<PAGE>
As filed with the Securities and Exchange Commission on October 20, 1999
Registration No. 333-____________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
-----------------
CAMPBELL SOUP COMPANY
(Exact name of registrant as specified in its charter)
New Jersey 21-0419870
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Campbell Place
Camden, New Jersey 08103-1799
(856) 342-4800
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
-----------------
Ellen Oran Kaden
Senior Vice President - Law and Government Affairs
Campbell Place
Camden, New Jersey 08103-1799
(Name, address, including zip code and telephone number, including
area code of agent for service)
-----------------
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement as determined by
market conditions and other factors.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be offered on
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. |_| __________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_| ___________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================
Title of Proposed Proposed
each Class of maximum maximum Amount of
securities to Amount aggregate price aggregate registration
be registered to be registered(1) per unit(2) offering price(2) fee(3)
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities $500,000,000 100% $500,000,000 $139,000
===========================================================================================
</TABLE>
(footnotes on next page)
Pursuant to Rule 429 under the Securities Act of 1933, the prospectus included
in this Registration Statement also relates to the securities of the Registrant
previously registered under the Registrant's Statement on Form S-3 (No. 333-
11497). This Registration Statement constitutes Post-Effective Amendment No. 1
to the Registrant's Registration Statement on Form S-3 (No. 333-11497).
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
===============================================================================
<PAGE>
(footnotes continued from previous page)
- -------------------------------
(1) Or, if any Debt Securities are issued (i) with a principal amount
denominated in a foreign currency, such principal amount as shall result in
an aggregate initial offering price equivalent to $500,000,000 at the time
of the initial offering, or (ii) at original issue discount, such greater
amount as shall result in aggregate proceeds to the Registrant of
$500,000,000.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o).
(3) The prospectus included in this Registration Statement also relates to
$100,000,000 in Debt Securities previously registered pursuant to
Registration Statement No. 333-11497. A registration fee of $344,828 was
paid in connection with Registration Statement No. 333-11497, of which
$34,482 related to such securities.
<PAGE>
The information in this prospectus is not complete and may be changed. These
securities may not be sold until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell nor does it seek an offer to buy these securities in any
jurisdiction where the offer or sale is not permitted.
PROSPECTUS Subject to Completion, dated October 20, 1999
- ----------
CAMPBELL SOUP COMPANY
Debt Securities
---------------
From time to time, we may sell debt securities consisting of debentures,
notes or other unsecured evidences of indebtedness on terms we will determine at
the times we sell the debt securities. We will sell the debt securities at an
aggregate initial offering price no greater than $600,000,000 or the equivalent
of this amount in foreign or composite currencies. When we decide to sell a
particular series of debt securities, we will prepare and deliver a supplement
to this prospectus describing the particular terms of the debt securities we are
offering.
---------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
We may sell the debt securities directly, through agents, through
underwriters or dealers, or through a combination of such methods. If we elect
to use agents, underwriters or dealers in any offering of debt securities, we
will disclose their names and the nature of our arrangements with them in the
prospectus supplement we prepare for such offering.
---------------
The date of this prospectus is , 1999
<PAGE>
TABLE OF CONTENTS
Page
----
Where You Can Find More Information About Us.............................. 1
Disclosure Regarding Forward-Looking Statements........................... 2
Campbell Soup Company..................................................... 2
Use of Proceeds........................................................... 2
Ratio of Earnings to Fixed Charges........................................ 2
Description of Debt Securities............................................ 2
Plan of Distribution...................................................... 9
Legal Opinions............................................................ 10
Experts................................................................... 10
This Prospectus is part of a Registration Statement that we filed with the
Securities and Exchange Commission utilizing a "shelf" registration process.
Under this shelf registration process, we may, from time to time, sell the
securities described in this prospectus in one or more offerings up to a total
dollar amount of $600,000,000 or the equivalent of this amount in foreign
currencies or foreign currency units.
This prospectus provides you with a general description of the securities we
may offer. Each time we sell securities, we will provide a prospectus supplement
that will contain specific information about the terms of that offering. The
prospectus supplement may also add, update or change information contained in
this prospectus. You should read both this prospectus and any prospectus
supplement together with additional information described under the heading
"Where You Can Find More Information About Us" beginning on page 2 of this
prospectus.
You should rely only on the information contained in this prospectus. We have
not authorized anyone to provide you with information different from that
contained in this prospectus. We are offering to sell debt securities only in
jurisdictions where offers and sales are permitted. The information contained in
this prospectus is accurate only as of the date of this prospectus, regardless
of the time of delivery of this prospectus or any sale of debt securities. In
this prospectus, "we," "us" and "our" refer to Campbell Soup Company and our
consolidated subsidiaries.
WHERE YOU CAN FIND MORE
INFORMATION ABOUT US
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms. Our SEC filings are also available to the public
at the SEC's website at http://www.sec.gov.
The SEC allows us to "incorporate by reference" into this prospectus the
information we file with it, which means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is considered to be a part of this prospectus, and
information that we file with the SEC after the date of this prospectus will
update and supersede the information in this prospectus. We incorporate by
reference the document listed below and any future filings made with the SEC
under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act until our offering
is completed.
. Our Annual Report on Form 10-K for the fiscal year ended August 1, 1999,
which incorporates by reference certain portions of our 1999 Annual Report
to Shareowners.
You may request a copy of these filings, at no cost, by writing to or
telephoning us at the following address:
Corporate Secretary
Campbell Soup Company
Campbell Place
Camden, New Jersey, 08103-1799
(856) 342-6122
<PAGE>
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains "forward-looking statements" within the meaning of
Section 27A of the Securities Act of 1933 and Section 21E of the Securities
Exchange Act of 1934, as amended. Whether these forward-looking statements turn
out to be accurate is subject to a number of risks and uncertainties, many of
which are beyond our control. Forward-looking statements are typically
identified by the words "believe," "expect," "anticipate," "intend," "estimate"
and similar expressions.
In light of these risks and uncertainties, we can offer you no assurance that
the results and events contemplated by the forward-looking information contained
in this prospectus will in fact transpire. Potential investors are cautioned not
to place undue reliance on these forward-looking statements. Subject to
applicable law, we do not undertake any obligation to update or revise any
forward-looking statements. All written or oral forward-looking statements made
after the date of this prospectus and which are attributable to us or persons
acting on our behalf are expressly qualified in their entirety by these
cautionary statements.
CAMPBELL SOUP COMPANY
Campbell Soup Company, together with its consolidated subsidiaries, is a
global manufacturer and marketer of high quality, branded convenience food
products. Campbell Soup Company was incorporated as a business organization
under the laws of New Jersey on November 23, 1922; however, through predecessor
organizations, our beginnings in the food business can be traced back to 1869.
Our principal executive offices are at Campbell Place, Camden, New Jersey 08103-
1799.
We operate in three business segments: Soup and Sauces, Biscuits and
Confectionery, and Away from Home. The Soup and Sauces segment includes the
worldwide soup businesses, Prego spaghetti sauce, Franco-American pastas and
gravies, Pace Mexican foods, Swanson broths and the V8 and V8 Splash beverage
business. The Biscuits and Confectionery segment includes the Pepperidge Farm,
Godiva and Arnotts Limited businesses. The Away from Home segment represents
products, including Campbell's soups, Pace Tabletop picante and Campbell's
Specialty Kitchens entrees, distributed to the food service and home meal
replacement markets.
USE OF PROCEEDS
Unless we describe a different use of proceeds from an offering in the
related prospectus supplement, we intend to use the net proceeds from the sales
of the debt securities to repay short-term debt, including short-term debt
borrowed to fund purchases of our common stock under our stock repurchase
program, to reduce or retire from time to time other indebtedness, and for other
general corporate purposes including the use of funds for possible acquisitions.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our consolidated ratio of earnings to fixed
charges for the periods shown:
Fiscal year ended
------------------------------------------
8/1/99 8/2/98 8/3/97 7/28/96 7/30/95
6.1 6.0 6.1 8.0 7.9
=== === === === ===
The ratios of earnings to fixed charges were computed by dividing our
earnings by our fixed charges. For this purpose, earnings include earnings from
continuing operations before equity in earnings of affiliates and minority
interests, amortization of capitalized interest, taxes on earnings and fixed
charges (excluding capitalized interest). Fixed charges include interest
expense, capitalized interest, amortization of debt expenses and the
estimated interest components of rentals. In fiscal years 1999, 1998 and 1997,
Campbell Soup Company recorded restructuring charges of $36 million, $262
million and $204 million, respectively. Excluding the effect of such charges,
the ratio of earnings to fixed charges would have been 6.3 in 1999, 7.2 in 1998
and 7.1 in 1997.
DESCRIPTION OF DEBT SECURITIES
Unless we indicate otherwise in an accompanying prospectus supplement, the
debt securities consisting of debentures, notes and other unsecured evidence of
indebtedness will be issued under an Indenture, between the Company and Bankers
Trust Company, as Trustee, the form of which we have filed as an exhibit to the
registration
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statement of which this prospectus forms a part. The following summary of
certain general provisions of the Indenture and the debt securities does not
purport to be complete and is subject to, and is qualified in its entirety by
reference to, the provisions of the Indenture, including the definitions therein
of certain terms. The particular terms of a series of debt securities offered by
a prospectus supplement and the extent, if any, to which such general provisions
may apply to such securities will be described in the prospectus supplement
relating to such series. Capitalized terms used and not otherwise defined in
this section shall have the meanings assigned to them in the Indenture.
General
The Indenture does not limit the amount of debt securities which we may
issue under the Indenture and provides that debt securities may be issued
thereunder up to the aggregate principal amount which our Board of Directors may
authorize from time to time. Debt securities may be issued from time to time in
one or more series. Debt securities will be unsecured and will rank equally with
all of our other unsecured and unsubordinated indebtedness.
Please refer to the prospectus supplement relating to any particular
series of debt securities we may offer for the following terms of such series:
(a) the designation, aggregate principal amount and authorized
denominations of the offered debt securities;
(b) the price (expressed as a percentage of the aggregate principal amount
thereof) at which the offered debt securities will be issued;
(c) the date or dates on which the offered debt securities will mature;
(d) the annual rate, if any, at which the offered debt securities will
bear interest;
(e) the date from which such interest, if any, on the offered debt
securities will accrue, the dates on which such interest, if any, will
be payable, the date on which payment of such interest, if any, will
commence and, with respect to offered debt securities in registered
form, the regular record dates for such interest payment dates;
(f) any optional or mandatory sinking fund provisions;
(g) the date, if any, after which and the price or prices at which the
offered debt securities may, pursuant to any optional or mandatory
redemption provisions, be redeemed at our option or at the option of
the holder and any other terms and provisions of such optional or
mandatory redemptions;
(h) the denominations in which any offered debt securities of a series
which are registered securities will be issuable if other than
denominations of $1,000 and any integral multiple thereof, and the
denominations in which any offered debt securities of the series which
are bearer securities will be issuable if other than denominations of
$5,000;
(i) if other than the principal amount thereof, the portion of the
principal amount of offered debt securities of the series which will
be payable upon declaration of acceleration of maturity thereof or
provable in bankruptcy;
(j) any Events of Default with respect to the offered debt securities of
the series, if not set forth in the Indenture;
(k) the currency or currencies, including composite currencies, in which
payment of the principal of (and premium, if any) and interest, if
any, on the offered debt securities of the series will be payable (if
other than the currency of the United States of America), which unless
otherwise specified will be the currency of the United States of
America as at the time of payment which is the legal tender for
payment of public or private debts;
(l) if the principal of (and premium, if any), or interest, if any, on the
offered debt securities of the series is to be payable, at our
election or at the election of any holder thereof, in a coin or
currency other than that in which the offered debt securities of the
series are stated to be payable, the period or periods within which,
and the terms and conditions upon which, such election may be made;
3
<PAGE>
(m) if such offered debt securities are to be denominated in a currency or
currencies, including composite currencies, other than the currency of
the United States of America, the equivalent price in the currency of
the United States of America;
(n) if the amount of payments of principal of (and premium if any), or
portions thereof, or interest, if any, on the offered debt securities
of the series may be determined with reference to an index, formula or
other method, the manner in which such amounts will be determined;
(o) whether the offered debt securities will be issuable in registered or
bearer form or both, any restrictions applicable to the offer, sale or
delivery of any offered debt securities issuable in bearer form and
whether, and, if so, the terms upon which, any offered debt securities
in bearer form will be exchangeable for offered debt securities in
registered form;
(p) whether such offered debt securities are to be issued in whole or in
part in the form of one or more global securities and, if so, the
method of transferring beneficial interests in such global security or
global securities;
(q) whether the offered debt securities of any series shall be issued upon
original issuance in whole or in part in the form of one or more book-
entry securities;
(r) the application, if any, of certain provisions of the Indenture
relating to defeasance and discharge, and certain conditions thereto;
(s) with respect to the offered debt securities of the series, any
deletions from, modifications of or additions to the Events of Default
or any covenants, whether or not such Events of Default or covenants
are consistent with the Events of Default or covenants set forth in
the Indenture; and
(t) any U.S. Federal income tax consequences applicable to the offered
debt securities.
Debt securities of a series may be issued in registered form or bearer
form or both as specified in the terms of the series, may be issued in whole or
in part in the form of one or more global securities and may be issued as book-
entry securities that will be deposited with, or on behalf of, The Depository
Trust Company, or another depository named by the Company and identified in a
prospectus supplement with respect to such series. The prospectus supplement
will specify whether the offered debt securities will be registered, bearer,
global or book-entry form.
So long as the Depository for a global security or its nominee is the
registered owner of such global security, such Depository or such nominee, as
the case may be, will be considered the sole owner or holder of the debt
securities represented by such global security for all purposes. Except in
certain circumstances, owners of beneficial interests in a global security will
not be entitled to have any of the individual debt securities represented by
such global security registered in their names, will not receive or be entitled
to receive physical delivery of any such debt securities in definitive form and
will not be considered the owners or holders thereof.
Unless the prospectus supplement relating thereto specifies otherwise,
debt securities denominated in U.S. dollars will be issued only in denominations
of $1,000 or any integral multiple thereof, and bearer securities denominated in
U.S. dollars will be issued only in denominations of $5,000. The prospectus
supplement relating to a series of debt securities denominated in a foreign or
composite currency will specify the denomination thereof.
At the option of the holder and subject to the terms of the Indenture,
bearer securities (with all unmatured coupons, except as provided below, and all
matured coupons in default) of any series will be exchangeable into an equal
aggregate principal amount of registered securities or, in the case of global
bearer securities, registered securities or bearer securities of the same series
(with the same interest rate and maturity date). Bearer securities surrendered
in exchange for registered securities between the record date and the relevant
date for payment of interest will be surrendered without the coupon relating to
such date for payment of interest and interest accrued as of such date will not
be payable in respect of the registered security issued in exchange for such
bearer security, but will be payable only to the holder of such coupon when due
in accordance with the terms of the applicable Indenture. Registered securities
of any series will be exchangeable into an equal aggregate principal amount of
registered securities of the same series (with the same interest rate and
maturity date) of different authorized denominations. Registered securities may
not be exchanged for bearer securities.
A book-entry security may not be registered for transfer or exchange
(other than as a whole by the depository to a nominee or by such nominee to such
depository) unless
(a) the depository or such nominee notifies us that it is unwilling or
unable to continue as depository,
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(b) the depository ceases to be qualified as required by the Indenture,
(c) we instruct the Trustee in accordance with the Indenture that such
book-entry securities shall be so registrable and exchangeable,
(d) there shall have occurred and be continuing an Event of Default or an
event which after notice or lapse of time would be an Event of Default
with respect to the debt securities evidenced by such book-entry
securities or
(e) there shall exist such other circumstances, if any, as may be
specified in the applicable prospectus supplement.
No service charge will be made for any transfer or exchange of the debt
securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Unless we indicate otherwise in the prospectus supplement, principal (and
premium, if any) will be payable and registered securities will be transferable
at the corporate trust office of the Trustee or such other paying agent as we
may appoint from time to time, as specified in the applicable prospectus
supplement. Unless other arrangements are made, we will pay interest, if any, by
checks mailed to the holders of registered securities at their registered
addresses. We will make payment with respect to debt securities represented by a
global security registered in the name of a depository or its nominee will be
made to the depository or its nominee, as the case may be, as the registered
owner of the global security. To the extent set forth in the prospectus
supplement relating thereto, any bearer securities and the coupons appertaining
thereto will be payable against surrender thereof, subject to any applicable
laws and regulations, at the offices of such paying agencies outside the United
States as we may appoint from time to time.
One or more series of the debt securities may be issued as discounted debt
securities (bearing no interest or interest at a rate which at the time of
issuance is below market rates) to be sold at a substantial discount below their
stated principal amount. U.S. Federal income tax consequences and other special
considerations applicable to any such discounted debt securities will be
described in the prospectus supplement relating thereto.
Under the Indenture, we will have the ability to issue debt securities
with terms different from those of debt securities previously issued.
Certain Covenants
Restrictions on Secured Debt
If the Company or any Restricted Subsidiary shall incur or guarantee any
evidence of indebtedness for money borrowed ("Debt") secured by a mortgage,
pledge or lien ("Mortgage") on any Principal Property of the Company or any
Restricted Subsidiary, or on any share of stock or Debt of any Restricted
Subsidiary, the Company will secure or cause such Restricted Subsidiary to
secure all series of the Offered Debt Securities equally and ratably with (or,
at the Company's option, prior to) such secured Debt, unless the aggregate
amount of all such secured Debt, together with all Attributable Debt with
respect to sale and leaseback transactions involving Principal Properties (with
the exception of such transactions which are excluded as described in
"Restrictions on Sales and Leasebacks" below), would not exceed 10% of
Consolidated Net Assets.
The above restriction will not apply to, and there will be excluded from
secured Debt in any computation under such restrictions, Debt secured by
(a) Mortgages on property of, or on any shares of stock or Debt of, any
corporation existing at the time such corporation becomes a Restricted
Subsidiary,
(b) Mortgages in favor of the Company or a Restricted Subsidiary,
(c) Mortgages in favor of governmental bodies to secure progress, advance
or other payments,
(d) Mortgages on property, shares of stock or Debt existing at the time of
acquisition thereof (including acquisition through merger or
consolidation) and purchase money and construction Mortgages which are
entered into within specified time limits,
(e) Mortgages securing industrial revenue or pollution control bonds,
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(f) mechanics and similar liens arising in the ordinary course of business
in respect of obligations not due or being contested in good faith,
(g) Mortgages arising from deposits with or the giving of any form of
security to any governmental authority required as a condition in the
transaction of business or exercise of any privilege, franchise or
license,
(h) Mortgages for taxes, assessments or governmental charges or levies
which are not then due or, if delinquent, are being contested in good
faith,
(i) Mortgages (including judgment liens) arising from legal proceedings
being contested in good faith and
(j) any extension, renewal or refunding of any Mortgage referred to in the
foregoing clauses (a) through (i) inclusive.
Restrictions on Sales and Leasebacks
Neither the Company nor any Restricted Subsidiary may enter into any sale
and leaseback transaction involving any Principal Property, unless the aggregate
amount of all Attributable Debt with respect to such transactions plus all Debt
secured by Mortgages on Principal Properties (with the exception of secured Debt
which is excluded as described in "Restrictions on Secured Debt" above) would
not exceed 10% of Consolidated Net Assets.
This restriction will not apply to, and there shall be excluded from
Attributable Debt in any computation under such restriction, any sale and
leaseback transaction if
(a) the lease is for a period, including renewal rights, of not in excess
of five years,
(b) the sale or transfer of the Principal Property is made within a
specified period after its acquisition or construction,
(c) the lease secures or relates to industrial revenue or pollution
control bonds,
(d) the transaction is between the Company and a Restricted Subsidiary or
between Restricted Subsidiaries or
(e) the Company or such Restricted Subsidiary, within 180 days after the
sale is completed, applies to the retirement of Funded Debt of the
Company or a Restricted Subsidiary, or to the purchase of other
property which will constitute Principal Property of a value at least
equal to the value of the Principal Property leased, an amount not
less than the greater of
(1) the net proceeds of the sale of the Principal Property leased or
(2) the fair market value of the Principal Property leased.
In lieu of applying proceeds to the retirement of Funded Debt,
debentures or notes (including the Debt Securities) of the Company or a
Restricted Subsidiary may be surrendered to the applicable trustee for
cancellation at a value equal to the then applicable optional
redemption price thereof or the Company or a Restricted Subsidiary may
credit the principal amount of Funded Debt voluntarily retired within
180 days after such sale.
Unless otherwise indicated in a prospectus supplement, the covenants
contained in the Indenture and the Debt Securities would not necessarily afford
holders of the Debt Securities protection in the event of a highly leveraged or
other transaction involving the Company that may adversely affect holders.
Certain Definitions
"Attributable Debt" means, as to any particular lease under which any
Person is at the time liable and at any date as of which the amount thereof is
to be determined, the total net amount of rent required to be paid by such
Person under such lease during the remaining primary term thereof, discounted
from the respective due dates thereof to such date at the actual percentage rate
inherent in such arrangements as determined in good faith by the Company. The
net amount of rent required to be paid under any such lease for any such period
shall be the aggregate amount of the amount payable by the lessee with respect
to such period after excluding amounts required
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to be paid on account of maintenance and repairs, insurance, taxes, assessments,
water rates and similar charges. In the case of any lease which is terminable by
the lessee upon the payment of a penalty, such net amount shall also include the
amount of such penalty, but no rent shall be considered as required to be paid
under such lease subsequent to the first date upon which it may be terminated.
"Consolidated Net Assets" means total assets after deducting therefrom all
current liabilities as set forth on the most recent balance sheet of the Company
and its consolidated subsidiaries and computed in accordance with generally
accepted accounting principles.
"Funded Debt" means (a) all indebtedness for money borrowed having a
maturity of more than 12 months from the date as of which the determination is
made or having a maturity of 12 months or less but by its terms being renewable
or extendable beyond 12 months from such date at the option of the borrower and
(b) rental obligations payable more than 12 months from such date under leases
which are capitalized in accordance with generally accepted accounting
principles (such rental obligations to be included as Funded Debt at the amount
so capitalized).
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Principal Property" means any manufacturing or processing plant or
warehouse owned at the date hereof or hereafter acquired by the Company or any
Restricted Subsidiary of the Company which is located within the United States
of America and the gross book value (including related land and improvements
thereon and all machinery and equipment included therein without deduction of
any depreciation reserves) of which on the date as of which the determination is
being made exceeds 2% of Consolidated Net Assets other than (a) any property
which in the opinion of the Board of Directors is not of material importance to
the total business conducted by the Company as an entirety or (b) any portion of
a particular property which is similarly found not to be of material importance
to the use or operation of such property.
"Restricted Subsidiary" means a Subsidiary of the Company (a)
substantially all the property of which is located, or substantially all the
business of which is carried on, within the United States of America and (b)
which owns a Principal Property, but does not include a Subsidiary of the
Company engaged primarily in the development and sale or financing of real
property.
Merger and Consolidation
The Company will not merge or sell, convey, transfer or lease all or
substantially all of its assets unless the successor Person is the Company or
another Person that assumes the Company's obligations on the Debt Securities and
under the Indenture and, after giving effect to such transaction, the Company or
the successor Person would not be in default under the Indenture.
Events of Default
The Indenture defines "Events of Default" with respect to the Debt
Securities of any series as being one of the following events:
(a) default in the payment of any installment of interest on that series
for 30 days after becoming due;
(b) default in the payment of principal (or premium, if any) on that
series when due;
(c) default in the performance of any other covenant with respect to the
Debt Securities of that series or in the Indenture (other than a
covenant included in the Indenture solely for the benefit of any
series of Debt Securities other than that series) continued for 90
days after notice;
(d) certain events of bankruptcy, insolvency or reorganization; and
(e) any other Event of Default provided with respect to Debt Securities of
that series.
The Indenture contains no Events of Default or other provisions which
specifically afford holders of the Debt Securities protection in the event of a
highly leveraged transaction.
If an Event of Default shall occur and be continuing with respect to the
Debt Securities of any series, either the Trustee or the holders of at least 25%
in principal amount of the Debt Securities of that series then outstanding may
declare the principal (or such portion thereof as may be specified in the
prospectus supplement relating to such series) of the Debt Securities of such
series and the accrued interest thereon, if any, to be due and
7
<PAGE>
payable. The Indenture provides that the Trustee shall, within 90 days after the
occurrence of a default known to a Responsible Officer of the Trustee, give the
holders of Debt Securities notice of all uncured defaults known to it (the term
"default" to mean the events specified above without grace periods); provided
that, except in the case of default in the payment of principal of or interest
on any Debt Security, the Trustee shall be protected in withholding such notice
if it in good faith determines the withholding of such notice is in the interest
of the holders of Debt Securities. At any time after such declaration of
acceleration has been made, but before a judgment or decree for payment of the
money due has been obtained by the Trustee, the holders of a majority in
principal amount of the Debt Securities of that series then outstanding, by
written notice to the Company and the Trustee, may, in certain circumstances,
rescind and annul such declaration.
The Company will furnish to the Trustee annually a statement by certain
officers of the Company to the effect that to the best of their knowledge the
Company is not in default in the fulfillment of any of its obligations under the
Indenture or, if there has been a default in the fulfillment of any such
obligation, specifying each such default.
The holders of a majority in principal amount of the outstanding Debt
Securities of any series will have the right, subject to certain limitations, to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee with respect to the Debt Securities of such series, and to waive certain
defaults with respect thereto. The Indenture will provide that in case an Event
of Default shall occur and be continuing, the Trustee shall exercise such of its
rights and powers under the Indenture, and use the same degree of care and skill
in its exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs. Subject to such provisions, the Trustee will
be under no obligation to exercise any of its rights or powers under the
Indenture at the request of any of the holders of Debt Securities unless they
first shall have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which might be incurred by it in compliance
with such request.
Modification of the Indenture and Waiver
The Indenture provides that the Company and the Trustee may enter into
supplemental indentures without the consent of the holders of the Debt
Securities to:
(a) evidence the assumption by a successor corporation of the obligations
of the Company,
(b) add covenants for the protection of the holders of Debt Securities,
(c) add any additional Events of Default,
(d) cure any ambiguity or correct any inconsistency in such Indenture,
(e) establish the form or terms of Debt Securities of any series,
(f) secure the Debt Securities and related coupons, if any, and
(g) evidence the acceptance of appointment by a successor trustee.
With certain exceptions, the Indenture may be modified or amended with the
consent of the holders of not less than a majority in principal amount of the
outstanding Debt Securities of each series affected by the modification;
provided, however, that no such modification or amendment may be made, without
the consent of the holder of each Debt Security affected, which would, among
other things,
(a) reduce the principal amount of or the interest on any Debt Security,
change the stated maturity of the principal of, or any installment of
interest on, any Debt Security or the other terms of payment thereof,
(b) reduce the above-stated percentage of Debt Securities, the consent of
the holders of which is required to modify or amend the Indenture, or
the percentage of Debt Securities of any series, the consent of the
holders of which is required to waive certain past defaults or
(c) change any obligation of the Company to maintain an office or agency
in the places and for the purposes specified in Section 10.2 of the
Indenture.
The holders of at least a majority in principal amount of the Debt
Securities of each series outstanding may, on behalf of the holders of all the
Debt Securities of that series, waive, insofar as that series is concerned,
compliance by the Company with certain restrictive provisions of the Indenture,
unless a greater percentage of such
8
<PAGE>
principal amount is specified in the applicable prospectus supplement. The
holders of not less than a majority in principal amount of the Debt Securities
of each series outstanding may, on behalf of all holders of Debt Securities of
that series, waive any past default under the Indenture, except a default (a) in
the payment of principal of (and premium, if any) or any interest on any Debt
Security of such series and (b) in respect of a covenant, or provision of the
Indenture which cannot be modified or amended without the consent of the holder
of each Debt Security of such series outstanding affected.
Defeasance and Discharge
The Indenture provides that the Company may specify that, with respect to
the Debt Securities of a certain series, it will be discharged from any and all
obligations in respect of such Debt Securities (except for certain obligations
to register the transfer or exchange of Debt Securities, to replace stolen, lost
or mutilated Debt Securities, to maintain paying agencies and hold monies for
payment in trust and, if so specified with respect to the Debt Securities of a
certain series, to pay the principal of (and premium, if any) and interest, if
any, on such specified Debt Securities) upon the deposit with the Trustee, in
trust, of money and/or U.S. Government Obligations which through the payment of
interest and principal thereof in accordance with their terms will provide money
in an amount sufficient to pay any installment of principal (and premium, if
any) and interest, if any, on and any mandatory sinking fund payments in respect
of such Debt Securities on the stated maturity of such payments in accordance
with the terms of the Indenture and such Debt Securities. If so specified with
respect to the Debt Securities of a series, such a trust may only be established
if establishment of the trust would not cause the Debt Securities of any such
series listed on any nationally recognized securities exchange to be de-listed
as a result thereof. Also, if so specified with respect to a series of Debt
Securities, such establishment of such a trust may be conditioned on the
delivery by the Company to the Trustee of an Opinion of Counsel (who may be
counsel to the Company) to the effect that, based upon applicable U.S. Federal
income tax law or a ruling published by the United States Internal Revenue
Service, such a defeasance and discharge will not be deemed, or result in, a
taxable event with respect to holders of such Debt Securities. The designation
of such provisions, U.S. Federal income tax consequences and other
considerations applicable thereto will be described in the prospectus supplement
relating thereto.
Concerning the Trustee
We have appointed Bankers Trust Company as the Trustee under the Indenture
and as initial Security Registrar with regard to the Debt Securities.
The Trustee acts as our fiscal agent for several debt offerings inside the
United States and performs other services for the Company in the normal course
of its business.
PLAN OF DISTRIBUTION
General
We may sell offered debt securities to or through underwriters or dealers,
through agents or directly to purchasers. Any such underwriter, dealer or agent
may be deemed to be an underwriter within the meaning of the Securities Act. The
prospectus supplement relating to the offered debt securities will set forth
their offering terms, including the name or names of any underwriters, the
purchase price of the offered debt securities and the proceeds to us from such
sale, any underwriting discounts, commissions and other items constituting
underwriters' compensation, any initial public offering price and any discounts
or concessions allowed or reallowed or paid to dealers and any securities
exchanges on which the offered debt securities may be listed.
If underwriters are used in the sale, the underwriters will acquire the
offered debt securities for their own account and may resell such securities
from time to time in one or more transactions, including negotiated
transactions, at a fixed price or at varying prices determined at the time of
sale. The offered debt securities may be offered to the public either through
underwriting syndicates represented by one or more managing underwriters or
directly by one or more of firms acting as underwriters. Unless we indicate
otherwise in the prospectus supplement, the obligations of the underwriters to
purchase the offered debt securities will be subject to certain conditions
precedent and the underwriters will be obligated to purchase all the offered
debt securities if any are purchased. Any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers may be changed
from time to time.
Under agreements which we may enter into, underwriters, dealers and agents
who participate in the distribution of offered debt securities may be entitled
to indemnification or contribution by us against certain liabilities, including
liabilities under the Securities Act.
9
<PAGE>
The specific terms and manner of sale of offered debt securities will be
set forth or summarized in the prospectus supplement.
If so indicated in the prospectus supplement, we will authorize
underwriters or other persons acting as our agents to solicit offers by certain
institutions to purchase offered debt securities from us pursuant to contracts
providing for payment and delivery on a future date. These institutions include
commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions and others, but in all cases
will be subject to acceptance by us. The obligations of any purchaser under any
such contracts will be subject to the condition that the purchase of offered
debt securities will not at the time of delivery be prohibited under the laws of
the jurisdiction to which such purchaser is subject. The underwriters and such
other persons will not have any responsibility in respect of the validity or
performance of such contracts.
Each series of offered debt securities will be a new issue with no
established trading market. Any underwriters to whom we sell offered debt
securities for public offering and sale may make a market in such offered debt
securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. We can offer no
assurance as to the liquidity of the trading market for any offered debt
securities.
LEGAL OPINIONS
The validity of the offered debt securities will be passed upon for us by
Ellen Oran Kaden, our Senior Vice President-Law and Government Affairs, and for
the underwriters, dealers or agents, if any, by counsel to be specified in the
prospectus supplement. Ms. Kaden owns beneficially approximately 3,800 shares of
the Company's common stock. She holds options to purchase 80,250 additional
shares of the Company's common stock that were granted to her pursuant to the
Company's 1994 Long-Term Incentive Plan.
EXPERTS
The financial statements incorporated in this Prospectus by reference to
the Annual Report on Form 10-K of Campbell Soup Company for the fiscal year
ended August 1, 1999 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
10
<PAGE>
===============================================================================
[Campbell Soup Logo]
Debt Securities
____________
PROSPECTUS
____________
, 1999
===============================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses in connection with the issuance and distribution of the
securities being registered hereby, other than underwriting discounts and
commissions are as follows. Except for the SEC registration fee, all expenses
are estimated. All of such expenses will be borne by the Registrant.
SEC registration fee.................... $139,000
Accounting fees and expenses............ 50,000
Legal fees and expenses................. 150,000
Printing and engraving costs............ 50,000
Fees and expenses of Trustee............ 10,000
Rating agencies' fees................... 500,000
Miscellaneous........................... 10,000
--------
Total................................... $909,000
========
Item 15. Indemnification of Directors and Officers.
Section 3-5 of the New Jersey Business Corporation Act sets forth the extent
to which officers and directors of the Registrant may be indemnified against any
liabilities which they may incur in their capacity as such. The Registrant's By-
Laws provide for the indemnification of directors and officers of the Registrant
against liabilities arising by reason of being a director or officer of the
Registrant, including liabilities arising under the Securities Act of 1933.
The directors and officers of the Registrant and its subsidiaries are insured
(subject to certain exceptions and deductions) against liabilities which they
may incur in their capacity as such, including liabilities under the Securities
Act of 1933, under liability insurance policies carried by the Registrant.
Item 16. Exhibits.
1. Form of Underwriting Agreement.
4(a). Form of Indenture, between the Registrant and Bankers Trust Company,
as Trustee (incorporated by reference to Exhibit 4(a) to
Registration Statement 333-11497).
4(b). Form of Security, included in Exhibit 4(a).
5. Opinion and consent of Ellen Oran Kaden, Senior Vice President-Law
and Government Affairs of the Registrant.
12. Computation of Ratio of Earnings to Fixed Charges.
23(a). Consent of PricewaterhouseCoopers LLP.
23(b). Consent of Ellen Oran Kaden, included in Exhibit 5.
24. Powers of Attorney.
25. Form T- I Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 (bound separately).
Item 17. Undertakings.
(A) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the effective
registration statement;
II-1
<PAGE>
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that paragraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(B) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(C) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described under Item 15
above or otherwise, the Registrant has been advised that, in the opinion of the
Securities and Exchange Commission, such indemnification is against public
policy as expressed in such Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(D) The undersigned Registrant hereby undertakes that:
(1) For the purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Camden, State of New Jersey, on the 20th of October,
1999.
CAMPBELL SOUP COMPANY
(Registrant)
By: /s/ Basil L. Anderson
----------------------------------
Basil L. Anderson
Executive Vice President and
Chief Financial Officer
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* President and Chief Executive October 20, 1999
- ----------------------------- Officer and Director (Principal
Dale F. Morrison Executive Officer)
* Chairman and Director October 20, 1999
- -----------------------------
Philip E. Lippincott
* Director October 20, 1999
- -----------------------------
Alva A. App
* Director October 20, 1999
- -----------------------------
Edmund M. Carpenter
* Director October 20, 1999
- -----------------------------
Bennett Dorrance
* Director October 20, 1999
- -----------------------------
Thomas W. Field, Jr.
* Director October 20, 1999
- -----------------------------
Kent B. Foster
* Director October 20, 1999
- -----------------------------
Harvey Golub
* Director October 20, 1999
- -----------------------------
David K.P. Li
* Director October 20, 1999
- -----------------------------
Mary Alice Malone
* Director October 20, 1999
- -----------------------------
Charles H. Mott
* Director October 20, 1999
- -----------------------------
Charles R. Perrin
* Director October 20, 1999
- -----------------------------
George M. Sherman
* Director October 20, 1999
- -----------------------------
Donald M. Stewart
* Director October 20, 1999
- -----------------------------
George Strawbridge, Jr.
</TABLE>
II-3
<PAGE>
<TABLE>
<S> <C> <C>
* Director October 20, 1999
- -----------------------------
Charlotte C. Weber
/s/ Basil L. Anderson Executive Vice President and October 20, 1999
- ----------------------------- Chief Financial Officer
Basil L. Anderson
/s/ Gerald S. Lord Vice President-Controller October 20, 1999
- ----------------------------- (Principal Accounting Officer)
Gerald S. Lord
*By /s/ John J. Furey
-------------------------
John J. Furey,
Corporate Secretary
as Attorney-in-Fact
</TABLE>
II-4
<PAGE>
Exhibit 1
CAMPBELL SOUP COMPANY
Debt Securities
Underwriting Agreement
----------------------
____________, 199_
From time to time Campbell Soup Company, a New Jersey corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each, a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Securities") specified
in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities"), less the principal amount of Designated
Securities covered by Delayed Delivery Contracts, if any, as provided in Section
3 hereof and as may be specified in Schedule II to such Pricing Agreement (with
respect to such Pricing Agreement, any Designated Securities to be covered by
Delayed Delivery Contracts being herein sometimes referred to as "Contract
Securities" and the Designated Securities to be purchased by the Underwriters
(after giving effect to the deduction, if any, for Contract Securities) being
herein sometimes referred to as "Underwriters' Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Introductory. Particular sales of Designated Securities may be
-------------
made from time to time to the Underwriters of such Securities, for whom the
firms designated as representatives of the Underwriters of such Securities in
the Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to Underwriters who act
without any firm being designated as their representative. This Underwriting
Agreement shall not be construed as an obligation of the Company to sell any of
the Securities or as an obligation of any of the Underwriters to purchase the
Securities. The obligation of the Company to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the aggregate principal amount of such Designated Securities, the initial public
offering price of such Designated Securities, the purchase price to the
Underwriters of such Designated Securities, the names of the Underwriters of
such Designated Securities, the names of the Representatives of such
Underwriters, the principal amount of such Designated Securities to be purchased
by each Underwriter and whether any of such Designated Securities shall be
covered by Delayed Delivery Contracts (as defined in Section 3 hereof) and the
commission payable to the Underwriters with respect thereto and shall set forth
the date, time and manner of delivery of such Designated Securities and payment
therefor. The Pricing Agreement shall also specify (to the extent not set forth
in the Indenture and the registration statement and prospectus with respect
thereto) the terms of such Designated Securities. A Pricing Agreement shall be
in the form of an executed writing (which may be in counterparts). The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2. Representations and Warranties of the Company. The Company
----------------------------------------------
represents and warrants to, and agrees with, each of the Underwriters that:
(a) a registration statement on Form S-3 with respect to the
Securities has been filed with the Securities and Exchange Commission (the
"Commission") in the form heretofore delivered or to be delivered to the
Representatives and, excluding exhibits to such registration statement, but
including all documents incorporated by reference in the prospectus
contained therein, to the Representatives for each of the other
Underwriters and such registration statement in such form has been declared
effective by the Commission and no stop order suspending the effectiveness
of such registration statement has been issued and to the Company's
knowledge no proceeding for that purpose has been initiated or threatened
by the Commission; any preliminary prospectus
1
<PAGE>
included in such registration statement being hereinafter called a
"Preliminary Prospectus"; the various parts of such registration statement,
including all exhibits thereto but excluding the Form T-1 and, if
applicable, including the information contained in the form of final
prospectus filed with the Commission pursuant to Rule 424(b) under the Act
in accordance with Section 5(a) of this Agreement and deemed by virtue of
Rule 430A under the Act to be part of the registration statement, each as
amended at the time such part became effective, being hereinafter
collectively called the "Registration Statement"; the prospectus relating
to the Securities, in the form in which it has most recently been filed
with the Commission on or prior to the date of this Agreement, being
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to the
applicable form under the Securities Act of 1933, as amended (the "Act"),
as of the date of such Preliminary Prospectus or Prospectus, as the case
may be; any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any
documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of 1934,
as amended (the "Exchange Act") and incorporated by reference; and any
reference to the Prospectus as amended or supplemented shall be deemed to
refer to the Prospectus as amended or supplemented in relation to the
applicable Designated Securities in the form in which it is filed with the
Commission pursuant to Rule 424 under the Act, in accordance with Section
5(a) hereof including any documents incorporated by reference therein as of
the date of such filing;
(b) the documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents become effective or are
filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
-------- -------
warranty shall not apply to any statements or omissions made based upon
written information furnished to the Company by any Underwriter of
Designated Securities through the Representatives specifically for use in
the Prospectus as amended or supplemented relating to such Securities; and
(c) the Registration Statement and the Prospectus conform, and any
amendments or supplements thereto will conform, in all material respects to
the requirements of the Act and the rules and regulations of the Commission
thereunder and the Indenture, including any amendments or supplements
thereto pursuant to which Designated Securities will be issued, as of the
effective date of the Registration Statement and as of the applicable
filing date of the Prospectus, complies with the requirements of the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act") and the rules
and regulations of the Commission thereunder; and the Registration
Statement and the Prospectus do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment thereto
and as of the applicable filing date as to the Prospectus and any
supplement thereto, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that this
-------- -------
representation and warranty shall not apply to that part of the
Registration Statement that constitutes the Statement of Eligibility and
Qualification under the Trust Indenture Act (Form T-1) of the trustee, or
(ii) any statements or omissions made in reliance upon written information
furnished to the Company by any Underwriter of Designated Securities
through the Representatives specifically for use in the Prospectus as
amended or supplemented relating to such Securities.
3. Purchase and Offering of Securities. (a) Upon the execution of
------------------------------------
the Pricing Agreement applicable to any Designated Securities and authorization
by the Representatives of the release of the Underwriters' Securities, the
several Underwriters propose to offer the Underwriters' Securities for sale upon
the terms and conditions set forth in the Prospectus as amended or supplemented
and in this Agreement and the applicable Pricing Agreement.
2
<PAGE>
(b) The Company may specify in Schedule II to the Pricing Agreement
applicable to any Designated Securities that the Underwriters are authorized to
solicit offers to purchase Designated Securities from the Company pursuant to
delayed delivery contracts (herein called "Delayed Delivery Contracts"),
substantially in the form of Annex II attached hereto but with such changes
therein as the Representatives and the Company may authorize or approve. If so
specified, the Underwriters will endeavor to make such arrangements, and as
compensation therefor the Company will pay to the Representatives, for the
accounts of the Underwriters, at the Time of Delivery (as defined in Section 4
hereof), such commission, if any, as may be set forth in such Pricing Agreement.
Delayed Delivery Contracts, if any, are to be with investors of the types
described in the Prospectus and subject to other conditions therein set forth.
The Underwriters will not have any responsibility in respect of the validity or
performance of any Delayed Delivery Contracts.
The principal amount of Contract Securities to be deducted from the
principal amount of Designated Securities to be purchased by each Underwriter as
set forth in Schedule I to the Pricing Agreement applicable to such Designated
Securities shall be, in each case, the principal amount of Contract Securities
which the Company has been advised by the Representatives have been attributed
to such Underwriter; provided that if the Company has not been so advised, the
--------
amount of Contract Securities to be so deducted shall be, in each case, that
proportion of Contract Securities which the principal amount of Designated
Securities to be purchased by such Underwriter under such Pricing Agreement
bears to the total principal amount of the Designated Securities (rounded as the
Representatives may determine). The total principal amount of Underwriters'
Securities to be purchased by all the Underwriters pursuant to such Pricing
Agreement shall be the total principal amount of Designated Securities set forth
in Schedule I to such Pricing Agreement less the principal amount of the
Contract Securities, if any. The Company will advise the Representatives not
later than the business day preceding the Time of Delivery (as defined in
Section 4 hereof) specified in the applicable Pricing Agreement (or such other
time and date as the Representatives and the Company may agree upon in writing)
of the principal amount of Contract Securities.
4. Delivery of and Payment for Securities. Underwriters' Securities
---------------------------------------
to be purchased by each Underwriter pursuant to the Pricing Agreement relating
thereto, in such authorized denominations and registered in such names as the
Representatives may request upon at least forty-eight hours' prior notice to the
Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor in the manner
specified in the applicable Pricing Agreement, by wire transfer or by certified
or official bank check or checks payable to the order of the Company, in the
funds specified in such Pricing Agreement, all at the place and time and date
specified in such Pricing Agreement or at such other place and time and date as
the Representatives and the Company may agree upon in writing, such time and
date being herein called the "Time of Delivery" for such Securities.
If applicable, concurrently with the delivery of and payment for the
Underwriters' Securities, the Company will deliver to the Representatives for
the accounts of the Underwriters a check payable to the order of the party
designated in the Pricing Agreement relating to such Securities in the amount of
any compensation payable by the Company to the Underwriters in respect of any
Delayed Delivery Contracts as provided in Section 3 hereof and in the Pricing
Agreement relating to such Securities.
5. Certain Agreements of the Company. The Company agrees with each
----------------------------------
of the Underwriters of any Designated Securities:
(a) to prepare the Prospectus as amended and supplemented in relation
to the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act in accordance with the applicable provisions thereof; to furnish to
counsel for the Underwriters one copy of the Registration Statement,
including all exhibits, in the form it became effective and of all
amendments thereto;
(b) to advise the Representatives promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus and to afford the
Representatives a reasonable opportunity to comment on any such proposed
amendment or supplement; and to advise the Representatives promptly of the
filing of any such amendment or supplement and of the institution by the
Commission of any stop order proceedings in respect of the Registration
Statement or of any part thereof and to use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued;
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<PAGE>
(c) promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under state securities or Blue Sky laws of such domestic
jurisdictions as the Representatives may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution
of such Securities; provided that in connection therewith the Company shall
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not be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(d) to furnish the Representatives with copies of the Prospectus as
amended or supplemented in such quantities as the Representatives may from
time to time reasonably request, and, if the delivery of a prospectus is
required at any time, but not for longer than 40 days from and after the
date of the applicable Pricing Agreement, in connection with the offering
or sale of the Securities and if at such time any event shall have occurred
as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during
such same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust Indenture Act,
to prepare and file with the Commission an amendment or supplement which
will correct such statement or omission or effect such compliance; and
(e) to make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement, an earnings statement of the
Company and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the Commission
thereunder (including at the option of the Company Rule 158).
6. Expenses. The Company covenants and agrees with the several
---------
Underwriters that the Company will pay or cause to be paid all expenses incident
to the performance of its obligations under this Agreement and will reimburse
the Underwriters for expenses (including fees and disbursements of counsel)
incurred by them in connection with qualification of the Designated Securities
for sale under the state securities or Blue Sky laws of such domestic
jurisdictions located in the United States of America as the Representatives may
designate and the printing of memoranda relating thereto, for any fees charged
by investment rating agencies for the rating of the Designated Securities, for
the filing fee of the National Association of Securities Dealers, Inc. relating
to the Securities and for expenses incurred in distributing the Prospectus, any
Preliminary Prospectuses and any preliminary prospectus supplements to
Underwriters.
7. Conditions of the Obligations of the Underwriters. The
--------------------------------------------------
obligations of the Underwriters of any Designated Securities under the Pricing
Agreement relating to such Designated Securities shall be subject, in the
discretion of the Representatives, to the condition that all representations and
warranties and other statements of the Company herein are, at and as of the Time
of Delivery for such Designated Securities, true and correct, the condition that
the Company shall have performed all of its obligations hereunder theretofore to
be performed, and the following additional conditions applicable to such
Designated Securities:
(a) the Prospectus as amended or supplemented shall have been filed
with the Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by the rules and regulations under the
Act and in accordance with Section 5(a) of the Agreement; no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceeding for that purpose shall be pending before or, to
the knowledge of the Company, threatened by the Commission;
(b) counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated the Time of Delivery for
such Designated Securities, with respect to the incorporation of the
Company, the validity of the Indenture, the Designated Securities, the
Delayed Delivery Contracts, if any, the Registration Statement, the
Prospectus as amended or supplemented and other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
4
<PAGE>
(c) The General Counsel of the Company, shall have furnished to the
Representatives his or her written opinion, dated the Time of Delivery for
such Designated Securities, in form and substance reasonably satisfactory
to the Representatives, to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power and authority
to own its properties and conduct its business as described in the
Prospectus as amended or supplemented;
(ii) to the best of such counsel's knowledge, there are no
pending or threatened legal or governmental proceedings required to be
described in the Registration Statement or the Prospectus as amended
or supplemented relating to the Designated Securities which are not
described therein as required in all material respects;
(iii) this Agreement and the Pricing Agreement with respect to
the Designated Securities have been duly authorized, executed and
delivered by the Company;
(iv) the issuance and sale of the Designated Securities have been
duly authorized by the Company; the Underwriters' Securities (assuming
the due authentication thereof by the trustee under the Indenture (the
"Trustee")), when executed and issued under the Indenture and
delivered to and paid for by you pursuant to the Underwriting
Agreement, will constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the Indenture; the
Contract Securities (assuming the due authentication thereof by the
Trustee), if any, when executed, issued and delivered pursuant to the
Indenture and paid for pursuant to the Delayed Delivery Contracts, if
any, will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture;
(v) the Indenture has been duly authorized, executed and
delivered by the Company and (assuming the due authorization,
execution and delivery thereof by the Trustee) constitutes a valid and
legally binding obligation of the Company, enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; provided
--------
that no opinion is rendered by such counsel as to the qualification of
the Indenture under the Trust Indenture Act or as to any other
question arising under such Act;
(vi) the issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the Designated
Securities, the Indenture, each of the Delayed Delivery Contracts, if
any, this Agreement and the Pricing Agreement with respect to the
Designated Securities and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a breach
of any of the terms or provisions of, or constitute a default under,
any material indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel to which the
Company is a party or by which the Company is bound or to which any of
the property or assets of the Company is subject, nor will such action
result in any violation of the provisions of the certificate of
incorporation, as amended, or the by-laws of the Company or any
statute or any order, rule or regulation known to such counsel of any
court or governmental agency or body having jurisdiction over the
Company or any of its properties, which conflict, breach, default or
violation would have a material adverse effect on the consolidated
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries;
(vii) in the event any of the Designated Securities are to be
purchased pursuant to Delayed Delivery Contracts, each of such Delayed
Delivery Contracts has been duly authorized, executed and delivered by
the Company and (assuming such Contract has been duly executed and
delivered by the purchaser named therein) constitutes a valid and
legally binding agreement of the Company, enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors', rights and to general equity principles;
5
<PAGE>
(viii) no consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body
of the United States of America or the State of New Jersey is required
for the issuance and sale of the Designated Securities or the
consummation by the Company of the transactions contemplated by this
Agreement or the Pricing Agreement related to the Designated
Securities, any of the Delayed Delivery Contracts relating thereto, or
the Indenture except such as have been obtained under the Act and the
Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Designated Securities by the Underwriters; and
(ix) such counsel has no reason to believe that the Registration
Statement or the Prospectus as amended or supplemented or any of the
documents incorporated by reference in the Prospectus as amended or
supplemented (other than the financial statements and related
schedules contained or incorporated by reference therein, as to which
such counsel need express no opinion) contained, in the case of the
Registration Statement when it became effective under the Act, an
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and, in the case of the Prospectus and other
documents which were filed under the Act or the Exchange Act with the
Commission, an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such
documents were so filed, and in the case of the Prospectus as amended
or supplemented, as of the Time of Delivery, not misleading;
(d) , special counsel for the Company, shall have
furnished to the Representatives their written opinion, dated the Time of
Delivery for such Designated Securities, to the effect that:
(i) the Registration Statement, as of its effective date, and the
Prospectus, as of its date and as of the date of the applicable
supplement (in each case other than the documents incorporated by
reference therein) and any further amendments and supplements thereto
made by the Company prior to the Time of Delivery for the Designated
Securities (other than the financial statements and related schedules
included or incorporated by reference therein, as to which such
counsel need express no opinion) comply as to form in all material
respects with the requirements of the Act and the Trust Indenture Act
and the rules and regulations thereunder;
(ii) the Designated Securities, the Indenture and any Delayed
Delivery Contracts conform to the descriptions thereof in the
Prospectus as amended or supplemented;
(iii) the Indenture has been duly qualified under the Trust
Indenture Act;
(iv) the documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and
related schedules contained or incorporated by reference therein, as
to which such counsel need express no opinion), appear on their face
to be appropriately responsive in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder; and
(v) such counsel has no reason to believe that the Registration
Statement or the Prospectus as amended or supplemented or any of the
documents incorporated by reference in the Prospectus as amended or
supplemented (other than the financial statements and related
schedules contained or incorporated by reference therein, as to which
such counsel need express no opinion) contained, in the case of the
Registration Statement when it became effective under the Act, an
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and, in the case of the Prospectus and other
documents which were filed under the Act or the Exchange Act with the
Commission, an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made
6
<PAGE>
when such documents were so filed, and in the case of the Prospectus
as amended or supplemented, as of the Time of Delivery, not
misleading;
(e) on the date of the Pricing Agreement for such Designated
Securities and at the Time of Delivery of such Designated Securities, the
independent accountants of the Company who have certified the financial
statements of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement shall have furnished to the
Representatives a letter, dated the effective date of the Registration
Statement or the date of the most recent report filed with the Commission
containing financial statements and incorporated by reference in the
Registration Statement, if the date of such report is later than such
effective date, and a letter dated such Time of Delivery, respectively, of
the type described in the American Institute of Public Accountants'
Statement on Auditing Standards No. 72 or a successor statement and
covering such specified financial statement items as may be agreed upon by
the Company and the Representatives, in form and substance satisfactory to
the Representatives;
(f) subsequent to the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the New York Stock Exchange; (ii) a general moratorium on commercial
banking activities in New York declared by either Federal or New York State
authorities; or (iii) the outbreak or escalation of hostilities or any
calamity or crisis on or after the date of such Pricing Agreement if the
effect of any such event specified in this clause (iii) in the reasonable
judgment of the Representatives is material and adverse to the market for
the Designated Securities and makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Underwriters'
Securities on the terms and in the manner contemplated in the Prospectus as
amended or supplemented; and
(g) the Company shall have furnished to the Representatives at the
Time of Delivery for the Designated Securities a certificate signed by two
officers of the Company satisfactory to the Representatives as to the
accuracy of the representations and warranties of the Company herein at and
as of such Time of Delivery, as to the performance by the Company of all of
its obligations hereunder to be performed at or prior to such Time of
Delivery, as to the absence, subsequent to the date of the most recent
financial statements in or incorporated by reference in the Prospectus, of
any material adverse change in the business, properties and financial
position or results of operation of the Company except as set forth in or
contemplated by the Prospectus, as amended and supplemented, as to the
matters set forth in subsection (a) of this Section, and as to such other
matters as the Representatives may reasonably request.
8. (a) Indemnification and Contribution. The Company will indemnify
---------------------------------
and hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses ate
incurred; provided, however, that the Company shall not be liable in any such
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case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement or the Prospectus or any such amendment
or supplement (i) in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives
specifically for use therein or (ii) contained in that part of the Registration
Statement constituting the Statement of Eligibility and Qualification under the
Trust Indenture Act (Form T-1) of the Trustee; and provided further that the
----------------
Company shall not be liable to such Underwriter under the indemnity agreement in
this subsection (a) with respect to any Preliminary Prospectus or preliminary
prospectus supplement or the Prospectus or any amendment or supplement to the
extent that any such loss, claim, damage or liability results from the fact that
such Underwriter sold Securities to a person to whom there was not sent or
given, at or prior to the written confirmation of such sale, a copy of the
Prospectus or of the Prospectus as then amended or supplemented if the Company
has previously furnished copies thereof to such Underwriter.
7
<PAGE>
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives specifically for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action (including any
governmental investigation), such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party or represent two or more parties if
such representation would be inappropriate due to actual or potential differing
interests between or among them), and, after notice from the indemnifying party
to such indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriter on
the other from the offering of the Securities to which such loss, claims, damage
or liability (or action in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriter on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriter on the other shall be deemed to be
in the same proportion as the total net proceeds from such offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by such Underwriter. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company on the
one hand or such Underwriter on the other and the parties, relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would not
be just and equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or
8
<PAGE>
by any other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this subsection
(d) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Designated Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission and
(ii) to the extent that any loss, claim, damage or liability results from the
fact that any Underwriter of Designated Securities sold such Securities to a
person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus or of the Prospectus as then
amended or supplemented, and the Company has previously furnished copies thereof
to such Underwriter, such failure to send or give such Prospectus or amended
Prospectus shall be a fact to be considered in determining the Company's
contribution to any such Underwriter of any amount under this subsection (d). No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. Default of Underwriters. (a) If any Underwriter shall default in
------------------------
its obligations under this Agreement and the applicable Pricing Agreement
relating to such Underwriters' Securities to purchase the Underwriters,
Securities which it has agreed to purchase, the remaining non-defaulting
Underwriters shall be obligated severally to purchase the Underwriters'
Securities which the defaulting Underwriter agreed but failed to purchase in the
respective proportions which the principal amount of Underwriters' Securities
set forth in Schedule II to the Pricing Agreement to be purchased by each
remaining non-defaulting Underwriter bears to the aggregate principal amount of
Underwriters' Securities set forth in such Schedule to be purchased by all the
remaining non-defaulting Underwriters; provided that the remaining non-
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defaulting Underwriters shall not be obligated to purchase any Underwriters'
Securities if the aggregate principal amount of such Underwriters' Securities
which the defaulting Underwriter or Underwriters agreed but failed to purchase
exceeds 10% of the total principal amount of such Underwriters' Securities. If
the foregoing maximum is exceeded, the remaining nondefaulting Underwriters, or
other underwriters satisfactory to the Representative, shall have the right, but
shall not be obligated, to purchase, in such proportion as may be agreed upon
among them, all the Underwriters' Securities. The term "Underwriter" as used in
this Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to the Pricing Agreement
with respect to such Designated Securities.
(b) If the remaining non-defaulting Underwriters or other
underwriters satisfactory to the Representative do not elect pursuant to the
penultimate sentence of the above paragraph to purchase the aggregate principal
amount of Underwriters' Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase that exceeds 10% of the total
principal amount of such Underwriters' Securities, the Pricing Agreement with
respect to such Underwriters' Securities shall terminate without liability on
the part of any nondefaulting Underwriter or the Company, except for the
expenses to be borne by the Company and the Underwriters as provided in Section
6 hereof and the indemnity and contribution agreements in Section 8 hereof.
(c) Nothing contained in this Section 9 shall relieve a defaulting
Underwriter of any liability it may have to the Company and any non-defaulting
Underwriter for damages caused by its default. If other underwriters are
obligated or agree to purchase the Underwriters' Securities of a defaulting
Underwriter, either the Representative or the Company may postpone the Time of
Delivery for up to seven full business days in order to effect any changes that
in the opinion of counsel for the Company or counsel for the Underwriters may be
necessary in the Registration Statement, the Prospectus, or in any other
document or arrangement.
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<PAGE>
(d) The foregoing obligations and agreements set forth in this
Section will not apply if the Pricing Agreement specifies that such obligations
and agreements will not apply.
10. Survival of Certain Representations and Obligations. The
----------------------------------------------------
respective indemnities, agreements, representations, warranties and other
statements of the Company and the several Underwriters, as set forth in this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. Expenses upon Termination. If any Pricing Agreement shall be
--------------------------
terminated pursuant to Section 9 hereof, the Company shall not then be under any
liability to any Underwriter with respect to the Designated Securities covered
by such Pricing Agreement except as provided in Section 6 and Section 8 hereof;
but, if for any other reason Underwriters' Securities are not delivered by or on
behalf of the Company as provided herein, the Company will reimburse the
Underwriters through the Representatives for all out-of-pocket expenses approved
in writing by the Representatives, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of such Designated Securities, but the Company shall then be
under no further liability to any Underwriter with respect to such Designated
Securities except as provided in Section 6 and Section 8 hereof.
12. Notices. In all dealings hereunder, the Representatives of the
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Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the Representatives, if any,
as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing or by telegram if promptly confirmed in writing, and if to the
Underwriters shall be sufficient in all respects if delivered or sent by
registered mail to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be sufficient in all respects if
delivered or sent by registered mail to the address of the Company set forth in
the Registration Statement, Attention: Secretary; provided, however, that any
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notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered or
sent by registered mail to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by the Representatives upon request.
13. Successors. This Agreement and each Pricing Agreement shall be
-----------
binding upon, and inure solely to the benefit of the Underwriters, the Company
and, to the extent provided in Section 8 and Section 10 hereof, the officers and
directors of the Company and each person who controls the Company or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement or any such Pricing Agreement. No purchaser of any of
the Securities from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
14. Applicable Law. This Agreement and each Pricing Agreement shall
---------------
be governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in New York.
15. Counterparts. This Agreement and each Pricing Agreement may be
-------------
executed by the parties hereto in any number of counterparts, each of which
shall be deemed to be an original, but all such respective counterparts shall
together constitute one and the same instrument.
10
<PAGE>
If the foregoing Agreement is in accordance with your understanding,
please sign and return a copy hereof.
Very truly yours,
CAMPBELL SOUP COMPANY
By:
------------------------
Name:
Title:
Accepted as of the date hereof:
[NAME OF UNDERWRITER]
By:
----------------------
Name:
Title:
[On behalf of each of the Underwriters]
11
<PAGE>
ANNEX I
PRICING AGREEMENT
____________, 199_
Campbell Soup Company (the "Company") proposes, subject to the terms and
conditions stated herein and in the Underwriting Agreement, dated ____________,
199_ (the "Underwriting Agreement"), between the Company on the one hand and on
the other hand, to issue and sell to the Underwriters named in Schedule I hereto
(the "Underwriters") the Securities specified in Schedule II hereto (the
"Designated Securities"). Each of the provisions of the Underwriting Agreement
is incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty with respect to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation and warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on behalf
of each of the Underwriters of the Designated Securities pursuant to Section 12
of the Underwriting Agreement and the addresses of the Representatives referred
to in such Section 12 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you, is now proposed to be filed, or in the case of
a supplement mailed for filing, with the Commission.
Subject to the terms and conditions set forth herein and in the Underwriting
Agreement incorporated herein by reference, the Company agrees to issue and sell
to each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at the time and place and at the
purchase price to the Underwriters set forth in Schedule II hereto, the
principal amount of Designated Securities set forth opposite the name of such
Underwriter in Schedule I hereto, less the principal amount of Designated
Securities covered by Delayed Delivery Contracts, if any, as may be specified in
such Schedule II.
If the foregoing is in accordance with your understanding, please sign and
return to us a counterpart hereof, and upon acceptance hereof by you, on behalf
of each of the Underwriters, this letter and such acceptance hereof, including
the provisions of the Underwriting Agreement incorporated herein by reference,
shall constitute a binding agreement between each of the Underwriters and the
Company. It is understood that your acceptance of this letter on behalf of each
of the Underwriters is or will be pursuant to the authority set forth in a form
of Agreement Among Underwriters.
Very truly yours,
CAMPBELL SOUP COMPANY
By:
-------------------------------
Name:
Title:
Accepted as of the date hereof:
[UNDERWRITER]
12
<PAGE>
By:
Name:
Title:
[On behalf of each of the Underwriters]
13
<PAGE>
SCHEDULE I
Principal Amount of
Designated Securities
Underwriter to be Purchased
- ------------- ---------------------
$
Total..............................
14
<PAGE>
SCHEDULE II
Title of Designated Securities:
[ %] [Floating Rate] [Zero Coupon] [Notes] [Debentures] due
Aggregate Principal Amount:
$
Price to Public:
% of the principal amount of the Designated Securities, plus accrued
interest from to [and accrued amortization, if any,
from to ]
Purchase Price by Underwriters:
% of the principal amount of the Designated Securities, plus accrued
interest from to [and accrued amortization, if any,
from to ]
Specified Funds for Payment of Purchase Price:
[Wire Transfer] [New York Clearing House funds]
Indenture:
Indenture, dated , 199_, between the Company and , as Trustee
Maturity:
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[months and dates]
Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in
the amount of $ or an integral multiple thereof, ]
[on or after , at the following redemption prices
(expressed in percentages of principal amount). If [redeemed on or before
, %, and if] redeemed during the 12-month period beginning
Redemption
Year Price
------ ----------
and thereafter at 100% of their principal amount, together in each
case with accrued interest to the redemption date.]
[on any interest payment date falling on or after , at
the election of the Company, at a redemption price, equal to the
principal amount thereof, plus accrued interest to the date of
redemption.]
15
<PAGE>
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restrictions on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund to
retire $ principal amount of Designated Securities on
in each of the years through at 100% of their principal amount
plus accrued interest] together with [cumulative] [non-cumulative]
redemptions at the option of the Company to retire an additional $
principal amount of Designated Securities in the years through
at 100% of their principal amount plus accrued interest.]
Extendable Provisions:
[Securities are repayable on , [insert date and years], at
the option of the holder, at their principal amount with accrued interest.
Initial annual interest rate will be _____% and thereafter [semi-]annual]
interest rate will be adjusted on to a rate not less than
% of the effective annual interest rate on U.S. Treasury obligations with
-year maturities as of the [insert date 15 days prior to maturity date]
prior to such [insert maturity date].]
Floating Rate Provisions:
Initial annual interest rate will be % through [and
thereafter will be adjusted [monthly] [on each , and ]
[to an annual rate of % above the average rate for -year
[month] [securities] [certificates of deposit] by and
[insert names of banks].] [and the annual interest rate [thereafter] [from
through ] will be the interest yield equivalent of the weekly
average per annum market discount rate for -month Treasury bills plus
% of Interest Differential (the excess, if any, of (i) then current weekly
average per annum secondary market yield for -month certificates of
deposit over (ii) then current interest yield equivalent of the weekly
average per annum market discount rate for -month Treasury bills); [from
and thereafter the rate will be the then current interest yield equivalent
plus % of Interest Differential].]
Time of Delivery:
[Time and date], 19
Closing Location:
Delayed Delivery:
[None] [Underwriters' commission shall be % of the principal amount of
Designated Securities for which Delayed Delivery Contracts have been
entered into. Such commission shall be payable to the order of .]
Names and Addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
Other Terms:
16
<PAGE>
ANNEX II
DELAYED DELIVERY CONTRACT
-------------------------
Campbell Soup Company
Campbell Place
Camden, New Jersey
c/o [Name and Address of
designated Representative]
____________, 199_
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from Campbell Soup Company
(hereinafter called the "Company"), and the Company agrees to sell to the
undersigned,
$...............................................................
principal amount of the Company's [Title of Designated Securities] (hereinafter
called the "Designated Securities"), offered by the Company's Prospectus dated
, 199_, as amended or supplemented, receipt of a copy of which is hereby
acknowledged, at a purchase price of % of the principal amount thereof,
plus accrued interest from the date from which interest accrues as set forth
below, and on the further terms and conditions set forth in this contract.
The undersigned will purchase the Designated Securities from the Company on
, 199_ (the "Delivery Date") and interest on the Designated Securities so
purchased will accrue from __________, 199_.
[The undersigned will purchase the Designated Securities from the Company on
the delivery date or dates and in the principal amount or amounts set forth
below:
Principal Date from Which
Delivery Date Amount Interest Accrues
- ------------- --------- ----------------
, 199_ $ , 199_
, 199_ $ , 199_
Each such date on which Designated Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date".]
Payment for the Designated Securities which the undersigned has agreed to
purchase on [the] [each] Delivery Date shall be made to the Company or its order
by certified or official bank check in __________ Clearing House funds at the
office of __________, __________, __________, or by wire transfer to a bank
account specified by the Company, on [the] [such] Delivery Date upon delivery to
the undersigned on the Designated Securities then to be purchased by the
undersigned in definitive fully registered form and in such denominations and
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to [the] [such] Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Designated Securities on [the] (each] Delivery Date shall be subject to the
condition that the purchase of Designated Securities to be made by the
undersigned shall not on [the] [such] Delivery Date be prohibited under the laws
of the jurisdiction to which the undersigned is subject. The obligation of the
undersigned to take delivery of and make payment for Designated Securities shall
not be affected by the failure of any purchaser to take delivery of and make
payment for Designated Securities pursuant to other contracts similar to this
contract.
17
<PAGE>
[The undersigned understands that underwriters (the "Underwriters") are also
purchasing Designated Securities from the Company, but that the obligations of
the undersigned hereunder are not contingent on such purchases.) Promptly after
completion of the sale to the Underwriters the Company will mail or deliver to
the undersigned at its address set forth below notice to such effect,
accompanied by a copy of the Opinion of Counsel for the Company delivered to the
Underwriters in connection therewith.
The undersigned represents and warrants that, as of the date of this
contract, the undersigned is not prohibited from purchasing the Designated
Securities hereby agreed to be purchased by it under the laws of the
jurisdiction to which the undersigned is subject.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of other.
This contract may be executed by either of the parties hereto in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
It is understood that the acceptance by the Company of any Delayed Delivery
Contract (including this contract) is in the Company's sole discretion and that,
without limiting the foregoing, acceptances of such contracts need not be on a
first-come, first-served basis. If this contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered by the Company.
Yours very truly,
---------------------------------------
By:
-----------------------------------
(Signature)
-----------------------------------
(Name and Title)
-----------------------------------
(Address)
Accepted, __________,199_
CAMPBELL SOUP COMPANY
By:
-------------------------
Name:
Title:
18
<PAGE>
Exhibit 5
Opinion of Ellen Oran Kaden
October 20, 1999
Campbell Soup Company
Campbell Place
Camden, New Jersey 08103-1799
Gentlemen:
Campbell Soup Company, a New Jersey corporation (the "Company"), is
registering for sale under the Securities Act of 1933, as amended (the "Act"),
$600,000,000 in aggregate principal amount of the Company's debt securities (the
"Debt Securities") to be offered from time to time pursuant to a Registration
Statement on Form S-3 being filed under the Act on the date hereof (the
"Registration Statement") and issued from time to time under an Indenture (the
"Indenture") between the Company and Bankers Trust Company of New York, as
Trustee (the "Trustee"), the form of which has been filed as an exhibit to the
Registration Statement. $100,000,000 of the Debt Securities were previously
registered under Registration Statement No. 333-11497 and are being included as
part of the Registration Statement pursuant to Rule 429 under the Act.
As Senior Vice President - Law and Government Affairs of the Company, I
have general supervision over the Company's legal affairs. In such capacity, I,
or lawyers under my supervision, have examined originals or copies certified to
our satisfaction of such documents, certificates or other statements of public
officials and corporate officers of the Company and such other papers as we have
deemed relevant and necessary in order to give the opinion hereinafter set
forth. In this connection, we assumed the genuineness of signatures on, and the
authenticity of, all documents so examined. As to any facts material to this
opinion which were not independently established by us, we relied on such
certificates or other statements of public officials and officers of the Company
with respect to the accuracy of factual matters contained therein.
Based upon the foregoing, and the legal considerations that I deem
relevant, it is my opinion that the Debt Securities of a particular series
offered (the "Offered Debt Securities") will be legally issued and binding
obligations of the Company (except as may be limited by bankruptcy, insolvency,
reorganization or others relating to the enforcement of creditors' rights or by
general principles of equity) when (i) the Registration Statement relating to
the Offered Debt Securities, as amended (including all necessary post-effective
amendments), shall have become effective under the Act, (ii) the Indenture shall
have been duly authorized, executed and delivered by the Company and the
Trustee, and duly qualified under the Trust Indenture Act of 1933, as amended,
and (iii) the Offered Debt Securities shall have been duly executed and
authenticated as provided in the Indenture and duly delivered to the purchasers
thereof against payment of the agreed consideration therefore.
I call your attention to the fact that I am a member of the Bar of the
State of New York. Although I am generally familiar with the corporate law of
the State of New Jersey and have made such legal and factual investigation as I
deemed appropriate under the circumstances, I am not a member of the Bar of the
State of New Jersey.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference under the caption "Legal Opinions"
in the Prospectus forming a part thereof or used in connection therewith.
Very truly yours,
/s/ Ellen Oran Kaden
Ellen Oran Kaden
<PAGE>
EXHIBIT 12
Computation of Ratio of Earnings to Fixed Charges
CAMPBELL SOUP COMPANY
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
-------------------------------------------------
8/1/99 8/2/98 8/3/97 7/28/96 7/30/95
($MILLIONS)
<S> <C> <C> <C> <C> <C>
EARNINGS
- -------------------------------------------------
Earnings before taxes $ 1,097 $ 1,073 $ 991 $ 1,072 $ 936
Interest expense $ 184 $ 189 $ 166 $ 125 $ 113
Amortization of debt issue costs $ 3 $ 2 $ 1 $ 1 $ 1
Interest portion of rent $ 22 $ 19 $ 18 $ 17 $ 16
Amortization of previously capitalized interest $ 5 $ 6 $ 6 $ 5 $ 5
Minority interest $ 1 $ 6 $ 7 $ 17 $ 17
Undistributed earnings of affiliates $ (2) $ (1) $ (0) $ (1) $ (1)
------- ------- ------- -------- --------
EARNINGS $ 1,310 $ 1,294 $ 1,189 $ 1,236 $ 1,087
======= ======= ======= ======== ========
FIXED CHARGES
- -------------------------------------------------
Gross interest:
Interest expense $ 184 $ 189 $ 166 $ 125 $ 113
Capitalized interest $ 6 $ 5 $ 11 $ 11 $ 8
Amortization of debt issue costs $ 3 $ 2 $ 1 $ 1 $ 1
Interest portion of rent $ 22 $ 19 $ 18 $ 17 $ 16
------- ------- ------- -------- --------
FIXED CHARGES $ 215 $ 215 $ 196 $ 154 $ 138
======= ======= ======= ======== ========
RATIO OF EARNINGS TO FIXED 6.1 6.0 6.1 8.0 7.9
CHARGES ======= ======= ======= ======== ========
</TABLE>
The ratios of earnings to fixed charges were computed by dividing our earnings
by our fixed charges. For this purpose, earnings include earnings from
continuing operations before equity in earnings of affiliates and minority
interests, amortization of capitalized interest, taxes on earnings and fixed
charges (excluding capitalized interest). Fixed charges include interest
expense, capitalized interest, amortization of debt expenses and the estimated
interest components of rentals. In fiscal 1999, 1998, and 1997, Campbell Soup
Company recorded restructuring charges of $36 million, $262 million, and $204
million, respectively. Excluding the effect of such charges, the ratio of
earnings to fixed charges would have been 6.3 in 1999, 7.2 in 1998 and 7.1 in
1997.
<PAGE>
Exhibit 23 (a)
Consent of Independent Accountants
----------------------------------
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated September 2, 1999 relating to the
financial statements, which appears in the 1999 Annual Report to Shareholders,
which is incorporated by reference in Campbell Soup Company's Annual Report on
Form 10-K for the fiscal year ended August 1, 1999. We also consent to the
reference to us under the headings "Experts" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
Philadelphia, Pennsylvania
October 19, 1999
<PAGE>
Exhibit 24
POWER OF ATTORNEY
-----------------
FORM S-3 REGISTRATION STATEMENT FOR
-----------------------------------
REGISTRATION OF DEBT SECURITIES
-------------------------------
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Ellen Oran Kaden and John J. Furey, and each of
them (with full power of each of them to act alone) their true and lawful
attorneys-in-fact and agents, with full power of substitution and revocation,
for them and in their name, place and stead, in any and all capacities, to sign
a Registration Statement on Form S-3 and any and all amendments thereto
(including post-effective amendments) covering the issuance of debt securities
of Campbell Soup Company, and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their or his or her
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
CAMPBELL SOUP COMPANY September 23, 1999
---------------------
Signature
---------
/s/ Dale F. Morrison /s/ Philip E. Lippincott
- ------------------------------ ---------------------------------
Dale F. Morrison Philip E. Lippincott
President and Chief Executive Chairman and Director
Officer and Director
/s/ Alva A. App /s/ Mary Alice Malone
- ------------------------------ ---------------------------------
Alva A. App Mary Alice Malone
Director Director
/s/ Edmund M. Carpenter /s/ Charles H. Mott
- ------------------------------ ---------------------------------
Edmund M. Carpenter Charles H. Mott
Director Director
/s/ Bennett Dorrance /s/ Charles R. Perrin
- ------------------------------ ---------------------------------
Bennett Dorrance Charles R. Perrin
Director Director
/s/ Thomas W. Field /s/ George M. Sherman
- ------------------------------ ---------------------------------
Thomas W. Field, Jr. George M. Sherman
Director Director
/s/ Kent B. Foster /s/ Donald M. Stewart
- ------------------------------ ---------------------------------
Kent B. Foster Donald M. Stewart
Director Director
/s/ Harvey Golub /s/ George Strawbridge, Jr.
- ------------------------------ ---------------------------------
Harvey Golub George Strawbridge, Jr.
Director Director
/s/ David K. P. Li /s/ Charlotte C. Weber
- ------------------------------ ---------------------------------
David K. P. Li Charlotte C. Weber
Director Director
<PAGE>
________________________________________________________________________________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE
ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS
TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)__________
______________________________
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
Bankers Trust Company
Legal Department
130 Liberty Street, 31st Floor
New York, New York 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
_________________________________
CAMPBELL SOUP COMPANY NEW JERSEY 21-0419870
(Exact name of Registrants as (State or other jurisdiction of (I.R.S. employer
specified in its Charter) Incorporation or organization) identification
no.)
CAMPBELL PLACE
CAMDEN, NEW JERSEY 08103-1799
(609) 342-4800
(Address, including zip code, and telephone number of Registrants principal
executive offices)
$500,000,000 Debt securities
(Title of the indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising authority
to which it is subject.
Name Address
---- -------
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust
powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each
such affiliation.
None.
Item 3.-15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of Bankers Trust
Company dated August 6, 1998, Certificate of
Amendment of the Organization Certificate of Bankers
Trust Company dated September 25, 1998, and
Certificate of Amendment of the Organization
Certificate of Bankers Trust Company dated December
18, 1998, copies attached.
Exhibit 2 - Certificate of Authority to commence business -
Incorporated herein by reference to Exhibit 2 filed
with Form T-1 Statement, Registration No. 33-21047.
Exhibit 3 - Authorization of the Trustee to exercise corporate
trust powers - Incorporated herein by reference to
Exhibit 2 filed with Form T-1 Statement,
Registration No. 33-21047.
Exhibit 4 - Existing By-Laws of Bankers Trust Company, as
amended on June 22, 1999. Copy attached.
-2-
<PAGE>
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company required by
Section 321(b) of the Act. - Incorporated herein by
reference to Exhibit 4 filed with Form T-1
Statement, Registration No. 22-18864.
Exhibit 7 - The latest report of condition of Bankers Trust
Company dated as of June 30, 1999. Copy attached.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on this 18th day
of October, 1999
BANKERS TRUST COMPANY
By: _______________________________
Marc J. Parilla
Assistant Vice President
-4-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on this 18th day
of October, 1999.
BANKERS TRUST COMPANY
/s/ Marc J. Parilla
----------------------
By: Marc J. Parilla
Assistant Vice President
-5-
<PAGE>
RESTATED
ORGANIZATION
CERTIFICATE
OF
BANKERS TRUST COMPANY
____________________________
Under Section 8007
Of the Banking Law
____________________________
Bankers Trust Company
130 Liberty Street
New York, N.Y. 10006
Counterpart Filed in the Office of the Superintendent of Banks, State of New
York, August 31, 1998
<PAGE>
RESTATED ORGANIZATION CERTIFICATE
OF
BANKERS TRUST
Under Section 8007 of the Banking Law
_____________________________
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary and a Vice President and an Assistant
Secretary of BANKERS TRUST COMPANY, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of the corporation was filed by the
Superintendent of Banks of the State of New York on the March 5, 1903.
3. The text of the organization certificate, as amended heretofore,
is hereby restated without further amendment or change to read as herein set
forth in full, to wit:
"Certificate of Organization
of
Bankers Trust Company
Know All Men By These Presents That we, the undersigned, James A.
Blair, James G. Cannon, E. C. Converse, Henry P. Davison, Granville W. Garth, A.
Barton Hepburn, Will Logan, Gates W. McGarrah, George W. Perkins, William H.
Porter, John F. Thompson, Albert H. Wiggin, Samuel Woolverton and Edward F. C.
Young, all being persons of full age and citizens of the United States, and a
majority of us being residents of the State of New York, desiring to form a
corporation to be known as a Trust Company, do hereby associate ourselves
together for that purpose under and pursuant to the laws of the State of New
York, and for such purpose we do hereby, under our respective hands and seals,
execute and duly acknowledge this Organization Certificate in duplicate, and
hereby specifically state as follows, to wit:
I. The name by which the said corporation shall be known is Bankers
Trust Company.
II. The place where its business is to be transacted is the City of
New York, in the State of New York.
III. Capital Stock: The amount of capital stock which the
corporation is hereafter to have is Three Billion One Million, Six Hundred
Sixty-Six Thousand, Six Hundred Seventy Dollars ($3,001,666,670), divided into
Two Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(200,166,667) shares with a par value of $10 each designated as Common Stock and
1,000 shares with a par value of One Million Dollars ($1,000,000) each
designated as Series Preferred Stock.
(a) Common Stock
<PAGE>
1. Dividends: Subject to all of the rights of the Series Preferred
Stock, dividends may be declared and paid or set apart for payment upon the
Common Stock out of any assets or funds of the corporation legally available for
the payment of dividends.
2. Voting Rights: Except as otherwise expressly provided with
respect to the Series Preferred Stock or with respect to any series of the
Series Preferred Stock, the Common Stock shall have the exclusive right to vote
for the election of directors and for all other purposes, each holder of the
Common Stock being entitled to one vote for each share thereof held.
3. Liquidation: Upon any liquidation, dissolution or winding up of
the corporation, whether voluntary or involuntary, and after the holders of the
Series Preferred Stock of each series shall have been paid in full the amounts
to which they respectively shall be entitled, or a sum sufficient for the
payment in full set aside, the remaining net assets of the corporation shall be
distributed pro rata to the holders of the Common Stock in accordance with their
respective rights and interests, to the exclusion of the holders of the Series
Preferred Stock.
4. Preemptive Rights: No holder of Common Stock of the corporation
shall be entitled, as such, as a matter of right, to subscribe for or purchase
any part of any new or additional issue of stock of any class or series
whatsoever, any rights or options to purchase stock of any class or series
whatsoever, or any securities convertible into, exchangeable for or carrying
rights or options to purchase stock of any class or series whatsoever, whether
now or hereafter authorized, and whether issued for cash or other consideration,
or by way of dividend or other distribution.
(b) Series Preferred Stock
1. Board Authority: The Series Preferred Stock may be issued from
time to time by the Board of Directors as herein provided in one or more series.
The designations, relative rights, preferences and limitations of the Series
Preferred Stock, and particularly of the shares of each series thereof, may, to
the extent permitted by law, be similar to or may differ from those of any other
series. The Board of Directors of the corporation is hereby expressly granted
authority, subject to the provisions of this Article III, to issue from time to
time Series Preferred Stock in one or more series and to fix from time to time
before issuance thereof, by filing a certificate pursuant to the Banking Law,
the number of shares in each such series of such class and all designations,
relative rights (including the right, to the extent permitted by law, to convert
into shares of any class or into shares of any series of any class), preferences
and limitations of the shares in each such series, including, buy without
limiting the generality of the foregoing, the following:
(i) The number of shares to constitute such series (which number
may at any time, or from time to time, be increased or decreased by the
Board of Directors, notwithstanding that shares of the series may be
outstanding at the time of such increase or decrease, unless the Board of
Directors shall have otherwise provided in creating such series) and the
distinctive designation thereof;
(ii) The dividend rate on the shares of such series, whether or
not dividends on the shares of such series shall be cumulative, and the
date or dates, if any, from which dividends thereon shall be cumulative;
(iii) Whether or not the share of such series shall be
redeemable, and, if redeemable, the date or dates upon or after which they
shall be redeemable, the amount or amounts per share (which shall be, in
the case of each share, not less than its preference upon involuntary
liquidation, plus an amount equal to all dividends thereon accrued and
unpaid, whether or not earned or declared) payable thereon in the case of
<PAGE>
the redemption thereof, which amount may vary at different redemption dates
or otherwise as permitted by law;
(iv) The right, if any, of holders of shares of such series to convert the
same into, or exchange the same for, Common Stock or other stock as
permitted by law, and the terms and conditions of such conversion or
exchange, as well as provisions for adjustment of the conversion rate in
such events as the Board of Directors shall determine;
(v) The amount per share payable on the shares of such series
upon the voluntary and involuntary liquidation, dissolution or winding up
of the corporation;
(vi) Whether the holders of shares of such series shall have
voting power, full or limited, in addition to the voting powers provided by
law and, in case additional voting powers are accorded, to fix the extent
thereof; and
(vii) Generally to fix the other rights and privileges and any
qualifications, limitations or restrictions of such rights and privileges
of such series, provided, however, that no such rights, privileges,
qualifications, limitations or restrictions shall be in conflict with the
organization certificate of the corporation or with the resolution or
resolutions adopted by the Board of Directors providing for the issue of
any series of which there are shares outstanding.
All shares of Series Preferred Stock of the same series shall be
identical in all respects, except that shares of any one series issued at
different times may differ as to dates, if any, from which dividends thereon may
accumulate. All shares of Series Preferred Stock of all series shall be of
equal rank and shall be identical in all respects except that to the extent not
otherwise limited in this Article III any series may differ from any other
series with respect to any one or more of the designations, relative rights,
preferences and limitations described or referred to in subparagraphs (I) to
(vii) inclusive above.
2. Dividends: Dividends on the outstanding Series Preferred Stock
of each series shall be declared and paid or set apart for payment before any
dividends shall be declared and paid or set apart for payment on the Common
Stock with respect to the same quarterly dividend period. Dividends on any
shares of Series Preferred Stock shall be cumulative only if and to the extent
set forth in a certificate filed pursuant to law. After dividends on all shares
of Series Preferred Stock (including cumulative dividends if and to the extend
any such shares shall be entitled thereto) shall have been declared and paid or
set apart for payment with respect to any quarterly dividend period, then and
not otherwise so long as any shares of Series Preferred Stock shall remain
outstanding, dividends may be declared and paid or set apart for payment with
respect to the same quarterly dividend period on the Common Stock out the assets
or funds of the corporation legally available therefor.
All Shares of Series Preferred Stock of all series shall be of equal
rank, preference and priority as to dividends irrespective of whether or not the
rates of dividends to which the same shall be entitled shall be the same and
when the stated dividends are not paid in full, the shares of all series of the
Series Preferred Stock shall share ratably in the payment thereof in accordance
with the sums which would by payable on such shares if all dividends were paid
in full, provided, however, that nay two or more series of the Series Preferred
Stock may differ from each other as to the existence and extent of the right to
cumulative dividends, as aforesaid.
3. Voting Rights: Except as otherwise specifically provided in the
certificate filed pursuant to law with respect to any series of the Series
Preferred Stock, or as otherwise provided by law, the Series Preferred Stock
shall not have any right to vote for the election of directors or
<PAGE>
for any other purpose and the Common Stock shall have the exclusive right to
vote for the election of directors and for all other purposes.
4. Liquidation: In the event of any liquidation, dissolution or
winding up of the corporation, whether voluntary or involuntary, each series of
Series Preferred Stock shall have preference and priority over the Common Stock
for payment of the amount to which each outstanding series of Series Preferred
Stock shall be entitled in accordance with the provisions thereof and each
holder of Series Preferred Stock shall be entitled to be paid in full such
amount, or have a sum sufficient for the payment in full set aside, before any
payments shall be made to the holders of the Common Stock. If, upon
liquidation, dissolution or winding up of the corporation, the assets of the
corporation or proceeds thereof, distributable among the holders of the shares
of all series of the Series Preferred Stock shall be insufficient to pay in full
the preferential amount aforesaid, then such assets, or the proceeds thereof,
shall be distributed among such holders ratably in accordance with the
respective amounts which would be payable if all amounts payable thereon were
paid in full. After the payment to the holders of Series Preferred Stock of all
such amounts to which they are entitled, as above provided, the remaining assets
and funds of the corporation shall be divided and paid to the holders of the
Common Stock.
5. Redemption: In the event that the Series Preferred Stock of any
series shall be made redeemable as provided in clause (iii) of paragraph 1 of
section (b) of this Article III, the corporation, at the option of the Board of
Directors, may redeem at any time or times, and from time to time, all or any
part of any one or more series of Series Preferred Stock outstanding by paying
for each share the then applicable redemption price fixed by the Board of
Directors as provided herein, plus an amount equal to accrued and unpaid
dividends to the date fixed for redemption, upon such notice and terms as may be
specifically provided in the certificate filed pursuant to law with respect to
the series.
6. Preemptive Rights: No holder of Series Preferred Stock of the
corporation shall be entitled, as such, as a matter or right, to subscribe for
or purchase any part of any new or additional issue of stock of any class or
series whatsoever, any rights or options to purchase stock of any class or
series whatsoever, or any securities convertible into, exchangeable for or
carrying rights or options to purchase stock of any class or series whatsoever,
whether now or hereafter authorized, and whether issued for cash or other
consideration, or by way of dividend.
(c) Provisions relating to Floating Rate Non-Cumulative Preferred
Stock, Series A. (Liquidation value $1,000,000 per share.)
1. Designation: The distinctive designation of the series
established hereby shall be "Floating Rate Non-Cumulative Preferred Stock,
Series A" (hereinafter called "Series A Preferred Stock").
2. Number: The number of shares of Series A Preferred Stock shall
initially be 250 shares. Shares of Series A Preferred Stock redeemed, purchased
or otherwise acquired by the corporation shall be cancelled and shall revert to
authorized but unissued Series Preferred Stock undesignated as to series.
3. Dividends:
(a) Dividend Payments Dates. Holders of the Series A Preferred Stock
shall be entitled to receive non-cumulative cash dividends when, as and if
declared by the Board of Directors of the corporation, out of funds legally
available therefor, from the date of original issuance of such shares (the
"Issue Date") and such dividends will be payable on March 28, June 28, September
28 and December 28 of each year (:Dividend Payment Date") commencing
<PAGE>
September 28, 1990, at a rate per annum as determined in paragraph 3(b) below.
The period beginning on the Issue Date and ending on the day preceding the firs
Dividend Payment Date and each successive period beginning on a Dividend Payment
Date and ending on the date preceding the next succeeding Dividend Payment Date
is herein called a "Dividend Period". If any Dividend payment Date shall be, in
The City of New York, a Sunday or a legal holiday or a day on which banking
institutions are authorized by law to close, then payment will be postponed to
the next succeeding business day with the same force and effect as if made on
the Dividend Payment Date, and no interest shall accrue for such Dividend Period
after such Dividend Payment Date.
(b) Dividend Rate. The dividend rare from time to time payable in
respect of Series A Preferred Stock (the "Dividend Rate") shall be determined on
the basis of the following provisions:
(i) On the Dividend Determination Date, LIBOR will be determined on the
basis of the offered rates for deposits in U.S. dollars having a maturity of
three months commencing on the second London Business Day immediately following
such Dividend Determination Date, as such rates appear on the Reuters Screen
LIBO Page as of 11:00 A.M. London time, on such Dividend Determination Date. If
at least two such offered rates appear on the Reuters Screen LIBO Page, LIBOR in
respect of such Dividend Determination Dates will be the arithmetic mean
(rounded to the nearest one-hundredth of a percent, with five one-thousandths of
a percent rounded upwards) of such offered rates. If fewer than those offered
rates appear, LIBOR in respect of such Dividend Determination Date will be
determined as described in paragraph (ii) below.
(ii) On any Dividend Determination Date on which fewer than those
offered rates for the applicable maturity appear on the Reuters Screen LIBO Page
as specified in paragraph (I) above, LIBOR will be determined on the basis of
the rates at which deposits in U.S. dollars having a maturity of three months
commending on the second London Business Day immediately following such Dividend
Determination Date and in a principal amount of not less than $1,000,000 that is
representative of a single transaction in such market at such time are offered
by three major banks in the London interbank market selected by the corporation
at approximately 11:00 A.M., London time, on such Dividend Determination Date to
prime banks in the London market. The corporation will request the principal
London office of each of such banks to provide a quotation of its rate. If at
least two such quotations are provided, LIBOR in respect of such Dividend
Determination Date will be the arithmetic mean (rounded to the nearest one-
hundredth of a percent, with five one-thousandths of a percent rounded upwards)
of such quotations. If fewer than two quotations are provided, LIBOR in respect
of such Dividend Determination Date will be the arithmetic mean (rounded to the
nearest one-hundredth of a percent, with five one-thousandths of a percent
rounded upwards) of the rates quoted by three major banks in New York City
selected by the corporation at approximately 11:00 A.M., New York City time, on
such Dividend Determination Date for loans in U.S. dollars to leading European
banks having a maturity of three months commencing on the second London Business
Day immediately following such Dividend Determination Date and in a principal
amount of not less than $1,000,000 that is representative of a single
transaction in such market at such time; provided, however, that if the banks
selected as aforesaid by the corporation are not quoting as aforementioned in
this sentence, then, with respect to such Dividend Period, LIBOR for the
preceding Dividend Period will be continued as LIBOR for such Dividend Period.
(ii) The Dividend Rate for any Dividend Period shall be equal to the
lower of 18% of 50 basis points above LIBOR for such Dividend Period as LIBOR is
determined by sections (I) or (ii) above.
<PAGE>
As used above, the term "Dividend Determination Date" shall mean, with resect to
any Dividend Period, the second London Business Day prior to the commencement of
such Dividend Period; and the term "London Business Day" shall mean any day that
is not a Saturday or Sunday and that, in New York City, is not a day on which
banking institutions generally are authorized or required by law or executive
order to close and that is a day on which dealings in deposits in U.S. dollars
are transacted in the London interbank market.
4. Voting Rights: The holders of the Series A Preferred Stock
shall have the voting power and rights set forth in this paragraph 4 and shall
have no other voting power or rights except as otherwise may from time to time
be required by law.
So long as any shares of Series A Preferred Stock remain outstanding,
the corporation shall not, without the affirmative vote or consent of the
holders of at least a majority of the votes of the Series Preferred Stock
entitled to vote outstanding at the time, given in person or by proxy, either in
writing or by resolution adopted at a meeting at which the holders of Series A
Preferred Stock (alone or together with the holders of one or more other series
of Series Preferred Stock at the time outstanding and entitled to vote) vote
separately as a class, alter the provisions of the Series Preferred Stock so as
to materially adversely affect its rights; provided, however, that in the event
any such materially adverse alteration affects the rights of only the Series A
Preferred Stock, then the alteration may be effected with the vote or consent of
at least a majority of the votes of the Series A Preferred Stock; provided,
further, that an increase in the amount of the authorized Series Preferred Stock
and/or the creation and/or issuance of other series of Series Preferred Stock in
accordance with the organization certificate shall not be, nor be deemed to be,
materially adverse alterations. In connection with the exercise of the voting
rights contained in the preceding sentence, holders of all series of Series
Preferred Stock which are granted such voting rights (of which the Series A
Preferred Stock is the initial series) shall vote as a class (except as
specifically provided otherwise) and each holder of Series A Preferred Stock
shall have one vote for each share of stock held and each other series shall
have such number of votes, if any, for each share of stock held as may be
granted to them.
The foregoing voting provisions will not apply if, in connection with
the matters specified, provision is made for the redemption or retirement of all
outstanding Series A Preferred Stock.
5. Liquidation: Subject to the provisions of section (b) of this
Article III, upon any liquidation, dissolution or winding up of the corporation,
whether voluntary or involuntary, the holders of the Series A Preferred Stock
shall have preference and priority over the Common Stock for payment out of the
assets of the corporation or proceeds thereof, whether from capital or surplus,
of $1,000,000 per share (the "liquidation value") together with the amount of
all dividends accrued and unpaid thereon, and after such payment the holders of
Series A Preferred Stock shall be entitled to no other payments.
6. Redemption: Subject to the provisions of section (b) of this
Article III, Series A Preferred Stock may be redeemed, at the option of the
corporation in whole or part, at any time or from time to time at a redemption
price of $1,000,000 per share, in each case plus accrued and unpaid dividends to
the date of redemption.
At the option of the corporation, shares of Series A Preferred Stock
redeemed or otherwise acquired may be restored to the status of authorized but
unissued shares of Series Preferred Stock.
In the case of any redemption, the corporation shall give notice of such
redemption to the holders of the Series A Preferred Stock to be redeemed in the
following manner: a notice specifying the shares to be redeemed and the time and
place or redemption (and, if less than the
<PAGE>
total outstanding shares are to be redeemed, specifying the certificate numbers
and number of shares to be redeemed) shall be mailed by first class mail,
addressed to the holders of record of the Series A Preferred Stock to be
redeemed at their respective addressees as the same shall appear upon the books
of the corporation, not more than sixty (60) days and not less than thirty (30)
days previous to the date fixed for redemption. In the event such notice is not
given to any shareholder such failure to give notice shall not affect the notice
given to other shareholders. If less than the whole amount of outstanding Series
A Preferred Stock is to be redeemed, the shares to be redeemed shall be selected
by lot or pro rata in any manner determined by resolution of the Board of
Directors to b fair and proper. From and after the date fixed in any such notice
as the date of redemption (unless default shall be made by the corporation in
providing moneys at the time and place of redemption for the payment of the
redemption price) all dividends upon the Series A Preferred Stock so called for
redemption shall cease to accrue, and all rights of the holders of said Series A
Preferred Stock as stockholders in the corporation, except the right to receive
the redemption price (without interest) upon surrender of the certificate
representing the Series A Preferred Stock so called for redemption, duly
endorsed for transfer, if required, shall cease and terminate. The corporation's
obligation to provide moneys in accordance with the preceding sentence shall be
deemed fulfilled if, on or before the redemption date, the corporation shall
deposit with a bank or trust company (which may e an affiliate of the
corporation) having an office in the Borough of Manhattan, City of New York,
having a capital and surplus of at least $5,000,000 funds necessary for such
redemption, in trust with irrevocable instructions that such funds be applied to
the redemption of the shares of Series A Preferred Stock so called for
redemption. Any interest accrued on such funds shall be paid to the corporation
from time to time. Any funds so deposited and unclaimed at the end of two (2)
years from such redemption date shall be released or repaid to the corporation,
after which the holders of such shares of Series A Preferred Stock so called for
redemption shall look only to the corporation for payment of the redemption
price.
IV. The name, residence and post office address of each member of
the corporation are as follows:
<TABLE>
<CAPTION>
Name Residence Post Office Address
----
<S> <C> <C>
James A. Blair 9 West 50th Street, 33 Wall Street,
Manhattan, New York City Manhattan, New York City
James G. Cannon 72 East 54th Street, 14 Nassau Street,
Manhattan New York City Manhattan, New York City
E. C. Converse 3 East 78th Street, 139 Broadway,
Manhattan, New York City Manhattan, New York City
Henry P. Davison Englewood, 2 Wall Street,
New Jersey Manhattan, New York City
Granville W. Garth 160 West 57th Street, 33 Wall Street
Manhattan, New York City Manhattan, New York City
A. Barton Hepburn 205 West 57th Street 83 Cedar Street
Manhattan, New York City Manhattan, New York City
William Logan Montclair, 13 Nassau Street
New Jersey Manhattan, New York City
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
George W. Perkins Riverdale, 23 Wall Street,
New York Manhattan, New York City
William H. Porter 56 East 67th Street 270 Broadway,
Manhattan, New York City Manhattan, New York City
John F. Thompson Newark, 143 Liberty Street,
New Jersey Manhattan, New York City
Albert H. Wiggin 42 West 49th Street, 214 Broadway,
Manhattan, New York City Manhattan, New York City
Samuel Woolverton Mount Vernon, 34 Wall Street,
New York Manhattan, New York City
Edward F.C. Young 85 Glenwood Avenue, 1 Exchange Place,
Jersey City, New Jersey Jersey City, New Jersey
</TABLE>
V. The existence of the corporation shall be perpetual.
VI. The subscribers, the members of the said corporation, do, and
each for himself does, hereby declare that he will accept the
responsibilities and faithfully discharge the duties of a
director therein, if elected to act as such, when authorized
accordance with the provisions of the Banking Law of the State of
New York.
VII. The number of directors of the corporation shall not be less that
10 nor more than 25."
4. The foregoing restatement of the organization certificate was
authorized by the Board of Directors of the corporation at a meeting held on
July 21, 1998.
IN WITNESS WHEREOF, we have made and subscribed this certificate this
6th day of August, 1998.
IN WITNESS WHEREOF, we have made and subscribed this certificate this
6th day of August, 1998.
James T. Byrne, Jr.
--------------------------------------
James T. Byrne, Jr.
Managing Director and Secretary
Lea Lahtinen
--------------------------------------
Lea Lahtinen
Vice President and Assistant Secretary
Lea Lahtinen
--------------------------------------
Lea Lahtinen
<PAGE>
State of New York )
) ss:
County of New York )
Lea Lahtinen, being duly sworn, deposes and says that she is a Vice
President and an Assistant Secretary of Bankers Trust Company, the corporation
described in the foregoing certificate; that she has read the foregoing
certificate and knows the contents thereof, and that the statements herein
contained are true.
Lea Lahtinen
-------------------
Lea Lahtinen
Sworn to before me this
6th day of August, 1998.
Sandra L. West
--------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
<PAGE>
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New
York, DO HEREBY APPROVE the annexed Certificate entitled "RESTATED ORGANIZATION
CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8007 of the Banking Law,"
dated August 6, 1998, providing for the restatement of the Organization
Certificate and all amendments into a single certificate.
Witness, my hand and official seal of the Banking Department at the City of New
York,
this 31st day of August in the Year of our Lord
-------- ----------
one thousand nine hundred and ninety-eight.
Manuel Kursky
-------------
Deputy Superintendent of Banks
<PAGE>
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New
York, DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF
AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section
8005 of the Banking Law," dated September 16, 1998, providing for an increase in
authorized capital stock from $3,001,666,670 consisting of 200,166,667 shares
with a par value of $10 each designated as Common Stock and 1,000 shares with a
par value of $1,000,000 each designated as Series Preferred Stock to
$3,501,666,670 consisting of 200,166,667 shares with a par value of $10 each
designated as Common Stock and 1,500 shares with a par value of $1,000,000 each
designated as Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of New
York,
this 25th day of September in the Year of our
-------- -------------
Lord one thousand nine hundred and ninety-eight.
Manuel Kursky
-------------
Deputy Superintendent of Banks
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
_____________________________
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a
Managing Director and Secretary and a Vice President and an Assistant Secretary
of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of March, 1903.
3. The organization certificate as heretofore amended is hereby
amended to increase the aggregate number of shares which the corporation shall
have authority to issue and to increase the amount of its authorized capital
stock in conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter
to have is Three Billion, One Million, Six Hundred Sixty-Six Thousand,
Six Hundred Seventy Dollars ($3,001,666,670), divided into Two Hundred
Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(200,166,667) shares with a par value of $10 each designated as Common
Stock and 1000 shares with a par value of One Million Dollars
($1,000,000) each designated as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter
to have is Three Billion, Five Hundred One Million, Six Hundred Sixty-
Six Thousand, Six Hundred Seventy Dollars ($3,501,666,670), divided
into Two Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred
Sixty-Seven (200,166,667) shares with a par value of $10 each
designated as Common Stock and 1500 shares with a par value of One
Million Dollars ($1,000,000) each designated as Series Preferred
Stock."
<PAGE>
5. The foregoing amendment of the organization certificate was
authorized by unanimous written consent signed by the holder of all outstanding
shares entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this
25th day of September, 1998
James T. Byrne, Jr.
-------------------
James T. Byrne, Jr.
Managing Director and Secretary
Lea Lahtinen
-------------------
Lea Lahtinen
Vice President and Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is a Vice
President and an Assistant Secretary of Bankers Trust Company, the corporation
described in the foregoing certificate; that she has read the foregoing
certificate and knows the contents thereof, and that the statements herein
contained are true.
Lea Lahtinen
-------------------
Lea Lahtinen
Sworn to before me this 25th day
of September, 1998
Sandra L. West
--------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 2000
<PAGE>
State of New York,
Banking Department
I, P. VINCENT CONLON, Deputy Superintendent of Banks of the State of
New York, DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF
AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section
8005 of the Banking Law," dated December 16, 1998, providing for an increase in
authorized capital stock from $3,501,666,670 consisting of 200,166,667 shares
with a par value of $10 each designated as Common Stock and 1,500 shares with a
par value of $1,000,000 each designated as Series Preferred Stock to
$3,627,308,670 consisting of 212,730,867 shares with a par value of $10 each
designated as Common Stock and 1,500 shares with a par value of $1,000,000 each
designated as Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of New
York,
this 18th day of December in the Year of our
-------- -------------
Lord one thousand nine hundred and ninety-eight.
P. Vincent Conlon
-----------------
Deputy Superintendent of Banks
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
_____________________________
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a
Managing Director and Secretary and a Vice President and an Assistant Secretary
of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of March, 1903.
3. The organization certificate as heretofore amended is hereby
amended to increase the aggregate number of shares which the corporation shall
have authority to issue and to increase the amount of its authorized capital
stock in conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter
to have is Three Billion, Five Hundred One Million, Six Hundred Sixty-
Six Thousand, Six Hundred Seventy Dollars ($3,501,666,670), divided
into Two Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred
Sixty-Seven (200,166,667) shares with a par value of $10 each
designated as Common Stock and 1500 shares with a par value of One
Million Dollars ($1,000,000) each designated as Series Preferred
Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter
to have is Three Billion, Six Hundred Twenty-Seven Million, Three
Hundred Eight Thousand, Six Hundred Seventy Dollars ($3,627,308,670),
divided into Two Hundred Twelve Million, Seven Hundred Thirty
Thousand, Eight Hundred Sixty- Seven (212,730,867) shares with a par
value of $10 each designated as Common Stock and 1500 shares with a
par value of One Million Dollars ($1,000,000) each designated as
Series Preferred Stock."
<PAGE>
5. The foregoing amendment of the organization certificate was
authorized by unanimous written consent signed by the holder of all outstanding
shares entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this
16th day of December, 1998
James T. Byrne, Jr.
-------------------
James T. Byrne, Jr.
Managing Director and Secretary
Lea Lahtinen
------------
Lea Lahtinen
Vice President and Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is a Vice
President and an Assistant Secretary of Bankers Trust Company, the corporation
described in the foregoing certificate; that she has read the foregoing
certificate and knows the contents thereof, and that the statements herein
contained are true.
Lea Lahtinen
------------
Lea Lahtinen
Sworn to before me this 16th day
of December, 1998
Sandra L. West
--------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 2000
<PAGE>
BY-LAWS
JUNE 22, 1999
Bankers Trust Corporation
(Incorporated under the New York Business Corporation Law)
<PAGE>
1
BANKERS TRUST CORPORATION
---------------------------
BY-LAWS
---------------------------
ARTICLE I
SHAREHOLDERS
SECTION 1.01 Annual Meetings. The annual meetings of shareholders for the
election of directors and for the transaction of such other business as may
properly come before the meeting shall be held on the third Tuesday in April of
each year, if not a legal holiday, and if a legal holiday then on the next
succeeding business day, at such hour as shall be designated by the Board of
Directors. If no other hour shall be so designated such meeting shall be held
at 3 P.M.
SECTION 1.02 Special Meetings. Special meetings of the shareholders, except
those regulated otherwise by statute, may be called at any time by the Board of
Directors, or by any person or committee expressly so authorized by the Board of
Directors and by no other person or persons.
SECTION 1.03 Place of Meetings. Meetings of shareholders shall be held at such
place within or without the State of New York as shall be determined from time
to time by the Board of Directors or, in the case of special meetings, by such
person or persons as may be authorized to call a meeting. The place in which
each meeting is to be held shall be specified in the notice of such meeting.
SECTION 1.04 Notice of Meetings. A copy of the written notice of the place,
date and hour of each meeting of shareholders shall be given personally or by
mail, not less than ten nor more than fifty days before the date of the meeting,
to each shareholder entitled to vote at such meeting. Notice of a special
meeting shall indicate that it is being issued by or at the direction of the
person or persons calling the meeting and shall also state the purpose or
purposes for which the meeting is called. Notice of any meeting at which is
proposed to take action which would entitle shareholders to receive payment for
their shares pursuant to statutory provisions must include a statement of that
purpose and to that effect. If mailed, such notices of the annual and each
special meeting are given when deposited in the United States mail, postage
prepaid, directed to the shareholder at his address as it appears in the record
of shareholders unless he shall have filed with the Secretary of the corporation
a written request that notices intended for him shall be mailed to some other
address, in which case it shall be directed to him at such other address.
SECTION 1.05 Record Date. For the purpose of determining the shareholders
entitled to notice of or to vote any meeting of shareholders or any adjournment
thereof, or to express consent to or dissent from any proposal without a
meeting, or for the purpose of determining shareholders entitled to receive
payment of any dividend or the allotment of any rights, or for the purpose of
any other action, the Board of Directors may fix, in advance, a date as the
record date for any such
<PAGE>
determination of shareholders. Such date shall not be more than fifty nor less
than ten days before the date of such meeting, nor more than fifty days prior to
any other action.
SECTION 1.06 Quorum. The presence, in person or by proxy, of the holders of a
majority of the shares entitled to vote thereat shall constitute a quorum at a
meeting of shareholders for the transaction of business, except as otherwise
provided by statute, by the Certificate of Incorporation or by the By-Laws. The
shareholders present in person or by proxy and entitled to vote at any meeting,
despite the absence of a quorum, shall have power to adjourn the meeting from
time to time, to a designated time and place, without notice other than by
announcement at the meeting, and at any adjourned meeting any business may be
transacted that might have been transacted on the original date of the meeting.
However, if after the adjournment the Board of Directors fixes a new record date
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each shareholder of record on the new record date entitled to notice.
SECTION 1.07 Notice of Shareholder Business at Annual Meeting. At an annual
meeting of shareholders, only such business shall be conducted as shall have
been brought before the meeting (a) by or at the direction of the Board of
Directors or (b) by any shareholder of the corporation who complies with the
notice procedures set forth in this Section 1.07. For business to be properly
brought before an annual meeting by a shareholder, the shareholder must have
given timely notice thereof in writing to the Secretary of the corporation. To
be timely, a shareholder's notice must be delivered to or mailed and received at
the principal executive offices of the corporation not less than thirty days nor
more than fifty days prior to the meeting; provided, however, that in the event
that less than forty days' notice or prior public disclosure of the date of the
meeting is given or made to shareholders, notice by the shareholder to be timely
must be received not later than the close of business on the tenth day following
the day on which such notice of the date of the annual meeting was mailed or
such public disclosure was made. A shareholder's notice to the Secretary shall
set forth as to each matter the shareholder proposes to bring before the annual
meeting (a) a brief description of the business desired to be brought before the
annual meeting and the reasons for conducting such business at the annual
meeting, (b) the name and address, as they appear on the corporation's books, of
the shareholder proposing such business, (c) the class and number of shares of
the corporation which are beneficially owned by the shareholder and (d) any
material interest of the shareholder in such business. Notwithstanding anything
in these By-Laws to the contrary, no business shall be conducted at an annual
meeting except in accordance with the procedures set forth in this Section 1.07
and Section 2.03. The Chairman of an annual meeting shall, if the facts
warrant, determine and declare to the meeting that business was not properly
brought before the meeting and in accordance with the provisions of this
Section 1.07 and Section 2.03, and if he should so determine, he shall so
declare to the meeting and any such business not properly brought before the
meeting shall not be transacted.
ARTICLE II
BOARD OF DIRECTORS
SECTION 2.01 Number and Qualifications. The business of the corporation shall
be managed by its Board of Directors. The number of directors constituting the
entire Board of Directors shall be not less than seven nor more than fifteen, as
shall be fixed from time to time by vote of a majority of the entire Board of
Directors. Each director shall be at least 21 years of age. Directors need not
be shareholders. No Officer-Director who shall have attained age 65, or earlier
relinquishes his responsibilities and title, shall be eligible to serve as a
director.
<PAGE>
SECTION 2.02 Election. At each annual meeting of shareholders, directors shall
be elected by a plurality of the votes to hold office until the next annual
meeting. Subject to the provisions of the statute, of the Certificate of
Incorporation and of the By-Laws, each director shall hold office until the
expiration of the term for which elected, and until his successor has been
elected and qualified.
SECTION 2.03 Nomination and Notification of Nomination. Subject to the rights
of holders of any class or series of stock having a preference over the Common
Stock as to dividends or upon liquidation, nominations for the election of
directors may be made by the Board of Directors or to any committee appointed by
the Board of Directors or by any shareholder entitled to vote in the election of
directors generally. However, any shareholder entitled to vote in the election
of directors generally may nominate one or more persons for election as
directors at a meeting only if written notice of such shareholder's intent to
make such nomination or nominations has been given, either by personal delivery
or by United States mail, postage prepaid, to the Secretary of the corporation
not later than (i) with respect to an election to be held at an annual meeting
of shareholders ninety days in advance of such meeting, and (ii) with respect to
an election to be held at a special meeting of shareholders for the election of
directors, the close of business on the seventh day following the date on which
notice of such meeting is first given to shareholders. Each such notice shall
set forth: (a) the name and address of the shareholder who intends to make the
nomination and of the person or persons to be nominated; (b) a representation
that the shareholder is a holder of record of stock of the corporation entitled
to vote at such meeting and intends to appear in person or by proxy at the
meeting to nominate the person or persons specified in the notice; (c) a
description of all arrangements or understandings between the shareholder and
each nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by the
shareholder; (d) such other information regarding each nominee proposed by such
shareholder as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission, had the
nominee been nominated, or intended to be nominated, by the Board of Directors;
and (e) the consent of each nominee to serve as a director of the corporation if
so elected. At the request of the Board of Directors, any person nominated by
the Board of Directors for election as a director shall furnish to the Secretary
of the corporation that information required to be set forth in a shareholder's
notice of nomination which pertains to the nominee. No person shall be eligible
for election as a director of the corporation unless nominated in accordance
with the procedures set forth in the By-Laws. The Chairman of the meeting
shall, if the facts warrant, determine and declare to the meeting that a
nomination was not made in accordance with the procedures prescribed by these
By-Laws, and if he should so determine, he shall so declare to the meeting and
the defective nomination shall be disregarded.
SECTION 2.04 Regular Meetings. Regular meetings of the Board of Directors may
be held without notice at such places and times as may be fixed from time to
time by resolution of the Board and a regular meeting for the purpose of
organization and transaction of other business shall be held each year after the
adjournment of the annual meeting of shareholders.
SECTION 2.05 Special Meetings. The Chairman of the Board, the Chief Executive
Officer, the President, the Senior Vice Chairman or any Vice Chairman may, and
at the request of three directors shall, call a special meeting of the Board of
Directors, two days' notice of which shall be given in person or by mail,
telegraph, radio, telephone or cable. Notice of a special meeting need not be
given to any director who submits a signed waiver of notice whether before or
after the meeting, or who attends the meeting without protesting, prior thereto
or at its commencement, the lack of notice to him.
<PAGE>
SECTION 2.06 Place of Meeting. The directors may hold their meetings, have one
or more offices, and keep the books of the corporation (except as may be
provided by law) at any place, either within or without the State of New York,
as they may from time to time determine.
SECTION 2.07 Quorum and Vote. At all meetings of the Board of Directors the
presence of one-third of the entire Board, but not less than two directors,
shall constitute a quorum for the transaction of business. Any one or more
members of the Board of Directors or of any committee thereof may participate in
a meeting of the Board of Directors or a committee thereof by means of a
conference telephone or similar communications equipment which allows all
persons participating in the meeting to hear each other at the same time.
Participation by such means shall constitute presence in person at such a
meeting. The vote of a majority of the directors present at the time of the
vote, if a quorum is present at such time, shall be the act of the Board of
Directors, except as may be otherwise provided by statute or the By-Laws.
SECTION 2.08 Vacancies. Newly created directorships resulting from increase in
the number of directors and vacancies in the Board of Directors, whether caused
by resignation, death, removal or otherwise, may be filled by vote of a majority
of the directors then in office, although less than a quorum exists.
ARTICLE III
EXECUTIVE AND OTHER COMMITTEES
SECTION 3.01 Designation and Authority. The Board of Directors, by resolution
adopted by a majority of the entire Board, may designate from among its members
an Executive Committee and other committees, each consisting of three or more
directors. Each such committee, to the extent provided in the resolution or the
By-Laws, shall have all the authority of the Board, except that no such
committee shall have authority as to:
(i) the submission to shareholders of any action as to which shareholders'
authorization is required by law.
(ii) the filling of vacancies in the Board of Directors or any committee.
(iii) the fixing of compensation of directors for serving on the Board or
on any committee.
(iv) the amendment or appeal of the By-Laws, or the adoption of new By-
Laws.
(v) the amendment or repeal of any resolution of the Board which by its
terms shall not be so amendable or repealable.
The Board may designate one or more directors as alternate members of any such
committee, who may replace any absent member or members at any meeting of such
committee. Each such committee shall serve at the pleasure of the Board of
Directors.
SECTION 3.02 Procedure. Except as may be otherwise provided by statute, by the
By-Laws or by resolution of the Board of Directors, each committee may make
rules for the call and conduct of its meetings. Each committee shall keep a
record of its acts and proceedings and shall report the same from time to time
to the Board of Directors.
<PAGE>
ARTICLE IV
OFFICERS
SECTION 4.01 Titles and General. The Board of Directors shall elect from among
their number a Chairman of the Board and a Chief Executive Officer, and may also
elect a President, a Senior Vice Chairman, one or more Vice Chairmen, one or
more Executive Vice Presidents, one or more Senior Vice Presidents, one or more
Principals, one or more Vice Presidents, a Secretary, a Controller, a Treasurer,
a General Counsel, a General Auditor, and a General Credit Auditor, who need not
be directors. The officers of the corporation may also include such other
officers or assistant officers as shall from time to time be elected or
appointed by the Board. The Chairman of the Board or the Chief Executive
Officer or, in their absence, the President, the Senior Vice Chairman or any
Vice Chairman, may from time to time appoint assistant officers. All officers
elected or appointed by the Board of Directors shall hold their respective
offices during the pleasure of the Board of Directors, and all assistant
officers shall hold office at the pleasure of the Board or the Chairman of the
Board or the Chief Executive Officer or, in their absence, the President, the
Senior Vice Chairman or any Vice Chairman. The Board of Directors may require
any and all officers and employees to give security for the faithful performance
of their duties.
SECTION 4.02 Chairman of the Board. The Chairman of the Board shall preside at
all meetings of the shareholders and of the Board of Directors. Subject to the
Board of Directors, he shall exercise all the powers and perform all the duties
usual to such office and shall have such other powers as may be prescribed by
the Board of Directors or the Executive Committee or vested in him by the By-
Laws.
SECTION 4.03 Chief Executive Officer. The Board of Directors shall designate
the Chief Executive Officer of the corporation, which person may also hold the
additional title of Chairman of the Board, President, Senior Vice Chairman or
Vice Chairman. Subject to the Board of Directors, he shall exercise all the
powers and perform all the duties usual to such office and shall have such other
powers as may be prescribed by the Board of Directors or the Executive Committee
or vested in him by the By-Laws.
SECTION 4.04 Chairman of the Board, President, Senior Vice Chairman, Vice
Chairmen, Executive Vice Presidents, Senior Vice Presidents, Principals and Vice
Presidents. The Chairman of the Board or, in his absence or incapacity the
President or, in his absence or incapacity, the Senior Vice Chairman, the Vice
Chairmen, the Executive Vice Presidents, or in their absence, the Senior Vice
Presidents, in the order established by the Board of Directors shall, in the
absence or incapacity of the Chief Executive Officer perform the duties of the
Chief Executive Officer. The President, the Senior Vice Chairman, the Vice
Chairmen, the Executive Vice Presidents, the Senior Vice Presidents, the
Principals, and the Vice Presidents shall also perform such other duties and
have such other powers as may be prescribed or assigned to them, respectively,
from time to time by the Board of Directors, the Executive Committee, the Chief
Executive Officer, or the By-Laws.
SECTION 4.05 Controller. The Controller shall perform all the duties customary
to that office and except as may be otherwise provided by the Board of Directors
shall have the general supervision of the books of account of the corporation
and shall also perform such other duties and have such powers as may be
prescribed or assigned to him from time to time by the Board of Directors, the
Executive Committee, the Chief Executive Officer, or the By-Laws.
<PAGE>
SECTION 4.06 Secretary. The Secretary shall keep the minutes of the meetings
of the Board of Directors and of the shareholders and shall have the custody of
the seal of the corporation. He shall perform all other duties usual to that
office, and shall also perform such other duties and have such powers as may be
prescribed or assigned to him from time to time by the Board of Directors, the
Executive Committee, the Chairman of the Board, the Chief Executive Officer, or
the By-Laws.
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 5.01 The corporation shall, to the fullest extent permitted by Section
721 of the New York Business Corporation Law, indemnify any person who is or was
made, or threatened to be made, a party to an action or proceeding, whether
civil or criminal, whether involving any actual or alleged breach of duty,
neglect or error, any accountability, or any actual or alleged misstatement,
misleading statement or other act or omission and whether brought or threatened
in any court or administrative or legislative body or agency, including an
action by or in the right of the corporation to procure a judgment in its favor
and an action by or in the right of any other corporation of any type or kind,
domestic or foreign, or any partnership, joint venture, trust, employee benefit
plan or other enterprise, which any director or officer of the corporation is
serving or served in any capacity at the request of the corporation by reason of
the fact that he, his testator or intestate, is or was a director or officer of
the corporation, or is serving or served such other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise in any capacity,
against judgments, fines, amounts paid in settlement, and costs, charges and
expenses, including attorneys' fees, or any appeal therein; provided, however,
that no indemnification shall be provided to any such person if a judgment or
other final adjudication adverse to the director or officer establishes that (i)
his acts were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
SECTION 5.02 The corporation may indemnify any other person to whom the
corporation is permitted to provide indemnification or the advancement of
expenses by applicable law, whether pursuant to rights granted pursuant to, or
provided by, the New York Business Corporation Law or other rights created by
(i) a resolution of shareholders, (ii) a resolution of directors, or (iii) an
agreement providing for such indemnification, it being expressly intended that
these By-Laws authorize the creation of other rights in any such manner.
SECTION 5.03 The corporation shall, from time to time, reimburse or advance to
any person referred to in Section 5.01 the funds necessary for payment of
expenses, including attorneys' fees, incurred in connection with any action or
proceeding referred to in Section 5.01, upon receipt of a written undertaking by
or on behalf of such person to repay such amount(s) if a judgment or other final
adjudication adverse to the director or officer establishes that (i) his acts
were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
SECTION 5.04 Any director or officer of the corporation serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the corporation, or (ii) any employee benefit plan
of the corporation or any corporation referred to in
<PAGE>
clause (i), in any capacity shall be deemed to be doing so at the request of the
corporation. In all other cases, the provisions of this Article V will apply (i)
only if the person serving another corporation or any partnership, joint
venture, trust, employee benefit plan or other enterprise so served at the
specific request of the corporation, evidenced by a written communication signed
by the Chairman of the Board, the Chief Executive Officer, the President, the
Senior Vice Chairman or any Vice Chairman, and (ii) only if and to the extent
that, after making such efforts as the Chairman of the Board, the Chief
Executive Officer, or the President shall deem adequate in the circumstances,
such person shall be unable to obtain indemnification from such other enterprise
or its insurer.
SECTION 5.05 Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article V may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of the
occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time indemnification is sought.
SECTION 5.06 The right to be indemnified or to the reimbursement or advancement
of expenses pursuant to this Article V (i) is a contract right pursuant to which
the person entitled thereto may bring suit as if the provisions hereof were set
forth in a separate written contract between the corporation and the director or
officer, (ii) is intended to be retroactive and shall be available with respect
to events occurring prior to the adoption hereof, and (iii) shall continue to
exist after the rescission or restrictive modification hereof with respect to
events occurring prior thereto.
SECTION 5.07 If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the corporation
within thirty days after a written claim has been received by the corporation,
the claimant may at any time thereafter bring suit against the corporation to
recover the unpaid amount of the claim and, if successful in whole or in part,
the claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the corporation (including its Board of
Directors, independent legal counsel, or its shareholders) to have made a
determination prior to the commencement of such action that indemnification of
or reimbursement or advancement of expenses to the claimant is proper in the
circumstances, nor an actual determination by the corporation (including its
Board of Directors, independent legal counsel, or its shareholders) that the
claimant is not entitled to indemnification or to the reimbursement or
advancement of expenses, shall be a defense to the action or create a
presumption that the claimant is not so entitled.
SECTION 5.08 A person who has been successful, on the merits or otherwise, in
the defense of a civil or criminal action or proceeding of the character
described in Section 5.01 shall be entitled to indemnification only as provided
in Sections 5.01 and 5.03, notwithstanding any provision of the New York
Business Corporation Law to the contrary.
<PAGE>
ARTICLE VI
SEAL
SECTION 6.01 Corporate Seal. The corporate seal shall contain the name of the
corporation and the year and state of its incorporation. The seal may be
altered from time to time at the discretion of the Board of Directors.
ARTICLE VII
SHARE CERTIFICATES
SECTION 7.01 Form. The certificates for shares of the corporation shall be in
such form as shall be approved by the Board of Directors and shall be signed by
the Chairman of the Board, the Chief Executive Officer, the President, the
Senior Vice Chairman or any Vice Chairman and the Secretary or an Assistant
Secretary, and shall be sealed with the seal of the corporation or a facsimile
thereof. The signatures of the officers upon the certificate may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a
registrar other than the corporation itself or its employees.
ARTICLE VIII
CHECKS
SECTION 8.01 Signatures. All checks, drafts and other orders for the payment
of money shall be signed by such officer or officers or agent or agents as the
Board of Directors may designate from time to time.
ARTICLE IX
AMENDMENT
SECTION 9.01 Amendment of By-Laws. The By-Laws may be amended, repealed or
added to by vote of the holders of the shares at the time entitled to vote in
the election of any directors. The Board of Directors may also amend, repeal or
add to the By-Laws, but any By-Laws adopted by the Board of Directors may be
amended or repealed by the shareholders entitled to vote thereon as provided
herein. If any By-Law regulating an impending election of directors is adopted,
amended or repealed by the Board, there shall be set forth in the notice of the
next meeting of shareholders for the election of directors the By-Laws so
adopted, amended or repealed, together with concise statement of the changes
made.
ARTICLE X
SECTION 10.01 Construction. The masculine gender, when appearing in these By-
Laws, shall be deemed to include the feminine gender.
<PAGE>
I, Marc J. Parilla, Assistant Vice President of Bankers Trust Company, New York,
New York, hereby certify that the foregoing is a complete, true and correct copy
of the By-Laws of Bankers Trust Company, and that the same are in full force and
effect at this date.
________________
Marc J. Parilla
Assistant Vice President
DATED: October 18, 1999
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 06/30/99 State#: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D Cert#: 00623 Page RC-1
City, State ZIP: New York, NY 10006 Transit#: 21001003
11
</TABLE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1999
All schedules are to be reported in thousands of dollars. Unless
otherwise indicated, reported the amount outstanding as of the last
business day of the quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
---------------
| C400 |
-----------------------
Dollar Amounts in Thousands | RCFD |
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
ASSETS | /////////////////// |
1. Cash and balances due from depository institutions (from Schedule RC-A): | /////////////////// |
a. Noninterest-bearing balances and currency and coin (1) .................. | 0081 2,138,000 |1.a.
b. Interest-bearing balances (2) ........................................... | 0071 5,465,000 |1.b.
2. Securities: | /////////////////// |
a. Held-to-maturity securities (from Schedule RC-B, column A) .............. | 1754 0 |2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)............. | 1773 1,811,000 |2.b.
3. Federal funds sold and securities purchased under agreements to resell.......... | 135 19,558,000 3.
4. Loans and lease financing receivables: | /////////////////// |
a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 22,038,000 | /////////////////// |4.a.
b. LESS: Allowance for loan and lease losses........................RCFD 3123 458,000 | /////////////////// |4.b.
c. LESS: Allocated transfer risk reserve ...........................RCFD 3128 0 | /////////////////// |4.c.
d. Loans and leases, net of unearned income, | /////////////////// |
allowance, and reserve (item 4.a minus 4.b and 4.c) ...................... | 2125 21,580,000 |4.d.
5. Trading Assets (from schedule RC-D) ........................................... | 3545 18,767,000 |5.
6. Premises and fixed assets (including capitalized leases) ....................... | 2145 877,000 |6.
7. Other real estate owned (from Schedule RC-M) ................................... | 2150 88,000 |7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) | 2130 948,000 |8.
9. Customers' liability to this bank on acceptances outstanding ................... | 2155 230,000 |9.
10. Intangible assets (from Schedule RC-M) ......................................... | 2143 100,000 |10.
11. Other assets (from Schedule RC-F) .............................................. | 2160 3,956,000 |11.
12. Total assets (sum of items 1 through 11) ....................................... | 2170 75,518,000 |12.
-----------------------
</TABLE>
__________________________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 06/30/99 State#: 364840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D Cert#: 00623 Page RC-2
City, State Zip: New York, NY 10006 Transit#: 21001003
<CAPTION>
12
Schedule RC--Continued
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
LIABILITIES
13. Deposits: |/////////////////////
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I) |RCON 2200 16,538,000 |13.a.
(1) Noninterest-bearing(1) .................................RCON 6631 2,636,000.... |///////////////////// |13.a.(1)
(2) Interest-bearing .......................................RCON 6636 13,902,000.... |///////////////////// |13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E |///////////////////// |
part II) |RCFN 2200 18,293,000 |13.b.
(1) Noninterest-bearing ....................................RCFN 6631 3,202,000 |///////////////////// |13.b.(1)
(2) Interest-bearing .......................................RCFN 6636 15,091,000 |///////////////////// |13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase |RCFD 2800 5,772,000 |14.
15. a. Demand notes issued to the U.S. Treasury ............................................. |RCON 2840 500,000 |15.a.
b. Trading liabilities (from Schedule RC-D).............................................. |RCFD 3548 15,013,000 |15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases):|///////////////////// |
a. With a remaining maturity of one year or less ........................................ |RCFD 2332 3,157,000 |16.a.
b. With a remaining maturity of more than one year through three years.................. |A547 2,990,000 |16.b.
c. With a remaining maturity of more than three years.................................... |A548 364,000 |16.c
17. Not Applicable. |///////////////////// |17.
18. Bank's liability on acceptances executed and outstanding .................................. |RCFD 2920 230,000 |18.
19. Subordinated notes and debentures (2)...................................................... |RCFD 3200 331,000 |19.
20. Other liabilities (from Schedule RC-G) .................................................... |RCFD 2930 6,588,000 |20.
21. Total liabilities (sum of items 13 through 20) ............................................ |RCFD 2948 69,776,000 |21.
22. Not Applicable | //////////////////// |
| //////////////////// |22.
EQUITY CAPITAL | //////////////////// |
23. Perpetual preferred stock and related surplus ............................................. |RCFD 3838 1,500,000 |23.
24. Common stock .............................................................................. |RCFD 3230 2,127,000 |24.
25. Surplus (exclude all surplus related to preferred stock) .................................. |RCFD 3839 541,000 |25.
26. a. Undivided profits and capital reserves ............................................... |RCFD 3632 1,798,000 |26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities ............... |RCFD 8434 (5,000) |26.b.
c. Accumulated net gains (losses) on cash flow hedges.................................... RCFD 4336 0 |26c.
27. Cumulative foreign currency translation adjustments ....................................... |RCFD 3284 ( 219,000) |27.
28. Total equity capital (sum of items 23 through 27) ......................................... |RCFD 3210 5,742,000 |28.
29. Total liabilities and equity capital (sum of items 21 and 28).............................. |RCFD 3300 75,518,000 |29
| |
-------------------------
<CAPTION>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed Number
for the bank by independent external auditors as of any date during ---------------------------------------
1999.................................................................. | RCFD 6724 N/A | M.1
---------------------------------------
<S> <C> <C> <C>
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state
public accounting firm which submits a report on the bank chartering authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company external auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation
3 = Directors' examination of the bank conducted in work)
accordance with generally accepted auditing standards 8 = No external audit work
by a certified public accounting firm (may be required by
state chartering authority)
______________________
</TABLE>
(1) Including total demand deposits and noninterest-bearing time and
savings deposits.
(2) Includes limited-life preferred stock and related surplus.
