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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended December 27, 1997
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from__________________to_________________
Commission File Number 0-3400
TYSON FOODS, INC.
(Exact name of registrant as specified in its charter)
Delaware 71-0225165
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
2210 West Oaklawn Drive, Springdale, Arkansas 72762-6999
(Address of principal executive offices and zip code)
(501) 290-4000
(Registrant's telephone number, including area code)
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period
that the Registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days.
Yes X No
--- ---
Indicate the number of shares outstanding of each of the issuer's classes
of common stock, as of the latest practicable date.
Class Outstanding December 27, 1997
- ------------------------------------ -----------------------------
Class A Common Stock, $.10 Par Value 110,549,981 Shares
Class B Common Stock, $.10 Par Value 102,670,113 Shares
Page 1
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TYSON FOODS, INC.
INDEX
PAGE
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Consolidated Condensed Balance Sheets
December 27, 1997 and September 27, 1997 3
Consolidated Condensed Statements of Income
for the Three Months Ended
December 27, 1997 and December 28, 1996 4
Consolidated Condensed Statements of Cash Flows
for the Three Months Ended
December 27, 1997 and December 28, 1996 5
Notes to Consolidated Condensed Financial Statements 6-8
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 8-11
PART II. OTHER INFORMATION
Item 1. Legal Proceedings 11-12
Item 2. Changes in Securities 12
Item 3. Defaults Upon Senior Securities 12
Item 4. Submission of Matters to a Vote of Security Holders 12
Item 5. Other Information 12
Item 6. Exhibits and Reports on Form 8-K 12-14
SIGNATURES 15
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PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
TYSON FOODS, INC.
CONSOLIDATED CONDENSED BALANCE SHEETS
(In millions except per share amounts)
(Unaudited)
December 27, September 27,
ASSETS 1997 1997
Current Assets:
Cash and cash equivalents $ 24.2 $ 23.6
Accounts receivable 589.7 617.8
Inventories 914.5 886.1
Assets held for sale 6.2 6.2
Other current assets 30.7 38.8
_______ _______
Total Current Assets 1,565.3 1,572.5
Net Property, Plant, and Equipment 1,920.5 1,924.8
Excess of Investments over Net Assets Acquired 725.3 731.1
Investments and Other Assets 193.1 182.6
________ ________
Total Assets $4,404.2 $4,411.0
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities:
Notes payable $ 138.8 $ 37.3
Current portion of long-term debt 60.3 94.6
Trade accounts payable 269.0 290.3
Other accrued liabilities 280.8 298.8
_______ _______
Total Current Liabilities 748.9 721.0
Long-Term Debt 1,491.7 1,558.2
Deferred Income Taxes 502.7 506.1
Other Liabilities 4.2 4.2
Shareholders' Equity:
Common stock ($.10 par value):
Class A-Authorized 900 million shares;
issued 119.5 million shares at
12-27-97 and 9-27-97 11.9 11.9
Class B-Authorized 900 million shares;
issued 102.7 million shares at
12-27-97 and 9-27-97 10.3 10.3
Capital in excess of par value 379.1 379.1
Retained earnings 1,430.6 1,390.8
Currency translation adjustment (2.2) (2.5)
_______ _______
1,829.7 1,789.6
Less treasury stock, at cost-
9.0 million shares at 12-27-97 and
8.8 million shares at 9-27-97 170.6 165.6
Less unamortized deferred compensation 2.4 2.5
________ ________
Total Shareholders' Equity 1,656.7 1,621.5
________ ________
Total Liabilities and Shareholders' Equity $4,404.2 $4,411.0
======== ========
The accompanying notes are an integral part of these financial statements.
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TYSON FOODS, INC.
CONSOLIDATED CONDENSED STATEMENTS OF INCOME
(In millions except per share data)
(Unaudited)
Three Months Ended
__________________
December 27, December 28,
1997 1996
____________ ____________
Sales $1,520.8 $1,527.9
Cost of Sales 1,260.1 1,279.5
------- --------
Gross Profit 260.7 248.4
Expenses:
Selling 125.6 125.1
General and administrative 31.3 23.5
Amortization 5.9 6.8
------- -------
Operating Income 97.9 93.0
Other Expense (Income):
Interest 27.2 28.9
Other (0.6) (41.5)
------- -------
Income Before Taxes on Income 71.3 105.6
Provision for Income Taxes 26.4 61.0
------- -------
Net Income $44.9 $44.6
======= =======
Basic Average Shares Outstanding 213.3 217.4
===== =====
Basic Earnings Per Share $0.21 $0.21
===== =====
Diluted Average Shares Outstanding 215.0 219.4
===== =====
Diluted Earnings Per Share $0.21 $0.20
===== =====
Cash Dividends Per Share:
Class A $0.0250 $0.0200
Class B $0.0225 $0.0180
The accompanying notes are an integral part of these financial statements.
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TYSON FOODS, INC.
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
(In millions)
(Unaudited)
Three Months Ended
__________________
December 27, December 28,
1997 1996
____________ ____________
Cash Flows from Operating Activities:
Net income $44.9 $44.6
Adjustments to reconcile net income to cash
provided by operating activities:
Depreciation 51.7 51.1
Amortization 5.9 6.8
Deferred income taxes (3.4) (0.1)
(Gain)Loss on dispositions of assets 0.6 (41.4)
Decrease in accounts receivable 28.1 52.0
(Increase)decrease in inventories (28.4) 38.9
Decrease in trade accounts payable (21.3) (33.1)
Net change in other current assets
and liabilities (9.9) 63.8
_____ ______
Cash Provided by Operating Activities 68.2 182.6
Cash Flows from Investing Activities:
Additions to property, plant and equipment (50.3) (44.6)
Proceeds from sale of property, plant and equipment 2.4 186.5
Net change in other assets and liabilities (10.6) (5.5)
_____ ______
Cash (Used for)Provided by Investing Activities (58.5) 136.4
Cash Flows from Financing Activities:
Net change in notes payable 101.5 (34.3)
Proceeds from long-term debt 20.4 19.4
Repayments of long-term debt (121.2) (221.1)
Purchases of treasury shares (5.5)
Other (4.2) (2.9)
_____ ______
Cash Used for Financing Activities (9.0) (238.9)
Effect of Exchange Rate Change on Cash (0.1) (0.3)
_____ ______
Increase in Cash and Cash Equivalents 0.6 79.8
Cash and Cash Equivalents at Beginning of Period 23.6 36.6
______ ______
Cash and Cash Equivalents at End of Period $24.2 $116.4
====== ======
Supplemental Cash Flow Information
Cash paid during the period for:
Interest $45.8 $48.1
Income taxes $2.1 $1.3
The accompanying notes are an integral part of these financial statements.
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TYSON FOODS, INC.
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
(Unaudited)
1. Accounting Policies
The consolidated condensed financial statements have been prepared by Tyson
Foods, Inc. (the "Company"), without audit, pursuant to the rules and
regulations of the Securities and Exchange Commission. Certain information
and accounting policies and footnote disclosures normally included in
financial statements prepared in accordance with generally accepted
accounting principles have been condensed or omitted pursuant to such rules
and regulations. Although the management of the Company believes that the
disclosures are adequate to make the information presented not misleading,
these consolidated condensed financial statements should be read in
conjunction with the consolidated financial statements and notes thereto
included in the Company's latest annual report for the fiscal year ended
September 27, 1997. The preparation of consolidated condensed financial
statements requires management to make estimates and assumptions. These
estimates and assumptions affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date
of the consolidated financial statements and the reported amounts of
revenues and expenses during the reporting period. Actual results could
differ from those estimates. In the opinion of the management of the
Company, the accompanying consolidated condensed financial statements
contain all adjustments, consisting of normal recurring accruals necessary
to present fairly the financial position as of December 27, 1997 and
September 27, 1997 and the results of operations and cash flows for the
three months ended December 27, 1997 and December 28, 1996. The results of
operations and cash flows for the three months ended December 27, 1997 and
December 28, 1996, are not necessarily indicative of the results to be
expected for the full year.
In 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 128, "Earnings Per Share". Statement 128
replaced the previously reported primary and fully diluted earnings per
share with basic and diluted earnings per share. Unlike primary earnings
per share, basic earnings per share excludes the dilutive effects of
options, warrants, and convertible securities. Diluted earnings per share
is very similar to the previously reported fully diluted earnings per
share. All earnings per share amounts for all periods have been presented,
and where necessary, restated to conform to the Statement 128 requirements.
The Notes to Consolidated Financial Statements for the fiscal year
ended September 27, 1997, reflect the significant accounting policies, debt
provisions, borrowing arrangements, dividend restrictions, contingencies
and commitments of the Company. There were no material changes in such
items during the three months ended December 27, 1997, except as disclosed
in these notes.
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2. Earnings Per Share
The following table sets forth the computation of basic and diluted
earnings per share:
Quarter Ended
(In million)
December 27, December 28,
1997 1996
------------ ------------
Numerator:
Net Income $44.9 $44.6
===== =====
Denominator:
Denominator for basic
earnings per share-
weighted average shares 213.3 217.4
Effect of dilutive securities:
Employee stock options 1.7 2.0
----- -----
Denominator for diluted
earnings per share-
adjusted weighted average
shares and assumed conversions 215.0 219.4
===== =====
Basic earnings per share $0.21 $0.21
===== =====
Diluted earnings per share $0.21 $0.20
===== =====
3. Inventories
Inventories, valued at the lower of cost (first-in, first-out) or market,
consist of the following:
(In millions)
December 27, September 27,
1997 1997
----------- ------------
Finished and work-in-process $401.1 $366.1
Live poultry and hogs 343.7 353.4
Seafood related products 39.8 39.5
Hatchery eggs and feed 59.3 57.8
Supplies 70.6 69.3
______ ______
Total $914.5 $886.1
====== ======
4. Acquisitions
On January 9, 1998, the Company completed the acquisition of Hudson Foods,
Inc. ("Hudson") pursuant to which Hudson merged with and into a wholly-
owned subsidiary of the Company (the "Hudson Acquisition"). At the
effective time of merger the Class A and Class B shareholders of Hudson
received an aggregate of approximately 18.4 million shares of the Company's
Class A common stock and approximately $257.4 million in cash. On January
9, 1998, the Company borrowed $318 million under its commercial paper
program to finance the $257.4 million cash portion of the Hudson
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Acquisition and repay approximately $61 million under Hudson's revolving
credit facilities. Reference is made to the Company's Current Report on
Form 8-K, dated January 15, 1998 for a more detailed description of Hudson
and the Hudson Acquisition, including certain pro forma financial
information giving effect to the Hudson Acquisition.
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations
FINANCIAL CONDITION
For the three months ended December 27, 1997, net cash totaling $68.2
million was provided by all operating activities. Operations provided
$99.7 million in cash and $31.5 million was used by net changes in
receivables, inventories, payables and other items. The Company used cash
from operations to fund $50.3 million of property, plant and equipment
additions. The expenditures for property, plant and equipment were related
to acquiring new equipment, upgrading facilities in order to maintain
competitive standing and position the Company for future opportunities.
At December 27, 1997, working capital was $816.4 million compared to
$851.5 million at 1997 fiscal year-end, a decrease of $35.1 million. The
current ratio at December 27, 1997 was 2.09 to 1 compared to 2.18 to 1 at
September 27, 1997. Working capital has decreased since year-end primarily
due to a decrease in accounts receivable and an increase in notes payable.
Although notes payable increased $101.5 million, long-term debt has
decreased $66.5 million, and total debt increased $700 thousand since
September 27, 1997. At December 27, 1997, total debt was 50.5% of total
capitalization compared to 51.0% at September 27, 1997. The Company's
foreseeable cash needs for operations and capital expenditures will
continue to be met through cash flows from operations and borrowings
supported by existing credit facilities as well as additional credit
facilities which the Company believes are available.
The Company has two unsecured revolving credit agreements totaling
$1.25 billion which support the Company's commercial paper program. The
$1 billion facility expires in May 2002. At December 27, 1997, $691.4
million was outstanding under the $1 billion facility consisting of $569.4
million in commercial paper and $122.0 million drawn under the revolver.
The $250 million facility expires in May 1998. At December 27, 1997, all of
the $250 million facility was available. Additional outstanding long-term
debt at December 27, 1997 consisted of $348.7 million of public debt,
$221.5 million of institutional notes, $182.6 million in leveraged
equipment loans and $47.5 million of other indebtedness. On January 9,
1998, the Company borrowed approximately $318 million under its commercial
paper program, the proceeds of which were used to (i) finance the $257.4
million cash portion of the Hudson Acquisition and (ii) repay approximately
$61 million under Hudson's revolving credit facilities. On January 21,
1998 the Company issued in two separate series $150 million 6% Notes due
January 15, 2003 and $150 million 7% Notes due January 15, 2028. On
February 4, 1998, the Company issued $100 million 6.08% Mandatory Par Put
Remarketed SecuritiesSM ("MOPPRSSM") due February 1, 2010 and $50 million
Floating Rate MOPPRS due February 1, 2010. The net proceeds from these debt
offerings will be used by the Company to repay a portion of the borrowings
under its commercial paper program. The Company may use funds borrowed
under its revolving credit facilities, commercial paper program or through
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the issuance of additional debt securities from time to time in the future
to repay additional indebtedness of Hudson assumed by the Company as a
result of the Hudson Acquisition, finance acquisitions as opportunities may
arise, refinance other indebtedness or capital leases of the Company, and
other general corporate purposes.
RESULTS OF OPERATIONS
Sales for the first quarter of fiscal 1998 decreased 0.5% from the same
quarter of fiscal 1997. This decrease is mainly due to a 4.6% decrease in
average sales prices mostly offset by a 4.3% increase in total volume.
Consumer poultry sales accounted for a decrease of 1.2% of the total change
in sales for the first quarter of fiscal 1998 as compared to the same
quarter of fiscal 1997. This decrease was due to a 7.0% decrease in average
sales prices offset by a 6.1% increase in tonnage.
Mexican Original, Culinary Foods and Mallards Food sales as a group
accounted for an increase of 0.4% of the total change in sales for the
first quarter of fiscal 1998 as compared to the same quarter of fiscal
1997. This increase was primarily due to a 14.6% increase in average sales
prices partially offset by a 2.6% decrease in tonnage. Seafood sales
accounted for a decrease of 0.8% of the change in total sales for the first
quarter of fiscal 1998 as compared to the same quarter of fiscal 1997. This
decrease was due to a 30.5% decrease in tonnage slightly offset by a 13.3%
increase in average sales prices. The seafood operations continue to be
affected by the availability of some species of fish as well as reduced
pricing on some products and other regulations which limit its source of
supply. Sales of live swine, animal foods, by-products, and other, as a
group accounted for an increase of 1.1% of the change in total sales for
the first quarter of fiscal 1998 as compared to the same quarter of fiscal
1997.
The Company recognizes that conducting business in or selling products into
foreign countries, including but not limited to Russia and certain Asian
countries, entails inherent risks including various political, credit,
inventory and currency risks. The Company, however, is continually
monitoring its international business practices and, whenever possible,
will attempt to minimize the Company's financial exposure to these risks.
Cost of goods sold for the first quarter of fiscal 1998 decreased 1.5%
compared to the same quarter of fiscal 1997. The cost of ingredients used
in feed for poultry and swine and the ingredients used in Mexican Original
operations during the first quarter of fiscal 1998 decreased in comparison
with the same quarter of fiscal 1997. However, these costs did not
moderate as much as management had anticipated. As a percent of sales, cost
of sales was 82.9% for the first quarter of fiscal 1998 compared to 83.7%
in the first quarter of fiscal 1997.
Operating expenses increased 4.8% for the first quarter of fiscal 1998 from
the same quarter of fiscal 1997. Selling expense, as a percent of sales,
increased to 8.3% for the first quarter of fiscal 1998 as compared to 8.2%
for the first quarter of fiscal 1997. General and administrative expense,
as a percent of sales, was 2.1% in the first quarter of fiscal 1998
compared to 1.5% in the same period last year. Included in general and
administrative expense for the first quarter of fiscal 1998 is a charge of
$6 million for penalties and costs associated with the plea agreement by
the Company with respect to the investigation by the Office of Independent
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Counsel in connection with former Secretary of Agriculture Michael Espy.
(See Part II. Item 1- Legal Proceedings.) Amortization expense, as a
percent of sales, was 0.4% in the first quarter of fiscal 1998 and 1997.
Interest expense decreased 5.9% for the first quarter of fiscal 1998
compared to the same quarter of fiscal 1997. The Company had a lower level
of borrowing which decreased the Company's average indebtedness by 9.8%
over the same period last year due to paying down debt with funds generated
from operations. The weighted average interest rate of all Company debt
increased to 6.42% compared to 6.14% for the same period last year.
The effective income tax rate for the first three months of fiscal 1998 was
37.0% compared to 57.7% for the same period of fiscal 1997. The effective
income tax rate for the first quarter of fiscal 1997 was impacted by the
taxes on the gain from the sale of the beef division assets. Certain costs
were allocated to the beef division, which are not deductible for tax
purposes, resulting in a higher effective tax rate.
IMPACT OF YEAR 2000
The Year 2000 Issue is the result of computer programs being written using
two digits rather than four to define the applicable year. Any of the
Company's computer programs that have date-sensitive software may recognize
a date using "00" as the year 1900 rather than the year 2000. This could
result in a system failure or miscalculations causing disruptions of
operations, including among other things, a temporary inability to process
transactions, send invoices, or engage in similar normal business
activities.
Based on a recent assessment, the Company determined that it will be
required to modify or replace limited portions of its software so that its
computer systems will function properly with respect to dates in the year
2000 and thereafter. The Company presently believes that with modifications
to existing software and conversions to new software, the Year 2000 Issue
will not pose significant operational problems for its computer systems.
The Company has initiated formal communications with all of its significant
suppliers and large customers to determine the extent to which the
Company's interface systems are vulnerable to those third parties' failure
to remediate their own Year 2000 Issues. The Company's total Year 2000
project cost and estimates to complete include the estimated costs and time
associated with the impact of third party Year 2000 Issues based upon
presently available information. However, there can be no guarantee that
the systems of other companies on which the Company's systems rely will be
timely converted and would not have an adverse effect on the Company's
systems.
The Company will utilize both internal and external resources to reprogram,
or replace, and test the software for Year 2000 modifications. The Company
anticipates completing the Year 2000 project by December 31, 1998, which is
prior to any anticipated impact on its operating systems. The total cost of
the Year 2000 project is not expected to have a material effect on the
Company's results of operations.
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ENVIRONMENTAL MATTERS
The Company has a strong financial commitment to environmental matters.
During the first three months of fiscal 1998 the Company invested
approximately $16.6 million in water quality facilities, including capital
outlays to build and upgrade facilities and day-to-day operations of waste-
water facilities.
CAUTIONARY STATEMENTS RELEVANT TO FORWARD-LOOKING INFORMATION FOR THE
PURPOSE OF "SAFE HARBOR" PROVISIONS OF THE PRIVATE SECURITIES LITIGATION
REFORM ACT OF 1995
The Company and its representatives may from time to time make written or
oral forward-looking statements with respect to their current views and
estimates of future economic circumstances, industry conditions, company
performance and financial results. These forward-looking statements are
subject to a number of factors and uncertainties, which could cause the
Company's actual results and experiences to differ materially from the
anticipated results and expectations, expressed in such forward-looking
statements. The Company wishes to caution readers not to place undue
reliance on any forward-looking statements, which speak only as of the date
made. Among the factors that may affect the operating results of the
Company are the following: (i) fluctuations in the cost and availability
of raw materials, such as feed grain costs in relation to historical
levels; (ii) changes in the availability and relative costs of labor and
contract growers; (iii) market conditions for finished products, including
the supply and pricing of alternative proteins, all of which may impact the
Company's pricing power; (iv) effectiveness of advertising and marketing
programs; (v) the ability of the Company to make effective acquisitions and
successfully integrate newly acquired businesses into existing operations;
(vi) risks associated with leverage, including cost increases due to rising
interest rates; (vii) changes in regulations and laws, including changes in
accounting standards, environmental laws, occupational, health and safety
laws, and laws regulating fishing and seafood processing activities; (viii)
access to foreign markets together with foreign economic conditions,
including currency fluctuations; and (ix) the effect of, or changes in,
general economic conditions.
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
On December 22, 1997, the Company entered into a plea agreement ("Plea
Agreement") with the United States whereby the Company agreed to plead
guilty to one (1) count of Gratuity to a Public Official in violation of 18
U.S.C. 201(c)(1)(A). Pursuant to said Plea Agreement, the Company agreed
to (i) pay a fine of Four Million and No/100 Dollars ($4,000,000.00), (ii)
pay Two Million and No/100 Dollars ($2,000,000.00) to be applied to the
costs of the investigation of the Office of the Independent Counsel
("OIC"), and (iii) enter into a Compliance Agreement among the Company, the
United States Department of Agriculture ("USDA") and the OIC. The USDA, as
the lead agency for purposes of suspension and debarment, has determined
that the terms and conditions of the Plea Agreement provide adequate
assurance that the Company's future dealings with the federal government
will be conducted with the high degree of integrity that the federal
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government expects of its business partners and that suspension, debarment,
or action under the Federal Meat Inspection Act, the Poultry Products
Inspection Act, and the Agricultural Marketing Act of 1946 is not necessary
to protect its interests. On January 12, 1998 the United States District
Court for the District of Columbia entered judgement against the Company
enforcing the terms and conditions of the Plea Agreement and also placing
the Company on probation for a term of four (4) years.
Item 2. Changes in Securities
Not Applicable
Item 3. Defaults Upon Senior Securities
Not Applicable
Item 4. Submission of Matters to a Vote of Security Holders
The following directors were elected at the annual meeting of shareholders
held January 9, 1998:
DIRECTORS VOTES FOR VOTES WITHHELD
_________ _________ ______________
Neely Cassady 1,116,580,621 1,065,743
Lloyd V. Hackley 1,116,586,506 1,059,858
Gerald M. Johnston 1,116,564,775 1,081,589
Shelby Massey 1,116,583,375 1,062,989
Joe F. Starr 1,098,077,490 19,568,874
Leland Tollett 1,116,564,870 1,081,494
Barbara Tyson 1,116,551,502 1,094,862
Don Tyson 1,116,549,525 1,096,839
John Tyson 1,116,538,276 1,108,088
Fred S. Vorsanger 1,116,580,921 1,065,443
Donald E. Wray 1,116,565,329 1,081,035
No other items were voted on at the annual meeting of shareholders or
during the quarter ended December 27, 1997.
Item 5. Other Information
Not Applicable
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits:
The exhibits filed with this report are listed in the exhibit index at the
end of this Item 6.
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(b) Reports on Form 8-K:
On December 16, 1997, January 5, 1998 and January 15, 1998, the Company
filed Current Reports on Form 8-K related to the definitive agreement and
plan of merger with Hudson Foods, Inc.
On January 27, 1998, the Company filed a Current Report on Form 8-K related
to the Company's First Quarter Fiscal 1998 Operating Results.
On February 4, 1998, the Company filed a Current Report on Form 8-K related
to Remarketing Agreements dated January 28, 1998 between the Company and
Merrill Lynch, Pierce, Fenner & Smith, Incorporated with respect to the
Company's issuance of $100 million of 6.08% MOPPRS due February 1, 2010 and
$50 million of Floating Rate MOPPRS due February 1, 2010.
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EXHIBIT INDEX
The following exhibits are filed with this report.
Exhibit No. Page
___________ ____
3.1 Certificate of Incorporation of the Company as amended
(previously filed as Exhibit 3(a) to the Company's
Registration Statement on Form S-4 filed with the
Commission on July 8, 1992, Commission File No. 33-49368,
and incorporated herein by reference).
3.2 Amended and Restated Bylaws of the Company (previously
filed as Exhibit 3.2 to the Company's Annual Report on
Form 10-K for the fiscal year ended September 28, 1996,
Commission File No. 0-3400, and incorporated herein by
reference).
4.1 Form of $150 million 6% Note due January 15, 2003. 16-22
4.2 Form of $150 million 7% Note due January 15, 2028. 23-29
4.3 Form of $100 million 6.08% MOPPRS, due February 1, 2010. 30-41
4.4 Remarketing Agreement dated January 28, 1998 between
the Company and Merrill Lynch, Pierce, Fenner & Smith,
Incorporated, relating to the 6.08% MOPPRS due
February 1, 2010 (previously filed as Exhibit 4.1 to
the Company's Current Report on Form 8-K, filed with the
Securities and Exchange Commission on February 4, 1998
and incorporated herein by reference).
4.5 Form of $50 million Floating Rate MOPPRS, due
February 1, 2010. 42-55
4.6 Remarketing Agreement date January 28, 1998 between
the Company and Merrell Lynch, Pierce, Fenner & Smith,
Incorporated, relating to the Floating Rate MOPPRS due
February 1, 2010 (previously filed as Exhibit 4.2 to
the Company's Current Report on Form 8-K, filed with the
Securities and Exchange Commission on February 4, 1998
and incorporated herein by reference).
12 Ratio of Earnings to Fixed Charges 56
27 Financial Data Schedule
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
TYSON FOODS, INC.
Date: February 10, 1998 /s/ Wayne Britt
----------------- ------------------------------
Wayne Britt
Executive Vice President and
Chief Financial Officer
Date: February 10, 1998 /s/ James G. Ennis
----------------- ------------------------------
James G. Ennis
Vice President, Controller and
Chief Accounting Officer
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Exhibit 4.1
CUSIP: 902494 AC7
No. 1 $150,000,000
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the
Company or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
TYSON FOODS, INC.
6.00% Note due January 15, 2003
TYSON FOODS, INC., a Delaware corporation (the "Company", which term
includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to Cede & Co. or registered
assigns, at the office or agency of the Company in The City of New York,
New York, the principal sum of $150,000,000 Dollars on January 15, 2003, in
the coin or currency of the United States, and to pay interest, semi-
annually on January 15 and July 15 of each year, commencing July 15, 1998,
on said principal sum at said office or agency, in like coin or currency,
at the rate per annum specified in the title of this Note, from the January
15 or the July 15, as the case may be, next preceding the date of this Note
to which interest has been paid or duly provided for, unless the date
hereof is a date to which interest has been paid or duly provided for, in
which case from the date of this Note, or unless no interest has been paid
or duly provided for on this Note, in which case from January 21, 1998,
until payment of said principal sum has been made or duly provided for;
provided, that payment of interest may be made at the option of the Company
by check mailed to the address of the person entitled thereto as such
address shall appear on the Security Register of the Company or by wire
transfer as provided in the Indenture. Notwithstanding the foregoing, if
the date hereof is after the 1st day of January or July, as the case may
be, and before the following January 15 or July 15, this Note shall bear
interest from such January 15 or July 15; provided, that if the Company
shall default in the payment of interest due on such January 15 or July 15,
then this Note shall bear interest from the next preceding January 15 or
July 15 to which interest has been paid or duly provided for or, if no
interest has been paid or duly provided for on these Notes, from January
21, 1998. The interest so payable on any January 15 or July 15 will,
subject to certain exceptions provided in the Indenture referred to on the
reverse hereof, be paid to the person in whose name this Note is registered
at the close of business on the January 1 or July 1, as the case may be,
next preceding such January 15 or July 15, whether or not such day is a
Business Day.
Reference is made to the further provisions of this Note set forth on
the reverse hereof. Such further provisions shall for all purposes have
the same effect as though fully set forth at this place.
16
<PAGE>
This Note shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been manually
signed by the Trustee under the Indenture referred to on the reverse
hereof.
17
<PAGE>
IN WITNESS WHEREOF, TYSON FOODS, INC. has caused this instrument to be
signed manually or by facsimile by its duly authorized officers.
Dated: January 21, 1998
TYSON FOODS, INC.
By: ______________________________
By: ______________________________
Attest:
________________________
18
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: January 21, 1998 THE CHASE MANHATTAN BANK,
as Trustee
By: ______________________________
Authorized Signatory
19
<PAGE>
This Note is one of a duly authorized issue of debentures, notes,
bonds or other evidences of indebtedness of the Company (hereinafter called
the "Securities") of the series hereinafter specified, all issued or to be
issued under and pursuant to an indenture dated as of June 1, 1995 (herein
called the "Indenture"), duly executed and delivered by the Company to The
Chase Manhattan Bank, as Trustee (herein called the "Trustee"), to which
Indenture and all indentures supplemental thereto reference is hereby made
for a description of the rights, limitations of rights, obligations, duties
and immunities thereunder of the Trustee, the Company and the Holders of
the Securities. The Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates,
may be subject to different redemption provisions (if any) may be subject
to different sinking, purchase or analogous funds (if any) and may
otherwise vary as in the Indenture provided. This Note is one of a series
designated as the 6.00% Notes due January 15, 2003 of the Company, limited
in aggregate principal amount to $150,000,000.
Interest will be computed on the basis of a 360-day year of 12 30-day
months. The Company shall pay interest on overdue principal and, to the
extent lawful, on overdue installments of interest at the rate per annum
borne by this Note. If a payment date is not a Business Day as defined in
the Indenture at a place of payment, payment may be made at that place on
the next succeeding day that is a Business Day, and no interest shall
accrue for the intervening period.
In case an Event of Default with respect to the 6.00% Notes due
January 15, 2003, as defined in the Indenture, shall have occurred and be
continuing, the principal hereof may be declared, and upon such declaration
shall become, due and payable, in the manner, with the effect and subject
to the conditions provided in the Indenture.
The Indenture contains provisions which provide that without prior
notice to any Holders, the Company and the Trustee may amend the Indenture
and the Securities of any series with the written consent of the Holders of
a majority in principal amount of the outstanding 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 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
Securities of such series; provided that without the consent of each Holder
of the Securities of each series affected thereby, an amendment or waiver,
including a waiver of past defaults, may not: (i) extend the stated
maturity of the principal of, or any sinking fund obligation or any
installment of interest on, such Holder's 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
or the amount thereof provable in bankruptcy, or change any place of
payment where, or the currency in which, any 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
20
<PAGE>
redemption date or, in the case of mandatory repurchase, the date
therefor); (ii) reduce the percentage in principal amount of outstanding
Securities 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 Security of such series; (iv) cause any
Security of such series to be subordinated in right of payment to any
obligation of the Company; or (v) modify any of the provisions of the
Indenture governing supplemental indentures with the consent of
Securityholders 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 Security of any
series affected thereby.
It is also provided in the Indenture that, subject to certain
conditions, the Holders of at least a majority in principal amount of the
outstanding Securities of the series affected (all such series voting as a
single class), by notice to the Trustee, may waive an existing Default or
Event of Default with respect to the Securities of such series and its
consequences, except a Default in the payment of principal of or interest
on any Security or in respect of a covenant or provision of the Indenture
which cannot be modified or amended without the consent of the Holder of
each outstanding Security affected. Upon any such waiver, such Default
shall cease to exist, and any Event of Default with respect to the
Securities of such series arising therefrom shall be deemed to have been
cured, for every purpose of the Indenture; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereto.
The Indenture provides that a series of Securities may include one or
more tranches (each a "tranche") of Securities, including Securities issued
in a periodic offering. The Securities of different tranches may have one
or more different terms, including authentication dates and public offering
prices, but all the Securities within each such tranche shall have
identical terms, including authentication date and public offering price.
Notwithstanding any other provision of the Indenture, subject to certain
exceptions, with respect to sections of the Indenture concerning the
execution, authentication and terms of the Securities, redemption of the
Securities, Events of Default of the Securities, defeasance of the
Securities and amendment of the Indenture, if any series of Securities
includes more than one tranche, all provisions of such sections applicable
to any series of Securities shall be deemed equally applicable to each
tranche of any series of Securities in the same manner as though originally
designated a series unless otherwise provided with respect to such series
or tranche pursuant to a board resolution or a supplemental indenture
establishing such series or tranche.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Note in the manner, at the place, at the respective times,
at the rate and in the coin or currency herein prescribed.
The Notes are issuable initially only in registered form without
coupons in denominations of $1,000 and any multiple of $1,000 at the office
or agency of the Company in The City of New York, and in the manner and
21
<PAGE>
subject to the limitations provided in the Indenture, but without the
payment of any service charge, Notes may be exchanged for a like aggregate
principal amount of Notes of other authorized denominations.
This Note will not be redeemable prior to maturity.
Upon due presentment for registration of transfer of this Note at the
office or agency of the Company in The City of New York, a new Note or
Notes of authorized denominations for an equal aggregate principal amount
will be issued to the transferee in exchange therefor, subject to the
limitations provided in the Indenture, without charge except for any tax or
other governmental charge imposed in connection therewith.
The Company, the Trustee and any authorized agent of the Company or
the Trustee may deem and treat the registered Holder hereof as the absolute
owner of this Note (whether or not this Note shall be overdue and
notwithstanding any notation of ownership or other writing hereon made by
anyone other than the Company or the Trustee or any authorized agent of the
Company or the Trustee), for the purpose of receiving payment of, or on
account of, the principal hereof and premium, if any, and, subject to the
provisions on the face hereof, interest hereon, and for all other purposes,
and neither the Company nor the Trustee nor any authorized agent of the
Company or the Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the
Company in the Indenture or any indenture supplemental thereto or in any
Note, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer or director, as
such, past, present, or future, of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and
released by the acceptance hereof and as part of the consideration for the
issue hereof.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
22
<PAGE>
Exhibit 4.2
CUSIP: 902494 AD5
No. 1 $150,000,000
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the
Company or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
TYSON FOODS, INC.
7.00% Note due January 15, 2028
TYSON FOODS, INC., a Delaware corporation (the "Company", which term
includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to Cede & Co. or registered
assigns, at the office or agency of the Company in The City of New York,
New York, the principal sum of $150,000,000 Dollars on January 15, 2028, in
the coin or currency of the United States, and to pay interest, semi-
annually on January 15 and July 15 of each year, commencing July 15, 1998,
on said principal sum at said office or agency, in like coin or currency,
at the rate per annum specified in the title of this Note, from the January
15 or the July 15, as the case may be, next preceding the date of this Note
to which interest has been paid or duly provided for, unless the date
hereof is a date to which interest has been paid or duly provided for, in
which case from the date of this Note, or unless no interest has been paid
or duly provided for on this Note, in which case from January 21, 1998,
until payment of said principal sum has been made or duly provided for;
provided, that payment of interest may be made at the option of the Company
by check mailed to the address of the person entitled thereto as such
address shall appear on the Security Register of the Company or by wire
transfer as provided in the Indenture. Notwithstanding the foregoing, if
the date hereof is after the 1st day of January or July, as the case may
be, and before the following January 15 or July 15, this Note shall bear
interest from such January 15 or July 15; provided, that if the Company
shall default in the payment of interest due on such January 15 or July 15,
then this Note shall bear interest from the next preceding January 15 or
July 15 to which interest has been paid or duly provided for or, if no
interest has been paid or duly provided for on these Notes, from January
21, 1998. The interest so payable on any January 15 or July 15 will,
subject to certain exceptions provided in the Indenture referred to on the
reverse hereof, be paid to the person in whose name this Note is registered
at the close of business on the January 1 or July 1, as the case may be,
next preceding such January 15 or July 15, whether or not such day is a
Business Day.
Reference is made to the further provisions of this Note set forth on
the reverse hereof. Such further provisions shall for all purposes have
the same effect as though fully set forth at this place.
23
<PAGE>
This Note shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been manually
signed by the Trustee under the Indenture referred to on the reverse
hereof.
24
<PAGE>
IN WITNESS WHEREOF, TYSON FOODS, INC. has caused this instrument to be
signed manually or by facsimile by its duly authorized officers.
Dated: January 21, 1998
TYSON FOODS, INC.
By: ______________________________
By: ______________________________
Attest:
________________________
25
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: January 21, 1998 THE CHASE MANHATTAN BANK,
as Trustee
By: ______________________________
Authorized Signatory
26
<PAGE>
This Note is one of a duly authorized issue of debentures, notes,
bonds or other evidences of indebtedness of the Company (hereinafter called
the "Securities") of the series hereinafter specified, all issued or to be
issued under and pursuant to an indenture dated as of June 1, 1995 (herein
called the "Indenture"), duly executed and delivered by the Company to The
Chase Manhattan Bank, as Trustee (herein called the "Trustee"), to which
Indenture and all indentures supplemental thereto reference is hereby made
for a description of the rights, limitations of rights, obligations, duties
and immunities thereunder of the Trustee, the Company and the Holders of
the Securities. The Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates,
may be subject to different redemption provisions (if any) may be subject
to different sinking, purchase or analogous funds (if any) and may
otherwise vary as in the Indenture provided. This Note is one of a series
designated as the 7.00% Notes due January 15, 2028 of the Company, limited
in aggregate principal amount to $150,000,000.
Interest will be computed on the basis of a 360-day year of 12 30-day
months. The Company shall pay interest on overdue principal and, to the
extent lawful, on overdue installments of interest at the rate per annum
borne by this Note. If a payment date is not a Business Day as defined in
the Indenture at a place of payment, payment may be made at that place on
the next succeeding day that is a Business Day, and no interest shall
accrue for the intervening period.
In case an Event of Default with respect to the 7.00% Notes due
January 15, 2028, as defined in the Indenture, shall have occurred and be
continuing, the principal hereof may be declared, and upon such declaration
shall become, due and payable, in the manner, with the effect and subject
to the conditions provided in the Indenture.
The Indenture contains provisions which provide that without prior
notice to any Holders, the Company and the Trustee may amend the Indenture
and the Securities of any series with the written consent of the Holders of
a majority in principal amount of the outstanding 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 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
Securities of such series; provided that without the consent of each Holder
of the Securities of each series affected thereby, an amendment or waiver,
including a waiver of past defaults, may not: (i) extend the stated
maturity of the principal of, or any sinking fund obligation or any
installment of interest on, such Holder's 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
or the amount thereof provable in bankruptcy, or change any place of
payment where, or the currency in which, any 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
27
<PAGE>
redemption date or, in the case of mandatory repurchase, the date
therefor); (ii) reduce the percentage in principal amount of outstanding
Securities 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 Security of such series; (iv) cause any
Security of such series to be subordinated in right of payment to any
obligation of the Company; or (v) modify any of the provisions of the
Indenture governing supplemental indentures with the consent of
Securityholders 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 Security of any
series affected thereby.
It is also provided in the Indenture that, subject to certain
conditions, the Holders of at least a majority in principal amount of the
outstanding Securities of the series affected (all such series voting as a
single class), by notice to the Trustee, may waive an existing Default or
Event of Default with respect to the Securities of such series and its
consequences, except a Default in the payment of principal of or interest
on any Security or in respect of a covenant or provision of the Indenture
which cannot be modified or amended without the consent of the Holder of
each outstanding Security affected. Upon any such waiver, such Default
shall cease to exist, and any Event of Default with respect to the
Securities of such series arising therefrom shall be deemed to have been
cured, for every purpose of the Indenture; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereto.
The Indenture provides that a series of Securities may include one or
more tranches (each a "tranche") of Securities, including Securities issued
in a periodic offering. The Securities of different tranches may have one
or more different terms, including authentication dates and public offering
prices, but all the Securities within each such tranche shall have
identical terms, including authentication date and public offering price.
Notwithstanding any other provision of the Indenture, subject to certain
exceptions, with respect to sections of the Indenture concerning the
execution, authentication and terms of the Securities, redemption of the
Securities, Events of Default of the Securities, defeasance of the
Securities and amendment of the Indenture, if any series of Securities
includes more than one tranche, all provisions of such sections applicable
to any series of Securities shall be deemed equally applicable to each
tranche of any series of Securities in the same manner as though originally
designated a series unless otherwise provided with respect to such series
or tranche pursuant to a board resolution or a supplemental indenture
establishing such series or tranche.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Note in the manner, at the place, at the respective times,
at the rate and in the coin or currency herein prescribed.
The Notes are issuable initially only in registered form without
coupons in denominations of $1,000 and any multiple of $1,000 at the office
or agency of the Company in The City of New York, and in the manner and
28
<PAGE>
subject to the limitations provided in the Indenture, but without the
payment of any service charge, Notes may be exchanged for a like aggregate
principal amount of Notes of other authorized denominations.
This Note will not be redeemable prior to maturity.
Upon due presentment for registration of transfer of this Note at the
office or agency of the Company in The City of New York, a new Note or
Notes of authorized denominations for an equal aggregate principal amount
will be issued to the transferee in exchange therefor, subject to the
limitations provided in the Indenture, without charge except for any tax or
other governmental charge imposed in connection therewith.
The Company, the Trustee and any authorized agent of the Company or
the Trustee may deem and treat the registered Holder hereof as the absolute
owner of this Note (whether or not this Note shall be overdue and
notwithstanding any notation of ownership or other writing hereon made by
anyone other than the Company or the Trustee or any authorized agent of the
Company or the Trustee), for the purpose of receiving payment of, or on
account of, the principal hereof and premium, if any, and, subject to the
provisions on the face hereof, interest hereon, and for all other purposes,
and neither the Company nor the Trustee nor any authorized agent of the
Company or the Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the
Company in the Indenture or any indenture supplemental thereto or in any
Note, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer or director, as
such, past, present, or future, of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and
released by the acceptance hereof and as part of the consideration for the
issue hereof.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
29
<PAGE>
<PAGE>
Exhibit 4.3
1CUSIP: 902494 AB9
No. R - 1 $100,000,000
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the
Company (as defined below) or its agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name
of Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such
other entity as requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has
an interest herein.
TYSON FOODS, INC.
6.08% MandatOry Par Put Remarketed Securities_* ("MOPPRS_*)
due February 1, 2010
TYSON FOODS, INC., a Delaware corporation (the "Company", which term
includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to Cede & Co. or registered
assigns, at the office or agency of the Company in The City of New York,
New York, the principal sum of $100,000,000 (One Hundred Million Dollars)
on February 1, 2010 (the "Stated Maturity Date"), in the coin or currency
of the United States, and to pay interest, semi-annually on February 1 and
August 1 of each year (each, an "Interest Payment Date"), commencing August
1, 1998, on said principal sum at said office or agency, in like coin or
currency, at the rate per annum specified below, from the February 1 or the
August 1, as the case may be, next preceding the date of this MOPPRS to
which interest has been paid or duly provided for, unless the date hereof
is a date to which interest has been paid or duly provided for, in which
case from the date of this MOPPRS, or unless no interest has been paid or
duly provided for on these MOPPRS, in which case from February 4, 1998,
until payment of said principal sum has been made or duly provided for;
provided, that payment of interest may be made at the option of the Company
by check mailed to the address of the person entitled thereto as such
address shall appear on the Security Register of the Company or by wire
transfer as provided in the Indenture. Notwithstanding the foregoing, if
the date hereof is after the 16th day of January or July, as the case may
be, and before the following February 1 or August 1, this MOPPRS shall bear
interest from such February 1 or August 1; provided, that if the Company
shall default in the payment of interest due on such February 1 or August
1, then this MOPPRS shall bear interest from the next preceding February 1
or August 1 to which interest has been paid or duly provided for or, if no
interest has been paid or duly provided for on these MOPPRS, from
February 4, 1998. The interest so payable on any February 1 or August 1
will, subject to certain exceptions provided in the Indenture referred to
on the reverse hereof, be paid to the person in whose name this MOPPRS is
registered at the close of business on the fifteenth calendar day next
preceding such February 1 or August 1, as the case may be, whether or not
such day is a Business Day.
30
<PAGE>
The rate of interest on this MOPPRS shall be 6.08% per annum to
February 1, 2000 (the "Remarketing Date"). If, pursuant to the Remarketing
Agreement, dated as of the date hereof (the "Remarketing Agreement"),
between Merrill Lynch, Pierce, Fenner & Smith Incorporated, as Remarketing
Dealer (the "Remarketing Dealer"), and the Company, the Remarketing Dealer
elects to remarket the MOPPRS, then, except as otherwise set forth on the
reverse hereof, (i) this MOPPRS shall be subject to mandatory tender to the
Remarketing Dealer for remarketing on the Remarketing Date, on the terms
and subject to the conditions set forth on the reverse hereof, and (ii) on
and after the Remarketing Date, this MOPPRS shall bear interest at the rate
determined by the Remarketing Dealer in accordance with the procedures set
forth in Section 4 on the reverse hereof (the "Interest Rate to Maturity").
Reference is made to the further provisions of this MOPPRS set forth
on the reverse hereof. Such further provisions shall for all purposes have
the same effect as though fully set forth at this place.
This MOPPRS shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been manually
signed by the Trustee under the Indenture referred to on the reverse
hereof.
31
<PAGE>
IN WITNESS WHEREOF, TYSON FOODS, INC. has caused this instrument to be
signed manually or by facsimile by its duly authorized officers.
Dated:
TYSON FOODS, INC.
By: ______________________________
By: ______________________________
Attest:
________________________
32
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the MOPPRS of the series designated therein referred to in
the within-mentioned Indenture.
Dated:
THE CHASE MANHATTAN BANK,
as Trustee
By: ______________________________
Authorized Signatory
33
<PAGE>
TYSON FOODS, INC.
6.08% MandatOry Par Put Remarketed Securities_ ("MOPPRS_")
due February 1, 2010
1. Indenture. This MOPPRS is one of the duly authorized issue of debt
securities of the Company (hereinafter called the "Securities") of the
series hereinafter specified, all issued or to be issued under and pursuant
to an indenture dated as of June 1, 1995 (herein called the "Indenture"),
duly executed and delivered by the Company to The Chase Manhattan Bank, as
Trustee (herein called the "Trustee"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description
of the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the Holders of the Securities.
The Securities may be issued in one or more series, which different series
may be issued in various aggregate principal amounts, may mature at
different times, may bear interest, if any, at different rates, may be
subject to different redemption provisions (if any) may be subject to
different redemption provisions (if any) and may be subject to different
sinking, purchase or analogous funds (if any) and may otherwise vary as
provided in the Indenture. This Security is one of the series designated as
the 6.08% MandatOry Par Put Remarketed Securities_ ("MOPPRS_") due February
1, 2010 of the Company limited in aggregate principal amount to
$100,000,000.
Interest will be computed on the basis of a 360-day year of 12 30-day
months. The Company shall pay interest on overdue principal and, to the
extent lawful, on overdue installments of interest at the rate per annum
borne by this Security. If any Interest Payment Date is not a Business Day
as defined in the Indenture at a place of payment, payment may be made at
that place on the next succeeding day that is a Business Day, and no
interest shall accrue for the intervening period.
2. Mandatory Tender on Remarketing Date; Purchase and Settlement. (a)
Provided that the Remarketing Dealer gives notice to the Company and the
Trustee on a Business Day not later than five Business Days prior to the
Remarketing Date of its intention to purchase the Securities for
remarketing (the "Notification Date"), each Security shall be automatically
tendered, or deemed tendered, to the Remarketing Dealer for purchase on the
Remarketing Date in accordance with Section 2(b) below, except as set forth
in Sections 5 and 6 below. The purchase price of such tendered Securities
shall be equal to 100% of the principal amount thereof. Upon such tender,
the Remarketing Dealer shall have the option, in its sole discretion, to
elect to remarket the Securities in accordance with the Remarketing
Agreement for its own account at varying prices to be determined by the
Remarketing Dealer at the time of each sale. If the Remarketing Dealer
makes such election, the obligation of the Remarketing Dealer to purchase
the Securities on the Remarketing Date shall be subject to the conditions
set forth in the Remarketing Agreement. No Holder or actual purchaser of
the Securities ("Beneficial Owner") shall have any rights or claims under
the Remarketing Agreement or against the Company or the Remarketing Dealer
as a result of the Remarketing Dealer not purchasing such Securities.
(b) Following the Notification Date, the tender and purchase of the
Securities provided for in Section 2(a) above shall be effected as follows,
subject to Sections 5 and 6 below:
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(i) All of the tendered Securities shall be automatically
delivered to the account of the Trustee, by book-entry through DTC or
any successor thereto pending payment of the purchase price therefor,
on the Remarketing Date.
(ii) The Remarketing Dealer shall make or cause the Trustee to make
payment to DTC by book entry through DTC in accordance with the
procedures of DTC, by 1:00 p.m. New York City time on the Remarketing
Date against delivery through DTC of such Beneficial Owner's tendered
Securities, of the purchase price for tendered Securities that have
been purchased for remarketing by the Remarketing Dealer. The Company
shall make or cause the Trustee to make payment of interest to DTC on
the Remarketing Date by book entry through DTC by 2:30 p.m. New York
City time on the Remarketing Date.
3. Maintenance of Book-Entry System. (a) The tender and settlement
procedures set forth in Section 2(b) above, including provisions for
payment by purchasers of Securities in the remarketing or for payment to
selling Beneficial Owners of tendered Securities, shall be subject to
modification, notwithstanding any provision to the contrary set forth in
Article 9 of the Indenture, to the extent required by DTC or, if the book-
entry system is no longer available for the Securities at the time of the
remarketing, to the extent required to facilitate the tendering and
remarketing of Securities in certificated form. In addition, the
Remarketing Dealer may, notwithstanding any provision to the contrary set
forth in Article 9 of the Indenture, modify the settlement procedures set
forth herein in order to facilitate the settlement process.
(b) The Company hereby agrees with the Trustee and the holders of
Securities that at all times, notwithstanding any provision to the contrary
set forth in the Indenture, (i) it will use its best efforts to maintain
the Securities in book-entry form with DTC or any successor thereto and to
appoint a successor depository to the extent necessary to maintain the
Securities in book-entry form and (ii) it will waive any discretionary
right that it otherwise may have under the Indenture to cause the
Securities to be issued in certificated form.
4. Determination of Interest Rate to Maturity; Notification Thereof.
Subject to the Remarketing Dealer's election to remarket the MOPPRS as
provided in Section 2(a), by 3:30 p.m., New York City time, on the third
Business Day immediately preceding the Remarketing Date (the "Determination
Date"), the Remarketing Dealer shall determine the Interest Rate to
Maturity to the nearest one hundred-thousandth (0.00001) of one percent per
annum. The Interest Rate to Maturity shall be equal to the sum of 5.712%
(the "Base Rate") and the Applicable Spread (as defined below), which will
be based on the Dollar Price (as defined below) of the Securities.
The "Applicable Spread" shall be the lowest bid indication, expressed
as a spread (in the form of a percentage or in basis points) above the Base
Rate, obtained by the Remarketing Dealer on the Determination Date from the
bids quoted by five Reference Corporate Dealers (as defined below) for the
full aggregate principal amount of the Securities at the Dollar Price, but
assuming (i) an issue date that is the Remarketing Date, with settlement on
such date without accrued interest, (ii) a maturity date that is the Stated
Maturity Date of the Securities and (iii) a stated annual interest rate,
payable semi-annually, equal to the Base Rate plus the spread bid by the
applicable Reference Corporate Dealer. If fewer than five Reference
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<PAGE>
Corporate Dealers bid as described above, then the Applicable Spread shall
be the lowest of such bid indications obtained as described above. The
Interest Rate to Maturity announced by the Remarketing Dealer, absent
manifest error, shall be binding and conclusive upon the Beneficial Owners
and Holders of the Securities, the Company and the Trustee.
"Dollar Price" means, with respect to the Securities, the present
value, as of the Remarketing Date, of the Remaining Scheduled Payments (as
defined below) discounted to the Remarketing Date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Rate (as defined below).
"Reference Corporate Dealers" means each of Chase Securities Inc.,
Credit Suisse First Boston Corporation, Merrill Lynch, Pierce, Fenner &
Smith Incorporated, J.P. Morgan Securities Inc. and Salomon Brothers Inc
and their respective successors; provided, however, that if any of the
foregoing or their affiliates shall cease to be a leading dealer of
publicly traded debt securities of the Company in The City of New York (a
"Primary Corporate Dealer"), the Remarketing Dealer shall substitute
therefor another Primary Corporate Dealer.
"Remaining Scheduled Payments" means, with respect to the Securities,
the remaining scheduled payments of the principal thereof and interest
thereon, calculated at the Base Rate only, that would be due after the
Remarketing Date to and including the Stated Maturity Date; provided,
however, that if the Remarketing Date is not an Interest Payment Date with
respect to the Securities, the amount of the next succeeding scheduled
interest payment thereon, calculated at the Base Rate only, will be reduced
by the amount of interest accrued thereon, calculated at the Base Rate
only, to the Remarketing Date.
"Treasury Rate" means, with respect to the Remarketing Date, the rate
per annum equal to the semi-annual equivalent yield to maturity or
interpolated (on a day count basis) yield to maturity of the Comparable
Treasury Issues (as defined below), assuming a price for the Comparable
Treasury Issues (expressed as a percentage of its principal amount), equal
to the Comparable Treasury Price (as defined below) for such Remarketing
Date.
"Comparable Treasury Issues" means the United States Treasury security
or securities selected by the Remarketing Dealer as having an actual or
interpolated maturity or maturities comparable to the remaining term of the
Securities being purchased.
"Comparable Treasury Price" means, with respect to the Remarketing
Date, (a) the offer prices for the Comparable Treasury Issues (expressed in
each case as a percentage of its principal amount) on the Determination
Date, as set forth on "Telerate Page 500" (or such other page as may
replace Telerate Page 500) or (b) if such page (or any successor page) is
not displayed or does not contain such offer prices on such Determination
Date, (i) the average of the Reference Treasury Dealer Quotations for such
Remarketing Date, after excluding the highest and lowest of such Reference
Treasury Dealer Quotations, or (ii) if the Remarketing Dealer obtains fewer
than four such Reference Treasury Dealer Quotations, the average of all
such Reference Treasury Dealer Quotations. "Telerate Page 500" means the
display designated as "Telerate Page 500" on Dow Jones Markets Limited (or
such other page as may replace Telerate Page 500 on such service) or such
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<PAGE>
other service displaying the offer prices specified in (a) above as may
replace Dow Jones Markets Limited. "Reference Treasury Dealer Quotations"
means, with respect to each Reference Treasury Dealer and the Remarketing
Date, the offer prices for the Comparable Treasury Issues (expressed in
each case as a percentage of its principal amount) quoted in writing to the
Remarketing Dealer by such Reference Treasury Dealer by 3:30 p.m., on the
Determination Date.
"Reference Treasury Dealer" means each of Credit Suisse First Boston
Corporation, Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Morgan Stanley & Co. Incorporated and Salomon Brothers Inc
and their respective successors; provided, however, that if any of the
foregoing or their affiliates shall cease to be a primary U.S. Government
securities dealer in The City of New York (a "Primary Treasury Dealer"),
the Remarketing Dealer shall substitute therefor another Primary Treasury
Dealer.
5. Repurchase. If (a) the Remarketing Dealer for any reason does not
notify the Company of the Interest Rate to Maturity by 4:00 p.m., New York
City time, on the Determination Date, or (b) prior to the Remarketing
Date, the Remarketing Dealer has resigned and no successor has been
appointed on or before the Determination Date, or (c) since the
Notification Date, a material adverse change in the condition of the
Company and its subsidiaries, considered as one enterprise, shall have
occurred or an Event of Default, or any event which, with the giving of
notice or passage of time, or both, would constitute an Event of Default,
with respect to the Securities shall have occurred and be continuing, or
any other event constituting a termination event under the Remarketing
Agreement shall have occurred, or (d) the Remarketing Dealer elects not to
remarket the Securities, or (e) the Remarketing Dealer for any reason does
not purchase all tendered Securities on the Remarketing Date, then, in any
such case, the Company shall repurchase the Securities as a whole on the
Remarketing Date at a price equal to 100% of the principal amount thereof
plus all accrued and unpaid interest, if any, on the Securities to the
Remarketing Date. In any such case, payment shall be made by the Company to
the Participant of each tendering Beneficial Owner of Securities, by book-
entry through DTC, by 2:30 p.m., New York City time on the Remarketing Date
against delivery through DTC of such Beneficial Owner's tendered
Securities.
6. Redemption. (a) Notwithstanding any election by the Remarketing
Dealer to remarket the Securities on the Remarketing Date, the tendering of
the Securities for purchase by the Remarketing Dealer on such date as set
forth in Section 2(b) above shall be subject to the right of the Company to
redeem the Securities from the Remarketing Dealer as provided in Section
6(b) below.
(b) The Company, in its sole and absolute discretion, shall have the
right, upon notice to the Remarketing Dealer and the Trustee not later than
the Business Day immediately preceding the Determination Date, to
irrevocably elect to redeem the Securities, in whole but not in part, from
the Remarketing Dealer on the Remarketing Date at the Optional Redemption
Price. The "Optional Redemption Price" shall be the greater of (i) 100% of
the principal amount of the Securities and (ii) the sum of the present
values of the Remaining Scheduled Payments thereon, as determined by the
Remarketing Dealer, discounted to the Remarketing Date on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months) at the
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<PAGE>
Treasury Rate, plus in either case accrued and unpaid interest from the
Remarketing Date on the principal amount being redeemed to the date of
redemption. If the Company elects to redeem the Securities, it shall pay
the redemption price therefor in same-day funds by wire transfer to an
account designated by the Remarketing Dealer on the Remarketing Date.
7. Effect of Event of Default. In case an Event of Default with
respect to the Securities shall have occurred and be continuing, the
principal hereof may be declared, and upon such declaration shall become,
due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
8. Amendments and Waivers. The Indenture contains provisions which
provide that without prior notice to any Holders, the Company and the
Trustee may amend the Indenture and the Securities of any series with the
written consent of the Holders of a majority in principal amount of the
outstanding 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 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 Securities of such series; provided that without
the consent of each Holder of the Securities of each series affected
thereby, an amendment or waiver, including a waiver of past defaults, may
not: (i) extend the stated maturity of the principal of, or any sinking
fund obligation or any installment of interest on, such Holder's 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 or the amount thereof provable
in bankruptcy, or change any place of payment where, or the currency in
which, any 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 Securities 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 Security of such series;
(iv) cause any Security of such series to be subordinated in right of
payment to any obligation of the Company; or (v) modify any of the
provisions of the Indenture governing supplemental indentures with the
consent of Securityholders 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 Security of
any series affected thereby.
It is also provided in the Indenture that, subject to certain
conditions, the Holders of at least a majority in principal amount of the
outstanding Securities of the series affected (all such series voting as a
single class), by notice to the Trustee, may waive an existing Default or
Event of Default with respect to the Securities of such series and its
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<PAGE>
consequences, except a Default in the payment of principal of or interest
on any Security or in respect of a covenant or provision of the Indenture
which cannot be modified or amended without the consent of the Holder of
each outstanding Security affected. Upon any such waiver, such Default
shall cease to exist, and any Event of Default with respect to the
Securities of such series arising therefrom shall be deemed to have been
cured, for every purpose of the Indenture; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereto.
The Indenture provides that a series of Securities may include one or
more tranches (each a "tranche") of Securities, including Securities issued
in a periodic offering. The Securities of different tranches may have one
or more different terms, including authentication dates and public offering
prices, but all the Securities within each such tranche shall have
identical terms, including authentication date and public offering price.
Notwithstanding any other provision of the Indenture, subject to certain
exceptions, with respect to sections of the Indenture concerning the
execution, authentication and terms of the Securities, redemption of the
Securities, Events of Default of the Securities, defeasance of the
Securities and amendment of the Indenture, if any series of Securities
includes more than one tranche, all provisions of such sections applicable
to any series of Securities shall be deemed equally applicable to each
tranche of any series of Securities in the same manner as though originally
designated a series unless otherwise provided with respect to such series
or tranche pursuant to a board resolution or a supplemental indenture
establishing such series or tranche.
9. Obligation of Company. No reference herein to the Indenture and no
provision of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay the
principal of and any premium and interest on this Security in the manner,
at the place, at the respective times, at the rate and in the coin or
currency herein prescribed.
10. Denominations, Transfer and Exchange. (a) The Securities are
issuable initially only in registered form without coupons in denominations
of $1,000 and any multiple of $1,000 at the office or agency of the Company
in The City of New York, and in the manner and subject to the limitations
provided in the Indenture, but without the payment of any service charge,
Securities may be exchanged for a like aggregate principal amount of
Securities of other authorized denominations.
(b) Upon due presentment for registration of transfer of this Security
at the office or agency of the Company in The City of New York, a new
Security or Securities of authorized denominations for an equal aggregate
principal amount will be issued to the transferee in exchange therefor,
subject to the limitations provided in the Indenture, without charge except
for any tax or other governmental charge imposed in connection therewith.
(c) The Company, the Trustee and any authorized agent of the Company or
the Trustee may deem and treat the registered Holder hereof as the absolute
owner of this Security (whether or not this Security shall be overdue and
notwithstanding any notation of ownership or other writing hereon made by
anyone other than the Company or the Trustee or any authorized agent of the
Company or the Trustee), for the purpose of receiving payment of, or on
account of, the principal hereof and premium, if any, and, subject to the
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<PAGE>
provisions on the face hereof, interest hereon, and for all other purposes,
and neither the Company nor the Trustee nor any authorized agent of the
Company or the Trustee shall be affected by any notice to the contrary.
11. No Liability of Certain Persons. No recourse under or upon any
obligation, covenant or agreement of the Company in the Indenture or any
indenture supplemental thereto or in any Security, or because of the
creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, officer or director, as such, past, present, or
future, of the Company or of any successor corporation, either directly or
through the Company or any successor corporation, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment
or by any legal or equitable proceeding or otherwise, all such liability
being expressly waived and released by the acceptance hereof and as part of
the consideration for the issue hereof.
12. Definitions. Terms used herein which are defined in the Indenture
shall have the respective meanings assigned thereto in the Indenture.
THE FOLLOWING ABBREVIATIONS
SHALL BE CONSTRUED AS THOUGH
THE WORDS SET FORTH BELOW
OPPOSITE EACH ABBREVIATION
WERE WRITTEN OUT IN FULL
WHERE SUCH ABBREVIATION
APPEARS:
TEN COM --as tenants in (Name) CUST (Name) UNIF--(Name)
common as Custodian
TEN ENT --as tenants by the GIFT MIN ACT (state) for (Name)
entirety Under the (State)
JT TEN --as joint tenants Uniform Gifts to
with right of Minors Act
survivorship
and not as tenants
in common
ADDITIONAL ABBREVIATIONS MAY
ALSO BE USED THOUGH NOT IN
THE ABOVE LIST.
FOR VALUE RECEIVED,
the undersigned
hereby sell(s),
assign(s) and
transfer(s)
unto
PLEASE INSERT TAXPAYER
IDENTIFICATION NUMBER OF
ASSIGNEE
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<PAGE>
PLEASE PRINT OR TYPEWRITE NAME
AND ADDRESS INCLUDING POSTAL
ZIP CODE OF ASSIGNEE
the within Security of Tyson Foods, Inc. and all rights
thereunder and hereby irrevocably constitutes and
appoints ______________________attorney to transfer said
Security on the books of the Company, with full power of
substitution in the premises
Dated:
Signature
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE
OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE
WHATEVER. THE SIGNATURE(S) SHOULD BE GUARANTEED
BY A COMMERCIAL BANK OR TRUST COMPANY, A MEMBER
ORGANIZATION OF A NATIONAL STOCK EXCHANGE OR BY
SUCH OTHER ENTITY WHOSE SIGNATURE IS ON FILE WITH
AND ACCEPTABLE TO THE TRANSFER AGENT.
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Exhibit 4.5
1CUSIP: 902494 AE3
No. R - 1 $50,000,000
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the
Company (as defined below) or its agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name
of Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such
other entity as requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has
an interest herein.
TYSON FOODS, INC.
Floating Rate MandatOry Par Put Remarketed Securities_* ("MOPPRS_*)
due February 1, 2010
TYSON FOODS, INC., a Delaware corporation (the "Company", which term
includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to Cede & Co. or registered
assigns, at the office or agency of the Company in The City of New York,
New York, the principal sum of $50,000,000 (Fifty Million Dollars) on
February 1, 2010 (the "Stated Maturity Date"), in the coin or currency of
the United States, and to pay interest, quarterly in arrears on February 1,
May 1, August 1 and November 1 of each year (each, a "LIBOR Payment Date"),
commencing May 1, 1998 to February 1, 2000, in like coin or currency on
said principal sum at said office or agency, and thereafter on each
February 1 and August 1 (each, a "Reset Payment Date" and together with
each LIBOR Payment Date each, an "Interest Payment Date"), commencing
August 1, 2000, from the Interest Payment Date next preceding the date of
this MOPPRS to which interest has been paid or duly provided for, unless
the date hereof is a date to which interest has been paid or duly provided
for, in which case from the date of this MOPPRS, or unless no interest has
been paid or duly provided for on these MOPPRS, in which case from February
4, 1998, until payment of said principal sum has been made or duly provided
for; provided, that payment of interest may be made at the option of the
Company by check mailed to the address of the person entitled thereto as
such address shall appear on the Security Register of the Company or by
wire transfer as provided in the Indenture. Notwithstanding the foregoing,
if during the period from February 4, 1998 to February 2, 2000, the date
hereof is after the 17th day of January, July or October, or the 16th day
of April, as the case may be, and before the following February 1, May 1,
August 1 or November 1, this MOPPRS shall bear interest from such February
1, May 1, August 1 or November 1 and if, during the period from February 1,
2000 to the Stated Maturity Date, the date hereof is after the 16th day of
January or July, as the case may be, and before the following February 1 or
August 1, this MOPPRS shall bear interest from such February 1 or August 1;
provided, that if the Company shall default in the payment of interest due
on such Interest Payment Date, then this MOPPRS shall bear interest from
the next preceding Interest Payment Date to which interest has been paid or
duly provided for or, if no interest has been paid or duly provided for on
these MOPPRS, from February 4, 1998. The interest so payable on any
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<PAGE>
February 1, May 1, August 1, or November 1 during the period from February
4, 1998 to February 2, 2000 will, subject to certain exceptions provided in
the Indenture referred to on the reverse hereof, be paid to the person in
whose name this MOPPRS is registered at the close of business on the
January 17, April 16, July 17 or October 17, as the case may be, next
preceding such February 1, May 1, August 1 or November 1, whether or not
such day is a Business Day and the interest so payable on any February 1 or
August 1 during the period from February 1, 2000 to the Stated Maturity
Date will, subject to such exceptions, be paid to the person in whose name
the MOPPRS is registered at the close of business 15 calendar days prior to
such payment date next preceding such February 1 or August 1, as the case
may be, whether or not such day is a Business Day.
The rate of interest on this MOPPRS shall be a floating rate per annum
determined as described in Section 2 on the reverse hereof to February 1,
2000 (the "Remarketing Date"). If, pursuant to the Remarketing Agreement,
dated as of the date hereof (the "Remarketing Agreement"), between Merrill
Lynch, Pierce, Fenner & Smith Incorporated, as Remarketing Dealer (the
"Remarketing Dealer"), and the Company, the Remarketing Dealer elects to
remarket the MOPPRS, then, except as otherwise set forth on the reverse
hereof, (i) this MOPPRS shall be subject to mandatory tender to the
Remarketing Dealer for remarketing on the Remarketing Date, on the terms
and subject to the conditions set forth on the reverse hereof, and (ii) on
and after the Remarketing Date, this MOPPRS shall bear interest at the rate
determined by the Remarketing Dealer in accordance with the procedures set
forth in Section 5 on the reverse hereof (the "Interest Rate to Maturity").
Reference is made to the further provisions of this MOPPRS set forth
on the reverse hereof. Such further provisions shall for all purposes have
the same effect as though fully set forth at this place.
This MOPPRS shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been manually
signed by the Trustee under the Indenture referred to on the reverse
hereof.
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<PAGE>
IN WITNESS WHEREOF, TYSON FOODS, INC. has caused this instrument to be
signed manually or by facsimile by its duly authorized officers.
Dated:
TYSON FOODS, INC.
By:
------------------------
By:
------------------------
Attest:
- ---------------------------
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<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the MOPPRS of the series designated therein referred to
in the within-mentioned Indenture.
Dated:
THE CHASE MANHATTAN BANK,
as Trustee
By:
------------------------------
Authorized Signatory
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<PAGE>
TYSON FOODS, INC.
Floating Rate MandatOry Par Put Remarketed Securities_ ("MOPPRS_")
due February 1, 2010
1. Indenture. This MOPPRS is one of the duly authorized issue of debt
securities of the Company (hereinafter called the "Securities") of the
series hereinafter specified, all issued or to be issued under and pursuant
to an indenture dated as of June 1, 1995 (herein called the "Indenture"),
duly executed and delivered by the Company to The Chase Manhattan Bank, as
Trustee (herein called the "Trustee"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description
of the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the Holders of the Securities.
The Securities may be issued in one or more series, which different series
may be issued in various aggregate principal amounts, may mature at
different times, may bear interest, if any, at different rates, may be
subject to different redemption provisions (if any) may be subject to
different redemption provisions (if any) and may be subject to different
sinking, purchase or analogous funds (if any) and may otherwise vary as
provided in the Indenture. This Security is one of the series designated as
the Floating Rate MandatOry Par Put Remarketed Securities_ ("MOPPRS_") due
February 1, 2010 of the Company limited in aggregate principal amount to
$50,000,000.
2. Interest. The floating rate of interest on the Securities will be
a per annum rate determined by reference to LIBOR, described below, plus
0.19% (19 basis points) to February 1, 2000. Thereafter, if the Securities
are not redeemed, the interest rate will be determined as set forth below
in Section 5.
The floating rate of interest on the Securities will be reset
quarterly on February 1, May 1, August 1 and November 1 of each year (each,
an "Interest Reset Date") until the Remarketing Date. If any Interest
Reset Date would otherwise be a day that is not a Business Day, such
Interest Reset Date will be postponed to the next day that is a Business
Day, except that if such Business Day is in the next succeeding calender
month, such Interest Reset Date will be the immediately preceding Business
Day. The "LIBOR Determination Date" pertaining to an Interest Reset Date
for the Securities will be the second London Business Day preceding such
Interest Reset Date. The interest rate in effect on each day of an
Interest Period (as defined below) shall be (i) if such day is an Interest
Reset Date, the interest rate determined as of the LIBOR Determination Date
immediately preceding such Interest Reset Date, or (ii) if such day is not
an Interest Reset Date, the interest rate determined as of the LIBOR
Determination Date immediately preceding the most recent Interest Reset
Date.
Except as provided below, interest on the Securities will be payable
quarterly in arrears on each LIBOR Payment Date, commencing May 1, 1998 and
on the Remarketing Date. If any LIBOR Payment Date would otherwise be a
day that is not a Business Day, such LIBOR Payment Date will be postponed
to the next day that is a Business Day, except that if such Business Day is
in the next succeeding calendar month, such LIBOR Payment Date will be the
immediately preceding Business Day. If the Remarketing Date falls on a day
that is not a Business Day, principal and interest payable on the
46
<PAGE>
Remarketing Date will be paid on the succeeding Business Day with the same
force and effect as if it were paid on the date such payment was due, and
no interest will accrue on the amount so payable for the period from and
after the Remarketing Date.
Interest payable on a LIBOR Payment Date or on the Remarketing Date,
as the case may be, will be the amount of interest accrued during the
applicable Interest Period. Interest payments for the Securities will
include accrued interest for each successive period (the "Interest Period")
from the date of issue or from the last date in respect of which interest
has been paid, as the case may be, to, but excluding the LIBOR Payment
Date, or the Remarketing Date, as the case may be. Accrued interest will
be calculated by multiplying the principal amount of a Security by an
accrued interest factor. This accrued interest factor will be computed by
adding the interest factors calculated for each day in the period for which
accrued interest is being calculated. The interest factor for each such
day during an Interest Period will be computed by dividing the interest
rate applicable to such day by 360.
The interest rate on the Securities in respect of an Interest Period
will be a per annum rate equal to LIBOR (determined by the Calculation
Agent (as described below) as of the applicable LIBOR Determination Date)
plus 0.19% (19 basis points); however, the interest rate in respect of an
Interest Period may not be higher than the maximum rate permitted by New
York law, as the same may be modified by United States law of general
application. The interest rate for the initial Interest Period will be
equal to 5.815%.
The Trustee will be the Calculation Agent with respect to the
Securities, unless and until the Company provides the holders of the
Security with 30 days' notice to the contrary. The Trustee will provide to
any holder of the Securities the current effective interest rate per annum.
"Business Day" means any day, other than a Saturday, a Sunday, or a
day on which banking institutions in The City of New York are authorized or
obligated by law, executive order or governmental decree to be closed.
"London Business Day" means any day on which dealings in deposits in
U.S. dollars are transacted in the London interbank market.
"LIBOR" applicable for an Interest Period will be determined by the
Calculation Agent as of the LIBOR Determination Date in accordance with the
following provisions:
(a) LIBOR will be determined on the basis of the offered rate for
three-month deposits in U.S. dollars, commencing on the second London
Business Day immediately following such LIBOR Determination Date,
which appears on Telerate page 3750 (as defined below) as of
approximately 11:00 a.m., London time, on such LIBOR Determination
Date. "Telerate Page 3750" means the display designated on page
"3750" on Dow Jones Markets Limited (or such other page as may replace
the 3750 page on that service or such other service or services as may
be nominated by the British Bankers' Association for the purpose of
displaying London interbank offered rates for U.S. dollar deposits).
If no rate appears on Telerate Page 3750, LIBOR for such LIBOR
Determination Date will be determined in accordance with the
provisions of paragraph (ii) below.
47
<PAGE>
(b) With respect to a LIBOR Determination Date on which no rate
appears on Telerate Page 3750 as of approximately 11:00 a.m., London
time, on such LIBOR Determination Date, the Calculation Agent shall
request the principal London offices of each of four major reference
banks in the London interbank market selected by the Calculation Agent
to provide the Calculation Agent with a quotation of the rate at which
three-month deposits in U.S. dollars, commencing on the second London
Business Day immediately following such LIBOR Determination Date, are
offered by it to prime banks in the London interbank market as of
approximately 11:00 a.m., London time, on such LIBOR Determination
Date and in a principal amount equal to an amount of not less than
U.S. $1,000,000 that is representative for a single transaction in
such market at such time. If at least two such quotations are
provided, LIBOR for such LIBOR Determination Date will be the
arithmetic mean of such quotations as calculated by the Calculation
Agent. If fewer than two quotations are provided, LIBOR for such
LIBOR Determination Date will be the arithmetic mean of the rates
quoted as of approximately 11:00 a.m., New York City time, on such
LIBOR Determination Date by three major banks in The City of New York
selected by the Calculation Agent (after consultation with the
Company) for loans in U.S. dollars to leading European banks, having a
three-month maturity commencing on the second London Business Day
immediately following such LIBOR Determination Date and in a principal
amount equal to an amount of not less than U.S. $1,000,000 that is
representative for a single transaction in such market at such time;
provided, however, that if the banks selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, LIBOR
for such LIBOR Determination Date will be LIBOR determined with
respect to the immediately preceding LIBOR Determination Date, or in
the case of the first LIBOR Determination Date, LIBOR for the initial
Interest Period.
All percentages resulting from any calculation in respect of the
Securities during any Interest Period will be rounded to the nearest one
hundred thousandth of a percentage point (with five one-millionths of a
percentage point rounded upwards) (e.g., 9.876545% (or .09876545) would be
rounded to 9.87655% (or .0987655)), and all dollar amounts used in or
resulting from such calculation will be rounded to the nearest cent (with
one-half cent rounded upwards).
3. Mandatory Tender on Remarketing Date; Purchase and Settlement. (a)
Provided that the Remarketing Dealer gives notice to the Company and the
Trustee on a Business Day not later than five Business Days prior to the
Remarketing Date of its intention to purchase the Securities for
remarketing (the "Notification Date"), each Security shall be automatically
tendered, or deemed tendered, to the Remarketing Dealer for purchase on the
Remarketing Date in accordance with Section 3(b) below, except as set forth
in Sections 6 and 7 below. The purchase price of such tendered Securities
shall be equal to 100% of the principal amount thereof. Upon such tender,
the Remarketing Dealer shall have the option, in its sole discretion, to
elect to remarket the Securities in accordance with the Remarketing
Agreement for its own account at varying prices to be determined by the
Remarketing Dealer at the time of each sale. If the Remarketing Dealer
makes such election, the obligation of the Remarketing Dealer to purchase
the Securities on the Remarketing Date shall be subject to the conditions
set forth in the Remarketing Agreement. No Holder or actual purchaser of
the Securities ("Beneficial Owner") shall have any rights or claims under
48
<PAGE>
the Remarketing Agreement or against the Company or the Remarketing Dealer
as a result of the Remarketing Dealer not purchasing such Securities.
(b) Following the Notification Date, the tender and purchase of the
Securities provided for in Section 3(a) above shall be effected as follows,
subject to Sections 6 and 7 below:
(i) All of the tendered Securities shall be automatically
delivered to the account of the Trustee, by book-entry through DTC or
any successor thereto pending payment of the purchase price therefor,
on the Remarketing Date.
(ii) The Remarketing Dealer shall make or cause the Trustee to make
payment to DTC by book entry through DTC in accordance with the
procedures of DTC, by 1:00 p.m. New York City time on the Remarketing
Date against delivery through DTC of such Beneficial Owner's tendered
Securities, of the purchase price for tendered Securities that have
been purchased for remarketing by the Remarketing Dealer. The Company
shall make or cause the Trustee to make payment of interest to DTC on
the Remarketing Date by book entry through DTC by 2:30 p.m. New York
City time on the Remarketing Date.
4. Maintenance of Book-Entry System. (a) The tender and settlement
procedures set forth in Section 3(b) above, including provisions for
payment by purchasers of Securities in the remarketing or for payment to
selling Beneficial Owners of tendered Securities, shall be subject to
modification, notwithstanding any provision to the contrary set forth in
Article 9 of the Indenture, to the extent required by DTC or, if the book-
entry system is no longer available for the Securities at the time of the
remarketing, to the extent required to facilitate the tendering and
remarketing of Securities in certificated form. In addition, the
Remarketing Dealer may, notwithstanding any provision to the contrary set
forth in Article 9 of the Indenture, modify the settlement procedures set
forth herein in order to facilitate the settlement process.
(b) The Company hereby agrees with the Trustee and the holders of
Securities that at all times, notwithstanding any provision to the contrary
set forth in the Indenture, (i) it will use its best efforts to maintain
the Securities in book-entry form with DTC or any successor thereto and to
appoint a successor depository to the extent necessary to maintain the
Securities in book-entry form and (ii) it will waive any discretionary
right that it otherwise may have under the Indenture to cause the
Securities to be issued in certificated form.
5. Determination of Interest Rate to Maturity; Notification Thereof.
Subject to the Remarketing Dealer's election to remarket the Securities as
provided in Section 3(a), by 3:30 p.m., New York City time, on the third
Business Day immediately preceding the Remarketing Date (the "Determination
Date"), the Remarketing Dealer shall determine the Interest Rate to
Maturity to the nearest one hundred-thousandth (0.00001) of one percent per
annum. The Interest Rate to Maturity shall be equal to the sum of 5.712%
(the "Base Rate") and the Applicable Spread (as defined below), which will
be based on the Dollar Price (as defined below) of the Securities.
If any Interest Payment Date during the period from the Remarketing
Date to the Stated Maturity Date is not a Business Day, payment will be
made on the succeeding Business Day with the same force and effect as if it
49
<PAGE>
were paid on the date such payment was due, and no interest will accrue on
the amount so payable for the period from and after such interest payment
date. Interest during such period will be computed on the basis of a 360-
day year consisting of twelve 30-day months.
The "Applicable Spread" shall be the lowest bid indication, expressed
as a spread (in the form of a percentage or in basis points) above the Base
Rate, obtained by the Remarketing Dealer on the Determination Date from the
bids quoted by five Reference Corporate Dealers (as defined below) for the
full aggregate principal amount of the Securities at the Dollar Price, but
assuming (i) an issue date that is the Remarketing Date, with settlement on
such date without accrued interest, (ii) a maturity date that is the Stated
Maturity Date of the Securities and (iii) a stated annual interest rate,
payable semi-annually, equal to the Base Rate plus the spread bid by the
applicable Reference Corporate Dealer. If fewer than five Reference
Corporate Dealers bid as described above, then the Applicable Spread shall
be the lowest of such bid indications obtained as described above. The
Interest Rate to Maturity announced by the Remarketing Dealer, absent
manifest error, shall be binding and conclusive upon the Beneficial Owners
and Holders of the Securities, the Company and the Trustee.
"Dollar Price" means, with respect to the Securities, the present
value, as of the Remarketing Date, of the Remaining Scheduled Payments (as
defined below) discounted to the Remarketing Date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Rate (as defined below).
"Reference Corporate Dealers" means each of Chase Securities Inc.,
Credit Suisse First Boston Corporation, Merrill Lynch, Pierce, Fenner &
Smith Incorporated, J.P. Morgan Securities Inc. and Salomon Brothers Inc
and their respective successors; provided, however, that if any of the
foregoing or their affiliates shall cease to be a leading dealer of
publicly traded debt securities of the Company in The City of New York (a
"Primary Corporate Dealer"), the Remarketing Dealer shall substitute
therefor another Primary Corporate Dealer.
"Remaining Scheduled Payments" means, with respect to the Securities,
the remaining scheduled payments of the principal thereof and interest
thereon, calculated at the Base Rate only, that would be due after the
Remarketing Date to and including the Stated Maturity Date; provided,
however, that if the Remarketing Date is not an Interest Payment Date with
respect to the Securities, the amount of the next succeeding scheduled
interest payment thereon, calculated at the Base Rate only, will be reduced
by the amount of interest accrued thereon, calculated at the Base Rate
only, to the Remarketing Date.
"Treasury Rate" means, with respect to the Remarketing Date, the rate
per annum equal to the semi-annual equivalent yield to maturity or
interpolated (on a day count basis) yield to maturity of the Comparable
Treasury Issues (as defined below), assuming a price for the Comparable
Treasury Issues (expressed as a percentage of its principal amount), equal
to the Comparable Treasury Price (as defined below) for such Remarketing
Date.
"Comparable Treasury Issues" means the United States Treasury security
or securities selected by the Remarketing Dealer as having an actual or
interpolated maturity or maturities comparable to the remaining term of the
Securities being purchased.
50
<PAGE>
"Comparable Treasury Price" means, with respect to the Remarketing
Date, (a) the offer prices for the Comparable Treasury Issues (expressed in
each case as a percentage of its principal amount) on the Determination
Date, as set forth on "Telerate Page 500" (or such other page as may
replace Telerate Page 500) or (b) if such page (or any successor page) is
not displayed or does not contain such offer prices on such Determination
Date, (i) the average of the Reference Treasury Dealer Quotations for such
Remarketing Date, after excluding the highest and lowest of such Reference
Treasury Dealer Quotations, or (ii) if the Remarketing Dealer obtains fewer
than four such Reference Treasury Dealer Quotations, the average of all
such Reference Treasury Dealer Quotations. "Telerate Page 500" means the
display designated as "Telerate Page 500" on Dow Jones Markets Limited (or
such other page as may replace Telerate Page 500 on such service) or such
other service displaying the offer prices specified in (a) above as may
replace Dow Jones Markets Limited. "Reference Treasury Dealer Quotations"
means, with respect to each Reference Treasury Dealer and the Remarketing
Date, the offer prices for the Comparable Treasury Issues (expressed in
each case as a percentage of its principal amount) quoted in writing to the
Remarketing Dealer by such Reference Treasury Dealer by 3:30 p.m., on the
Determination Date.
"Reference Treasury Dealer" means each of Credit Suisse First Boston
Corporation, Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Morgan Stanley & Co. Incorporated and Salomon Brothers Inc
and their respective successors; provided, however, that if any of the
foregoing or their affiliates shall cease to be a primary U.S. Government
securities dealer in The City of New York (a "Primary Treasury Dealer"),
the Remarketing Dealer shall substitute therefor another Primary Treasury
Dealer.
6. Repurchase. If (a) the Remarketing Dealer for any reason does not
notify the Company of the Interest Rate to Maturity by 4:00 p.m., New York
City time, on the Determination Date, or (b) prior to the Remarketing
Date, the Remarketing Dealer has resigned and no successor has been
appointed on or before the Determination Date, or (c) since the
Notification Date, a material adverse change in the condition of the
Company and its subsidiaries, considered as one enterprise, shall have
occurred or an Event of Default, or any event which, with the giving of
notice or passage of time, or both, would constitute an Event of Default,
with respect to the Securities shall have occurred and be continuing, or
any other event constituting a termination event under the Remarketing
Agreement shall have occurred, or (d) the Remarketing Dealer elects not to
remarket the Securities, or (e) the Remarketing Dealer for any reason does
not purchase all tendered Securities on the Remarketing Date, then, in any
such case, the Company shall repurchase the Securities as a whole on the
Remarketing Date at a price equal to 100% of the principal amount thereof
plus all accrued and unpaid interest, if any, on the Securities to the
Remarketing Date. In any such case, payment shall be made by the Company to
the Participant of each tendering Beneficial Owner of Securities, by book-
entry through DTC, by 2:30 p.m., New York City time on the Remarketing Date
against delivery through DTC of such Beneficial Owner's tendered
Securities.
7. Redemption. (a) Notwithstanding any election by the Remarketing
Dealer to remarket the Securities on the Remarketing Date, the tendering of
the Securities for purchase by the Remarketing Dealer on such date as set
forth in Section 3(b) above shall be subject to the right of the Company to
51
<PAGE>
redeem the Securities from the Remarketing Dealer as provided in Section
7(b) below.
(b) The Company, in its sole and absolute discretion, shall have the
right, upon notice to the Remarketing Dealer and the Trustee not later than
the Business Day immediately preceding the Determination Date, to
irrevocably elect to redeem the Securities, in whole but not in part, from
the Remarketing Dealer on the Remarketing Date at the Optional Redemption
Price. The "Optional Redemption Price" shall be the greater of (i) 100% of
the principal amount of the Securities and (ii) the sum of the present
values of the Remaining Scheduled Payments thereon, as determined by the
Remarketing Dealer, discounted to the Remarketing Date on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Rate, plus in either case accrued and unpaid interest from the
Remarketing Date on the principal amount being redeemed to the date of
redemption. If the Company elects to redeem the Securities, it shall pay
the redemption price therefor in same-day funds by wire transfer to an
account designated by the Remarketing Dealer on the Remarketing Date.
8. Effect of Event of Default. In case an Event of Default with
respect to the Securities shall have occurred and be continuing, the
principal hereof may be declared, and upon such declaration shall become,
due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
9. Amendments and Waivers. The Indenture contains provisions which
provide that without prior notice to any Holders, the Company and the
Trustee may amend the Indenture and the Securities of any series with the
written consent of the Holders of a majority in principal amount of the
outstanding 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 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 Securities of such series; provided that without
the consent of each Holder of the Securities of each series affected
thereby, an amendment or waiver, including a waiver of past defaults, may
not: (i) extend the stated maturity of the principal of, or any sinking
fund obligation or any installment of interest on, such Holder's 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 or the amount thereof provable
in bankruptcy, or change any place of payment where, or the currency in
which, any 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 Securities 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 Security of such series;
(iv) cause any Security of such series to be subordinated in right of
52
<PAGE>
payment to any obligation of the Company; or (v) modify any of the
provisions of the Indenture governing supplemental indentures with the
consent of Securityholders 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 Security of
any series affected thereby.
It is also provided in the Indenture that, subject to certain
conditions, the Holders of at least a majority in principal amount of the
outstanding Securities of the series affected (all such series voting as a
single class), by notice to the Trustee, may waive an existing Default or
Event of Default with respect to the Securities of such series and its
consequences, except a Default in the payment of principal of or interest
on any Security or in respect of a covenant or provision of the Indenture
which cannot be modified or amended without the consent of the Holder of
each outstanding Security affected. Upon any such waiver, such Default
shall cease to exist, and any Event of Default with respect to the
Securities of such series arising therefrom shall be deemed to have been
cured, for every purpose of the Indenture; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereto.
The Indenture provides that a series of Securities may include one or
more tranches (each a "tranche") of Securities, including Securities issued
in a periodic offering. The Securities of different tranches may have one
or more different terms, including authentication dates and public offering
prices, but all the Securities within each such tranche shall have
identical terms, including authentication date and public offering price.
Notwithstanding any other provision of the Indenture, subject to certain
exceptions, with respect to sections of the Indenture concerning the
execution, authentication and terms of the Securities, redemption of the
Securities, Events of Default of the Securities, defeasance of the
Securities and amendment of the Indenture, if any series of Securities
includes more than one tranche, all provisions of such sections applicable
to any series of Securities shall be deemed equally applicable to each
tranche of any series of Securities in the same manner as though originally
designated a series unless otherwise provided with respect to such series
or tranche pursuant to a board resolution or a supplemental indenture
establishing such series or tranche.
10. Obligation of Company. No reference herein to the Indenture and no
provision of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay the
principal of and any premium and interest on this Security in the manner,
at the place, at the respective times, at the rate and in the coin or
currency herein prescribed.
11. Denominations, Transfer and Exchange. (a) The Securities are
issuable initially only in registered form without coupons in denominations
of $1,000 and any multiple of $1,000 at the office or agency of the Company
in The City of New York, and in the manner and subject to the limitations
provided in the Indenture, but without the payment of any service charge,
Securities may be exchanged for a like aggregate principal amount of
Securities of other authorized denominations.
(b) Upon due presentment for registration of transfer of this Security
at the office or agency of the Company in The City of New York, a new
53
<PAGE>
Security or Securities of authorized denominations for an equal aggregate
principal amount will be issued to the transferee in exchange therefor,
subject to the limitations provided in the Indenture, without charge except
for any tax or other governmental charge imposed in connection therewith.
(c) The Company, the Trustee and any authorized agent of the Company or
the Trustee may deem and treat the registered Holder hereof as the absolute
owner of this Security (whether or not this Security shall be overdue and
notwithstanding any notation of ownership or other writing hereon made by
anyone other than the Company or the Trustee or any authorized agent of the
Company or the Trustee), for the purpose of receiving payment of, or on
account of, the principal hereof and premium, if any, and, subject to the
provisions on the face hereof, interest hereon, and for all other purposes,
and neither the Company nor the Trustee nor any authorized agent of the
Company or the Trustee shall be affected by any notice to the contrary.
12. No Liability of Certain Persons. No recourse under or upon any
obligation, covenant or agreement of the Company in the Indenture or any
indenture supplemental thereto or in any Security, or because of the
creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, officer or director, as such, past, present, or
future, of the Company or of any successor corporation, either directly or
through the Company or any successor corporation, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment
or by any legal or equitable proceeding or otherwise, all such liability
being expressly waived and released by the acceptance hereof and as part of
the consideration for the issue hereof.
13. Definitions. Terms used herein which are defined in the Indenture
shall have the respective meanings assigned thereto in the Indenture.
THE FOLLOWING ABBREVIATIONS
SHALL BE CONSTRUED AS THOUGH
THE WORDS SET FORTH BELOW
OPPOSITE EACH ABBREVIATION
WERE WRITTEN OUT IN FULL
WHERE SUCH ABBREVIATION
APPEARS:
TEN COM --as tenants in (Name) CUST (Name) UNIF--(Name)
common as Custodian
TEN ENT --as tenants by the GIFT MIN ACT (state) for (Name)
entirety Under the (State)
JT TEN --as joint tenants Uniform Gifts to
with right of Minors Act
survivorship
and not as tenants
in common
ADDITIONAL ABBREVIATIONS MAY
ALSO BE USED THOUGH NOT IN
THE ABOVE LIST.
54
<PAGE>
FOR VALUE RECEIVED,
the undersigned
hereby sell(s),
assign(s) and
transfer(s)
unto
PLEASE INSERT TAXPAYER
IDENTIFICATION NUMBER OF
ASSIGNEE
PLEASE PRINT OR TYPEWRITE NAME
AND ADDRESS INCLUDING POSTAL
ZIP CODE OF ASSIGNEE
the within Security of Tyson Foods, Inc. and all rights
thereunder and hereby irrevocably constitutes and
appoints ________ attorney to transfer said Security on the
books of the Company, with full power of substitution in the
premises
Dated:
Signature
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE
OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE
WHATEVER. THE SIGNATURE(S) SHOULD BE GUARANTEED
BY A COMMERCIAL BANK OR TRUST COMPANY, A MEMBER
ORGANIZATION OF A NATIONAL STOCK EXCHANGE OR BY
SUCH OTHER ENTITY WHOSE SIGNATURE IS ON FILE WITH
AND ACCEPTABLE TO THE TRANSFER AGENT.
55
<PAGE>
Exhibit 12
Tyson Foods, Inc.
Ratio of Earnings to Fixed Charges
December 27, 1997
(Dollars in millions)
1998 1997
Fixed Charges:
Interest Expense $ 27.2 $ 28.8
Interest Income 2.9 1.0
Interest Capitalized 0.5 0.7
Interest Allocated to Beef Division 0.0 0.9
Amortization of Debt Discount 0.1 1.0
Interest Portion of Rental Expense (33%) 2.5 2.8
----- -----
Total Fixed Charges (A) 33.2 35.2
===== =====
Earnings:
Net Income 44.9 44.6
Provision for Income Taxes 26.4 61.0
Fixed Charges 33.2 35.2
Less Capitalized Interest (0.5) (0.7)
------ ------
Earnings and Fixed Charges (B) $104.0 $140.1
====== ======
Ratio of Earnings to Fixed Charges (B/A) 3.13 3.98
==== ====
For purposes of computing the above ratios 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.
56
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
QUARTERLY FINANCIAL STATEMENTS FOR THE PERIOD ENDED DECEMBER 27, 1997 AND
IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<CIK> 0000100493
<NAME> TYSON FOODS, INC.
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> OCT-03-1998
<PERIOD-END> DEC-27-1997
<CASH> 24
<SECURITIES> 0
<RECEIVABLES> 590
<ALLOWANCES> 0
<INVENTORY> 915
<CURRENT-ASSETS> 1,565
<PP&E> 3,205
<DEPRECIATION> 1,284
<TOTAL-ASSETS> 4,404
<CURRENT-LIABILITIES> 749
<BONDS> 1,492
0
0
<COMMON> 22
<OTHER-SE> 1,635
<TOTAL-LIABILITY-AND-EQUITY> 4,404
<SALES> 1,521
<TOTAL-REVENUES> 1,521
<CGS> 1,260
<TOTAL-COSTS> 1,260
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 27
<INCOME-PRETAX> 71
<INCOME-TAX> 26
<INCOME-CONTINUING> 45
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 45
<EPS-PRIMARY> .21
<EPS-DILUTED> .21
</TABLE>
