Person (if other than the
Company) formed by such consolidation or into which the Company is merged or
that acquired or leased such property and assets of the Company shall be a
corporation organized and validly existing under the laws of the United States
of America or any jurisdiction thereof and shall expressly assume, by a
supplemental indenture, executed and delivered to the Trustee, all of the
obligations of the Company on all of the Debt
9
<PAGE>
Securities and the Company shall have delivered to the Trustee an opinion of
counsel stating that such consolidation, merger or transfer and such
supplemental indenture complies with this provision and that all conditions
precedent provided for herein relating to such transaction have been complied
with; and (b) immediately after giving effect to such transaction, no Default
(as defined in the Indenture) shall have occurred and be continuing. (Section
5.1)
EVENTS OF DEFAULT
An Event of Default, as defined in the Indenture and applicable to Debt
Securities, will occur with respect to the Debt Securities of any series if:
(a) the Company defaults in the payment of the principal of any Debt Security
of such series when the same becomes due and payable at maturity, upon
acceleration, redemption, mandatory repurchase or otherwise; (b) the Company
defaults in the payment of interest on any Debt Security of such series when
the same becomes due and payable, and such default continues for a period of 30
days; (c) the Company defaults in the performance of or breaches any other
covenant or agreement of the Company in the Indenture with respect to the Debt
Securities of such series and such default or breach continues for a period of
30 consecutive days after written notice to the Company by the Trustee or to
the Company and the Trustee by the Holders (as defined in the Indenture) of 25%
or more in aggregate principal amount of the Debt Securities of such series;
(d) an involuntary case or other proceeding shall be commenced against the
Company with respect to it or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60 days; or an order for
relief shall be entered against the Company under the federal bankruptcy laws
as now or hereafter in effect; (e) the Company (i) commences a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consents to the entry of an order for relief in an
involuntary case under any such law, (ii) consents to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or for all or substantially all
of the property and assets of the Company or (iii) effects any general
assignment for the benefit of creditors; or (f) any other Events of Default set
forth in the applicable Prospectus Supplement occurs. (Section 6.1)
The Indenture provides that if an Event of Default described in clauses (a),
(b), (c) or (f) above (if such Event of Default under clause (c) or (f) is with
respect to one or more but not all series of Debt Securities then outstanding)
occurs and is continuing, then, and in each and every such case, except for any
series of Debt Securities the principal of which shall have already become due
and payable, either the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Debt Securities of each such series then
outstanding under the Indenture (each such series voting as a separate class)
by notice in writing to the Company (and to the Trustee if given by Holders),
may declare the entire principal (or, if the Debt Securities of any such series
are Original Issue Discount Securities (as defined in the Indenture), such
portion of the principal amount as may be specified in the terms of such series
and set forth in the applicable Prospectus Supplement) of all Debt Securities
of all such series, and the interest accrued thereon, if any, to be due and
payable immediately, and upon any such declaration the same shall become
immediately due and payable. If an Event of Default described in clause (c) or
(f) occurs and is continuing with respect to all series of Debt Securities then
outstanding, then and in each and every such case, unless the principal of all
the Debt Securities shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate principal amount of
all the Debt Securities then outstanding under the Indenture (treated as one
class), by notice in writing to the Company (and to the Trustee if given by
Holders), may declare the entire principal (or, if any Debt Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof and set forth in the applicable Prospectus
Supplement) of all the Debt Securities then outstanding and interest accrued
thereon, if any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable. If an Event of
Default described in clause (d) or (e) occurs and is continuing, then the
principal amount (or, if any Debt Securities are original Issue Discount
Securities, such portion of the principal as may be specified in the terms
thereof and set forth
10
<PAGE>
in the applicable Prospectus Supplement) of all the Debt Securities then
outstanding and interest accrued thereon, if any shall be and become
immediately due and payable, without any notice or other action by any Holder
or the Trustee, to the full extent permitted by applicable law.
The provisions described in the paragraph above, however, are subject to the
condition that if, at any time after the principal (or, if the Debt Securities
are Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof and set forth in the applicable Prospectus
Supplement) of the Debt Securities of any series (or of all the Debt
Securities, as the case may be) shall have been so declared due and payable,
and before any judgment or decree for the payment of the moneys due shall have
been obtained or entered as hereinafter provided, the Company will pay or will
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Debt Securities of each such series (or of all the Debt
Securities, as the case may be) and the principal of any and all Debt
Securities of each such series (or of all the Debt Securities, as the case may
be) which shall have become due otherwise than by acceleration (with interest
upon such principal and, to the extent that payment of such interest is
enforceable under applicable law, on overdue installments of interest, at the
same rate as the rate of interest or yield to maturity (in the case of Original
Issue Discount Securities) specified in the Debt Securities of each such series
and set forth in the applicable Prospectus Supplement to the date of such
payment or deposit) and such amount as shall be sufficient to cover reasonable
compensation to the Trustee and each predecessor Trustee, their respective
agents, attorneys and counsel, and all other expenses and liabilities incurred,
and all advances made, by the Trustee and each predecessor Trustee except as a
result of negligence or bad faith, and if any and all Events of Default under
the Indenture, other than the non-payment of the principal of Debt Securities
which shall have become due by acceleration, shall have been cured, waived or
otherwise remedied as provided in the Indenture, then and in every such case
the Holders of a majority in aggregate principal amount of all the Debt
Securities of each such series, or of all the Debt Securities, in each case
voting as a single class, then outstanding, by written notice to the Company
and to the Trustee, may waive all defaults with respect to each such series (or
with respect to all the Debt Securities, as the case may be) and rescind and
annul such declaration and its consequences, but no such waiver or rescission
and annulment will extend to or shall affect any subsequent default or shall
impair any right consequent thereon. For all purposes under the Indenture, if a
portion of the principal of any Original Issue Discount Securities shall have
been accelerated and declared due and payable pursuant to the provisions
described above, then, from and after such declaration, unless such declaration
has been rescinded and annulled, the principal amount of such Original Issue
Discount Securities will be deemed, for all purposes under the Indenture, to be
such portion of the principal thereof as shall be due and payable as a result
of such acceleration, and payment of such portion of the principal thereof as
shall be due and payable as a result of such acceleration, together with
interest, if any, thereon and all other amounts owing thereunder, shall
constitute payment in full of such Original Issue Discount Securities. (Section
6.2)
The Indenture contains a provision under which, subject to the duty of the
trustee during a default to act with the standard of care required by law, (i)
the Trustee may rely and will be protected in acting or refraining from acting
upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper person, and the
Trustee need not investigate any fact or matter stated in the document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit; (ii) before the Trustee acts or
refrains from acting, it may require an officers' certificate or an opinion of
counsel, and the Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such certificate or opinion; (iii) the
Trustee may act through its attorneys and agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care; (iv) the
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by the Indenture at the request or direction of any of the
Holders, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction; (v) the Trustee
shall not be liable for any action it takes or omits to take in good faith that
it believes to be authorized or within
11
<PAGE>
its rights or powers or for any action it takes or omits to take in accordance
with the direction of the Holders of a majority in principal amount of the
outstanding Debt Securities 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 the Indenture;
and (vi) the Trustee may consult with counsel and the written 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
in good faith and in reliance thereon. (Section 7.2)
Subject to such provisions in the Indenture for the indemnification of the
Trustee and certain other limitations, the Holders of at least a majority in
aggregate principal amount of the outstanding Debt Securities of each series
affected (each such series voting as a separate class) may 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; provided,
that the Trustee may refuse to follow any direction that conflicts with law or
the Indenture, that may involve the Trustee in personal liability, or that the
Trustee determines in good faith may be unduly prejudicial to the rights of
Holders not joining in the giving of such direction; and provided further, that
the Trustee may take any other action it deems proper that is not inconsistent
with any directions received from Holders of Debt Securities pursuant to this
paragraph. (Section 6.5)
The Indenture provides that no Holder of any Debt Security of any series may
institute any proceeding, judicial or otherwise, with respect to the Indenture
or the Debt Securities of such series, or for the appointment of a receiver or
trustee, or for any other remedy under the Indenture, unless: (i) such Holder
has previously given to the Trustee written notice of a continuing Event of
Default with respect to the Debt Securities of such series; (ii) the Holders of
at least 25% in aggregate principal amount of outstanding Securities of such
series shall have made written request to the Trustee to institute proceedings
in respect of such Event of Default in its own name as Trustee under the
Indenture; (iii) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against any costs, liabilities or
expenses to be incurred in compliance with such request; (iv) the Trustee for
60 days after its receipt of such notice, request and offer of indemnity has
failed to institute any such proceeding; and (v) during such 60-day period, the
Holders of a majority in aggregate principal amount of the outstanding Debt
Securities of such series have not given the Trustee a direction that is
inconsistent with such written request. A Holder may not use the Indenture to
prejudice the rights of another Holder or to obtain a preference or priority
over such other Holder. (Section 6.6)
The Indenture contains a covenant that the Company will file annually, not
more than 90 days after the end of its fiscal year, with the Trustee a
certification from the principal executive officer, principal financial officer
or principal accounting officer that a review has been conducted of the
activities of the Company and its Subsidiaries and the Company's and its
Subsidiaries' performance under the Indenture and that the Company has complied
with all conditions and covenants under the Indenture. (Section 4.6)
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides that, except as provided below, the Company may
terminate its obligations under the Debt Securities of any series and the
Indenture with respect to Debt Securities of such series if: (i) all Debt
Securities of such series previously authenticated and delivered (other than
destroyed, lost or stolen Debt Securities of such series that have been
replaced or Debt Securities of such series that are fully repaid or Debt
Securities of such series for whose payment money or securities have
theretofore been held in trust and thereafter repaid to the Company, as
provided in the Indenture) have been delivered to the Trustee for cancellation
and the Company has paid all sums payable by it hereunder; or (ii) (A) the Debt
Securities of such series mature within one year or all of them are to be
called for redemption within one year under arrangements satisfactory to the
Trustee for giving the notice of redemption, (B) the Company irrevocably
deposits in trust with the Trustee, as trust funds solely for the benefit of
the Holders of such Securities for that purpose, money or U.S. Government
Obligations or a combination thereof sufficient (in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof
12
<PAGE>
delivered to the Trustee), without consideration of any reinvestment, to pay
principal of and interest on the Debt Securities of such series to maturity or
redemption, as the case may be, and to pay all other sums payable by it under
the Indenture, (C) no Default with respect to the Debt Securities of such
series has occurred and is continuing on the date of such deposit, (D) such
deposit does not result in a breach or violation of, or constitute a default
under, the Indenture or any other agreement or instrument to which the Company
is a party or by which it is bound and (E) the Company delivers to the Trustee
an officers' certificate and an opinion of counsel, in each case stating that
all conditions precedent provided for in the Indenture relating to the
satisfaction and discharge of the Indenture have been complied with. With
respect to the foregoing clause (i), only the Company's obligations under
Section 7.7 of the Indenture in respect of the Debt Securities of such series
shall survive. With respect to the foregoing clause (ii), only the Company's
obligations in Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.11, 4.2, 7.7, 7.8, 8.5
and 8.6 of the Indenture in respect of the Debt Securities of such series shall
survive until the Debt Securities are no longer outstanding. Thereafter, only
the Company's obligations in Sections 7.7, 8.5 and 8.6 of the Indenture in
respect of the Debt Securities of such series shall survive. After any such
irrevocable deposit, the Trustee upon request shall acknowledge in writing the
discharge of the Company's obligations under the Debt Securities of such series
and this Indenture with respect to the Debt Securities of such series except
for those surviving obligations specified above. (Section 8.1)
The Indenture provides that, except as provided below, the Company will be
deemed to have paid and will be discharged from any and all obligations in
respect of the Debt Securities of any series after the period specified in
clause (D)(2)(z) of this paragraph, and the provisions of the Indenture will no
longer be in effect with respect to the Debt Securities of such series, and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same; provided that the following conditions shall have been
satisfied: (A) the Company has irrevocably deposited in trust with the Trustee
as trust funds solely for the benefit of the Holders for payment of the
principal of and interest on the Debt Securities of such series, money or U.S.
Government Obligations or a combination thereof sufficient (in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee) without consideration
of any reinvestment and after payment of all federal, state and local taxes or
other charges and assessments in respect thereof payable by the Trustee, to pay
and discharge the principal of and accrued interest on the outstanding Debt
Securities of such series to maturity or earlier redemption (irrevocably
provided for under arrangements satisfactory to the Trustee), as the case may
be; (B) such deposit will not result in a breach or violation of, or constitute
a default under, the Indenture or any other agreement or instrument to which
the Company is a party or by which it is bound; (C) no Default with respect to
the Debt Securities of such series shall have occurred and be continuing on the
date of such deposit or at any time during the period specified in clause
(D)(2)(z) below; (D) the Company shall have delivered to the Trustee (1) either
(x) a ruling directed to the Trustee received from the Internal Revenue Service
to the effect that the Holders of the Securities of such series will not
recognize income, gain or loss for federal income tax purposes as a result of
the Company's exercise of its option under this provision of the Indenture and
will be subject to federal income tax on the same amount and in the same manner
and at the same times as would have been the case if such option had not been
exercised or (y) an opinion of counsel to the same effect as the ruling
described in clause (x) above and based on a change in law and (2) an opinion
of counsel to the effect that (x) the creation of the defeasance trust does not
violate the Investment Company Act of 1940, as amended, (y) the Holders of the
Securities of such series have a valid first priority security interest in the
trust funds, and (z) after the passage of 123 days following the deposit
(except after one year following the deposit, with respect to any trust funds
for the account of any Holder of the Securities of such series who may be
deemed to be an "insider" as to an obligor on the Securities of such series for
purposes of the United States Bankruptcy Code), the trust funds will not be
subject to the effect of Section 547 of the United States Bankruptcy Code or
Section 15 of the New York Debtor and Creditor Law in a case commenced by or
against the Company under either such statute, and either (I) the trust funds
will no longer remain the property of the Company (and therefore will not be
subject to the effect of any applicable bankruptcy, insolvency, reorganization
or similar laws affecting creditors' rights generally) or (II) if a court were
to rule under any such law in any case or proceeding that the trust funds
remained in the possession of the Company, to the extent not paid to such
Holders, the Trustee will hold, for the benefit of such Holders, a valid and
perfected
13
<PAGE>
first priority security interest in such trust funds that is not avoidable in
bankruptcy or otherwise (except for the effect of Section 552(b) of the United
States Bankruptcy Code on interest on the trust funds accruing after the
commencement of a case under such statute and the Holders of the Securities of
such series will be entitled to receive adequate protection of their interests
in such trust funds if such trust funds are used in such case or proceeding;
(E) if the Debt Securities of such series are then listed on a national
securities exchange, the Company shall have delivered to the Trustee an opinion
of counsel to the effect that the defeasance contemplated by this provision of
the Indenture of the Debt Securities of such series will not cause the Debt
Securities of such series to be delisted; and (F) the Company has delivered to
the Trustee an officers' certificate and an opinion of counsel, in each case
stating that all conditions precedent provided for in the Indenture relating to
the defeasance contemplated by this provision of the Indenture of the Debt
Securities of such series have been complied with. Notwithstanding the
foregoing, prior to the end of the 123-day (or one year) period referred to in
clause (D)(2)(z) of this paragraph, none of the Company's obligations under the
Indenture with respect to such series shall be discharged. Subsequent to the
end of such 123-day (or one year) period, the Company's obligations in Sections
2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.11, 4.1, 4.2, 7.7, 7.8, 8.5 and 8.6 of the
Indenture with respect to the Debt Securities of such series shall survive
until such Debt Securities are no longer outstanding. Thereafter, only the
Company's obligations in Sections 7.7, 8.5 and 8.6 of the Indenture with
respect to the Debt Securities of such series shall survive. If and when a
ruling from the Internal Revenue Service or an opinion of counsel referred to
in clause (D)(1) of this paragraph is able to be provided specifically without
regard to, and not in reliance upon, the continuance of the Company's
obligations under Section 4.1 of the Indenture, then the Company's obligations
under such Section 4.1 of the Indenture shall cease upon delivery to the
Trustee of such ruling or opinion of counsel and compliance with the other
conditions precedent provided for in this provision of the Indenture relating
to the defeasance contemplated by this provision of the Indenture. (Section
8.2)
The Indenture provides that the Company may omit to comply with any term,
provision or condition described under "--Certain Covenants," and such omission
shall be deemed not to be an Event of Default, with respect to the outstanding
Debt Securities of any series if: (i) the Company has irrevocably deposited in
trust with the Trustee as trust funds solely for the benefit of the Holders of
the Securities of such series for payment of the principal of and interest, if
any, on the Debt Securities of such series money or U.S. Government Obligations
or a combination thereof in an amount sufficient (in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee) without consideration
of any reinvestment and after payment of all federal, state and local taxes or
other charges and assessments in respect thereof payable by the Trustee, to pay
and discharge the principal of and interest on the outstanding Debt Securities
of such series to maturity or earlier redemption (irrevocably provided for
under arrangements satisfactory to the Trustee), as the case may be; (ii) such
deposit will not result in a breach or violation of, or constitute a default
under, the Indenture or any other agreement or instrument to which the Company
is a party or by which it is bound; (iii) no Default with respect to the Debt
Securities of such series shall have occurred and be continuing on the date of
such deposit; (iv) the Company has delivered to the Trustee an opinion of
counsel to the effect that (A) the creation of the defeasance trust does not
violate the Investment Company Act of 1940, as amended (B) the Holders of the
Debt Securities of such series have a valid first-priority security interest in
the trust funds, (C) such Holders will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and covenant defeasance
and will be subject to federal income tax on the same amount and in the same
manner and at the same times as would have been the case if such deposit and
defeasance had not occurred and (D) after the passage of 123 days following the
deposit (except, with respect to any trust funds for the account of any Holder
of the Debt Securities of such series who may be deemed to be an "insider" as
to an obligor on the Debt Securities of such series for purposes of the United
States Bankruptcy Code, the trust funds will not be subject to the effect of
Section 547 of the United States Bankruptcy Code or Section 15 of the New York
Debtor and Creditor Law in a case commenced by or against the Company under
either such statute, and either (1) the trust funds will no longer remain the
property of the Company (and therefore will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally) or (2) if a court were to rule under any such law
in any case or proceeding that the trust funds remained
14
<PAGE>
property of the Company, to the extent not paid to such Holders, the Trustee
will hold, for the benefit of such Holders, a valid and perfected first
priority security interest in such trust funds that is not avoidable in
bankruptcy or otherwise (except for the effect of Section 552(b) of the United
States Bankruptcy Code on interest on the trust funds accruing after the
commencement of a case under such statute), and the Holders of the Debt
Securities of such series will be entitled to receive adequate protection of
their interests in such trust funds if such trust funds are used in such case
or proceeding; (v) if the Debt Securities of such series are then listed on a
national securities exchange, the Company shall have delivered to the Trustee
an opinion of counsel to the effect that the covenant defeasance contemplated
by this provision of the Indenture of the Debt Securities of such series will
not cause the Debt Securities of such series to be delisted; and (vi) the
Company has delivered to the Trustee an officers' certificate and an opinion of
counsel, in each case stating that all conditions precedent provided for in the
Indenture relating to the covenant defeasance contemplated by this provision of
the Indenture of the Debt Securities of such series have been complied with.
(Section 8.3)
MODIFICATION OF THE INDENTURE
The Indenture provides that the Company and the Trustee may amend or
supplement the Indenture or the Debt Securities of any series without notice to
or the consent of any Holder: (1) to cure any ambiguity, defect or
inconsistency in the Indenture; provided that such amendments or supplements
shall not adversely affect the interests of the Holders in any material
respect; (2) to comply with Article 5 of the Indenture; (3) to comply with any
requirements of the Commission in connection with the qualification of the
Indenture under the Trust Indenture Act of 1939, as amended; (4) to evidence
and provide for the acceptance of appointment hereunder by a successor Trustee;
(5) to establish the form or forms or terms of Debt Securities of any series or
of the coupons appertaining to such Debt Securities as permitted by the
Indenture; (6) to provide for uncertificated Debt Securities and to make all
appropriate changes for such purpose; and (7) to make any change that does not
materially and adversely affect the rights of any Holder. (Section 9.1)
The Indenture also provides that, without prior notice to any Holders, the
Company and the Trustee may amend the Indenture and the Debt Securities of any
series outstanding thereunder with the written consent of the Holders of a
majority in principal amount of the outstanding Debt Securities of all series
affected by such supplemental indenture (all such series voting as one class),
and the Holders of a majority in principal amount of the outstanding Debt
Securities of all series affected thereby (all such series voting as one class)
by written notice to the Trustee may waive future compliance by the Company
with any provision of the Indenture or the Debt Securities of such series.
Notwithstanding the foregoing provision, without the consent of each Holder of
the Debt Securities of each series affected thereby, an amendment or waiver,
including a waiver pursuant to Section 6.4 of the Indenture, may not: (i)
extend the stated maturity of the principal of, or any installment of interest
on, such Holder's Debt Security, or reduce the principal amount thereof or the
rate of interest thereon (including any amount in respect of original issue
discount), or any premium payable with respect thereto, or adversely affect the
rights of such Holder under any mandatory repurchase provision or any right of
repurchase at the option of such Holder, or reduce the amount of the principal
of an Original Issue Discount Security that would be due and payable upon an
acceleration of the maturity thereof pursuant to the Indenture or the amount
thereof provable in bankruptcy, or change any place of payment where, or the
currency in which, any Debt Security of such series or any premium or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the stated maturity thereof (or, in
the case of redemption, on or after the redemption date or, in the case of
mandatory repurchase, the date therefor); (ii) reduce the percentage in
principal amount of outstanding Debt Security of such series the consent of
whose Holders is required for any such supplemental indenture, for any waiver
of compliance with certain provisions of the Indenture or certain Defaults and
their consequences provided for in the Indenture; (iii) waive a Default in the
payment of principal of or interest on, any Debt Security of such series; (iv)
cause any Debt Security of such series to be subordinated in right of payment
to any obligation of the Company; (v) modify any of the provisions of this
section of the Indenture, except to increase any such percentage or to provide
that certain other provisions of the Indenture cannot be modified or waived
without the consent of the Holder of each outstanding Debt Security of any
series affected
15
<PAGE>
thereby. A supplemental indenture which changes or eliminates any covenant or
other provision of the Indenture which has expressly been included solely for
the benefit of one or more particular series of Debt Securities, or which
modifies the rights of Holders of Debt Security of such series with respect to
such covenant or provision, shall be deemed not to affect the rights under the
Indenture of the Holders of Debt Securities of any other series or of the
coupons appertaining to such Debt Securities. It shall not be necessary for the
consent of the Holders under this section of the Indenture to approve the
particular form of any proposed amendment, supplement or waiver, but it shall
be sufficient if such consent approves the substance thereof. After an
amendment, supplement or waiver under this section of the Indenture becomes
effective, the Company shall give to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. The Company will mail
supplemental indentures to Holders upon request. Any failure of the Company to
mail 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
9.2)
GOVERNING LAW
The Indenture and the Debt Securities will be governed by the laws of the
State of New York.
CONCERNING THE TRUSTEE
The Company and its subsidiaries maintain ordinary banking relationships with
The Chase Manhattan Bank, N.A. and its affiliates and a number of other banks.
The Chase Manhattan Bank, N.A., and its affiliates along with a number of other
banks have extended credit facilities to the Company and its subsidiaries.
PLAN OF DISTRIBUTION
The Company may sell Debt Securities to or through one or more underwriters
and also may sell Debt Securities directly to other purchasers or through
agents or dealers, or the Company may sell Debt Securities through a
combination of any such methods.
The distribution of the Debt Securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. Underwriters may sell Debt
Securities to or through dealers.
In connection with the sales of Debt Securities, underwriters may receive
compensation from the Company in the form of discounts, concessions or
commissions. Underwriters, dealers and agents that participate in the
distribution of Debt Securities may be deemed to be underwriters, and any
discounts or commissions received by them and any profit on the resale of Debt
Securities by them may be deemed to be underwriting discounts and commissions
under the Securities Act. Any such underwriter or agent will be identified, and
any such compensation will be described, in the Prospectus Supplement.
Pursuant to agreements into which the Company may enter, underwriters,
dealers and agents who participate in the distribution of Debt Securities may
be entitled to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act.
Unless otherwise indicated in the Prospectus Supplement, the Company does not
intend to list any of the Debt Securities on a national securities exchange. In
the event the Debt Securities are not listed on a national securities exchange,
certain broker-dealers may make a market in the Debt Securities, but will not
be obligated to do so and may discontinue any market making at any time without
notice. No assurance can be given that any broker-dealer will make a market in
the Debt Securities or as to the liquidity of the trading market for the Debt
Securities, whether or not the Debt Securities are listed on a national
securities exchange. The Prospectus Supplement with respect to the Debt
Securities will state, if known, whether or not any
16
<PAGE>
broker-dealer intends to make a market in the Debt Securities. If no such
determination has been made, the Prospectus Supplement will so state.
The place and time of delivery for the Offered Securities in respect of which
this Prospectus is delivered will be set forth in the Prospectus Supplement.
LEGAL MATTERS
The validity of the issuance of the Debt Securities offered hereby will be
passed upon for the Company by Rose Law Firm, Little Rock, Arkansas, and for
any underwriters or agents by Davis Polk & Wardwell, New York, New York.
Certain members of the Rose Law Firm beneficially own shares of the Company's
Class A Common Stock, par value $.10 per share, having a market value on March
15, 1995 of approximately $200,000.
EXPERTS
The consolidated financial statements of Tyson Foods, Inc. incorporated by
reference in the Company's Annual Report (Form 10-K) for the year ended October
1, 1994, have been audited by Ernst & Young LLP, independent auditors, as set
forth in their reports thereon included therein and incorporated herein by
reference. Such consolidated financial statements are incorporated herein by
reference in reliance upon such reports given upon the authority of such firm
as experts in accounting and auditing.
17
