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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 4, 2000
REGISTRATION NO. 333-[ ]
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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SARA LEE CORPORATION
(Exact name of registrant as specified in its charter)
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<S> <C>
MARYLAND 36-2089049
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
</TABLE>
THREE FIRST NATIONAL PLAZA
SUITE 4600
CHICAGO, ILLINOIS 60602-4260
(312) 726-2600
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
RODERICK A. PALMORE
SENIOR VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY
SARA LEE CORPORATION
THREE FIRST NATIONAL PLAZA, SUITE 4600
CHICAGO, ILLINOIS 60602-4260
(312) 726-2600
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after this Registration Statement becomes effective.
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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
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
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. / /
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED(1) PER UNIT(2) OFFERING PRICE(2) REGISTRATION FEE
<S> <C> <C> <C> <C>
Debt Securities(3)..........................
Warrants to Purchase Debt Securities(4).....
Common Stock, $.01 par value(5)............. $1,150,000,000 100% $1,150,000,000 $303,600
Warrants to Purchase Common Stock...........
Preferred Stock, no par value(6)............
Currency Warrants...........................
</TABLE>
(1) In U.S. dollars or the equivalent thereof in foreign currency or currency
units.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 under the Securities Act. The aggregate public offering
price of the securities registered hereby will not exceed $1,150,000,000 in
U.S. dollars or the equivalent thereof in foreign currency or currency
units.
(3) Debt securities may be issued at an original issue discount.
(4) Warrants to purchase debt securities may be offered and sold separately or
together with other debt securities.
(5) Such indeterminate number of shares of common stock as may from time to time
be issued at indeterminate prices. The common stock includes preferred stock
purchase rights which, prior to the occurrence of certain events, will not
be exercisable or evidenced separately from the common stock.
(6) Such indeterminate number of shares of preferred stock as may from time to
time be issued at indeterminate prices.
------------------------
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 Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
Pursuant to Rule 429 under the Securities Act, this registration statement
contains a combined prospectus that also relates to $350,000,000 maximum
aggregate offering price of securities previously registered pursuant to Sara
Lee Corporation's registration statement on Form S-3 (File No. 33-18335) and not
issued. The filing fee associated with such securities was previously paid with
that registration statement.
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SUBJECT TO COMPLETION, DATED FEBRUARY 4, 2000
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
PROSPECTUS
$1,500,000,000
SARA LEE CORPORATION
DEBT SECURITIES, DEBT WARRANTS, COMMON STOCK, COMMON STOCK WARRANTS,
PREFERRED STOCK AND CURRENCY WARRANTS
------------------------
Sara Lee Corporation intends to offer at one or more times the following
securities with a total offering price not to exceed $1,500,000,000:
- debt securities;
- warrants to purchase debt securities (debt warrants);
- shares of our common stock;
- warrants to purchase shares of our common stock (common stock warrants);
- shares of our preferred stock; and
- warrants to receive from us the cash value in U.S. dollars of the right to
purchase or sell foreign currency or currency units to be designated by us
at the time of the offering (currency warrants).
We will describe the terms of these securities in supplements to this
prospectus. You should read the prospectus and the supplements carefully before
you invest.
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THIS PROSPECTUS MAY BE USED TO OFFER AND SELL THESE SECURITIES ONLY IF
ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
[ ], 2000
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TABLE OF CONTENTS
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About this Prospectus.................. 2
Where You Can Find More Information.... 2
Sara Lee Corporation................... 3
Use of Proceeds........................ 5
Ratios of Earnings to Fixed Charges.... 5
Description of Debt Securities......... 6
Description of Debt Warrants........... 11
Description of Common Stock and
Preferred Stock...................... 12
Description of Common Stock Warrants... 13
Description of Currency Warrants....... 14
Plan of Distribution................... 16
Legal Matters.......................... 16
Experts................................ 16
</TABLE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission ("SEC") utilizing a "shelf" registration
process. Under this shelf process, we may, from time to time, sell the
securities described in this prospectus in one or more offerings with a total
offering price not to exceed $1,500,000,000. This prospectus provides you with a
general description of the securities. 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 in this prospectus. Please carefully read both this prospectus and
any prospectus supplement together with additional information described under
the heading "WHERE YOU CAN FIND MORE INFORMATION."
We are not making an offer of the securities in any state where the offer is
not permitted.
You should not assume that the information in this prospectus or any
prospectus supplement is accurate as of any date other than the date on the
front of each of those documents, respectively.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports and other information with the
SEC. You may read and copy any document we file at the SEC's public reference
room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the operation of the public reference
room. You may also read and copy those documents at the offices of: The New York
Stock Exchange, Inc., 20 Broad Street, New York, New York 10005; the Chicago
Stock Exchange, Incorporated, 440 South LaSalle Street, Chicago, Illinois 60605;
and The Pacific Stock Exchange, Incorporated, 301 Pine Street, San Francisco,
California 94104. Our SEC filings are also available to the public over the
Internet on the SEC's web site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" the information we file with
them, 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 part of this prospectus, and information that we file later with the SEC
will automatically update and supersede this information. We incorporate by
reference the following documents we filed with the SEC (file number 001-3344)
and any future filings that we make with the SEC under Section 13(a), 13(c), 14,
or 15(d) of the Securities Exchange Act of 1934 until we or any underwriters
sell all of the securities:
- Our Annual Report on Form 10-K for our fiscal year ended July 3, 1999;
- Our Quarterly Report on Form 10-Q for our fiscal quarter ended September
30, 1999;
- Our Current Report on Form 8-K dated September 29, 1999; and
- The description of our common stock contained in our Registration
Statement on Form 8-A (File No. 1-3344), filed with the SEC on May 11,
1988, as amended, and the description of the related preferred stock
purchase rights contained in our Registration Statement on
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Form 8-A (File No. 1-3344), filed with the SEC on May 19, 1998.
You may request a copy of these filings at no cost, by writing or calling us
at the following address:
Sara Lee Corporation
Three First National Plaza
Chicago, Illinois 60602-4260
Attn: Corporate Secretary
(312) 726-2600
You should rely only on the information incorporated by reference or
provided in this prospectus and any prospectus supplement. We have not
authorized anyone else to provide you with different information.
SARA LEE CORPORATION
We are a global manufacturer and marketer of consumer packaged goods. Our
products and services include frozen baked goods, processed meats, coffee and
tea, beverage systems, food and non-food products distributed to the foodservice
industry, hosiery, underwear, activewear and other apparel and accessory items,
and personal, household and shoe care products. Our principal executive offices
are located at Three First National Plaza, Chicago, Illinois 60602-4260, and our
telephone number is (312) 726-2600.
Our businesses are classified into five industry segments:
- Sara Lee Foods;
- Coffee and Tea;
- Household and Body Care;
- Foodservice; and
- Branded Apparel.
SARA LEE FOODS
SARA LEE PACKAGED MEATS processes and sells pork, poultry and beef products
to supermarkets, warehouse clubs, national chains and institutions in the United
States, Europe and Mexico. Some of the more prominent brands in the United
States within this category include BALL PARK, BEST'S KOSHER, BRYAN, HILLSHIRE
FARM, HYGRADE, JIMMY DEAN, KAHN'S, MR. TURKEY, SARA LEE and SINAI 48. Some of
the more prominent brands in Europe are AOSTE, JUSTIN BRIDOU, STEGEMAN and
ARGAL.
SARA LEE BAKERY produces a wide variety of fresh and frozen baked and
specialty items. Its core products are frozen and fresh pies, cheesecakes, pound
cakes and specialty breads and bagels. Sara Lee Bakery is the leading frozen
baked goods company in the United States, Australia and the United Kingdom.
COFFEE AND TEA
We believe we are one of the top four coffee roasters in the world, and one
of the top three in the European market. We have a significant presence in such
countries as the Netherlands, Belgium, France, Denmark, Spain and Australia, and
we have also established positions in Central and Eastern Europe. While DOUWE
EGBERTS is our European flagship brand, our other premium European coffee brands
include MAISON DU CAFE, MARCILLA and MERRILD. Our PICKWICK brand is an important
brand in the European tea market. Other tea brands include HORNIMANS and SUENOS
DE ORO in Spain and the PARADISE ice tea brand in the United States foodservice
market.
We are also a significant competitor in the out-of-home coffee service
business. Our Douwe Egberts Coffee Systems business provides coffee and
dispensing equipment in Europe, while our Superior Coffee and Foods business
provides similar products and services in the United States.
HOUSEHOLD AND BODY CARE
HOUSEHOLD AND BODY CARE is composed of four primary core categories:
- shoe care - led by a worldwide line of KIWI products;
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- body care items - led by the SANEX brand, but also including DUSCHDAS,
BADEDAS and MONSAVON, and baby care products sold under the ZWITSAL,
FISSAN and PRODERM names;
- insecticides - sold internationally under the CATCH, BLOOM, VAPONA and
RIDSECT brand names; and
- air fresheners - led by the AMBI-PUR brand.
ZENDIUM and PRODENT oral care products and BIOTEX and NEUTRAL specialty
detergents are also important categories for us.
SARA LEE DIRECT SELLING distributes a wide range of products - cosmetics,
fragrances, jewelry, toiletries, apparel and nutritional supplements - through a
network of independent sales representatives. Sara Lee Direct Selling includes
the Nutri-Metics business in Australia, the House of Fuller business in Mexico,
the House of Sara Lee business in Indonesia and the Philippines, and the Avroy
Shlain business in South Africa. We also operate direct selling organizations in
Japan, China and Uruguay.
FOODSERVICE
Sara Lee Foodservice is conducted principally under the PYA/Monarch name.
PYA/ Monarch is the leading foodservice distributor in the Southeastern United
States and the fourth largest full-line foodservice company in the United
States. This business distributes dry, refrigerated and frozen foods, paper
supplies and foodservice equipment to institutional and commercial foodservice
customers.
BRANDED APPAREL
The Branded Apparel line of business includes the Intimates and Accessories,
Knit Products and Legwear businesses.
SARA LEE INTIMATES includes bras, panties and shapewear. These are
distributed under such labels as BALI, HANES HER WAY, PLAYTEX and WONDERBRA in
North America, and PLAYTEX and DIM in Europe. Sara Lee Intimates is the leader
in the North American intimates category.
SARA LEE ACCESSORIES involves the manufacture and marketing of premium
leather products, apparel and related accessories under the COACH brand.
SARA LEE KNIT PRODUCTS involve the sourcing, manufacturing and distribution
of men's, women's and children's underwear and activewear (T-shirts, fleecewear
and other jersey products for casualwear) in North America, South and Central
America, Europe and the Asia-Pacific countries. Principal brands in the
underwear category include CHAMPION, HANES, HANES HER WAY and RINBROS in North
America, and ABANDERADO, PRINCESA, CHAMPION, HANES and DIM in Europe.
Activewear is marketed under our HANES and CHAMPION lines. In addition to
targeting the public activewear market, Champion also markets authentic uniforms
and practicewear for professional and amateur athletic teams, including such
organizations as the National Basketball Association, the National Football
League and a number of major university sports teams.
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USE OF PROCEEDS
Unless we indicate otherwise in the prospectus supplement, we will use the
net proceeds from the sale of the securities for general corporate purposes,
including the repayment of existing short-term indebtedness, future
acquisitions, capital expenditures and additions to working capital.
RATIOS OF EARNINGS TO FIXED CHARGES
The ratios of our earnings to our fixed charges and the ratios of our
earnings to our fixed charges and preferred stock dividend requirements for each
of the periods indicated are as follows:
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FISCAL QUARTER
ENDED
FISCAL YEAR ENDED (1) --------------------
---------------------------------------------------- SEP. 26, OCT. 2,
1995 1996 1997 1998(2) 1999(3) 1998 1999
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Ratios of Earnings to Fixed Charges.......... 4.9 5.6 6.4 (0.4) 6.6 8.1 5.9
Ratios of Earnings to Fixed Charges and
Preferred Stock Dividend Requirements...... 4.3 4.9 5.6 (0.3) 6.2 7.4 5.5
</TABLE>
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(1) Our fiscal year ends on the Saturday nearest June 30.
(2) During the second quarter of fiscal 1998, we recorded a pretax charge of
$2,040 million in connection with various restructuring actions.
(3) During the first quarter of fiscal 1999, we recorded a pretax gain of $137
million in connection with the sale of our international tobacco operations.
During the second quarter of fiscal 1999, we recorded a pretax charge of $76
million in connection with the recall of certain of our meat products.
For these ratios, earnings include income from continuing operations before
income taxes, fixed charges and amortization of interest capitalized (but not
interest capitalized during the period). Fixed charges include interest expense
(including interest capitalized during the period) plus the portion of rents we
believe to be representative of the interest factor. Our earnings and fixed
charges include the earnings and fixed charges of Sara Lee Corporation and its
subsidiaries on a consolidated basis.
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DESCRIPTION OF DEBT SECURITIES
We will issue the debt securities under an Indenture dated as of October 2,
1990 between us and The Bank of New York, as successor to Continental Bank,
N.A., as Trustee. We have summarized selected provisions of the indenture below.
This is a summary and is not complete. It does not describe certain exceptions
and qualifications contained in the indenture or the debt securities. If you
would like more information on the provisions of the indenture, you should
review the indenture, which we have incorporated by reference as an exhibit to
the registration statement for the securities.
In the summary, we have included references to article and section numbers
of the indenture so that you can easily locate these provisions. Capitalized
terms used in the summary have the meanings specified in the indenture.
GENERAL
The debt securities will be unsecured and will rank equally (PARI PASSU)
with all our unsecured and unsubordinated indebtedness. The indenture does not
limit the amount of debt securities or other indebtedness that we may issue.
The indenture permits us to issue debt securities in one or more series.
Each series of debt securities may have different terms. The terms of any series
of debt securities will be set forth in a resolution of our board of directors
or in a supplement to the indenture relating to that series, or determined in
accordance with a board resolution and set forth in an officer's certificate
that we deliver to the trustee. (Section 2.4)
A supplement to this prospectus will describe specific terms relating to the
debt securities being offered. These terms will include some or all of the
following:
- the title of the series of debt securities;
- the total principal amount and authorized denominations;
- the maturity date or dates;
- the public offering price;
- the interest rate or rates, if any (which may be fixed or floating), and
interest payment dates;
- the currency or currencies in which payment of the offering price and/or
principal and interest may be made;
- the manner of payment of principal and interest and where the debt
securities may be exchanged or transferred;
- whether (and if so, when) the debt securities can be redeemed by us or the
holder;
- whether there will be a sinking fund; and
- any other terms of the series.
Each series of debt securities will be a new issue with no established
trading market. We cannot assure you that there will be a liquid trading market
for the debt securities.
We may purchase debt securities at any price in the open market or
otherwise. Debt securities we purchase may, in our discretion, be held or
resold, canceled or used to satisfy any sinking fund or redemption requirements.
Debt securities bearing no interest or interest at a rate which, at the time
of issuance, is below the prevailing market rate will be sold at a discount
below their stated principal amount. Special United States federal income tax
considerations applicable to any of these discounted debt securities (or to
certain other debt securities issued at par which are treated as having been
issued at a discount for United States federal income tax purposes) will be
described in a prospectus supplement.
FORM AND EXCHANGE OF DEBT SECURITIES
Unless otherwise described in a prospectus supplement, all debt securities
will be fully registered and will be in either book-entry form or in definitive
form.
Debt securities issued in book-entry form will be issued in the form of one
or more fully registered global securities that will be deposited with DTC, New
York, New York or its nominee. This means that we will not issue certificates to
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each holder. Each global security will be issued to DTC, which will keep a
computerized record of its participants (for example, your broker) whose clients
have purchased debt securities. Each participant will then keep a record of its
clients who purchased the debt securities. Unless it is exchanged in whole or in
part for a certificate, a global security may not be transferred; except that
DTC, its nominees, and their successors may transfer a global security as a
whole to one another.
Beneficial interests in global securities will be shown on, and transfers of
global securities will be made only through, records maintained by DTC and its
participants. If you are not a participant in DTC, you may beneficially own debt
securities held by DTC only through a participant.
The laws of some states require that certain purchasers of securities take
physical delivery of such securities in definitive form. Such limits and laws
may impair the ability to transfer beneficial interests in a global security.
DTC has provided us the following information: DTC is a limited-purpose
trust company organized under the New York Banking Law, a "banking organization"
within the meaning of the New York Banking Law, a member of the United States
Federal Reserve System, a "clearing corporation" within the meaning of the New
York Uniform Commercial Code and a "clearing agency" registered under the
provisions of Section 17A of the Securities Exchange Act of 1934. DTC holds
securities that its participants deposit with DTC. DTC also records the
settlement among participants of securities transactions, such as transfers and
pledges, in deposited securities through computerized records for participants'
accounts. This eliminates the need to exchange certificates. Participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations.
DTC's book-entry system is also used by other organizations such as
securities brokers and dealers, banks and trust companies that work through a
participant. The rules that apply to DTC and its participants are on file with
the SEC.
DTC is owned by a number of its participants and by The New York Stock
Exchange, Inc., The American Stock Exchange, Inc. and the National Association
of Securities Dealers, Inc.
We will wire principal and interest payments to DTC's nominee. We and the
trustee will treat DTC's nominee as the owner of the global securities for all
purposes. Accordingly, we, the trustee and any paying agent will have no direct
responsibility or liability to pay amounts due on the global securities to
owners of beneficial interests in the global securities.
It is DTC's current practice, upon receipt of any payment of principal or
interest, to credit participants' accounts on the payment date according to
their respective holdings of beneficial interests in the global securities as
shown on DTC's records. In addition, it is DTC's current practice to assign any
consenting or voting rights to participants whose accounts are credited with
debt securities on a record date, by using an omnibus proxy. Payments by
participants to owners of beneficial interests in the global securities, and
voting by participants, will be governed by the customary practices between the
participants and owners of beneficial interests, as is the case with debt
securities held for the account of customers registered in "street name."
However, payments will be the responsibility of the participants and not of DTC,
the trustee or us.
So long as DTC or its nominee is the registered owner of a global security,
DTC or that nominee, as the case may be, will be considered the sole owner or
holder of the debt securities represented by that global security for all
purposes under the indenture. Except as set forth in the next paragraph, owners
of beneficial interests in a global security will not be entitled to have the
debt securities represented by that global security registered in their names,
will not receive or be entitled to receive physical delivery of the debt
securities in definitive form and will not be considered the owners or holders
of the debt securities under the indenture.
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We will issue debt securities of any series then represented by global
securities in definitive form in exchange for those global securities if:
- DTC notifies us that it is unwilling or unable to continue as depositary
or if DTC ceases to be a clearing agency registered under applicable law
and a successor depositary is not appointed by us within 90 days; or
- we determine not to require all of the debt securities of a series to be
represented by a global security.
If we issue debt securities in definitive form in exchange for a global
security, an owner of a beneficial interest in the global security will be
entitled to have debt securities equal in principal amount to the beneficial
interest registered in its name and will be entitled to physical delivery of
those debt securities in definitive form. Debt securities issued in definitive
form will, except as set forth in the applicable prospectus supplement, be
issued in denominations of $1,000 and any multiple of $1,000 in excess thereof
and will be issued in registered form only, without coupons.
CERTAIN RESTRICTIONS
The restrictions summarized in this section will apply to debt securities
unless the applicable prospectus supplement indicates otherwise. Certain terms
used in the following description of these restrictions are defined under the
caption "CERTAIN DEFINITIONS" at the end of this section. The following
description is not complete. The full text of these restrictions is included in
the indenture.
RESTRICTIONS ON SECURED DEBT
The debt securities will not be secured. If we or one of our Domestic
Subsidiaries incur debt secured by an interest in any Principal Domestic
Property or any shares of capital stock or debt of a Domestic Subsidiary and the
total principal amount of our secured debt (with certain exceptions, including
those listed in the next paragraph), together with our Attributable Debt, would
exceed 10% of Consolidated Stockholders' Equity, we are required to secure the
then outstanding debt securities equally and ratably with (or prior to) our
other secured debt.
The indenture permits us and our Domestic Subsidiaries to create certain
liens without securing the debt securities. (Section 3.6) Among the permitted
liens are:
- purchase money mortgages, including conditional sales and other title
retention agreements;
- liens securing certain construction and improvement loans;
- existing liens on newly acquired property, including property acquired
through merger or consolidation;
- liens in connection with U.S. government contracts;
- liens securing indebtedness of a Domestic Subsidiary outstanding at the
time it became a Domestic Subsidiary;
- liens securing indebtedness of a Domestic Subsidiary to us or to another
Domestic Subsidiary; and
- refinancings of certain permitted liens.
LIMITATIONS ON SALE AND LEASEBACK TRANSACTIONS
Neither we nor our Domestic Subsidiaries may sell or transfer any Principal
Domestic Property with the intention of entering into a lease of such facility
for a term of more than five years, unless:
- such property has not been in full operation for more than 120 days prior
to such sale or transfer;
- the Attributable Debt in respect of all such sale and leaseback
transactions involving Principal Domestic Properties, together with our
secured debt, does not exceed 10% of Consolidated Stockholders' Equity;
- within 120 days of such sale or transfer, we apply the net proceeds of the
sale to the retirement of our funded debt (defined as indebtedness having
a maturity of, or extendable or renewable for, a period of more than 12
months
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from the date of determination) in an amount not less than the greater of
such net proceeds or the fair value of the Principal Domestic Property so
leased; or
- the sale and leaseback transaction is between us and a Domestic Subsidiary
or between any of our Domestic Subsidiaries. (Section 3.7)
CONSOLIDATION, MERGER OR SALE OF ASSETS
We may not consolidate or merge with or into any other corporation, or sell
or transfer all or substantially all of our property and assets to any other
corporation unless the surviving or successor corporation assumes our
obligations under the indenture and is not in default under the indenture
immediately after the consummation of the transaction. (Section 9.1)
If we sell or transfer substantially all of our assets and the purchaser
assumes our obligations under the indenture, we will be discharged from all
obligations under the indenture and the debt securities. (Section 9.2)
CERTAIN DEFINITIONS
The following terms are defined in Section 1.1 of the indenture.
"Attributable Debt" means, at the time of the determination, the present
value (discounted at the "applicable rate" of interest compounded annually) of
the lessee's obligation for rental payments during the remaining term of the
lease (including any period the lease has been, or may, at the option of the
lessor, be extended). The term "applicable rate" means the yield to maturity of
the U. S. Treasury constant maturity which most closely approximates the
weighted average of the remaining terms of all leases, plus 1.5%.
"Consolidated Stockholders' Equity" means the common and preferred
stockholders' equity and minority interests of Sara Lee Corporation and its
consolidated Subsidiaries, as shown on our consolidated balance sheet in our
latest quarterly or annual report to stockholders.
"Domestic Subsidiary" means a Subsidiary of Sara Lee Corporation, other than
a Subsidiary which neither transacts a substantial portion of its business nor
regularly maintains a substantial portion of its fixed assets within the United
States or a Subsidiary which engages primarily in financing our consolidated
operations.
"Principal Domestic Property" means any facility used primarily for
manufacturing, processing or distribution located within the United States,
owned or leased by Sara Lee Corporation or any Subsidiary and having a gross
book value (without deduction of depreciation reserves) which exceeds
$50,000,000, other than any such facility or portion of such facility that, in
the opinion of our Board of Directors, is not of material importance to the
business conducted by Sara Lee Corporation and its Subsidiaries, as an entirety.
"Subsidiary" means any corporation of which Sara Lee Corporation or one or
more Subsidiaries (individually or collectively) directly or indirectly own a
majority of the outstanding voting stock of said corporation.
EVENTS OF DEFAULT
"Event of Default" means, with respect to any series of debt securities, any
of the following:
- failure to pay interest or any additional amounts that continues for a
period of 30 days after payment is due;
- failure to make any principal or premium payment when due (except when
such failure results from mistake, oversight or transfer difficulties and
does not continue for more than three business days);
- failure to make any sinking fund payment when due (except when such
failure results from mistake, oversight or transfer difficulties and does
not continue for more than three business days);
- failure to comply with any of our other agreements contained in the
indenture or in the debt securities for 90 days after notice to us of such
failure from the trustee (or to us and the trustee from the holders of at
least 25% of the outstanding
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debt securities affected by such failure); and
- certain events of bankruptcy, insolvency or reorganization of Sara Lee
Corporation. (Section 5.1)
In general, the trustee is required to give notice of a default with respect
to a series of debt securities to the holders of that series. The trustee may
withhold notice of any default (except a default in payment of principal of or
interest on any debt security) if the trustee
and/or our board of directors determines it is in the best interest of the
holders of that series to do so. (Section 5.11)
An Event of Default for a particular series of debt securities does not
necessarily constitute an Event of Default for other series of debt securities.
If there is a continuing Event of Default, then the trustee or the holders
of at least 25% in principal amount of each outstanding series of debt
securities affected by the Event of Default (voting as separate classes) may
require us to repay the principal and accrued interest on the affected series
immediately. Subject to certain conditions, the requirement to pay with respect
to a series of debt securities may be annulled, and past defaults may be waived
(except a continuing default in payment of principal of, or premium, interest or
additional amounts, if any, on debt securities), by the holders of a majority in
principal amount of that series. If an Event of Default applies to all
outstanding debt securities then the holders of the debt securities will be
treated as a single class without regard to whether there are several
outstanding series. (Section 5.1 and Section 5.10)
Prior to an Event of Default, the trustee is required to perform only the
specific duties stated in the indenture, and after an Event of Default, the
trustee must exercise the same degree of care as a prudent individual would
exercise or use under the circumstances in the conduct of his or her own
affairs. (Section 6.1)
The trustee may refuse to enforce the indenture or the debt securities
unless it first receives satisfactory security or indemnity. Subject to certain
limitations specified in the indenture, the holders of a majority in principal
amount of the debt securities of an affected series will have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the trustee. (Section 5.9)
SATISFACTION AND DISCHARGE OF INDENTURE
We will be discharged from certain of our obligations relating to the
outstanding debt securities of a series if we deposit with the trustee money or
the equivalent in securities of the government which issued the currency in
which the debt securities are denominated sufficient for payment of all
principal of and interest and additional amounts, if any, on those debt
securities when due. (Section 10.1) In that event, holders of those debt
securities will only be able to look to the trust fund for payment of the
principal of and interest and additional amounts, if any, on their debt
securities until maturity.
MODIFICATION OF INDENTURE
Under the indenture, subject to certain exceptions, we may change our rights
and obligations and the rights of the holders of a series of debt securities
with the consent of the holders of at least 50% in aggregate principal amount of
the outstanding debt securities of that series. However, we may not change the
terms of payment of principal or interest, the premium, if any, payable upon
redemption, or the amount to be paid upon an acceleration of maturity upon an
Event of Default or reduce the percentage required for changes to the indenture
without the consent of the holder of each debt security affected by such change.
(Section 8.2)
In certain circumstances, we may amend the indenture without the consent of
the holders of outstanding debt securities to evidence a merger of Sara Lee
Corporation, the replacement of the trustee or for other specified purposes.
(Section 8.1)
REPORTS TO TRUSTEE
We are required to provide the trustee with an officers' certificate each
fiscal year stating whether, to the knowledge of the certifying
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officers in the course of performance of their duties as officers, we are in
compliance with the requirements of the indenture and no default exists, and if
a default has occurred, identifying the nature of the default of which the
officers are aware. (Section 3.5)
REGARDING THE TRUSTEE
We maintain ordinary banking relationships and credit facilities with a
number of banks, including the trustee, The Bank of New York.
DESCRIPTION OF DEBT WARRANTS
We may issue, separately or together with other securities, debt warrants to
purchase debt securities. We will issue the debt warrants under debt warrant
agreements to be entered into between us and a bank or trust company, as debt
warrant agent, as set forth in the applicable prospectus supplement. We have
summarized selected provisions of the form of debt warrant agreement below. This
is a summary and is not complete. It does not describe certain exceptions and
qualifications contained in the debt warrant agreement or the certificates
representing the debt warrants. If you would like more information on the
provisions of a debt warrant agreement, you should review the form of debt
warrant agreement, including the debt warrant certificate, which we have filed
as an exhibit to the registration statement for the securities.
GENERAL
A supplement to this prospectus will describe specific terms relating to the
debt warrants being offered. These terms will include some or all of the
following:
- the title, total principal amount and authorized denominations of the
series of debt securities purchasable upon exercise of the debt warrants;
- the manner in which debt warrants may be exercised;
- the title and terms of any related debt securities with which the debt
warrants are issued and the number of debt warrants issued with each debt
security;
- the date, if any, on or after which the debt warrants may be transferred
separately from the related debt security;
- the principal amount of debt securities purchasable upon exercise of each
debt warrant and the exercise price;
- the date on which the right to exercise the debt warrants commences and
the expiration date;
- whether we will issue the debt warrant certificates in registered or
bearer form; and
- any other terms of the debt warrants.
Debt warrants may be exercisable for debt securities bearing no interest or
interest at a rate which, at the time of issuance, is below the prevailing
market rate. Special United States federal income tax considerations applicable
to any of these discounted debt securities will be described in a prospectus
supplement.
Prior to the exercise of their debt warrants, holders will not have any of
the rights of holders of the debt securities purchasable upon such exercise and
will not be entitled to payments of principal of, and premium and interest, if
any, on those debt securities.
EXERCISE OF DEBT WARRANTS
Each debt warrant will entitle its holder to purchase for cash the principal
amount of debt securities at the exercise price set forth in the applicable
prospectus supplement. Commencing on the date the debt warrants become
exercisable, holders may exercise their debt warrants at any time up to the
close of business on the expiration date, after which time any unexercised debt
warrants will become void.
Upon receipt of the exercise price and the debt warrant certificate properly
completed and executed, we will forward to the holder, as soon as practicable,
the debt securities purchased upon such exercise. If less than all the debt
warrants represented by a certificate are exercised, we will issue a new debt
warrant certificate for the remaining amount of debt warrants.
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DESCRIPTION OF COMMON STOCK AND PREFERRED STOCK
We may issue, separately or together with or upon the conversion of or
exchange for other securities, shares of our common stock and preferred stock.
We have summarized certain rights of holders of our capital stock below. This is
a summary and is not complete. It does not describe certain exceptions and
qualifications contained in:
- our Articles of Restatement of Charter, as amended;
- our Bylaws;
- the Rights Agreement between us and First Chicago Trust Company of New
York, as rights agent, pursuant to which we may issue shares of our
Series A Junior Participating Preferred Stock upon the occurrence of
certain events; and
- in the case of preferred stock, our Articles Supplementary relating to
such series of preferred stock.
If you would like more information on our common stock and preferred stock,
you should review the documents described above, each of which we have filed or
incorporated by reference as an exhibit to the registration statement for the
securities.
Our authorized capital stock consists of:
- 1,200,000,000 shares of common stock, of which as of October 2, 1999
approximately 883,000,000 shares were outstanding;
- 12,000,000 shares of preferred stock, of which as of October 2, 1999
6,000,000 shares were designated as Series A Junior Participating
Preferred Stock, of which no shares were outstanding, and
3,654,072 shares were designated as Series A ESOP Convertible Preferred
Stock, all of which were outstanding; and
- 1,500,000 shares of convertible adjustable preferred stock, of which as of
October 2, 1999 no shares were outstanding.
COMMON STOCK
GENERAL
Holders of common stock are entitled to receive dividends on their shares
when, as and if declared by our board of directors out of funds legally
available for distribution. In the event we liquidate, dissolve or wind up our
affairs, holders of common stock are also entitled to receive ratably all of our
assets remaining after satisfying the preferences of our creditors and the
holders of any outstanding preferred stock.
Each share of common stock entitles its holder to one vote in the election
of directors and any other matter submitted to a vote of stockholders. Voting
rights are not cumulative, with the result that holders of more than 50% of the
shares of common stock are entitled to elect all of our directors. Holders of
common stock, solely by virtue of their holdings, do not have preemptive rights
to subscribe for or purchase any shares of our capital stock which we may issue
in the future.
All of our outstanding shares of common stock have been fully paid and are
nonassessable.
PREFERRED STOCK PURCHASE RIGHTS
Each outstanding share of common stock has attached to it one-half of a
right entitling its holder to purchase from us one one-hundredth of a share of
Series A Junior Participating Preferred Stock (subject to antidilution
provisions) at a purchase price of $215 per right upon the occurrence of certain
triggering events. Until one of those triggering events occurs, or the rights
are earlier redeemed or expired, the rights will not be evidenced by separate
certificates and may be transferred only with the common stock to which it
attaches.
With one exception, the rights will become exercisable ten days after any
person or group announces it beneficially owns 15% or more of the outstanding
shares of common stock, or ten business days after a person or group announces
an offer to acquire 15% or more of the outstanding shares of common stock,
whichever occurs first. In such event, we will distribute separate rights
certificates evidencing the rights
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to all holders of our common stock issued prior to the triggering event. Each
right will then entitle its holder (except the acquiring party) to purchase the
number of shares of common stock having a market value of two times the exercise
price of the right.
In the event that, following a triggering event, we merge into or
consolidate with, or transfer 50% or more of our consolidated assets or earning
power to, another entity (other than us or our subsidiaries), each right will
then entitle its holder to purchase the number of shares of common stock of the
acquiring entity having a market value of two times the exercise price of the
right.
We may redeem the rights, as a whole, at a price of $.01 per right (subject
to adjustment), at any time until the earlier of 15 days following the date the
acquiring party acquired 15% or more of the common stock and the expiration date
of the rights, which is May 31, 2008.
For so long as the rights continue to be associated with the common stock,
each new share of common stock we issue will include one-half of a right.
PREFERRED STOCK
GENERAL
Our charter authorizes our board of directors to classify and issue from
time to time any unissued shares of preferred stock and to reclassify any
previously classified but unissued shares of any series of preferred stock. The
applicable prospectus supplement will describe the terms of a particular series
of preferred stock as set forth in the Articles Supplementary to our charter
establishing such series. These terms will include some or all of the following:
- title and stated value of the series;
- whether and in what circumstances the holder is entitled to receive
dividends and other distributions;
- whether (and if so, when) the series can be redeemed by us or the holder
or converted by the holder; and
- voting and other rights, if any.
Holders of preferred stock, solely by virtue of their holdings, do not have
preemptive rights to subscribe for or purchase any shares of our capital stock
which we may issue in the future.
LIQUIDATION PREFERENCE
Unless otherwise described in the applicable prospectus supplement, in the
event we liquidate, dissolve or wind up our affairs, the holders of any series
of preferred stock will have preference over the holders of common stock and any
other capital stock ranking junior to such series for payment out of our assets
in the amount specified in the applicable Articles Supplementary. A sale of all
or substantially all of our assets or a consolidation or merger with one or more
corporations will not be deemed a liquidation, dissolution or winding up for
this purpose.
RANKING
Unless otherwise described in the applicable prospectus supplement, any
series of preferred stock we issue using this prospectus will rank senior to the
Series A Junior Participating Preferred Stock.
DESCRIPTION OF COMMON STOCK WARRANTS
We may issue, separately or together with other securities, common stock
warrants to purchase shares of our common stock. We will issue the common stock
warrants under stock warrant agreements to be entered into between us and a bank
or trust company, as stock warrant agent, as set forth in the applicable
prospectus supplement. We have summarized selected provisions of the form of
stock warrant agreement below. This is a summary and is not complete. It does
not describe certain exceptions and qualifications contained in the stock
warrant agreement or the certificates representing the common stock warrants. If
you would like more information on the provisions of a stock warrant agreement,
you should review the form of stock warrant agreement, including the stock
warrant certificate, which we have filed as an exhibit to the registration
statement for the securities.
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GENERAL
A supplement to this prospectus will describe specific terms relating to the
common stock warrants being offered. These terms will include some or all of the
following:
- the manner in which common stock warrants may be exercised;
- the number of shares of common stock purchasable upon exercise of each
common stock warrant and the exercise price;
- the date on which the right to exercise the common stock warrants
commences and the expiration date;
- whether (and if so, when) we can call the common stock warrants for
redemption; and
- any other terms of the common stock warrants.
Prior to the exercise of their common stock warrants, holders will not have
any of the rights of holders of the common stock purchasable upon such exercise
and will not be entitled to dividend payments on those shares of common stock.
EXERCISE OF STOCK WARRANTS
Each common stock warrant will entitle its holder to purchase for cash the
number of shares of common stock at the exercise price set forth in the
applicable prospectus supplement. Commencing on the date the common stock
warrants become exercisable, holders may exercise their common stock warrants at
any time up to the close of business on the expiration date, after which time
any unexercised common stock warrants will become void.
Upon receipt of the exercise price and the stock warrant certificate
properly completed and executed, we will forward to the holder, as soon as
practicable, a certificate representing the number of shares of common stock
purchased upon such exercise. If less than all the common stock warrants
represented by a certificate are exercised, we will issue a new stock warrant
certificate for the remaining amount of common stock warrants.
ANTIDILUTION PROVISIONS
Unless otherwise described in a prospectus supplement, the exercise price
payable and number of shares of common stock purchasable upon exercise of a
common stock warrant will be adjusted to prevent the holder's beneficial
interest in the common stock from being diluted in the event we:
- issue a stock dividend to holders of common stock or combine, subdivide or
reclassify our common stock;
- issue rights, warrants or options to all holders of common stock entitling
them to purchase shares of our common stock at a price per share less than
the current market price per share of common stock; or
- distribute to holders of common stock any of our assets or evidences of
our indebtedness which are not payable out of our capital surplus.
DESCRIPTION OF CURRENCY WARRANTS
We may issue, separately or together with debt securities or debt warrants,
currency warrants entitling the holder to receive from us the cash value in U.S.
dollars of the right to purchase (currency call warrants) or sell (currency put
warrants) a specified amount of a designated foreign currency. We will issue the
currency warrants under currency warrant agreements to be entered into between
us and a bank or trust company, as currency warrant agent, as set forth in the
applicable prospectus supplement. We have summarized selected provisions of the
form of currency warrant agreement below. This is a summary and is not complete.
It does not describe certain exceptions and qualifications contained in the
currency warrant agreement or the certificates representing the currency
warrants. If you would like more information on the provisions of a currency
warrant agreement, you should review the form of currency warrant agreement,
including the global warrant certificates, which we have filed as an exhibit to
the registration statement for the securities.
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GENERAL
A supplement to this prospectus will describe specific terms relating to the
currency warrants being offered. These terms will include some or all of the
following:
- whether the currency warrants will be currency put warrants or currency
call warrants, or both;
- the formula for determining the cash value in U.S. dollars, if any, of
each currency warrant;
- the manner in which currency warrants may be exercised and the
circumstances in which such exercise will be deemed automatic;
- the minimum number, if any, of currency warrants which must be exercised
at any one time;
- the date on which the right to exercise the currency warrants commences
and the expiration date; and
- any other terms of the currency warrants.
The spot exchange rate of the designated foreign currency, upon exercise, as
compared to the U.S. dollar, will determine whether the currency warrants have a
cash value (cash settlement value) on any given day prior to their expiration.
FORM OF CURRENCY WARRANTS
Unless otherwise described in a prospectus supplement, all currency warrants
will be issued in the form of one or more fully registered global certificates
that will be deposited with DTC, New York, New York or its nominee. This means
that we will not issue certificates to each holder. Each global certificate will
be issued to DTC, which will keep a computerized record of its participants (for
example, your broker) whose clients have purchased currency warrants. The
participant will then keep a record of its clients who purchased the currency
warrants. Accordingly, transfers of ownership of any currency warrant may only
be effected through a selling holder's broker.
EXERCISE OF CURRENCY WARRANTS
Each currency warrant will entitle its holder to receive the cash settlement
value on the applicable exercise date. Holders may exercise their currency
warrants at any time up to 3:00 p.m., New York City time, on the third business
day preceding the expiration date, after which time all currency warrants will
be deemed automatically exercised on the expiration date.
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PLAN OF DISTRIBUTION
We may sell securities to underwriters or dealers, through agents or
directly to purchasers (or a combination of these methods). Under certain
circumstances, we may also repurchase securities (directly or through dealers)
and reoffer them to the public in the same manner.
If stated in the prospectus supplement, we may authorize underwriters,
dealers or agents to solicit offers by certain institutions to purchase debt
securities pursuant to delayed delivery contracts providing for payment and
delivery on a future date.
BY UNDERWRITERS
If underwriters are used in the sale, the securities will be acquired by the
underwriters for their own account. The underwriters may resell the securities
in one or more transactions, including negotiated transactions, at a fixed
public offering price, which may be changed, or at varying prices determined at
the time of sale. The obligations of the underwriters to purchase the securities
will be subject to certain conditions. Any initial public offering price and any
discounts or concessions allowed or re-allowed or paid to dealers may be changed
from time to time.
BY AGENTS
We may designate dealers, acting as our agents, to offer and sell securities
upon certain terms and conditions. Unless otherwise indicated in the prospectus
supplement, any agent we designate will act on a best efforts basis for the
period of its appointment.
DIRECT SALES
We may sell securities directly to the public, without the use of
underwriters, dealers or agents.
GENERAL INFORMATION
Underwriters, dealers and agents that participate in the distribution of the
securities may be underwriters as defined in the Securities Act of 1933, and any
discounts or commissions received by them from us and any profit on the resale
of the offered securities by them may be treated as underwriting discounts and
commissions under the Securities Act. Any underwriters or agents will be
identified and their compensation from us will be described in a supplement to
this prospectus.
We may have agreements with the underwriters, dealers and agents to
indemnify them against certain civil liabilities, including liabilities under
the Securities Act, or to contribute with respect to payments which the
underwriters, dealers or agents may be required to make.
Underwriters, dealers and agents may engage in transactions with, or perform
services for, us or our subsidiaries in the ordinary course of their businesses.
LEGAL MATTERS
The validity of the offered securities will be passed upon for us by
Roderick A. Palmore, our Senior Vice President, General Counsel and Secretary.
At January 1, 2000, Mr. Palmore beneficially owned 33,613 shares of our common
stock and held currently exercisable options to purchase 186,890 additional
shares pursuant to our stock option plans.
EXPERTS
Our consolidated financial statements and schedules appearing in our Annual
Report on Form 10-K for the fiscal year ended July 3, 1999 have been audited by
Arthur Andersen LLP, independent public accountants, as set forth in their
report included therein. We incorporate herein by reference such consolidated
financial statements and schedules in reliance upon the authority of said firm
as experts in accounting and auditing.
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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, other than underwriting discounts and agency fees or commissions,
are set forth in the following table. All amounts except the Securities and
Exchange Commission registration fee are estimated.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee......... $303,600
Printing and engraving expenses............................. 30,000
Accountants' fees and expenses.............................. 40,000
Legal fees and expenses..................................... 75,000
Fees and expenses of trustee................................ 20,000
Rating agency fees.......................................... 200,000
Blue Sky fees and expenses.................................. 10,000
Miscellaneous............................................... 5,000
--------
Total....................................................... $683,600
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 2-418 of the Maryland General Corporation Law provides for
indemnification of the Registrant's directors, officers, employees and agents
under specified circumstances, which may include indemnity against expenses,
including attorneys' fees, judgments, fines and amounts paid in settlement under
the Securities Act of 1933 (the "Securities Act"). The Registrant has purchased
and maintains insurance as is permitted by said Section 2-418 on behalf of
directors and officers, which insurance may cover liabilities under the
Securities Act. Article V of the Bylaws of the Registrant provides for such
indemnification to the extent and under the circumstances permitted by said
Section 2-418.
Article V of the Bylaws of the Registrant provides as follows:
"Section 1. RIGHT TO INDEMNIFICATION. To the maximum extent permitted by
Maryland law in effect from time to time, the Corporation shall indemnify and,
without requiring a preliminary determination of the ultimate entitlement to
indemnification, shall pay or reimburse reasonable expenses in advance of final
disposition of a proceeding to (a) any individual who is a present or former
director or officer of the Corporation or a subsidiary thereof and who is made a
party to the proceeding by reason of his or her service in that capacity or
(b) any individual who, while a director or officer of the Corporation and at
the request of the Corporation, serves or has served another corporation,
partnership, joint venture, trust, employee benefit plan or any other enterprise
as a director, officer, partner or trustee of such corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise and who is made
a party to the proceeding by reason of his or her service in that capacity. The
Corporation may, with the approval of its Board of Directors, provide such
indemnification and advance for expenses to a person who served a predecessor of
the Corporation in any of the capacities described in (a) or (b) above and to
any employee or agent of the Corporation or a predecessor of the Corporation.
Section 2. TIME FOR PAYMENT ENFORCEMENT. Any indemnification, or payment
of expenses in advance of the final disposition of any proceeding, shall be made
promptly, and in any event within 60 days, upon the written request of the
director or officer entitled to indemnification (the "Indemnified Party"). The
right to indemnification and advance of expenses hereunder shall be enforceable
by the Indemnified Party in any court of competent jurisdiction, if (i) the
Corporation denies such request, in whole or in part, or (ii) no disposition
thereof is made within 60 days. The Indemnified Party's costs and expenses
incurred in connection with successfully establishing his or her
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right to indemnification, in whole or in part, in any such action shall also be
indemnified by the Corporation.
Section 3. GENERAL. The indemnification and advance of expenses provided
by this Article V (a) shall not be deemed exclusive of any other rights to which
a person seeking indemnification or advance of expenses may be entitled under
any law (common or statutory), or any agreement, vote of stockholders or
disinterested directors or other provision that is not contrary to law, both as
to action in his or her official capacity and as to action in another capacity
while holding office or while employed by or acting as agent for the
Corporation, (b) shall continue in respect of all events occurring while a
person was a director or officer after such person has ceased to be a director
or officer, and (c) shall inure to the benefit of the estate, heirs, executors
and administrators of such person. All rights to indemnification and advance of
expenses hereunder shall be deemed to be a contract between the Corporation and
each director or officer of the Corporation who serves or served in such
capacity at any time while this Article V is in effect.
Section 4. EFFECTIVE TIME. This Article V shall be effective from and
after the date of its adoption and shall apply to all proceedings arising prior
to or after such date, regardless of whether relating to facts or circumstances
occurring prior to or after such date. Neither the amendment nor repeal of this
Article, nor the adoption or amendment of any other provision of the Charter or
Bylaws inconsistent with this Article, shall apply to or affect in any respect
the applicability of this Article with respect to any act or failure to act
which occurred prior to such amendment, repeal or adoption.
Section 5. FURTHER ACTION. The Board of Directors may take such action as
is necessary to carry out the provisions of this Article V and is expressly
empowered to adopt, approve and amend from time to time such resolutions or
contracts implementing such provisions or such further arrangements for
indemnification or advance of expenses as may be permitted by law."
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
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<S> <C>
1.1 Form of Underwriting Agreement is hereby incorporated by
reference to Exhibit 1.1 to the Registrant's Registration
Statement on Form S-3, Registration No. 33-33603, filed with
the SEC on February 27, 1990.
1.2 Form of Distribution Agreement is hereby incorporated by
reference to Exhibit 1.1 to the Registrant's Current Report
on Form 8-K dated April 13, 1993.
4.1 Articles of Restatement of Charter, dated April 9, 1990, are
hereby incorporated by reference to Exhibit 4.1 to the
Registrant's Registration Statement on
Form S-8, Registration No. 33-35760, filed with the SEC on
July 6, 1990.
4.2 Articles Supplementary to the Charter, dated May 18, 1990,
are hereby incorporated by reference to Exhibit 4.2 to the
Registrant's Registration Statement on
Form S-8, Registration No. 33-37575, filed with the SEC on
November 1, 1990.
4.3 Articles Supplementary to the Charter, dated October 30,
1992, are hereby incorporated by reference to Exhibit 4.3
to the Registrant's Registration Statement on Form S-8,
Registration No. 33-59002, filed with the SEC on March 4,
1993.
4.4 Articles of Amendment to the Charter, dated November 19,
1998, are hereby
incorporated by reference to Exhibit 4.4 to the Registrant's
Registration Statement on
Form S-3, Registration No. 333-71797, filed with the SEC on
February 4, 1999.
4.5 Articles Supplementary to the Charter, dated January 7,
1999, are hereby incorporated by reference to Exhibit 4.5 to
the Registrant's Registration Statement on Form S-3,
Registration No. 333-71797, filed with the SEC on
February 4, 1999.
4.6 Amended By-Laws, dated August 29, 1996, are hereby
incorporated by reference to Exhibit 3(b) to the
Registrant's Annual Report on Form 10-K for the fiscal year
ended June 29, 1997.
</TABLE>
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<TABLE>
<S> <C>
4.7 Rights Agreement, dated as of March 26, 1998, between the
Registrant and First
Chicago Trust Company of New York, as rights agent, is
hereby incorporated by reference to Exhibit 4.1 to the
Registrant's Report on Form 8-K dated May 15, 1998, filed
with the SEC on May 19, 1998.
4.8.1 Indenture, dated as of October 2, 1990, between the
Registrant and The Bank of New York, as successor to
Continental Bank, N.A., as Trustee, is hereby incorporated
by reference to Exhibit 4.1 to Amendment No. 1 to the
Registrant's
Registration Statement on Form S-3/A, Registration No.
33-33603, filed with the SEC on October 5, 1990.
4.8.2 Form of Note (Fixed Rate).
4.8.3 Form of Note (Floating Rate) is hereby incorporated by
reference to Exhibit 4.2 to the Registrant's Current Report
on Form 8-K dated April 13, 1993.
4.9 Form of Debt Warrant Agreement.
4.10 Form of Stock Warrant Agreement.
4.11 Form of Currency Warrant Agreement.
5.1 Opinion of Roderick A. Palmore, Senior Vice President,
General Counsel and Secretary
12.1 Computation of ratios of earnings to fixed charges for each
of the last five fiscal years.
12.2 Computation of ratios of earnings to fixed charges is hereby
incorporated by reference to Exhibit 12.1 to the
Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended October 2, 1999.
12.3 Computation of ratios of earnings to fixed charges and
preferred stock dividend
requirements for each of the last five fiscal years.
12.4 Computation of ratios of earnings to fixed charges and
preferred stock dividend
requirements is hereby incorporated by reference to Exhibit
12.2 to the Registrant's Quarterly Report on Form 10-Q for
the fiscal quarter ended October 2, 1999.
23.1 Consent of Roderick A. Palmore (included in Exhibit 5).
23.2 Consent of Arthur Andersen LLP.
24.1 Powers of Attorney.
25.1 Form T-1--Statement of Eligibility of Trustee.
</TABLE>
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made of the
securities registered hereby, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Act");
(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) under the Act if, in the
aggregate, the changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement; and
II-3
<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 (1)(i) and (1)(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 with or furnished to the
Commission by the Registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act") that are incorporated by reference in
the Registration Statement.
(2) That, for the purpose of determining any liability under the Act, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial BONA FIDE offering
thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of
the offering.
(4) That, for purposes of determining any liability under the Act, each filing
of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to
be a new Registration Statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial BONA FIDE offering thereof.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the provisions referred to in 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 the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Sara Lee
Corporation 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 Chicago, State of Illinois, on this 1st day of
February, 2000.
<TABLE>
<S> <C> <C>
SARA LEE CORPORATION
By: /s/ RODERICK A. PALMORE
-----------------------------------------
Roderick A. Palmore
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND
SECRETARY
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on February 1, 2000.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY
--------- --------
<C> <S>
/s/ JOHN H. BRYAN
------------------------------------------- Chairman of the Board, Chief Executive Officer
John H. Bryan and Director (Principal Executive Officer)
/s/ C. STEVEN MCMILLAN
------------------------------------------- President, Chief Operating Officer and
C. Steven McMillan Director
/s/ FRANK L. MEYSMAN
------------------------------------------- Executive Vice President and Director
Frank L. Meysman
/s/ CARY D. MCMILLAN Executive Vice President, Chief Financial and
------------------------------------------- Administrative Officer and Director
Cary D. McMillan (Principal Financial Officer)
/s/ WAYNE R. SZYPULSKI
------------------------------------------- Vice President and Controller
Wayne R. Szypulski (Principal Accounting Officer)
*
------------------------------------------- Director
Paul A. Allaire
*
------------------------------------------- Director
Frans H.J.J. Andriessen
*
------------------------------------------- Director
Duane L. Burham
*
------------------------------------------- Director
Charles W. Coker
*
------------------------------------------- Director
James S. Crown
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE CAPACITY
--------- --------
<C> <S>
*
------------------------------------------- Director
Willie D. Davis
*
------------------------------------------- Director
Vernon E. Jordan, Jr.
*
------------------------------------------- Director
James L. Ketelsen
*
------------------------------------------- Director
Hans B. van Liemt
*
------------------------------------------- Director
Joan D. Manley
*
------------------------------------------- Director
Rozanne L. Ridgway
*
------------------------------------------- Director
Richard L. Thomas
*
------------------------------------------- Director
John D. Zeglis
</TABLE>
- ------------------------
* By Roderick A. Palmore as Attorney-in-Fact pursuant to Powers of Attorney
executed by the directors listed above, which Powers of Attorney have been
filed with the Securities and Exchange Commission.
<TABLE>
<S> <C> <C>
By: /s/ RODERICK A. PALMORE
-----------------------------------------
Roderick A. Palmore
AS ATTORNEY-IN-FACT
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<S> <C>
1.1 Form of Underwriting Agreement is hereby incorporated by
reference to Exhibit 1.1 to the Registrant's Registration
Statement on Form S-3, Registration No. 33-33603, filed with
the SEC on February 27, 1990.
1.2 Form of Distribution Agreement is hereby incorporated by
reference to Exhibit 1.1 to the Registrant's Current Report
on Form 8-K dated April 13, 1993.
4.1 Articles of Restatement of Charter, dated April 9, 1990, are
hereby incorporated by reference to Exhibit 4.1 to the
Registrant's Registration Statement on Form S-8,
Registration No. 33-35760, filed with the SEC on July 6,
1990.
4.2 Articles Supplementary to the Charter, dated May 18, 1990,
are hereby incorporated by reference to Exhibit 4.2 to the
Registrant's Registration Statement on Form S-8,
Registration No. 33-37575, filed with the SEC on November 1,
1990.
4.3 Articles Supplementary to the Charter, dated October 30,
1992, are hereby incorporated by reference to Exhibit 4.3 to
the Registrant's Registration Statement on Form S-8,
Registration No. 33-59002, filed with the SEC on March 4,
1993.
4.4 Articles of Amendment to the Charter, dated November 19,
1998, are hereby incorporated by reference to Exhibit 4.4 to
the Registrant's Registration Statement on Form S-3,
Registration No. 333-71797, filed with the SEC on
February 4, 1999.
4.5 Articles Supplementary to the Charter, dated January 7,
1999, are hereby incorporated by reference to Exhibit 4.5 to
the Registrant's Registration Statement on Form S-3,
Registration No. 333-71797, filed with the SEC on
February 4, 1999.
4.6 Amended By-Laws, dated August 29, 1996, are hereby
incorporated by reference to Exhibit 3(b) to the
Registrant's Annual Report on Form 10-K for the fiscal year
ended June 29, 1997.
4.7 Rights Agreement, dated as of March 26, 1998, between the
Registrant and First Chicago Trust Company of New York, as
rights agent, is hereby incorporated by reference to Exhibit
4.1 to the Registrant's Report on Form 8-K dated May 15,
1998, filed with the SEC on May 19, 1998.
4.8.1 Indenture, dated as of October 2, 1990, between the
Registrant and The Bank of New York, as successor to
Continental Bank, N.A., as Trustee, is hereby incorporated
by reference to Exhibit 4.1 to Amendment No. 1 to the
Registrant's Registration Statement on Form S-3/A,
Registration No. 33-33603, filed with the SEC on October 5,
1990.
4.8.2 Form of Note (Fixed Rate).
4.8.3 Form of Note (Floating Rate) is hereby incorporated by
reference to Exhibit 4.2 to the Registrant's Current Report
on Form 8-K dated April 13, 1993.
4.9 Form of Debt Warrant Agreement.
4.10 Form of Stock Warrant Agreement.
4.11 Form of Currency Warrant Agreement.
5.1 Opinion of Roderick A. Palmore, Senior Vice President,
General Counsel and Secretary
12.1 Computation of ratios of earnings to fixed charges for each
of the last five fiscal years.
12.2 Computation of ratios of earnings to fixed charges is hereby
incorporated by reference to Exhibit 12.1 to the
Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended October 2, 1999.
12.3 Computation of ratios of earnings to fixed charges and
preferred stock dividend requirements for each of the last
five fiscal years.
</TABLE>
II-7
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<S> <C>
12.4 Computation of ratios of earnings to fixed charges and
preferred stock dividend requirements is hereby incorporated
by reference to Exhibit 12.2 to the Registrant's Quarterly
Report on Form 10-Q for the fiscal quarter ended October 2,
1999.
23.1 Consent of Roderick A. Palmore (included in Exhibit 5).
23.2 Consent of Arthur Andersen LLP.
24.1 Powers of Attorney.
25.1 Form T-1--Statement of Eligibility of Trustee.
</TABLE>
II-8
<PAGE>
EXHIBIT 4.8.2
REGISTERED PRINCIPAL
AMOUNT: $ _______________
No. FXR-__
CUSIP No. _____________
SARA LEE CORPORATION
MEDIUM-TERM NOTE, SERIES __
(Fixed Rate)
This Security is a Security in global form within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This global Security is exchangeable
for Security registered in the name of a Person other than the Depositary or
its nominee only in the limited circumstances described in the Indenture, and
no transfer of this Security (other than a transfer of this Security as a
whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary) may be
registered except in such limited circumstances.
Unless this Security is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York, New York), a New
York corporation ("DTC"), to the issuer or its agent for registration of
transfer, exchange or payment, and any Security issued upon registration of
transfer of, or in exchange for, or in lieu of, this Security is registered
in the name of Cede & Co. or such other name as requested by an authorized
representative of DTC (any payment hereon is made to Cede & Co. or to such
other entity as is requested by an authorized representative of DTC). ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has
an interest herein.
THE FOLLOWING SUMMARY OF TERMS IS SUBJECT TO THE INFORMATION SET FORTH HEREIN:
<TABLE>
<S> <C> <C>
PRINCIPAL AMOUNT: $
ORIGINAL ISSUE DATE: INITIAL INTEREST RATE: STATED MATURITY:
SPECIFIED CURRENCY: THIS SECURITY IS A: AUTHORIZED DENOMINATIONS
(if other than U.S. Global Security (if Specified Currency is U.S. dollars):
$1,000 and any integral multiple of
$1,000 in excess thereof
(if Specified Currency is other than
U.S. dollars):
</TABLE>
1
<PAGE>
<TABLE>
<S> <C>
CURRENCY DETERMINATION OPTION TO ELECT PAYMENT
AGENT (if other than The IN U.S. DOLLARS (only
Bank of New York): applicable if Specified
Currency is other than
U.S. dollars):
/ / Yes / / No
INTEREST PAYMENT DATES: REGULAR RECORD DATES:
REDEMPTION DATE(S): REDEMPTION PERIODS AND
PRICE(S):
REPAYMENT DATE(S): REPAYMENT PRICE(S):
INITIAL MATURITY DATE: RENEWAL TERMS
(if any):
FINAL MATURITY DATE: EXTENSION TERMS
(if any):
OTHER PROVISIONS:
DISCOUNTED SECURITY:
/ / Yes / / No
ORIGINAL ISSUE DISCOUNT TOTAL AMOUNT OF OID: ISSUE PRICE (expressed as a
SECURITY: percentage of aggregate principal
amount):
/ / Yes / / No
YIELD TO MATURITY: SHORT ACCRUAL PERIOD OID: METHOD USED TO DETERMINE
YIELD FOR SHORT ACCRUAL
PERIOD:
/ / Approximate / / Exact
</TABLE>
2
<PAGE>
SARA LEE CORPORATION
SARA LEE CORPORATION, a Maryland corporation (herein called the
"Company," which term includes any successor corporation under the Indenture
referred to below), for value received, hereby promises to pay to Cede & Co.,
as nominee for the Depository Trust Company, or registered assigns, the
principal amount stated above at Stated Maturity, and to pay interest thereon
from the Original Issue Date shown above or, in the case of a Security issued
upon registration of transfer or exchange, from and including the most recent
Interest Payment Date to which interest has been paid or duly provided for to
but not including the applicable Interest Payment Date or the Stated Maturity
or any Redemption Date or Repayment Date (each such Stated Maturity Date,
Redemption Date and Repayment Date is referred to hereinafter as a "Maturity"
with respect to principal repayable on such date), as the case may be,
PROVIDED that if the Original Issue Date is after a Regular Record Date and
before the Interest Payment Date immediately following such Regular Record
Date, interest payments will commence on the second Interest Payment Date
following the Original Issue Date, at the rate per annum set forth above,
until the principal hereof is paid or made available for payment. The
interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest; PROVIDED, HOWEVER, that interest payable at Maturity will be
payable to the Person to whom principal shall be payable. Any such interest
not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and shall be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a special record date (which shall be
not less than five Business Days prior to the date of payment of such
defaulted interest) established by notice given by mail by or on behalf of
the Company to the Holder of this Security (or one or more Predecessor
Securities) not less than 15 calendar days preceding such special record date
(the "Special Record Date").
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture dated as of October 2, 1990, as supplemented
from time to time (herein called the "Indenture"), among the Company and The
Bank of New York, as successor to Continental Bank, N.A., as Trustee (herein
called the "Trustee," which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is
one of the series designated on the face hereof. The Securities of this
series may be denominated in different currencies, bear different dates,
mature at different times and bear interest at different rates. The
Securities of this series may be issued from time to time up to an aggregate
public offering price of $_________ (or the equivalent thereof in foreign
currencies or foreign currency units.
The Company will appoint and at all times maintain a Paying Agent
(which may be the Trustee) authorized by the Company to pay the principal of
(and premium, if any) and interest on any Securities of this series on behalf
of the Company and having an office or agency in The
3
<PAGE>
City of New York, New York or The City of Chicago, Illinois where Securities
of this series may be presented or surrendered for payment and where notices,
designations or requests in respect of payments with respect to Securities of
this series may be served. The Company has initially appointed The Bank of
New York as such Paying Agent, with its Corporate Trust Office currently at
101 Barclay Street, New York, New York 10286. The Company will give prompt
written notice to the Trustee of any change in such appointment.
Funds for the payment of the principal of (and premium, if any) and
interest on this Security due in United States dollars on any Interest
Payment Date or at Maturity will be made available to the Trustee on such
date. As soon as possible thereafter, the Trustee will pay such funds to the
Depositary (referred to below), and the Depositary will allocate and pay such
funds to the owners of beneficial interests in this Security in accordance
with its existing operating procedures.
If this Security is a Zero Coupon Security, the principal of this
Security shall not bear interest except in the case of a default in the
payment of principal upon acceleration, upon redemption or at Stated Maturity
and in such case the overdue principal of this Security shall bear interest
at the interest rate per annum specified above (or, if this Security is a
Discounted Security, the Yield to Maturity specified above) (to the extent
that the payment of such interest shall be legally enforceable), which shall
accrue from and including the date of such default in payment to but not
including the date payment of such principal has been made or duly provided
for. Interest on any overdue principal shall be payable on demand. Any such
interest rate per annum specified above (or, if this Security is a Discounted
Security, the Yield to Maturity specified above) (to the extent that the
payment of such interest shall be legally enforceable), shall accrue from the
date of such demand for payment to the date payment of such interest has been
made or duly provided for, and such interest shall also be payable on demand.
The principal of (and premium, if any) and interest on this Security
are payable by the Company in the Specified Currency set forth above. If the
Specified Currency is other than United States dollars, the Holder hereof
may, if so indicated above, elect to have all such payments converted into
United States dollars in the manner described below by delivery of a written
request to the Paying Agent at its principal office in The City of New York,
New York on or prior to the applicable Regular Record Date or at least 15
days prior to Maturity, as the case may be. Such election may be in writing
(mailed or hand delivered) or by cable, telex or other form of facsimile
transmission. A Holder of such a Security may elect to receive payment in
United States dollars for all principal (and premium, if any) and interest
payments and need not file a separate election for each payment. Such
election will remain in effect until revoked by written notice to the Paying
Agent, but written notice of such revocation must be received by the Trustee
on or prior to the applicable Regular Record Date or at least 15 days prior
to Maturity, as the case may be (but no such revocation may be made with
respect to payments to be made on such a Security if an Event of Default has
occurred with respect thereto or upon the giving of a notice of redemption).
All payments of principal (and premium, if any) and interest in a
Specified Currency other than United States dollars will be made in the
manner set forth below.
4
<PAGE>
Interest payments for this Security will include interest accrued to,
but excluding, the Interest Payment Dates. Interest payments for this
Security shall be computed and paid on the basis of a 360-day year of twelve
30-day months unless otherwise specified.
Any payment on this Security due on any day which is not a Market Day
need not be made on such day, but may be made on the next succeeding Market
Day with the same force and effect as if made on such due date, and no
interest shall be payable on the date of payment for the period from and
after such due date.
"Business Day", with respect to any particular location, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in such location are authorized by law or regulation to
close. "Market Day" means any Business Day in The City of New York.
Unless one or more Redemption Dates are specified on the face hereof,
this Security shall not be redeemable at the option of the Company before the
Stated Maturity specified on the face hereof. If one or more Redemption
Dates (or ranges of Redemption Dates) are so specified, this Security is
subject to redemption on any such date (or during any such range) at the
option of the Company, upon notice by first-class mail, postage prepaid,
mailed not less than 30 days nor more than 60 days prior to the Redemption
Date specified in such notice, at the applicable Redemption Price specified
on the face hereof (expressed as a percentage of the principal amount of this
Security), together in the case of any such redemption with accrued interest
to but not including the Redemption Date, but interest installments whose
Stated Maturity is prior to the Redemption Date will be payable to the Holder
of this Security, or one or more Predecessor Securities, of record at the
close of business on the relevant Regular or Special Record Dates, all as
provided in the Indenture. The Company may elect to redeem less than the
entire principal amount hereof, PROVIDED that the principal amount, if any,
of this Security that remains outstanding after such redemption is an
Authorized Denomination as defined herein. In the event of any redemption in
part, the Company will not be required to (i) issue, register the transfer
of, or exchange any Security during a period of 15 days next preceding the
day of the first mailing of the notice of redemption of Securities selected
for redemption or (ii) register the transfer or exchange of any Security, or
any portion thereof, called for redemption, except the unredeemed portion of
any Security being redeemed in part.
Unless one or more Repayment Dates is specified above, this Security
shall not be repayable at the option of the Holder on any date prior to the
Stated Maturity specified above. If one or more Repayment Dates (or ranges
of Repayment Dates) are so specified, this Security is subject to repayment
on any such date (or during any such range) at the option of the Holder at a
price equal to 100% of the principal amount hereof or, if this Security is a
Discounted Security (as specified on the face hereof), the applicable
Repayment Price specified on the face hereof (expressed as a percentage of
the principal amount of this Security), together in the case of any such
repayment with accrued interest to but not including the Repayment Date, but
interest installments whose Stated Maturity is prior to the Repayment Date
will be payable to the Holder of this Security, or one or more Predecessor
Securities, of record at the close of business on the relevant Regular or
Special Record Dates, all as provided in the Indenture. For this Security to
be repaid at the option of the Holder, the Paying Agent must receive at the
Corporate Trust Office, at least 30 days but not more than 60 days prior to
the Repayment Date on which this
5
<PAGE>
Security is to be repaid, (a) appropriate wire transfer instructions and (b)
either (i) this Security with the form entitled "Option to Elect Repayment"
below duly completed or (ii) a telegram, telex, facsimile transmission or a
letter from a member of a national securities exchange, or the National
Association of Securities Dealers, Inc. or a commercial bank or trust company
in the United States setting forth the name of the Holder of this Security,
the principal amount of this Security, the principal amount of this Security
to be repaid, the certificate number or a description of the tenor and terms
of this Security, a statement that the option to elect repayment is being
exercised thereby and a guarantee that this Security, together with the duly
completed form entitled "Option to Elect Repayment" on this Security, will be
received by the Paying Agent not later than the fifth Business Day after the
date of such telegraph, telex, facsimile transmission or letter, PROVIDED,
HOWEVER, that such telegram, telex, facsimile transmission or letter shall
only be effective if this Security with such form duly completed are received
by the Paying Agent by such fifth Business Day. Exercise of the repayment
option by the Holder shall be irrevocable, except (i) a Holder who has
tendered this Security for repayment pursuant to an Extension Notice (as
defined below) may revoke such tender for repayment in accordance with
paragraph (c) below and (ii) a Holder who has tendered this Security for
repayment pursuant to a Reset Notice (as defined below) relating to the
interest rate on this Security may revoke such tender for repayment in
accordance with the next succeeding paragraph (c) below. The repayment
option with respect to this Security may be exercised by the Holder for less
than the entire principal amount hereof, PROVIDED that the principal amount,
if any, of this Security that remains outstanding after such repayment must
be an Authorized Denomination as defined herein. The Company will not be
required to register the transfer or exchange any Security following the
receipt of a notice to repay a Security as described above.
In the event of redemption or repayment of this Security in part only,
a new Security or Securities of this series and of like tenor and for a
principal amount equal to the unredeemed or unrepaid portion will be
delivered to the registered Holder upon the cancellation hereof.
If so specified above, the Stated Maturity of this Security may be
extended at the option of the Company, in the manner set forth below (unless
otherwise provided on the face hereof), for the period or periods specified
above (each an "Extension Period") up to but not beyond the date (the "Final
Maturity Date") set forth above:
(a) The Company may exercise such option by notifying
the Paying Agent of such exercise at least 45 but no more than 60
days prior to the Stated Maturity in effect prior to such exercise
(the "Original Stated Maturity"). If the Company exercises such
option, the Paying Agent will mail by first-class mail to the
Holder of this Security no later than 40 days prior to the
Original Stated Maturity a notice (the "Extension Notice") setting
forth (i) the election of the Company to extend the Original
Stated Maturity, (ii) the new Stated Maturity (which shall then be
considered the Stated Maturity for all purposes of this Security),
(iii) the interest rate applicable to the Extension Period and
(iv) the provisions, if any, for redemption during such Extension
Period. Upon the Paying Agent's transmittal of the Extension
Notice, the Original Stated Maturity of this Security shall be
extended automatically, and, except as modified by the Extension
Notice and as described in the next paragraph, this Security will
have the same terms as prior to the transmittal of such Extension
Notice.
6
<PAGE>
(b) Notwithstanding the foregoing, not later than 20
days prior to the Original Stated Maturity of this Security the
Company may, at its option, revoke the interest rate provided for
in the Extension Notice and establish an interest rate that is
higher than the interest rate provided for in the Extension Notice
for the Extension Period by causing the Paying Agent to transmit
notice, by first class mail, postage prepaid, of such higher
interest rate to the Holder of this Security. Such notice shall be
irrevocable. All Securities with respect to which the Stated
Maturity is extended and with respect to which the Holders of such
Securities have not tendered such Securities for repayment (or
have validly revoked any such tender) pursuant to the succeeding
paragraph will bear such higher interest rate for the Extension
Period.
(c) If the Company elects to extend the Stated Maturity
of this Security, the Holder hereof will have the option to elect
repayment of this Security by the Company on the Original Stated
Maturity at a price equal to the aggregate principal amount hereof
outstanding plus interest accrued to but not including such date.
In order to obtain such repayment, the Holder hereof must follow
the procedures set forth above for optional repayment, except that
the period for delivery of this Security or notification to the
Trustee shall be at least 25 but not more than 35 days prior to
the Original Stated Maturity and except that, if the Holder hereof
has tendered this Security for repayment pursuant to an Extension
Notice, such Holder may, by written notice to the Paying Agent,
revoke such tender for repayment until the close of business on
the tenth day prior to the Original Stated Maturity.
If so specified above, the Company may reset the interest rate of this
Security in the manner set forth below (unless otherwise provided on the face
hereof):
(a) The Company may exercise such option with respect to
a Note by notifying the Paying Agent of such exercise at least 45
but not more than 60 days prior to the date of such exercise (an
"Optional Reset Date") for such Note. Not later than 40 days
prior to such Optional Reset Date, the Paying Agent will mail to
the Holder of such Note a notice (the "Reset Notice"), first
class, postage prepaid, setting forth (i) the election of the
Company to reset the interest rate, (ii) such new interest rate
and (iii) the provisions, if any, for redemption during the period
from such Optional Reset Date to the next Optional Reset Date or,
if there is no such next Optional Reset Date, to the Stated
Maturity of such Note (each such period a "Subsequent Interest
Period"), including the date or dates on which or the period or
periods during which and the price or prices at which such
redemption may occur during such Subsequent Interest Period.
(b) Notwithstanding the foregoing, not later than 20
days prior to an Optional Reset Date for a Note, the Company may,
at its option, revoke the interest rate provided for in the Reset
Notice and establish a higher interest rate for the Subsequent
Interest Period commencing on such Optional Reset Date by mailing
or causing the Paying Agent to mail notice of such higher interest
rate, first class, postage prepaid, to the Holder of such Note.
Such notice shall be
7
<PAGE>
irrevocable. All Notes with respect to which the interest rate
is reset on an Optional Reset Date will bear such higher
interest rate.
(c) If the Company elects to reset the interest rate,
the Holder of such Note will have the option to elect repayment of
such Note by the Company on any Optional Reset Date at a price
equal to the principal amount thereof plus any accrued interest to
but not including such Optional Reset Date. In order for a Note
to be so repaid on an Optional Reset Date, the Holder thereof must
follow the procedures set forth above for optional repayment,
except that the period for delivery of such Note or notification
to the Paying Agent shall be at least 25 but not more than 35 days
prior to such Optional Reset Date and except that a Holder who has
tendered a Note for repayment pursuant to a Reset Notice may, by
written notice to the Paying Agent, revoke any such tender for
repayment until the close of business on the tenth day prior to
such Optional Reset Date.
If so specified above, this Security may be renewed by the Holder of
the Security on an Interest Payment Date (specified above) occurring in or
prior to the twelfth month following the Original Issue Date (the "Initial
Maturity Date") in accordance with the procedures described below:
(a) On the Interest Payment Date occurring in the sixth
month (unless a different interval (the "Special Election
Interval") is specified above) prior to the Initial Maturity Date
(as specified above) of a Renewable Note (the "Initial Renewal
Date") and on the Interest Payment Date occurring in each sixth
month (or in the last month of each Special Election Interval)
after such Initial Renewal Date (each, together with the Initial
Renewal Date, a "Renewal Date"), the term of this Security may be
extended to the Interest Payment Date occurring in the twelfth
month (or, if a Special Election Interval is specified, the last
month in a period equal to twice the Special Election Interval)
after such Renewal Date, if the Holder of this Security elects to
extend the term of this Security or any portion hereof as provided
below. If the Holder of this Security does not elect to extend
the term of any portion of the principal amount of this Security
during the specified period prior to any Renewal Date, such
portion will become due and payable on the Interest Payment Date
occurring in the sixth month (or the last month in the Special
Election Interval) after such Renewal Date (the "New Maturity
Date").
(b) A Holder of this Security may elect to renew the
term of this Security, or if specified above, any portion thereof,
by delivering a notice to such effect to the Paying Agent not less
than 15 nor more than 30 days prior to such Renewal Date (unless
another period is specified above as the "Special Election
Period"). Such election will be irrevocable and will be binding
upon each subsequent Holder of this Security. An election to
renew the term of this Security may be exercised with respect to
less than the entire principal amount of this Security only if so
specified above and only in such principal amount, or any integral
multiple in excess thereof, as specified above. Notwithstanding
the
8
<PAGE>
foregoing, the term of this Security may not be extended beyond
the Stated Maturity specified above.
(c) If the Holder of this Security does not elect to
renew this Security, the Holder hereof shall be required to elect
repayment of this Security by the Company on the New Maturity Date
at a price equal to the aggregate principal amount hereof
outstanding plus interest accrued to but not including such date.
In order to obtain such repayment, the Holder hereof must follow
the procedures set forth above for optional repayment.
If the Specified Currency is other than United States dollars and the
Holder has exercised its option (if any) to elect payment in United States
dollars, payment in respect of this Security shall be made in United States
dollars based on the highest indicated bid quotation for the purchase of
United States dollars for the Specified Currency obtained by the Currency
Determination Agent (as defined below) at approximately 11:00 A.M., New York
City time, on the second Business Day next preceding the applicable payment
date from the bank composite or multi-contributor pages of the Quoting Source
for three (or two if three are not available) major banks in The City of New
York. The first three (or two) such banks selected by the Currency
Determination Agent which are offering quotes on the Quoting Source will be
used. If fewer than two such bid quotations are available at 11.00 A.M., New
York City time, on the second Business Day next preceding the applicable
payment date, such payment will be based on the Market Exchange Rate (defined
below) as of the second Business Day next preceding the applicable payment
date. If the Market Exchange Rate for such date is not then available, such
payment will be made in the Specified Currency. As used herein, the "Quoting
Source" means Reuters Monitor Foreign Exchange Service, or if the Currency
Determination Agent determines that such service is not available, Telerate
Monitor Foreign Exchange service, or if the Currency Determination Agent
determines that neither service is available, such comparable display or
other comparable manner of obtaining quotations as shall be agreed between
the Company and the Currency Determination Agent. All currency exchange
costs associated with any payment in U.S. dollars on any such Note will be
borne by the Holder thereof by deductions from such payment. Unless otherwise
provided in the applicable Pricing Supplement, Bank of New York Trust Company
of Missouri will be the Currency Determination Agent (the "Currency
Determination Agent") with respect to the Notes.
If the Specified Currency is other than United States dollars and the
Holder has not elected to receive payments in United States dollars as
described above, payments of principal (and premium, if any) and interest on
any Security of this series will be made by wire transfer to an account
maintained by the Holder with a bank located in the country issuing the
Specified Currency (or, with respect to Securities denominated in ECUs,
Brussels) or other jurisdiction acceptable to the Company and the Trustee as
shall have been designated in writing at least 15 days prior to the Interest
Payment Date or Maturity, as the case may be, by the Holder of such Security
on the relevant Regular Record Date or at Maturity; PROVIDED, HOWEVER, that
with respect to payments of principal of (and premium, if any) and any
interest due at Maturity, this Security is presented to the Paying Agent in
time for the Paying Agent to make such payments in such funds in accordance
with its normal procedures. Such designation shall be made by filing the
appropriate information with the Trustee at its Corporate Trust Office, and,
unless revoked, any such designation made with respect to any Security by a
registered Holder will remain in
9
<PAGE>
effect with respect to any further payments with respect to such Security
payable to such Holder. If a payment with respect to any such Security
cannot be made by wire transfer because the required designation has not been
received by the Trustee on or before the requisite date or for any other
reason, a notice will be mailed to the Holder at its registered address
requesting a designation pursuant to which such wire transfer can be made
and, upon the Trustee's receipt of such a designation, such payment will be
made within 15 days of receipt. The Company will pay any administrative
costs imposed by banks in connection with making payments by wire transfer,
but any tax, assessment or governmental charge imposed upon payments will be
borne by the Holders of Securities in respect of which payments are made.
If payment on this Security is required to be made in a Specified
Currency other than United States dollars and such Specified Currency is
unavailable in the good faith judgment of the Company due to the imposition
of exchange controls or other circumstances beyond the Company's control,
then all payments due on that date with respect to this Security shall be
made in United States dollars at a rate determined by the Currency
Determination Agent on the basis of the noon buying rate for cable transfers
for such Specified Currency in The City of New York City certified for custom
purposes by the Federal Reserve Bank of New York (the "Market Exchange Rate")
on the last date such Specified Currency was available (the "Conversion
Date"). Any payment made under such circumstances in United States dollars
where the required payment is in other than United States dollars will not
constitute an Event of Default under the Indenture.
If payment on this Security is required to be made in a Specified
Currency other than United States dollars and there is an official
redenomination of a foreign currency (including an official redenomination of
a foreign currency that is a Composite Currency (as defined below)), the
obligations of the Company with respect to payments on Securities in such
Specified Currency shall, in all cases, be deemed immediately following such
redenomination to provide for the payment of that amount of redenominated
foreign currency representing the amount of such obligations immediately
before such redenomination.
If payment on this Security is required to be made in any currency
unit (E.G., ECUs) and such currency unit is unavailable in the good faith
judgment of the Company due to the imposition of exchange controls or other
circumstances beyond the Company's control, then all payments in respect of
this Security shall be made in United States dollars until such currency unit
is again available. The amount of each payment in United States dollars
shall be computed on the basis of the equivalent of the currency unit in
United States dollars, which, as of any date, shall be determined by the
Currency Determination Agent on the following basis. The component
currencies of the currency unit for this purpose (the "Component Currencies")
shall be the currency amounts that were components of the currency unit as of
the Conversion Date for such currency unit. The equivalent of the currency
unit in United States dollars shall be calculated by aggregating the United
States dollar equivalents of the Component Currencies. The United States
dollar equivalent of each of the Component Currencies shall be determined by
the Currency Determination Agent on the basis of the Market Exchange Rate for
each such Component Currency that is available as of the third Business Day
prior to the date on which the relevant payment is due and for each such
Component Currency that is unavailable, if any, as of the Conversion Date for
such Component Currency.
10
<PAGE>
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of that currency as a
Component Currency shall be divided or multiplied in the same proportion. If
two or more Component Currencies are consolidated into a single currency, the
amounts of those currencies as Component Currencies shall be replaced by an
amount in such single currency equal to the sum of the amounts of the
consolidated Component Currencies expressed in such single currency. If any
Component Currency is divided into two or more currencies, the amount of the
original Component Currency shall be replaced by the amounts of such two or
more currencies, the sum of which shall be equal to the amount of the
original Component Currency.
All determinations referred to above made by the Currency
Determination Agent shall be at its sole discretion and shall, in the absence
of manifest error, be conclusive for all purposes and binding on Holders of
this Security.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series (or,
in the case of any Securities of this series that are Discount Securities, an
amount of principal thereof determined in accordance with the provisions of
this Security set out in the next paragraph (the "Default Amount")) may be
declared due and payable in the manner and with the effect provided in the
Indenture.
If this Security is a Discount Security and if an Event of Default
with respect to Securities of this series shall have occurred and be
continuing, the Default Amount of principal of this Security may be declared
due and payable in the manner and with the effect provided in the Indenture.
Such Default Amount shall be equal to the sum of (i) the aggregate principal
amount of such Discounted Security multiplied by the Issue Price plus (ii)
the portion of the difference between the Issue Price and the principal
amount of such Discounted Security that has accrued at the Yield to Maturity
(computed in accordance with generally accepted United States bond yield
computation principles) to such date of declaration, but in no event shall
the Default Amount of a Discounted Security exceed its principal amount. Upon
payment (i) of the amount of principal so declared due and payable and (ii)
of interest on any overdue principal and overdue interest (in each case to
the extent that the payment of such interest shall be legally enforceable),
all of the Company's obligations in respect of the payment of the principal
of and interest, if any, on this Security shall terminate.
OTHER PROVISIONS:
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY
SET FORTH ON RIDER A, IF ANY, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Company and the rights of the Holders of the Securities of each series to
be affected under the Indenture at any time by the Company and the Trustee
with the consent of the Holders of not less than 50% in principal amount of
the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting, with certain exceptions as
therein provided, the Holders of not less than a majority in principal amount
of the Securities of each series at the time Outstanding,
11
<PAGE>
on behalf of the Holders of all securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver
is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the right of the Holder of this
Security, which is absolute and unconditional, to receive payment of the
principal of (and premium, if any) and interest on this Security at the
times, places and rate, and in the coin or currency, herein prescribed.
The Indenture contains provisions, which apply to this Security, for
defeasance of (i) the entire indebtedness of this Security and (ii) certain
restrictive convenants, subject in either case to compliance by the Company
with conditions set forth in the Indenture, including that in the event of
defeasance pursuant to Section 10.1(A) of the Indenture holders of this
Security shall only be able to look to the trust fund established pursuant to
Section 10.1(A) for payment of principal of and premium, interest and
Additional Amounts, if any on this Security until Maturity.
As provided in the Indenture and subject to certain additional
limitations set forth therein and as may be set forth above, the transfer of
this Security is registrable in the Security Register, upon surrender of this
Security for registration of transfer at the office or agency of the Company
in any place where the principal of (and premium, if any) and interest on
this Security are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized
in writing, and thereupon one or more new Securities of this series of like
tenor, of Authorized Denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without interest coupons in denominations of (i) if denominated in United
States dollars, U.S. $1,000 and any integral multiple of U.S. $1,000 in
excess thereof or (ii) if denominated in a Specified Currency other than
United States dollars, the amount of such Specified Currency equivalent, at
the noon buying rate in The City of New York for cable transfers in such
Specified Currency, as certified for customs purposes by the Federal Reserve
Bank of New York, on the first Business Day in The City of New York and in
the country issuing such currency (or, in the case of ECUs, Brussels) next
preceding the Original Issue Date, to U.S. $1,000 (or such other minimum
denomination as may be allowed or required from time to time by any relevant
central bank or equivalent governmental body, however designated, or by any
laws or regulations applicable to the Securities or the relevant Specified
Currency) and any greater amount that is an integral multiple of 1,000 units
of such Specified Currency (in each case, an "Authorized Denomination"). The
Securities of this series may be issued, in whole or in part, in the form of
one or more global Securities and issued to The Depository Trust Company as
depositary for the global Securities of this series (the "Depositary") or its
nominee and registered in the name of the Depositary or such nominee. As
provided in the Indenture and subject to certain limitations set forth
therein and as may be set forth on the face hereof, Securities of this series
are exchangeable for a like aggregate
12
<PAGE>
principal amount of Securities of this series of like tenor and like terms of
a different Authorized Denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentation of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Security is registered as the
owner hereof for all purposes, whether or not this Security is overdue, and
neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
The Indenture and the Securities endorsed thereon shall be governed by
and construed in accordance with the laws of the State of New York.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to above, directly or through an Authenticating Agent,
by manual signature of an authorized signatory, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
13
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
SARA LEE CORPORATION
____________________________________
By:
Title: Vice President-Finance and
Treasurer
ATTEST:
____________________________________
By:
Title: Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series
designated in, and issued under, the Indenture
described herein.
THE BANK OF NEW YORK
as Trustee
By: _________________________________________
Authorized Signatory
14
<PAGE>
OPTION TO ELECT REPAYMENT
TO BE COMPLETED ONLY IF THIS SECURITY IS REPAYABLE AT THE OPTION
OF THE HOLDER AND THE HOLDER ELECTS TO EXERCISE SUCH RIGHTS
The undersigned hereby irrevocably requests and instructs the Company
to repay the Security attached hereto (or portion thereof specified below)
pursuant to its terms at a price equal to 100% of the principal amount
thereof or, if such Security is a Discounted Security, the applicable
Repayment Price specified on the face thereof (expressed as a percentage of
the principal amount of the Security) together in the case of any such
repayment with interest to but not including the Repayment Date, to the
undersigned, at ___________________________________________.
For the Security to be repaid at the option of the Holder, the Paying
Agent must receive at its Corporate Trust Office, at least 30 days but not
more than 60 days prior to the Repayment Date on which the Security is to be
repaid, (i) the Security together with this "Option to Elect Repayment" form
duly completed or (ii) a telegram, telex, facsimile transmission or a letter
from a member of a national securities exchange, or the National Association
of Securities Dealers, Inc. or a commercial bank or trust company in the
United States setting forth the name of the Holder of the Security, the
principal amount of the Security, the principal amount of the Security to be
repaid, the certificate number or a description of the tenor and terms of the
Security, a statement that the option to elect repayment is being exercised
thereby and a guarantee that the Security, together with this duly completed
form entitled "Option to Elect Repayment", will be received by the Paying
Agent not later than the fifth Business Day after the date of such telegram,
telex, facsimile transmission or letter, PROVIDED, HOWEVER, that such
telegram, telex, facsimile transmission or letter shall only be effective if
the Security with such form duly completed are received by the Paying Agent
by such fifth Business Day.
If less than the entire principal amount of the attached Security is
to be repaid, specify the portion thereof which the Holder elects to have
repaid: __________________ and specify the denomination or denominations
(which shall be an Authorized Denomination) of the Security or Securities to
be issued to the Holder for the portion of the within Security not being
repaid (in the absence of any specification, one such Security will be issued
for the portion not being repaid): _______________________________.
Dated: ___________________________ ___________________________________
NOTICE: The signature to this Option
to Elect Repayment must correspond
with the name as written upon the
face of the within instrument in
every particular, without alteration
or enlargement or any change
whatsoever.
15
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in
full according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants in common
UNIF GIFT MIN ACT - ____________________Custodian____________________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
____________________________________________
(State)
Additional abbreviations may also be used though not in the above list.
16
<PAGE>
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT
SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
____________________________________________________________________________
____________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
____________________________________________________________________________
the within Security and all rights thereunder, hereby
irrevocably constituting and appointing _________________________________
____________________________________________________________________________
attorney to transfer said Security on the books of the Company, with full power
of substitution in the premises.
DATED:_________________________ __________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within instrument in
every particular, without alteration or
enlargement or any change whatsoever.
17
<PAGE>
EXHIBIT 4.9
FORM OF DEBT WARRANT AGREEMENT
SARA LEE CORPORATION
and
____________________,
As Warrant Agent
__________
WARRANT AGREEMENT
Dated as of _____________ ___, 20__
__________
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
ARTICLE I
ISSUANCE, EXECUTION AND COUNTERSIGNATURE
<S> <C>
Section 1.01 Issuance of Warrant Certificates. . . . . . . . . . . . . . . 1
Section 1.02 Form of Warrant Certificates. . . . . . . . . . . . . . . . . 1
Section 1.03 Execution and Countersignature of Warrant Certificates. . . . 1
Section 1.04 Temporary Warrant Certificates. . . . . . . . . . . . . . . . 3
Section 1.05 Payment of Taxes. . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.06 Definition of Holder. . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
Section 2.01 Warrant Price*. . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.02 Duration of Warrants. . . . . . . . . . . . . . . . . . . . . 4
Section 2.03 Exercise of Warrants. . . . . . . . . . . . . . . . . . . . . 5
ARTICLE III
[REGISTRATION;] EXCHANGE, TRANSFER AND SUBSTITUTION OF
WARRANT CERTIFICATES
Section 3.01 [Registration;] Exchange [and Transfer] of Warrant Certificates 6
Section 3.02 Mutilated, Destroyed, Lost or Stolen Warrant Certificates . . 7
Section 3.03 Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . 8
Section 3.04 Cancellation of Warrant Certificates. . . . . . . . . . . . . 8
ARTICLE IV
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF WARRANT CERTIFICATES
Section 4.01 No Rights as Holders of Warrant Debt Securities Conferred
by Warrants or Warrant Certificates . . . . . . . . . . . . 9
Section 4.02 Holder of Warrant Certificate May Enforce Rights. . . . . . . 9
ARTICLE V
CONCERNING THE WARRANT AGENT
Section 5.01 Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 5.02 Conditions of Warrant Agent's Obligations . . . . . . . . . . 9
Section 5.03 Resignation, Removal and Appointment of Successor . . . . . . 12
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ARTICLE VI
MISCELLANEOUS
<S> <C>
Section 6.01 Consolidations and Mergers of the Company and Sales, Leases
and Conveyances Permitted Subject to Certain Conditions . . 13
Section 6.02 Rights and Duties of Successor Corporation. . . . . . . . . . 14
Section 6.03 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 6.04 Notices and Demands to the Company and Warrant Agent. . . . . 15
Section 6.05 Addresses . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 6.06 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 6.07 Delivery of Prospectus. . . . . . . . . . . . . . . . . . . . 15
Section 6.08 Obtaining of Governmental Approvals . . . . . . . . . . . . . 15
Section 6.09 Persons Having Rights under Warrant Agreement . . . . . . . . 16
Section 6.10 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 6.11 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 6.12 Inspection of Agreement . . . . . . . . . . . . . . . . . . . 16
</TABLE>
<PAGE>
THIS WARRANT AGREEMENT, dated as of __________, 20__, between Sara Lee
Corporation, a corporation duly organized and existing under the laws of the
State of Maryland (the "COMPANY") and _______________, a [corporation]
[national banking association] organized and existing under the laws of
_______________, as Warrant Agent (herein called the "WARRANT AGENT").
WHEREAS, the Company has entered into an Indenture dated as of
__________, 20__ (the "INDENTURE"), with _______________, a _______________
corporation, as trustee (such trustee, and any successors to such trustee,
herein called the "TRUSTEE"), providing for the issuance from time to time of
its unsecured and unsubordinated debentures, notes or other evidences of
senior indebtedness, to be issued in one or more series as provided in the
Indenture;
WHEREAS, the Company proposes to sell [IF OFFERED DEBT SECURITIES AND
WARRANTS -- [TITLE OF DEBT SECURITIES BEING OFFERED] (the "OFFERED DEBT
SECURITIES") with] warrant certificates (such warrant certificates and other
warrant certificates issued pursuant to this Agreement herein called the
"WARRANT CERTIFICATES") evidencing one or more warrants (the "WARRANTS" or,
individually, a "WARRANT") representing the right to purchase [TITLE OF DEBT
SECURITIES PURCHASABLE THROUGH EXERCISE OF WARRANTS] (the "WARRANT DEBT
SECURITIES"); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, exchange, exercise and replacement of the Warrant Certificates, and
in this Agreement wishes to set forth, among other things, the form and
provisions of the Warrant Certificates and the terms and conditions on which
they may be issued, exchanged, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
<PAGE>
ARTICLE I
ISSUANCE, EXECUTION AND COUNTERSIGNATURE
OF WARRANT CERTIFICATES
Section 1.01 ISSUANCE OF WARRANT CERTIFICATES. [If Warrants alone
- --Upon issuance, each Warrant Certificate shall evidence one or more Warrants.]
[IF OFFERED DEBT SECURITIES AND WARRANTS -- Warrant Certificates shall be
[initially] issued in units with the Offered Debt Securities and shall [not]
be separately transferable [before __________, 20__ (the "DETACHABLE DATE")].
Each Warrant Certificate included in each such unit shall evidence an
aggregate of _____ Warrants for each $_______ principal amount of Offered Debt
Securities included in such unit.] Each Warrant evidenced thereby shall
represent the right, subject to the provisions contained herein and therein, to
purchase Warrant Debt Securities in the aggregate principal amount of $_______.
Section 1.02 FORM OF WARRANT CERTIFICATES. The Warrant Certificates
(including the Form[s] of Exercise [and Assignment] to be set forth on the
reverse thereof) shall be in substantially the form set forth in EXHIBIT A
hereto, shall be printed, lithographed or engraved on steel engraved borders
(or in any other manner determined by the officers executing such Warrant
Certificates, as evidenced by their execution of such Warrant Certificates)
and may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with any
law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange on which the Warrant Certificates may
be listed or as may, consistently herewith, be determined by the officers
executing such Warrant Certificates, as evidenced by their execution of the
Warrant Certificates.
Section 1.03 EXECUTION AND COUNTERSIGNATURE OF WARRANT CERTIFICATES.
The Warrant Certificates shall be executed on behalf of the Company by its
Chairman of the Board, President, Chief Financial Officer or Treasurer under
its corporate seal reproduced thereon and attested by its Secretary or any
Assistant Secretary. The signature of any of these officers on the Warrant
Certificates may be manual or facsimile.
Warrant Certificates evidencing the right to purchase an aggregate
principal amount not exceeding $_______ of Warrant Debt Securities (except as
provided in Sections 1.04, 2.03(c), 3.01 and 3.02) may be executed by the
Company and delivered to the Warrant Agent upon the execution of this Warrant
<PAGE>
Agreement or from time to time thereafter. The Warrant Agent shall, upon
receipt of Warrant Certificates duly executed on behalf of the Company,
authenticate Warrant Certificates evidencing Warrants representing the right
to purchase up to $_______ aggregate principal amount of Warrant Debt
Securities and shall deliver such Warrant Certificates to or upon the order
of the Company. Subsequent to such original issuance of the Warrant
Certificates, the Warrant Agent shall authenticate a Warrant Certificate only
if the Warrant Certificate is issued in exchange or substitution for one or
more previously authenticated Warrant Certificates [IF REGISTERED WARRANTS --
or in connection with their transfer], as hereinafter provided.
Each Warrant Certificate shall be dated the date of its authentication
by the Warrant Agent.
No Warrant Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose, and no Warrant evidenced
thereby shall be exercisable, until such Warrant Certificate has been
authenticated by the Warrant Agent. Such authentication by the Warrant Agent
of any Warrant Certificate executed by the Company shall be conclusive
evidence, and the only evidence, that the Warrant Certificate so
authenticated has been duly issued hereunder.
Warrant Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Warrant Certificates or did not hold such offices at the date of such Warrant
Certificates.
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Section 1.04 TEMPORARY WARRANT CERTIFICATES. Pending the preparation
of definitive Warrant Certificates, the Company may execute, and upon the
order of the Company the Warrant Agent shall authenticate and deliver,
temporary Warrant Certificates which are printed, lithographed, typewritten,
mimeographed or otherwise produced substantially of the tenor of the
definitive Warrant Certificates in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Warrant Certificates may determine, as evidenced
by their execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will cause
definitive Warrant Certificates to be prepared without unreasonable delay.
After the preparation of definitive Warrant Certificates, the temporary
Warrant Certificates shall be exchangeable for definitive Warrant
Certificates upon surrender of the temporary Warrant Certificates at the
corporate trust office of the Warrant Agent [or _______________], without
charge to the Holder (as defined in Section 1.06 below). Upon surrender for
cancellation of any one or more temporary Warrant Certificates the Company
shall execute and the Warrant Agent shall authenticate and deliver in
exchange therefor definitive Warrant Certificates representing the same
aggregate number of Warrants. Until so exchanged, the temporary Warrant
Certificates shall in all respects be entitled to the same benefits under
this Agreement as definitive Warrant Certificates.
Section 1.05 PAYMENT OF TAXES. The Company will pay all stamp taxes
and other duties, if any, to which, under the laws of the United States of
America or any State or political subdivision thereof, this Agreement or the
original issuance of the Warrant Certificates may be subject.
Section 1.06 DEFINITION OF HOLDER. The term "Holder" as used herein
shall mean [If OFFERED DEBT SECURITIES AND WARRANTS WHICH ARE NOT IMMEDIATELY
DETACHABLE --, prior to the Detachable Date, the [bearer] [registered owner]
of the Offered Debt Security to which such Warrant Certificate was initially
attached, and, after such Detachable Date,] [the bearer of such Warrant
Certificate] [the person in whose name at the time such Warrant Certificate
shall be registered upon the books to be maintained by the Warrant Agent for
that purpose pursuant to Section 3.01]. [IF OFFERED DEBT SECURITIES AND
WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE -- Prior to the Detachable Date,
the Company will, or will cause the registrar of the Offered Debt Securities to
make available to the Warrant Agent current information as to Holders of the
Offered Debt Securities.]
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ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
Section 2.01 WARRANT PRICE (*). During the period from __________,
20__ through and including __________, 20__ each Warrant shall entitle the
Holder thereof, subject to the provisions of this Agreement, to purchase from
the Company the principal amount of Warrant Debt Securities stated in the
Warrant Certificate at the exercise price of ___% of the principal amount
thereof [plus accrued amortization, if any, of the original issue discount of
the Warrant Debt Securities] [plus accrued interest, if any, from and including
the most recent date to which interest shall have been paid on the Warrant Debt
Securities or, if no interest shall have been paid on the Warrant Debt
Securities, from and including __________, 20__]. During the period from and
including __________, 20__ through and including __________, 20__, each Warrant
shall entitle the Holder thereof, subject to the provisions of this Agreement,
to purchase from the Company the principal amount of Warrant Debt Securities
stated in the Warrant Certificate at the exercise price of ___% of the
principal amount thereof [plus accrued amortization, if any, of the original
issue discount of the Warrant Debt Securities] [plus accrued interest, if
any, from and including the most recent date to which interest shall have been
paid on the Warrant Debt Securities or, if no interest shall have been paid on
the Warrant Debt Securities, from and including __________, 20__]. [In each
case, the original issue discount ($_______ for each $1,000 principal amount
of Warrant Debt Securities) will be amortized at a ___% annual rate, computed
on a[n] [semi-]annual basis [using a 360-day year consisting of twelve 30-day
months].] Such exercise price of each Warrant is referred to in this Agreement
as the "EXERCISE PRICE."
Section 2.02 DURATION OF WARRANTS. Any Warrant evidenced by a Warrant
Certificate may be exercised at any time, as specified herein, on or after [the
date thereof] [_______________, 20__] and at or before the close of business,
New York City time, on _______________, 20__ (the "EXPIRATION DATE"). Each
Warrant not exercised at or before the close of business, New York City time, on
the Expiration Date shall become void, and all rights of the Holder of the
Warrant Certificate evidencing such Warrant under this Agreement or otherwise
shall cease.
____________________________
(*) Complete and modify the provisions of this Section as appropriate to
reflect the exact terms of the Warrants and the Warrant Debt Securities.
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Section 2.03 EXERCISE OF WARRANTS. (a) During the period specified
in Section 2.02, any whole number of Warrants may be exercised by
surrendering the Warrant Certificate evidencing such Warrants at the place or
at the places set forth in the Warrant Certificate, with the purchase form
set forth in the Warrant Certificate duly executed, accompanied by payment in
full, in lawful money of the United States of America, [in cash or by bank
wire transfer in immediately available funds], of the Exercise Price for each
Warrant exercised. The date on which payment in full of the Exercise Price
for a Warrant and the duly executed and completed Warrant Certificate are
received by the Warrant Agent shall be deemed to be the date on which such
Warrant is exercised. The Warrant Agent shall deposit all funds received by it
as payment for the exercise of Warrants to the account of the Company
maintained with it for such purpose and shall advise the Company by telephone
at the end of each day on which such a payment is received of the amount so
deposited to its account. The Warrant Agent shall promptly confirm such
telephonic advice to the Company in writing.
(b) The Warrant Agent shall from time to time, as promptly
as practicable after the exercise of any Warrants in accordance with the
terms and conditions of this Agreement and the Warrant Certificates, advise
the Company and the Trustee of (1) the number of Warrants so exercised, (2)
the instructions of each Holder of the Warrant Certificates evidencing such
Warrants with respect to delivery of the Warrant Debt Securities to which
such Holder is entitled upon such exercise, and instructions of such Holder
as to delivery of Warrant Certificates evidencing the balance, if any, of the
Warrants remaining after such exercise, and (3) such other information as the
Company or the Trustee shall reasonably require.
(c) As soon as practicable after the exercise of any
Warrants, the Company shall issue, pursuant to the Indenture, in authorized
denominations, to or upon the order of the Holder of the Warrant Certificate
evidencing such Warrants, the Warrant Debt Security or Warrant Debt Securities
to which such Holder is entitled in [fully registered form, registered in such
name or names as may be directed by such holder] [bearer form]; and, if fewer
than all of the Warrants evidenced by such Warrant Certificate were exercised,
the Company shall execute and an authorized officer of the Warrant Agent shall
authenticate and deliver, all in accordance with Section 1.03 of this
Agreement, a new Warrant Certificate evidencing the number of Warrants
remaining unexercised. [Unless otherwise instructed by the Company, Warrant
Debt Securities in bearer form shall be delivered to or upon the order of the
Holder of
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such Warrant Certificate only outside the United States, its territories and
possessions and all areas subject to its jurisdiction.]
(d) The Company shall not be required to pay any stamp or
other tax or other governmental charge required to be paid in connection with
any transfer involved in the issuance of the Warrant Debt Securities; and in
the event that any such transfer is involved, the Company shall not be
required to issue or deliver any Warrant Debt Securities until such tax or
other charge shall have been paid or it has been established to the Company's
satisfaction that no such tax or other charge is due.
ARTICLE III
[REGISTRATION;] EXCHANGE, TRANSFER AND
SUBSTITUTION OF WARRANT CERTIFICATES
Section 3.01 [REGISTRATION;] EXCHANGE [AND TRANSFER] OF WARRANT
CERTIFICATES. [IF REGISTERED WARRANTS -- The Warrant Agent shall keep, at its
corporate trust office [and at __________], books in which, subject to such
reasonable regulations as it may prescribe, it shall register Warrant
Certificates and transfers of outstanding Warrant Certificates.]
[IF OFFERED DEBT SECURITIES AND WARRANTS WHICH ARE NOT IMMEDIATELY
DETACHABLE -- Prior to the Detachable Date, a Warrant Certificate may be
exchanged or transferred only together with the Offered Debt Security to which
such Warrant Certificate was initially attached, and only for the purpose of
effecting, or in conjunction with, an exchange or transfer of such Offered Debt
Security. Additionally, on or prior to the Detachable Date, each transfer of an
Offered Debt Security [on the register of the Offered Debt Securities] shall
operate also to transfer the Warrant Certificate or Certificates to which such
Offered Debt Security was initially attached. After the Detachable Date, upon ]
[IF OFFERED DEBT SECURITIES AND WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR IF
WARRANTS ALONE -- Upon] surrender at the corporate trust office of the Warrant
Agent [or __________] of Warrant Certificates properly endorsed [or accompanied
by appropriate instruments of transfer] and accompanied by written instructions
for exchange [or transfer], all in form satisfactory to the Company and the
Warrant Agent, such Warrant Certificates may be exchanged for other Warrant
Certificates [IF REGISTERED WARRANTS -- or may be transferred in whole or in
part]; provided that Warrant Certificates issued in exchange for [or upon
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transfer of] surrendered Warrant Certificates shall evidence the same aggregate
number of Warrants as the Warrant Certificates so surrendered. No service charge
shall be made for any exchange [or transfer] of Warrant Certificates, but the
Company may require payment of a sum sufficient to cover any stamp or other tax
or governmental charge that may be imposed in connection with any such exchange
[or transfer]. Whenever any Warrant Certificates are so surrendered for exchange
[or transfer], the Company shall execute and an authorized officer of the
Warrant Agent shall manually authenticate and deliver to the person or persons
entitled thereto a Warrant Certificate or Warrant Certificates as so requested.
The Warrant Agent shall not be required to effect any exchange [or transfer]
which would result in the issuance of a Warrant Certificate evidencing a
fraction of a Warrant or a number of full Warrants and a fraction of a Warrant.
All Warrant Certificates issued upon any exchange [or transfer] of Warrant
Certificates shall evidence the same obligations, and be entitled to the same
benefits under this Agreement, as the Warrant Certificates surrender for such
exchange [or transfer].
Section 3.02 MUTILATED, DESTROYED, LOST OR STOLEN WARRANT CERTIFICATES.
If any mutilated Warrant Certificate is surrendered to the Warrant Agent, the
Company shall execute and an officer of the Warrant Agent shall authenticate and
deliver in exchange therefor a new Warrant Certificate of like tenor and
principal amount and bearing a number not contemporaneously outstanding. If
there shall be delivered to the Company and the Warrant Agent (1) evidence to
their satisfaction of the destruction, loss or theft of any Warrant Certificate
and of the ownership thereof and (2) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Warrant Agent that such
Warrant Certificate has been acquired by a bona fide purchaser, the Company
shall execute and upon its request an officer of the Warrant Agent shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen Warrant
Certificate, a new Warrant Certificate of like tenor and principal amount and
bearing a number not contemporaneously outstanding. Upon the issuance of any new
Warrant Certificate under this Section, the Company may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Warrant Agent) connected therewith. Every new Warrant Certificate issued
pursuant to this Section in lieu of any destroyed, lost or stolen Warrant
Certificate shall evidence an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Warrant Certificate shall
be at any time enforceable by anyone, and shall be entitled to all the benefits
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<PAGE>
of this Agreement equally and proportionately with any and all other Warrant
Certificates duly issued hereunder. The provisions of this Section are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Warrant Certifiates.
Section 3.03 PERSONS DEEMED OWNERS. [IF OFFERED DEBT SECURITIES AND
WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE -- Prior to the Detachable Date,
the Company, the Warrant Agent and all other persons may treat the owner of any
Offered Debt Security as the owner of the Warrant Certificates initially
attached thereto for any purpose and as the person entitled to exercise the
rights represented by the Warrants evidenced by such Warrant Certificates, any
notice to the contrary notwithstanding. After the Detachable Date,][IF
REGISTERED WARRANTS -- and prior to due presentment of a Warrant Certificate for
registration of transfer,] the Company, the Warrant Agent and all other persons
may treat the Holder as the owner thereof for any purpose and as the person
entitled to exercise the rights represented by the Warrants evidenced thereby,
any notice to the contrary notwithstanding.
Section 3.04 CANCELLATION OF WARRANT CERTIFICATES. Any Warrant
Certificate surrendered for exchange [, transfer] or exercise of the Warrants
evidenced thereby shall, if surrendered to the Company, be delivered to the
Warrant Agent, and [IF WARRANT CERTIFICATES ARE ISSUED IN BEARER FORM --, except
as provided below,] all Warrant Certificates surrendered or so delivered to the
Warrant Agent shall be promptly canceled by the Warrant Agreement and shall not
be reissued and, except as expressly permitted by this Agreement, no Warrant
Certificate shall be issued hereunder in lieu or in exchange thereof. [IF
WARRANT CERTIFICATES ARE ISSUED IN BEARER FORM -- Warrant Certificates delivered
to the Warrant Agent in exchange for Warrant Certificates of other denominations
may be retained by the Warrant Agent for reissue as authorized hereunder.] The
Company may at any time deliver to the Warrant Agent for cancellation any
Warrant Certificates previously issued hereunder which the Company may have
acquired in any manner whatsoever, and all Warrant Certificates so delivered
shall be promptly canceled by the Warrant Agent. All canceled Warrant
Certificates held by the Warrant Agent shall be destroyed by it unless by
written order the Company requests their return to it.
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ARTICLE IV
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
Section 4.01 NO RIGHTS AS HOLDERS OF WARRANT DEBT SECURITIES CONFERRED
BY WARRANTS OR WARRANT CERTIFICATES. No Warrant Certificate or Warrant
evidenced thereby shall entitle the Holder thereof to any of the rights of a
Holder of the Warrant Debt Securities, including, without limitation, the right
to receive the payment of principal of (or premium, if any) or interest, if any,
on the Warrant Debt Securities or to enforce any of the covenants in the
Indenture.
Section 4.02 HOLDER OF WARRANT CERTIFICATE MAY ENFORCE RIGHTS.
Notwithstanding any of the provisions of this Agreement, any Holder of any
Warrant Certificate, without the consent of the Warrant Agent, the Trustee, the
holder of any Warrant Debt Securities or the Holder of any other Warrant
Certificate, may, in his own behalf and for his own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company
suitable to enforce or otherwise in respect of, his right to exercise the
Warrant or Warrants evidenced by his Warrant Certificate in the manner provided
in the Warrant Certificates and in this Agreement.
ARTICLE V
CONCERNING THE WARRANT AGENT
Section 5.01 WARRANT AGENT. The Company hereby appoints _______________
as Warrant Agent of the Company in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein set forth, and
_______________ hereby accepts such appointment. The Warrant Agent shall have
the power and authority granted to and conferred upon it in the Warrant
Certificates and hereby and such further power and authority to act on behalf of
the Company as the Company may hereafter grant to or confer upon it. All of the
terms and provisions with respect to such power and authority contained in the
Warrant Certificates are subject to and governed by the terms and provisions
hereof.
Section 5.02 CONDITIONS OF WARRANT AGENT'S OBLIGATIONS. The Warrant
Agent accepts its obligations herein set forth, upon the terms and conditions
hereof, including the following, to all of which the Company agrees
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and to all of which the rights hereunder of the Holders from time to time of
the Warrant Certificates shall be subject:
(a) COMPENSATION AND INDEMNIFICATION. The Company agrees
promptly to pay the Warrant Agent the compensation to be agreed upon with the
Company for all services rendered by the Warrant Agent and to reimburse the
Warrant Agent for reasonable out-of-pocket expenses (including counsel fees)
incurred by the Warrant Agent in connection with the services rendered hereunder
by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent
for, and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on the part of the Warrant Agent, arising out of
or in connection with its acting as such Warrant Agent hereunder, including the
reasonable costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance at any time of its power or
duties hereunder. The obligations of the Company under this subsection (a) shall
survive the exercise of the Warrant Certificates and the resignation or removal
of the Warrant Agent.
(b) AGENT OF THE COMPANY. In acting under this Warrant
Agreement and in connection with the Warrant Certificates, the Warrant Agent is
acting solely as agent of the Company and does not assume any obligation or
relationship of agency or trust for or with any of the owners or Holders of the
Warrant Certificates.
(c) COUNSEL. The Warrant Agent may consult with counsel, which
may include counsel for the Company, and the written advice of such counsel
shall be full and complete authorization and protection in respect of any action
taken, suffered, or omitted by it hereunder in good faith and in reliance
thereon.
(d) DOCUMENTS. The Warrant Agent shall be protected and shall
incur no liability for or in respect of any action taken or omitted by it in
reliance upon any Warrant Certificates, notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
(e) CERTAIN TRANSACTIONS. The Warrant Agent, any of its
officers, directors and employees, or any other agent of the Company, in its
individual or any other capacity, may become the owner of, or acquire any
interest in, any Warrant Certificates, with the same rights that it would have
if it
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were not such Warrant Agent, officer, director, employee or other agent, and,
to the extent permitted by applicable law, it may engage or be interested in
any financial or other transaction with the Company and may act on, or as
depositary, trustee or agent for, any committee or body of Holders of Warrant
Debt Securities or other obligations of the Company as freely as if it were
not such Warrant Agent, officer, director, employee or other agent. Neither
any Warrant Certificate nor this Warrant Agreement shall be deemed to prevent
the Warrant Agent from acting as Trustee under the Indenture.
(f) NO LIABILITY FOR INTEREST. The Warrant Agent shall not
be under any liability for interest on any monies at any time received by it
pursuant to any of the provisions of this Agreement or of the Warrant
Certificates.
(g) NO LIABILITY FOR INVALIDITY. The Warrant Agent shall
not incur any liability with respect to the validity of this Agreement or any
of the Warrant Certificates.
(h) NO RESPONSIBILITY FOR REPRESENTATIONS. The Warrant
Agent shall not be responsible for any of the recitals or representations
contained herein or in the Warrant Certificates (except as to the Warrant
Agent's Certificate of Authentication thereon), all of which are made solely
by the Company.
(i) NO IMPLIED OBLIGATIONS. The Warrant Agent shall be
obligated to perform only such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or obligations
shall be read into this Agreement or the Warrant Certificates against the
Warrant Agent. The Warrant Agent shall not be under any obligation to take
any action hereunder which may tend to involve it in any expense or
liability, the payment of which within a reasonable time is not, in its
reasonable opinion, assured to it. The Warrant Agent shall not be accountable
or under any duty or responsibility for the use by the Company of any of the
Warrant Certificates authenticated by the Warrant Agent and delivered by it
to the Company pursuant to this Agreement or for the application by the
Company of the proceeds of the Warrant Certificates or any exercise of the
Warrants evidenced thereby. The Warrant Agent shall have no duty or
responsibility in case of any default by the Company in the performance of
its covenants or agreements contained herein or in the Warrant Certificates
or in the Warrant Debt Securities or in the case of the receipt of any
written demand from a Holder of a Warrant Certificate with respect to such
default, except as provided in Section 6.04 hereof, including, without
limiting the generality of the
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foregoing, any duty or responsibility to initiate or attempt to initiate any
proceedings at law or otherwise or, except as provided in Section. 6.04
hereof, to make any demand upon the Company.
Section 5.03 RESIGNATION, REMOVAL AND APPOINTMENT OF SUCCESSOR. (a)
The Company agrees, for the benefit of the Holders from time to time of the
Warrant Certificates, that there shall at all times be a Warrant Agent
hereunder until all of the Warrant Certificates are no longer outstanding.
(b) The Warrant Agent may at any time resign as such agent
by giving written notice to the Company of such intention on its part,
specifying the date on which it desires its resignation to become effective;
provided that, without the consent of the Company, such date shall not be
less than three months after the date on which such notice is given. The
Warrant Agent hereunder may be removed at any time by the filing with it of
an instrument in writing signed by or on behalf of the Company and specifying
such removal and the date on which the Company expects such removal to become
effective. Such resignation or removal shall take effect upon the appointment
by the Company of a successor Warrant Agent (which shall be a bank or trust
company organized and doing business under the laws of The United States of
America, any state thereof or the District of Columbia and authorized under
such laws to exercise corporate trust powers) by an instrument in writing
filed with such successor Warrant Agent and the acceptance of such
appointment by such successor Warrant Agent pursuant to Section 5.03(d). In
the event a successor Warrant Agent has not been appointed and accepted its
duties within three months of the Warrant Agent's notice of resignation, the
Warrant Agent may apply to any court of competent jurisdiction for the
designation of a successor Warrant Agent. The obligation of the Company
under Section 5.02(a) shall continue to the extent set forth therein
notwithstanding the resignation or removal of the Warrant Agent and shall
survive the termination of this Agreement.
(c) In case at any time the Warrant Agent shall resign, or
be removed, or shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or shall file a voluntary petition in bankruptcy or
make an assignment for the benefit of its creditors or consent to the
appointment of a receiver or custodian of all or any substantial part of its
property, or shall admit in writing its inability to pay or meet its debts as
they mature, or if a receiver or custodian of it or of all or any substantial
part of its property shall be appointed, or if an order of any court shall be
entered approving any petition filed by or against it under the provisions of
any applicable bankruptcy or similar law, or if
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any public officer shall have taken charge or control of the Warrant Agent or
of its property or affairs, a successor Warrant Agent, qualified as
aforesaid, shall be appointed by the Company by an instrument in writing,
filed with the successor Warrant Agent. Upon the appointment as aforesaid of
a successor Warrant Agent and acceptance by the latter of such appointment,
the Warrant Agent so superseded shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Warrant Agent, without any further act, deed or conveyance, shall become
vested with all the authority, rights, powers, trusts, immunities, duties and
obligations of such predecessor with like effect as if originally named as
Warrant Agent hereunder, and such predecessor, upon payment of its charges
and disbursements then unpaid, shall thereupon become obligated to transfer,
deliver and pay over, and such successor Warrant Agent shall be entitled to
receive, all monies, securities and other property on deposit with or held by
such predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder
may be merged or converted or any corporation with which the Warrant Agent
may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Warrant Agent shall be a party, or any
corporation succeeding to all or substantially all the corporate trust
business of the Warrant Agent, provided that it shall be qualified as
aforesaid, shall be the successor Warrant Agent under this Agreement without
the execution or filing of any paper or any further act on the part of any of
the parties hereto.
ARTICLE VI
MISCELLANEOUS
Section 6.01 CONSOLIDATIONS AND MERGERS OF THE COMPANY AND SALES,
LEASES AND CONVEYANCES PERMITTED SUBJECT TO CERTAIN CONDITIONS. The Company
may consolidate with, or sell, lease or convey all or substantially all of
its assets to, or merge with or into any other corporation, provided that in
any such case, the Company shall be the continuing corporation, or the
successor corporation shall be a corporation organized and existing under the
laws of the United States of America or a State thereof, and such successor
corporation shall
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expressly assume the obligations of the Company hereunder.
Section 6.02 RIGHTS AND DUTIES OF SUCCESSOR CORPORATION. In case of
any such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it
had been named herein, and the predecessor corporation, except in the event
of a lease, shall be relieved of any further obligation under this Agreement
and the Warrants. Such successor corporation thereupon may cause to be
signed, and may issue either in its own name or in the name of the Company,
any or all of the Warrant Debt Securities issuable pursuant to the terms
hereof. All the Warrant Debt Securities so issued shall in all respects have
the same legal rank and benefit under the Indenture as the Warrant Debt
Securities theretofore or thereafter issued in accordance with the terms of
this Agreement and the Indenture.
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made in
the Warrant Debt Securities thereafter to be issued as may be appropriate.
Section 6.03 AMENDMENT. (a) This Agreement may be amended by the
parties hereto, without the consent of the Holder of any Warrant Certificate,
for the purpose of curing any ambiguity, or curing, correcting or
supplementing any defective or inconsistent provision contained herein, or
making such provisions in regard to matters or questions arising under this
Agreement as the Company may deem necessary or desirable; provided that such
action will not materially and adversely affect the interests of the Holders
of the Warrant Certificates. The Warrant Agent may, but shall not be
obligated to, enter into any amendment to this Agreement which affects the
Warrant Agent's own rights, duties or immunities under this Agreement or
otherwise.
(b) The Company and the Warrant Agent may modify or amend
this Agreement and the Warrant Certificates, with the consent of the Holders
holding not fewer than a majority in number of the then outstanding
unexercised Warrants affected by such modification or amendment, for any
purpose; PROVIDED, HOWEVER, that no such modification or amendment that
increases the Exercise Price, shortens the period of time during which the
Warrants may be exercised, or otherwise materially and adversely affects the
exercise rights of the Holders or reduces the percentage of the number of
outstanding Warrants the consent of the Holders of which is required for
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modification or amendment of this Agreement or the Warrant Certificates may
be made without the consent of each Holder affected thereby.
Section 6.04 NOTICES AND DEMANDS TO THE COMPANY AND WARRANT AGENT.
If the Warrant Agent shall receive any notice or demand addressed to the
Company by the Holder of a Warrant Certificate pursuant to the provisions of
the Warrant Certificates, the Warrant Agent shall promptly forward such
notice or demand to the Company.
Section 6.05 ADDRESSES. Any communications from the Company to the
Warrant Agent with respect to this Agreement shall be addressed to
_______________, Attention: _______________, and any communications from the
Warrant Agent to the Company with respect to this Agreement shall be addressed
to Sara Lee Corporation, _______________, Attention: _______________, with a
copy to the __________ __________(or such other address as shall be specified in
writing by the Warrant Agent or by the Company).
Section 6.06 GOVERNING LAW. This Agreement and each Warrant
Certificate issued hereunder shall be governed by and construed in accordance
with the laws of the State of New York.
Section 6.07 DELIVERY OF PROSPECTUS. The Company will furnish to the
Warrant Agent sufficient copies of a prospectus, appropriately supplemented,
relating to the Warrant Debt Securities (the "PROSPECTUS"), and the Warrant
Agent agrees that, upon the exercise of any Warrant Certificate, the Warrant
Agent will deliver to the person designated to receive Warrant Debt
Securities, prior to or concurrently with the delivery of such Securities, a
Prospectus.
Section 6.08 OBTAINING OF GOVERNMENTAL APPROVALS. The Company will
from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental
agencies and authorities and securities acts filings under United States
Federal and state laws (including, without limitation, the maintenance of the
effectiveness of a registration statement in respect of the Warrant Debt
Securities under the Securities Act of 1933), which may be or become required
in connection with the exercise of the Warrant Certificates and the original
issuance and delivery of the Warrant Debt Securities.
15
<PAGE>
Section 6.09 PERSONS HAVING RIGHTS UNDER WARRANT AGREEMENT. Nothing
in this Agreement expressed or implied and nothing that may be inferred from
any of the provisions hereof is intended, or shall be construed, to confer
upon, or give to, any person or corporation other than the Company, the
Warrant Agent and the Holders of the Warrant Certificates any right, remedy
or claim under or by reason of this Agreement or of any covenant, condition,
stipulation, promise or agreement hereof; and all covenants, conditions,
stipulations, promises and agreements in this Agreement contained shall be
for the sole and exclusive benefit of the Company and the Warrant Agent and
their successors and of the Holders of the Warrant Certificates.
Section 6.10 HEADINGS. The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the
construction hereof.
Section 6.11 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original; but such counterparts shall together constitute but one and the
same instrument.
Section 6.12 INSPECTION OF AGREEMENT. A copy of this Agreement shall
be available at all reasonable times at the principal corporate trust office
of the Warrant Agent [and at __________] for inspection by the Holder of any
Warrant Certificate. The Warrant Agent may require such Holder to submit his
Warrant Certificate for inspection by it.
16
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, and their respective corporate seal to be hereunto affixed
and attested, all as of the day and year first above written.
<TABLE>
<S> <C>
SARA LEE CORPORATION
By___________________________
[SEAL]
Attest:
______________________________
[Assistant] Secretary
[Name of Warrant Agent]
______________________________
By___________________________
[SEAL]
Attest:
______________________________
[Assistant] Secretary
</TABLE>
17
<PAGE>
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
<TABLE>
[FACE]
<S> <C>
FORM OF LEGEND IF OFFERED DEBT [Prior to __________, this Warrant
SECURITIES WITH WARRANTS WHICH ARE Certificate may be exchanged [or
NOT IMMEDIATELY DETACHABLE: transferred] if and only if the [Title
of Debt Security] to which it was
initially attached is so exchanged or
transferred.]
FORM OF LEGEND IF WARRANTS ARE NOT [Prior to _________, Warrants evidenced
IMMEDIATELY EXERCISABLE: by this Warrant Certificate cannot be
exercised.]
</TABLE>
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN.
VOID AFTER THE CLOSE OF BUSINESS, NEW YORK CITY TIME, ON __________, 20__
SARA LEE CORPORATION
WARRANT CERTIFICATE REPRESENTING
WARRANTS TO PURCHASE
[TITLE OF WARRANT DEBT SECURITIES]
AS DESCRIBED HEREIN.
* * * * * * * * * * * * * * *
No. __________ Warrants
A-1
<PAGE>
This certifies that [the bearer is the] [__________ or registered assigns
is the registered] owner of the above indicated number of Warrants, each Warrant
entitling such [bearer [IF OFFERED DEBT SECURITIES WITH WARRANTS WHICH ARE NOT
IMMEDIATELY DETACHABLE -- , subject to the bearer qualifying as a "Holder" of
this Warrant Certificate, as hereinafter defined]] [registered owner] to
purchase, at any time [after the close of business, New York City time, on
__________, 20__, and] on or before the close of business, New York City time,
on __________, 20__, $_______ principal amount of [Title of Warrant Debt
Securities] (the "WARRANT DEBT SECURITIES") of Sara Lee Corporation (the
"COMPANY"), issued or to be issued under the Indenture (as hereinafter defined),
on the following basis.(*) [During the period from __________, 20__ through and
including __________, 20__, each Warrant shall entitle the Holder thereof,
subject to the provisions of this Agreement, to purchase from the Company the
principal amount of Warrant Debt Securities stated in the Warrant Certificate at
the exercise price of ___% of the principal amount thereof [plus accrued
amortization, if any, of the original issue discount of the Warrant Debt
Securities] [plus accrued interest, if any, from and including the most recent
date to which interest shall have been paid on the Warrant Debt Securities or,
if no interest shall have been paid on the Warrant Debt Securities, from and
including __________, 20__]; during the period from and including __________,
20__ through and including __________, 20__, each Warrant shall entitle the
Holder thereof, subject to the provisions of this Agreement, to purchase from
the Company the principal amount of Warrant Debt Securities stated in the
Warrant Certificate at the exercise price of ___% of the principal amount
thereof [plus accrued amortization, if any, of the original issue discount of
the Warrant Debt Securities] [plus accrued interest, if any, from and including
the most recent date to which interest shall have been paid on the Warrant Debt
Securities or, if no interest shall have been paid on the Warrant Debt
Securities, from and including __________, 20__]. [In each case, the original
issue discount ($_______ for each $1,000 principal amount of Warrant Debt
Securities) will be amortized at a ___% annual rate, computed on a[n] [semi]
- -annual basis [, using a 360-day year consisting of twelve 30-day months] (the
"EXERCISE PRICE"). The Holder of this Warrant Certificate may exercise the
Warrants evidenced hereby, in whole or in part, by surrendering this Warrant
Certificate, with the purchase form set forth hereon duly completed, accompanied
by payment in full, in lawful money of the United States of America, [in cash or
by bank wire transfer in immediately available funds], the Exercise Price for
each Warrant exercised, to the Warrant Agent (as hereinafter defined), at the
corporate trust office of [name of Warrant Agent], or
_________________________
(*) Complete and modify the following provisions as appropriate to reflect
the terms of the Warrants and the Warrant Debt Securities.
A-2
<PAGE>
its successor as warrant agent (the "WARRANT AGENT") [or at __________,], at
the addresses specified on the reverse hereof and upon compliance with and
subject to the conditions set forth herein and in the Warrant Agreement (as
hereinafter defined). This Warrant Certificate may be exercised only for the
purchase of Warrant Debt Securities in the principal amount of [$1,000] or
any integral multiple thereof.
The term "HOLDER" as used herein shall mean [IF OFFERED DEBT SECURITIES
WITH WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE --, prior to __________, 20__
(the "DETACHABLE DATE"), the [bearer] [registered owner] of the Company's [title
of Offered Debt Securities] to which such Warrant Certificate was initially
attached, and after such Detachable Date,] [the bearer of such Warrant
Certificate] [the person in whose name at the time such Warrant Certificate
shall be registered upon the books to be maintained by the Warrant Agent for
that purpose pursuant to Section 3.01].
Any whole number of Warrants evidenced by this Warrant Certificate may be
exercised to purchase Warrant Debt Securities in registered form. Upon any
exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the [bearer] [registered owner] hereof a
new Warrant Certificate evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of __________, 20__ (the "WARRANT AGREEMENT"),
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the holder of this Warrant Certificate consents by acceptance
hereof. Copies of the Warrant Agreement are on file at the above-mentioned
office of the Warrant Agent [and at __________].
The Warrant Debt Securities to be issued and delivered upon the exercise
of Warrants evidenced by this Warrant Certificate will be issued under and in
accordance with an Indenture, dated as of __________, 20__ (the "INDENTURE"),
between the Company and __________, a __________ corporation, as trustee (such
trustee, and any successors to such trustee, the "TRUSTEE") and will be subject
to the terms and provisions contained in the Warrant Debt Securities and in the
Indenture. Copies of the Indenture, including the form of the Warrant Debt
Securities, are on file at the corporate trust office of the Trustee [and at
__________].
A-3
<PAGE>
[IF OFFERED DEBT SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY
DETACHABLE--Prior to the Detachable Date, this Warrant Certificate may be
exchanged or transferred only together with the [title of Offered Debt Security]
(the "OFFERED DEBT SECURITY") to which this Warrant Certificate was initially
attached, and only for the purpose of effecting, or in conjunction with, an
exchange or transfer of such Offered Debt Security. Additionally, on or prior to
the Detachable Date, each transfer of such Offered Debt Security on the register
of the Offered Debt Securities shall operate also to transfer this Warrant
Certificate. After the Detachable Date, this] [IF OFFERED DEBT SECURITIES WITH
WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR WARRANTS ALONE--This] Warrant
Certificate, and all rights hereunder, may be transferred [If bearer Warrants --
by delivery and the Company and the Warrant Agent may treat the bearer hereof as
the owner for all purposes] [If registered Warrants -- when surrendered at the
corporate trust office of the Warrant Agent [or __________] by the registered
owner or his assigns, in person or by an attorney duly authorized in writing, in
the manner and subject to the limitations provided in the Warrant Agreement.]
[If Offered Debt Securities with Warrants which are not immediately
detachable--Except as provided in the immediately preceding paragraph, after]
[If Offered Debt Securities with Warrants which are immediately detachable or
Warrants alone--After] authentication by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent [or at __________]
for Warrant Certificates representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the [bearer] [registered
owner] hereof to any of the rights of a [registered] [holder] of the Warrant
Debt Securities, including, without limitation, the right to receive payments
of principal of (and premium, if any) or interest, if any, on the Warrant Debt
Securities or to enforce any of the covenants of the Indenture.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Warrant Certificate shall not be valid or obligatory for any purpose
until authenticated by the Warrant Agent.
A-4
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
duly executed under its corporate seal.
<TABLE>
<S> <C>
Dated: __________, 20__
SARA LEE CORPORATION
By:___________________________
Attest:
_______________________________
Countersigned:
_______________________________
As Warrant Agent
By_____________________________
Authorized Signature
</TABLE>
A-5
<PAGE>
[REVERSE] [FORM OF WARRANT CERTIFICATE]
(Instructions for Exercise of Warrants)
To exercise any Warrants evidenced hereby, the Holder of this Warrant
Certificate must pay [in cash or by bank wire transfer in immediately available
funds], the Exercise Price in full for each of the Warrants exercised, to
__________, Corporate Trust Department, __________, Attn: __________ [or
__________], which payment should specify the name of the Holder of this Warrant
Certificate and the number of Warrants exercised by such Holder. In addition,
the Holder of this Warrant Certified should complete the information required
below and present in person or mail by registered mail this Warrant Certificate
to the Warrant Agent at the addresses set forth below.
[FORM OF EXERCISE]
(To be executed upon exercise of Warrants.)
The undersigned hereby irrevocably elects to exercise Warrants,
represented by this Warrant Certificate, to purchase $_______ principal amount
of the [Title of Warrant Debt Securities] (the "WARRANT DEBT SECURITIES") of
Sara Lee Corporation and represents that he has tendered payment for such
Warrant Debt Securities [in cash or by bank wire transfer in immediately
available funds] to the order of Sara Lee Corporation, c/o __________, in the
amount of $_______ in accordance with the terms hereof. The undersigned requests
that said principal amount of Warrant Debt Securities be in [bearer] [fully
registered] form, in the authorized denominations, [registered in such names]
and delivered, all as specified in accordance with the instructions set forth
below.
If said principal amount of Warrant Debt Securities is less than all
of the Warrant Debt Securities purchasable hereunder, the undersigned
requests that a new Warrant Certificate representing the remaining balance of
the Warrants evidenced hereby be issued and delivered to the undersigned
unless otherwise specified in the instructions below.
A-6
<PAGE>
<TABLE>
<S> <C>
Dated:
Name_______________________________
(Please Print)
_________________________________ Address_____________________________
(Insert Social Security, Taxpayer _____________________________
Identification or Other _____________________________
Identifying Number of Holder)
Signature____________________________
[IF REGISTERED WARRANT -- (Signature must
conform in all respects to name of holder as
specified on the face of this Warrant
Certificate and all signatures must be
guaranteed by a firm that is a member of the
New York, Chicago or Pacific Stock Exchange
or the National Association of Securities
Dealers, Inc. or by a commercial bank or
trust company having an office or
correspondent in the United States which is a
participant in an approved Signature
Guarantee Medallion Program.)]
</TABLE>
This Warrant may be exercised at the following addresses:
By hand at ____________________
____________________
____________________
____________________
By mail at ____________________
____________________
____________________
____________________
(Instructions as to form and delivery of Warrant
Debt Securities and/or Warrant Certificates):
Signature Guaranteed:
___________________________
A-7
<PAGE>
[IF REGISTERED WARRANT--
[FORM OF ASSIGNMENT]
(TO BE EXECUTED TO TRANSFER
THE WARRANT CERTIFICATE)
FOR VALUE RECEIVED _______________ hereby sells, assigns and transfer
unto
Please insert social
security, taxpayer
identification or other
identifying number
________________________
__________________________________________________________________
(Please print name and address
including zip code)
_______________________________________________________________________________
the right represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint __________, Attorney, to transfer said
Warrant Certificate on the books of the Warrant Agent with full power of
substitution.
Dated:
A-8
<PAGE>
_______________________________
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this
Warrant Certificate and all
signatures must be guaranteed
by a firm that is a member of
the New York, Chicago or
Pacific Stock Exchange or the
National Association of
Securities Dealers, Inc. or by
a commercial bank or trust
company having an office or
correspondent in the United
States which is a participant
in an approved Signature
Guarantee Medallion Program.)
Signature Guaranteed:
___________________________________
A-9
<PAGE>
CERTIFICATION AS TO NON-U.S. OWNERSHIP (*)
[To be completed if Warrant Debt Securities
in bearer form are requested]
This is to certify that as of the date hereof, the Warrant Debt
Securities which are to be delivered to the undersigned in bearer form upon the
exercise by the undersigned of this Warrant Certificate are not being acquired
by or on behalf of, or for offer to resell or for resale to, a United States
person, other than a financial institution, as defined in the Treasury
Regulations under Section 165(j), that agrees to comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended (the "CODE"), and the regulations thereunder. As used herein, "United
States person" means a citizen or a resident of the United States of America,
its territories, its possessions or any area subject to its jurisdiction
("UNITED STATES"), or a corporation, partnership or other entity created or
organized in or under the laws of the United States or any political subdivision
thereof, or an estate or trust the income of which is subject to United States
Federal income tax regardless of its source.
Signature:_________________________________
_____________________________
(*) Additional representations may be required of a dealer exercising this
Warrant Certificate.
A-10
<PAGE>
[Form of certificate to be given by person requesting
delivery of bearer Warrant Debt Security upon
exercise of Warrant]
CERTIFICATE (*)
SARA LEE CORPORATION
[Title of Warrant Debt Securities] Issuable Upon Exercise of Warrants
("WARRANT DEBT SECURITIES")
TO: Sara Lee Corporation
[Name of Warrant Agent], or
Warrant Agent
This certificate is submitted in connection with the exercise of the
Warrant Certificate relating to the Warrant Debt Securities, by delivery to
you of the Election to Purchase dated as of __________, 20__.
The undersigned hereby certifies that as of the date hereof, the
Warrant Debt Securities which are to be delivered to the undersigned in
bearer form upon the exercise by the undersigned of such Warrant Certificate
are not being acquired by or on behalf of, or for offer to resell or for
resale to, a United States person, other than a financial institution, as
defined in the Treasury Regulations under Section 165(j), that agrees to
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended (the "CODE"), and the regulations
thereunder. As used herein, "United States person" means a citizen or a
resident of the United States of America, its territories, its possessions or
any area subject to its jurisdiction ("UNITED STATES"), or a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any political subdivision thereof, or an estate or trust the
income of which is subject to United States Federal income tax regardless of
its source.
Dated:
_________________________________
Person Entitled to Delivery of
Warrant Debt Securities Described
Herein
______________________________
(*) Additional representations may be required of a dealer exercising this
Warrant Certificate.
A-11
<PAGE>
EXHIBIT 4.10
FORM OF STOCK WARRANT AGREEMENT
____________________________________________________________
SARA LEE CORPORATION
and
_______________________,
As Warrant Agent
___________
WARRANT AGREEMENT
Dated as of ___________________, 20__
_________________
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE I
ISSUANCE, EXECUTION AND COUNTERSIGNATURE
OF WARRANT CERTIFICATES
Section 1.01 Issuance of Warrant Certificates. . . . . . . . . . . . . . . . . 1
Section 1.02 Form of Warrant Certificates. . . . . . . . . . . . . . . . . . . 1
Section 1.03 Execution and Countersignature of Warrant Certificates. . . . . . 2
Section 1.04 Temporary Warrant Certificates. . . . . . . . . . . . . . . . . . 2
Section 1.05 Payment of Taxes. . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.06 Definition of Holder. . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
Section 2.01 Warrant Price*. . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.02 Duration of Warrants. . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.03 Exercise of Warrants. . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.04 Reservation of Shares . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE III
OTHER TERMS OF WARRANTS
Section 3.01 Call of Warrants by the Company*. . . . . . . . . . . . . . . . . 5
Section 3.02 Adjustment of Exercise Price and Number of Shares Purchasable or
Number of Warrants* . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE IV
REGISTRATION; EXCHANGE, TRANSFER AND SUBSTITUTION
OF WARRANT CERTIFICATES
Section 4.01 Registration; Exchange and Transfer of Warrant
Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 4.02 Mutilated, Destroyed, Lost or Stolen Warrant
Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 4.03 Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . 9
Section 4.04 Cancellation of Warrant Certificates. . . . . . . . . . . . . . . 9
</TABLE>
-i-
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE V
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF WARRANT CERTIFICATES
Section 5.01 No Rights as Stockholders Conferred by Warrants or Warrant
Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 5.02 Holder of Warrant Certificate May Enforce Rights. . . . . . . . . 10
ARTICLE VI
CONCERNING THE WARRANT AGENT
Section 6.01 Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 6.02 Conditions of Warrant Agent's Obligations . . . . . . . . . . . . 10
Section 6.03 Resignation, Removal and Appointment of Successor.. . . . . . . . 12
ARTICLE VII
MISCELLANEOUS
Section 7.01 Consolidations and Mergers of the Company and Sales, Leases
and Conveyances Permitted Subject to Certain Conditions . . . . 13
Section 7.02 Rights and Duties of Successor Corporation. . . . . . . . . . . . 13
Section 7.03 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 7.04 Notices and Demands to the Company and Warrant Agent. . . . . . . 14
Section 7.05 Notices to Warrantholders . . . . . . . . . . . . . . . . . . . . 14
Section 7.06 Addresses . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 7.07 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 7.08 Delivery of Prospectus. . . . . . . . . . . . . . . . . . . . . . 15
Section 7.09 Obtaining of Governmental Approvals . . . . . . . . . . . . . . . 16
Section 7.10 Persons Having Rights under Warrant Agreement . . . . . . . . . . 16
Section 7.11 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 7.12 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 7.13 Inspection of Agreement . . . . . . . . . . . . . . . . . . . . . 16
</TABLE>
-ii-
<PAGE>
THIS WARRANT AGREEMENT, dated as of _____________, 20__, between Sara
Lee Corporation, a corporation duly organized and existing under the laws of
the State of Maryland (the "COMPANY") and ________________________, a
[corporation][national banking association] organized and existing under the
laws of _______________________, as Warrant Agent (the "WARRANT AGENT").
WHEREAS, the Company proposes to sell [If Offered Securities and
Warrants -- [title of Offered Securities being offered] (the "OFFERED
SECURITIES") with] warrant certificates (such warrant certificates and other
warrant certificates issued pursuant to this Agreement herein called the
"WARRANT CERTIFICATES") evidencing one or more warrants (the "WARRANTS" or,
individually, a "WARRANT") representing the right to purchase shares of common
stock of the Company, par value $.01 per share (the "COMMON STOCK"); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, exchange, exercise and replacement of the Warrant Certificates, and
desires to set forth, among other things, the form and provisions of the
Warrant Certificates and the terms and conditions on which they may be
issued, transferred, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE, EXECUTION AND COUNTERSIGNATURE
OF WARRANT CERTIFICATES
Section 1.01 ISSUANCE OF WARRANT CERTIFICATES. [IF WARRANTS ALONE --
Upon issuance, each Warrant Certificate shall evidence one or more Warrants.]
[IF OFFERED SECURITIES AND WARRANTS -- Warrant Certificates shall be
[initially] issued in units with the Offered Securities and shall not be
separately transferable [before _________, 20__ (the "DETACHABLE DATE")]. Each
Warrant Certificate included in each such unit shall evidence an aggregate
of _______ Warrants.] Each Warrant evidenced thereby shall represent the
right, subject to the provisions contained herein and therein, to purchase one
share of Common Stock.
Section 1.02 FORM OF WARRANT CERTIFICATES. The Warrant Certificates
(including the Form[s] of Exercise and Assignment to be set forth on the reverse
thereof) shall be in substantially the form set forth in EXHIBIT A hereto, shall
be printed, lithographed or engraved on steel engraved borders (or in any other
manner determined by the officers executing such Warrant Certificates, as
evidenced by their execution of such Warrant Certificates) and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with any law or with
any rule or regulation made pursuant thereto or with any rule or regulation of
any securities exchange on which the Warrant Certificates may be listed or as
may, consistently herewith, be determined by the officers executing such Warrant
Certificates, as evidenced by their execution of the Warrant Certificates.
-1-
<PAGE>
Section 1.03 EXECUTION AND COUNTERSIGNATURE OF WARRANT CERTIFICATES.
The Warrant Certificates shall be executed on behalf of the Company by its
Chairman of the Board, President, Chief Financial Officer or Treasurer under
its corporate seal reproduced thereon and attested by its Secretary or any
Assistant Secretary. The signature of any of these officers on the Warrant
Certificates may be manual or facsimile.
Warrant Certificates evidencing the right to purchase a number of shares
of Common Stock having an aggregate value not exceeding $___________ (except
as provided in Sections 1.04, 2.03(c), 4.01 and 4.02) at the time of
execution by the Company may be executed by the Company and delivered to the
Warrant Agent upon the execution of this Warrant Agreement or from time to
time thereafter. The Warrant Agent shall, upon receipt of Warrant
Certificates duly executed on behalf of the Company, authenticate Warrant
Certificates evidencing Warrants representing the right to purchase a number
of shares of Common Stock having an aggregate value not exceeding $______ at
the time of execution by the Company and shall deliver such Warrant
Certificates to or upon the order of the Company. Subsequent to such original
issuance of the Warrant Certificates, the Warrant Agent shall authenticate a
Warrant Certificate only if the Warrant Certificate is issued in exchange or
substitution for one or more previously authenticated Warrant Certificates or
in connection with their transfer, as hereinafter provided.
Each Warrant Certificate shall be dated the date of its authentication
by the Warrant Agent.
No Warrant Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose, and no Warrant evidenced
thereby shall be exercisable, until such Warrant Certificate has been
authenticated by the Warrant Agent. Such authentication by the Warrant Agent
of any Warrant Certificate executed by the Company shall be conclusive
evidence, and the only evidence, that the Warrant Certificate so
authenticated has been duly issued hereunder.
Warrant Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Warrant Certificates or did not hold such offices at the date of such Warrant
Certificates.
Section 1.04 TEMPORARY WARRANT CERTIFICATES. Pending the preparation
of definitive Warrant Certificates, the Company may execute, and upon the
order of the Company the Warrant Agent shall authenticate and deliver,
temporary Warrant Certificates which are printed, lithographed, typewritten,
mimeographed or otherwise produced substantially of the tenor of the
definitive Warrant Certificates in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Warrant Certificates may determine, as evidenced
by their execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will cause
definitive Warrant Certificates to be prepared without unreasonable delay.
After the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates at the corporate trust
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office of the Warrant Agent [or ____________], without charge to the Holder
(as defined in Section 1.06 below). Upon surrender for cancellation of any
one or more temporary Warrant Certificates the Company shall execute and the
Warrant Agent shall authenticate and deliver in exchange therefor definitive
Warrant Certificates representing the same aggregate number of Warrants.
Until so exchanged the temporary Warrant Certificates shall in all respects
be entitled to the same benefits under this Agreement as definitive Warrant
Certificates.
Section 1.05 PAYMENT OF TAXES. The Company will pay all stamp taxes
and other duties, if any, to which, under the laws of the United States of
America or any State or political subdivision thereof, this Agreement or the
original issuance of the Warrant Certificates may be subject.
Section 1.06 DEFINITION OF HOLDER. The term "HOLDER" as used herein
shall mean [IF OFFERED SECURITIES AND WARRANTS WHICH ARE NOT IMMEDIATELY
DETACHABLE --, prior to the Detachable Date, the registered owner of the Offered
Security to which such Warrant Certificate was initially attached, and, after
such Detachable Date,] the person in whose name at the time such Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose pursuant to Section 4.01. [IF OFFERED SECURITIES AND
WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE -- Prior to the Detachable Date,
the Company will, or will cause the registrar of the Offered Securities to make
available to the Warrant Agent current information as to Holders of the Offered
Securities.]
ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
Section 2.01 WARRANT PRICE (*). During the period from _____________,
20__ through and including ____________, 20__ each Warrant shall entitle the
Holder thereof, subject to the provisions of this Agreement, to purchase from
the Company one share of Common Stock at the exercise price of $_____. During
the period from ______________, 20__ through and including ____________, 20__,
each Warrant shall entitle the Holder thereof, subject to the provisions of this
Agreement, to purchase from the Company one share of Common Stock at the
exercise price of $_____. Such exercise price of each Warrant is referred to in
this Agreement as the "EXERCISE PRICE."
Section 2.02 DURATION OF WARRANTS. Any Warrant evidenced by a Warrant
Certificate may be exercised at any time, as specified herein, on or after [the
date thereof] [________, 20__] and at or before the close of business, New York
City time, on _________, 20__ (the "EXPIRATION DATE"). Each Warrant not
exercised at or before the close of business, New York City time, on the
Expiration Date shall become void, and all rights of the Holder of the Warrant
Certificate evidencing such Warrant under this Agreement or otherwise shall
cease.
________________________
*Complete and modify the provisions of this Section as appropriate to reflect
the exact terms of the Warrants.
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Section 2.03 EXERCISE OF WARRANTS.
(a) During the period specified in Section 2.02, any whole number
of Warrants may be exercised by surrendering the Warrant Certificate evidencing
such Warrants at the place or at the places set forth in the Warrant
Certificate, with the purchase form set forth in the Warrant Certificate duly
executed, accompanied by payment in full, in lawful money of the United States
of America, [in cash or by bank wire transfer in immediately available funds],
of the Exercise Price for each Warrant exercised. The date on which payment in
full of the Exercise Price for a Warrant and the duly executed and completed
Warrant Certificate are received by the Warrant Agent shall be deemed to be
the date on which such Warrant is exercised. The Warrant Agent shall deposit
all funds received by it as payment for the exercise of Warrants to the
account of the Company maintained with it for such purpose and shall advise
the Company by telephone at the end of each day on which such a payment is
received of the amount so deposited to its account. The Warrant Agent shall
promptly confirm such telephonic advice to the Company in writing.
(b) The Warrant Agent shall from time to time, as promptly as
practicable after the exercise of any Warrants in accordance with the terms
and conditions of this Agreement and the Warrant Certificates, advise the
Company of (1) the number of Warrants so exercised, (2) the instructions of
each Holder of the Warrant Certificates evidencing such Warrants with respect
to delivery of the certificate or certificates representing shares of Common
Stock to which such Holder is entitled upon such exercise, and instructions
of such Holder as to delivery of Warrant Certificates evidencing the balance,
if any, of the Warrants remaining after such exercise, and (3) such other
information as the Company shall reasonably require.
(c) As soon as practicable after the exercise of any Warrants, the
Company shall issue, to or upon the order of the Holder of the Warrant
Certificate evidencing such Warrants, a certificate or certificates
representing the number of shares of Common Stock to which such Holder is
entitled in such name or names as may be directed by such Holder; and, if
fewer than all of the Warrants evidenced by such Warrant Certificate were
exercised, the Company shall execute and an authorized officer of the Warrant
Agent shall authenticate and deliver, all in accordance with Section 1.03 of
this Agreement, a new Warrant Certificate evidencing the number of Warrants
remaining unexercised.
(d) The Company shall not be required to pay any stamp or other
tax or other governmental charge required to be paid in connection with any
transfer involved in the issuance of the Common Stock; and in the event that
any such transfer is involved, the Company shall not be required to issue or
deliver any shares of Common Stock until such tax or other charge shall have
been paid or it has been established to the Company's satisfaction that no
such tax or other charge is due.
Section 2.04 RESERVATION OF SHARES. For the purpose of enabling it to
satisfy any obligation to issue shares of Common Stock upon exercise of
Warrants, the Company will reserve and keep available, free from preemptive
rights and out of its aggregate authorized but unissued shares of Common
Stock, the number of shares deliverable upon the exercise of all outstanding
Warrants.
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The Company covenants that all shares of Common Stock issued upon
exercise of the Warrants will, upon issuance in accordance with the terms of
this Agreement, be fully paid and nonassessable and free from all taxes,
liens, charges and security interests created by or imposed upon the Company
with respect to the issuance and holding thereof.
ARTICLE III
OTHER TERMS OF WARRANTS
Section 3.01 CALL OF WARRANTS BY THE COMPANY (*). [IF WARRANTS ISSUED
HEREUNDER ARE CALLABLE BY THE COMPANY -- The Company shall have the right to
call and repurchase any or all Warrants at the price and on or after
_____________, 20__ (the "CALL DATE") and upon the occurrence of [DISCUSS EVENTS
OR CIRCUMSTANCES UNDER WHICH COMPANY MAY CALL THE WARRANTS] (the "CALL TERMS")
of $__________ per Warrant (the "CALL PRICE"). Notice of such Call Price, Call
Date and Call Terms shall be given to registered holders of Warrants in the
manner provided in Section 7.05.
Section 3.02 ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES
PURCHASABLE OR NUMBER OF WARRANTS (*). The Exercise Price, the number of shares
of Common Stock purchasable upon the exercise of each Warrant and the number of
Warrants outstanding are subject to adjustment from time to time upon the
occurrence of the events enumerated in this Section 3.02. [ADDITIONAL EVENTS MAY
BE ADDED, AND THIS AGREEMENT MODIFIED ACCORDINGLY, PRIOR TO THE ISSUANCE OF
WARRANTS HEREUNDER]
(a) If the Company shall (1) pay a dividend in or make a
distribution of shares of its capital stock, whether shares of Common Stock
or shares of its capital stock of any other class, (2) subdivide its
outstanding shares of Common Stock, (3) combine its outstanding shares of
Common Stock into a smaller number of shares of Common Stock or (4) issue any
shares of its capital stock in a reclassification of the Common Stock
(including any such reclassification in connection with a consolidation or
merger in which the Company is the continuing corporation), the number of
shares of Common Stock purchasable upon exercise of each Warrant immediately
prior thereto shall be adjusted so that the holder of each Warrant shall be
entitled to receive the kind and number of shares of Common Stock or other
securities of the Company which such holder would have owned or have been
entitled to receive after the happening of any of the events described above,
had such Warrant been exercised immediately prior to the happening of such
event or any record date with respect thereto. An adjustment made pursuant to
this paragraph (a) shall become effective immediately after the effective
date of such event retroactive to the record date, if any, for such event.
- ------------------------
* Complete and modify the provisions of this Section as appropriate to reflect
the exact terms of the Warrants.
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<PAGE>
(b) If the Company shall issue rights, options or warrants to all
holders of its outstanding Common Stock, without any charge to such holders,
entitling them to subscribe for or purchase shares of Common Stock at a price
per share that is lower than the market price per share of Common Stock (as
defined in paragraph (e) below) at the record date mentioned below, the
number of shares of Common Stock thereafter purchasable upon the exercise of
each Warrant shall be determined by multiplying the number of shares of
Common Stock theretofore purchasable upon exercise of each Warrant by a
fraction, of which the numerator shall be (1) the number of shares of Common
Stock outstanding on the date of issuance of such rights, options or warrants
plus the number of additional shares of Common Stock offered for subscription
or purchase, and of which the denominator shall be (2) the number of shares
of Common Stock outstanding on the date of issuance of such rights, options
or warrants plus the number of shares which the aggregate offering price of
the total number of shares of Common Stock so offered would purchase at the
market price per share of Common Stock at such record date. Such adjustment
shall be made whenever such rights, options or warrants are issued, and shall
become effective retroactively immediately after the record date for the
determination of stockholders entitled to receive such rights, options or
warrants.
(c) If the Company shall distribute to all holders of its shares
of Common Stock evidences of its indebtedness or assets (excluding cash
dividends or distributions payable out of capital surplus and dividends or
distributions referred to in paragraph (a) above) or rights, options or
warrants or convertible or exchangeable securities containing the right to
subscribe for or purchase shares of Common Stock (excluding those referred to
in paragraph (b) above), then in each case the number of shares of Common
Stock thereafter purchasable upon the exercise of each Warrant shall be
determined by multiplying the number of shares of Common Stock theretofore
purchasable upon the exercise of each Warrant, by a fraction, of which the
numerator shall be (1) the market price per share of Common Stock (as defined
in paragraph (e) below) on the date of such distribution, and of which the
denominator shall be (2) the market price per share of Common Stock on the
date of such distribution less the then fair value (as determined by the
Board of Directors of the Company, whose determination shall be conclusive)
of the portion of the assets or evidences of indebtedness so distributed or
of such subscription rights, options or warrants or convertible or
exchangeable securities applicable to one share of Common Stock. Such
adjustment shall be made whenever any such distribution is made, and shall
become effective on the date of distribution retroactive to the record date
for the determination of stockholders entitled to receive such distribution.
(d) In the event of any capital reorganization or any
reclassification of the Common Stock (except as provided in paragraphs (a)
through (c) above), any holder of Warrants upon exercise thereof shall be
entitled to receive, in lieu of the Common Stock to which he would have
become entitled upon exercise immediately prior to such reorganization or
reclassification, the shares (of any class or classes) or other securities or
property of the Company that he would have been entitled to receive at the
same aggregate Exercise Price upon such reorganization or reclassification if
his Warrants had been exercised immediately prior thereto.
(e) For the purpose of any computation under paragraphs (b) and
(c) of this Section 3.02, the market price per share of Common Stock at any
date shall be deemed to be the average of the daily closing prices for
________ consecutive trading days commencing on the
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_____ trading day before the date of such computation. The closing price for
each day shall be the last sale price for such day as reported in the
principal consolidated transaction reporting system with respect to
securities listed or admitted to trading on the New York Stock Exchange.
(f) Whenever the number of shares of Common Stock purchasable upon
the exercise of each Warrant is adjusted as herein provided, the Exercise
Price payable upon exercise of each Warrant shall be adjusted by multiplying
such Exercise Price immediately prior to such adjustment by a fraction, of
which the numerator shall be the number of shares purchasable upon the
exercise of each Warrant immediately prior to such adjustment, and of which
the denominator shall be the number of shares so purchasable immediately
thereafter.
(g) The Company may elect, on or after the date of any adjustment
required by paragraphs (a) through (d) of this Section 3.02, to adjust the
number of Warrants in substitution for an adjustment in the number of shares
of Common Stock purchasable upon the exercise of a Warrant. Each of the
Warrants outstanding after such adjustment of the number of Warrants shall be
exercisable for the same number of shares of Common Stock as immediately
prior to such adjustment. Each Warrant held of record prior to such
adjustment of the number of Warrants shall become that number of Warrants
(calculated to the nearest hundredth) obtained by dividing the Exercise Price
in effect prior to adjustment of the Exercise Price by the Exercise Price in
effect after adjustment of the Exercise Price. The Company shall notify the
holders of Warrants in the same manner as provided in the first paragraph of
Section 7.05, of its election to adjust the number of Warrants, indicating
the record date for the adjustment, and, if known at the time, the amount of
the adjustment to be made. This record date may be the date on which the
Exercise Price is adjusted or any day thereafter. Upon each adjustment of
the number of Warrants pursuant to this paragraph (g) the Company shall, as
promptly as practicable, cause to be distributed to holders of record of
Warrants on such record date Warrant Certificates evidencing, subject to
paragraph (h), the additional Warrants to which such holders shall be
entitled as a result of such adjustment, or, at the option of the Company,
shall cause to be distributed to such holders of record in substitution and
replacement for the Warrant Certificates held by such holders prior to the
date of adjustment, and upon surrender thereof, if required by the Company,
new Warrant Certificates evidencing all the Warrants to be issued, executed
and registered in the manner specified in Section I (and which may bear, at
the option of the Company, the adjusted Exercise Price) and shall be
registered in the names of the holder of record of Warrant Certificates on
the record date specified in the notice.
(h) The Company shall not be required to issue fractions of
Warrants on any distribution of Warrants to holders of Warrant Certificates
pursuant to paragraph (g) or to distribute Warrant Certificates that evidence
fractional Warrants. In lieu of such fractional Warrants there shall be paid
to the registered holders of the Warrant Certificates with regard to which
such fractional Warrants would otherwise be issuable, an amount in cash equal
to the same fraction of the market value of a full Warrant. For purposes of
this paragraph (h), the market value of a Warrant shall be the closing sale
price of one Warrant (determined as set forth in paragraph (e)) for the
trading day immediately prior to the date on which such fractional Warrant
would have been otherwise issuable.
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<PAGE>
(i) Notwithstanding any adjustment pursuant to Section 3.02 in the
number of shares of Common Stock purchasable upon the exercise of a Warrant,
the Company shall not be required to issue fractions of shares of Common
Stock upon exercise of the Warrants or to distribute certificates which
evidence fractional shares. In lieu of fractional shares, there shall be paid
to the registered holders of Warrant Certificates at the time such Warrant
Certificates are exercised as herein provided an amount in cash equal to the
same fraction of the market value of a share of Common Stock. For purposes
of this paragraph (i), the market value of a share of Common Stock shall be
the closing sale price (determined as set forth in paragraph (e)) of a share
of Common Stock for the trading day immediately prior to the date of such
exercise.
ARTICLE IV
REGISTRATION; EXCHANGE, TRANSFER AND SUBSTITUTION
OF WARRANT CERTIFICATES
Section 4.01 REGISTRATION; EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES.
The Warrant Agent shall keep, at its corporate trust office [and at __________],
books in which, subject to such reasonable regulations as it may prescribe, it
shall register Warrant Certificates and transfers of outstanding Warrant
Certificates.
[IF OFFERED DEBT SECURITIES AND WARRANTS WHICH ARE NOT IMMEDIATELY
DETACHABLE -- Prior to the Detachable Date, each Warrant Certificate may be
exchanged or transferred only together with the Offered Security to which such
Warrant Certificate was initially attached, and only for the purpose of
effecting, or in conjunction with, an exchange or transfer of such Offered
Security. Additionally, on or prior to the Detachable Date, each transfer of an
Offered Security [on the register of the Offered Securities] shall operate also
to transfer the Warrant Certificate or Certificates to which such Offered
Security was initially attached. After the Detachable Date, upon] [IF OFFERED
SECURITIES AND WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR IF WARRANTS ALONE --
Upon] surrender at the corporate trust office of the Warrant Agent [or
__________________] of Warrant Certificates properly endorsed [or accompanied by
appropriate instruments of transfer] and accompanied by written instructions for
exchange or transfer, all in form satisfactory to the Company and the Warrant
Agent, such Warrant Certificates may be exchanged for other Warrant Certificates
or may be transferred in whole or in part; provided that Warrant Certificates
issued in exchange for or upon transfer of surrendered Warrant Certificates
shall evidence the same aggregate number of Warrants as the Warrant Certificates
so surrendered. No service charge shall be made for any exchange or transfer of
Warrant Certificates, but the Company may require payment of a sum sufficient to
cover any stamp or other tax or governmental charge that may be imposed in
connection with any such exchange or transfer. Whenever any Warrant
Certificates are so surrendered for exchange or transfer, the Company shall
execute and an authorized officer of the Warrant Agent shall authenticate and
deliver to the person or persons entitled thereto a Warrant Certificate or
Warrant Certificates as so requested. The Warrant Agent shall not be required
to effect any exchange or transfer which would result in the issuance of a
Warrant Certificate evidencing a fraction of a Warrant or a number of full
Warrants and a fraction of a Warrant. All Warrant Certificates issued upon any
exchange or transfer of Warrant Certificates shall evidence the same
obligations, and be entitled to the same benefits under this Agreement, as the
Warrant Certificates surrendered for such exchange or transfer.
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<PAGE>
Section 4.02 MUTILATED, DESTROYED, LOST OR STOLEN WARRANT
CERTIFICATES. If any mutilated Warrant Certificate is surrendered to the
Warrant Agent, the Company shall execute and an officer of the Warrant Agent
shall authenticate and deliver in exchange therefor a new Warrant Certificate
of like tenor and bearing a number not contemporaneously outstanding. If
there shall be delivered to the Company and the Warrant Agent (1) evidence to
their satisfaction of the destruction, loss or theft of any Warrant
Certificate and of the ownership thereof and (2) such security or indemnity
as may be required by them to save each of them and any agent of either of
them harmless, then, in the absence of notice to the Company or the Warrant
Agent that such Warrant Certificate has been acquired by a bona fide
purchaser, the Company shall execute and upon its request an officer of the
Warrant Agent shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Warrant Certificate, a new Warrant Certificate of like tenor
and bearing a number not contemporaneously outstanding. Upon the issuance of
any new Warrant Certificate under this Section, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Warrant Agent) connected therewith. Every new
Warrant Certificate issued pursuant to this Section in lieu of any destroyed,
lost or stolen Warrant Certificate shall evidence an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Warrant Certificate shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Agreement equally and
proportionately with any and all other Warrant Certificates duly issued
hereunder. The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Warrant
Certificates.
Section 4.03 PERSONS DEEMED OWNERS. [IF OFFERED DEBT SECURITIES AND
WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE -- Prior to the Detachable Date,
the Company, the Warrant Agent and all other persons may treat the owner of
any Offered Security as the owner of the Warrant Certificates initially
attached thereto for any purpose and as the person entitled to exercise the
rights represented by the Warrants evidenced by such Warrant Certificates,
any notice to the contrary notwithstanding. After the Detachable Date,]
and prior to due presentment of a Warrant Certificate for registration of
transfer, the Company, the Warrant Agent and all other persons may treat the
Holder as the owner thereof for any purpose and as the person entitled to
exercise the rights represented by the Warrants evidenced thereby, any notice
to the contrary notwithstanding.
Section 4.04 CANCELLATION OF WARRANT CERTIFICATES. Any Warrant
Certificate surrendered for exchange, transfer or exercise of the Warrants
evidenced thereby shall, if surrendered to the Company, be delivered to the
Warrant Agent, and all Warrant Certificates surrendered or so delivered to
the Warrant Agent shall be promptly canceled by the Warrant Agent and shall
not be reissued and, except as expressly permitted by this Agreement, no
Warrant Certificate shall be issued hereunder in lieu or in exchange thereof.
The Company may at any time deliver to the Warrant Agent for cancellation
any Warrant Certificates previously issued hereunder which the Company may
have acquired in any manner whatsoever, and all Warrant Certificates so
delivered shall be promptly canceled by the Warrant Agent. All canceled
Warrant Certificates held by the Warrant Agent shall be destroyed by it
unless by written order the Company requests their return to it.
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ARTICLE V
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
Section 5.01 NO RIGHTS AS STOCKHOLDERS CONFERRED BY WARRANTS OR
WARRANT CERTIFICATES. No Warrant Certificate or Warrant evidenced thereby
shall entitle the Holder thereof to any of the rights of a stockholder,
including, without limitation, the right to vote or receive dividends.
Section 5.02 HOLDER OF WARRANT CERTIFICATE MAY ENFORCE RIGHTS.
Notwithstanding any of the provisions of this Agreement, any Holder of any
Warrant Certificate, without the consent of the Warrant Agent, any
stockholder or the Holder of any other Warrant Certificate, may, in his own
behalf and for his own benefit, enforce, and may institute and maintain any
suit, action or proceeding against the Company suitable to enforce or
otherwise in respect of, his right to exercise the Warrant or Warrants
evidenced by his Warrant Certificate in the manner provided in the Warrant
Certificates and in this Agreement.
ARTICLE VI
CONCERNING THE WARRANT AGENT
Section 6.01 WARRANT AGENT. The Company hereby appoints _____________
as Warrant Agent of the Company in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions set forth herein,
and ___________ hereby accepts such appointment. The Warrant Agent shall have
the power and authority granted to and conferred upon it in the Warrant
Certificates and hereby and such further power and authority to act on behalf
of the Company as the Company may hereafter grant to or confer upon it. All
of the terms and provisions with respect to such power and authority
contained in the Warrant Certificates are subject to and governed by the
terms and provisions hereof.
Section 6.02 CONDITIONS OF WARRANT AGENT'S OBLIGATIONS. The Warrant
Agent accepts its obligations herein set forth, upon the terms and conditions
hereof, including the following, to all of which the Company agrees and to
all of which the rights hereunder of the Holders from time to time of the
Warrant Certificates shall be subject:
(a) COMPENSATION AND INDEMNIFICATION. The Company agrees promptly
to pay the Warrant Agent the compensation to be agreed upon with the Company
for all services rendered by the Warrant Agent and to reimburse the Warrant
Agent for reasonable out-of-pocket expenses (including counsel fees) incurred
by the Warrant Agent in connection with the services rendered hereunder by
the Warrant Agent. The Company also agrees to indemnify the Warrant Agent
for, and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on the part of the Warrant Agent, arising out
of or in connection with its acting as such Warrant Agent hereunder,
including the reasonable costs and expenses of defending against any claim or
liability in connection with the exercise or performance at any time of its
power or
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<PAGE>
duties hereunder. The obligations of the Company under this subsection (a)
shall survive the exercise of the Warrant Certificates and the resignation or
removal of the Warrant Agent.
(b) AGENT OF THE COMPANY. In acting under this Warrant Agreement
and in connection with the Warrant Certificates, the Warrant Agent is acting
solely as agent of the Company and does not assume any obligation or
relationship of agency or trust for or with any of the owners or Holders of
the Warrant Certificates.
(c) COUNSEL. The Warrant Agent may consult with counsel, which
may include counsel for the Company, and the written advice of such counsel
shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(d) DOCUMENTS. The Warrant Agent shall be protected and shall
incur no liability for or in respect of any action taken or omitted by it in
reliance upon any Warrant Certificates, notice, direction, consent,
certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by the
proper parties.
(e) CERTAIN TRANSACTIONS. The Warrant Agent, any of its officers,
directors and employees, or any other agent of the Company, in its individual
or any other capacity, may become the owner of, or acquire any interest in,
any Warrant Certificates, with the same rights that it would have if it were
not the Warrant Agent, officer, director, employee or other agent, and, to
the extent permitted by applicable law, it may engage or be interested in any
financial or other transaction with the Company and may act on, or as
depositary, trustee or agent for, any committee or body of Holders of Warrant
Debt Securities or other obligations of the Company as freely as if it were
not the Warrant Agent, officer, director, employee or other agent.
(f) NO LIABILITY FOR INTEREST. The Warrant Agent shall not be
under any liability for interest on any monies at any time received by it
pursuant to any of the provisions of this Agreement or of the Warrant
Certificates.
(g) NO LIABILITY FOR INVALIDITY. The Warrant Agent shall not
incur any liability with respect to the validity of this Agreement or any of
the Warrant Certificates.
(h) NO RESPONSIBILITY FOR REPRESENTATIONS. The Warrant Agent
shall not be responsible for any of the recitals or representations contained
herein or in the Warrant Certificates (except as to the Warrant Agent's
Certificate of Authentication thereon), all of which are made solely by the
Company.
(i) NO IMPLIED OBLIGATIONS. The Warrant Agent shall be obligated
to perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read
into this Agreement or the Warrant Certificates against the Warrant Agent.
The Warrant Agent shall not be under any obligation to take any action
hereunder likely to involve it in any expense or liability, the payment of
which is not, in its reasonable opinion, assured to it. The Warrant Agent
shall not be accountable or under any duty or responsibility for the use by
the Company of any of the Warrant Certificates authenticated by the Warrant
Agent and delivered by it to the Company pursuant to this Agreement or for
the application by the Company of any proceeds of the Warrant Certificates or
any exercise of the
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Warrants evidenced thereby. The Warrant Agent shall have no duty or
responsibility in case of any default by the Company in the performance of
its covenants or agreements contained herein or in the Warrant Certificates
or in the case of the receipt of any written demand from a Holder of a
Warrant Certificate with respect to such default, except as provided in
Section 7.04 hereof, including, without limiting the generality of the
foregoing, any duty or responsibility to initiate or attempt to initiate any
proceedings at law or otherwise or, except as provided in Section 7.04
hereof, to make any demand upon the Company.
Section 6.03 RESIGNATION, REMOVAL AND APPOINTMENT OF SUCCESSOR.
(a) The Company agrees, for the benefit of the Holders from time
to time of the Warrant Certificates, that there shall at all times be a
Warrant Agent hereunder until all of the Warrant Certificates are no longer
outstanding.
(b) The Warrant Agent may at any time resign as such agent by
giving written notice to the Company of such intention on its part,
specifying the date on which it desires its resignation to become effective;
provided that, without the consent of the Company, such date shall not be
less than three months after the date on which such notice is given. The
Warrant Agent hereunder may be removed at any time by the filing with it of
an instrument in writing signed by or on behalf of the Company and specifying
such removal and the date when it shall become effective. Such resignation or
removal shall take effect upon the appointment by the Company of a successor
Warrant Agent (which shall be a bank or trust company organized and doing
business under the laws of The United States of America, any state thereof or
the District of Columbia and authorized under such laws to exercise corporate
trust powers) by an instrument in writing filed with such successor Warrant
Agent and the acceptance of such appointment by such successor Warrant Agent
pursuant to Section 6.03(d). In the event a successor Warrant Agent has not
been appointed and accepted its duties within three months of the Warrant
Agent's notice of resignation, the Warrant Agent may apply to any court of
competent jurisdiction for the designation of a successor Warrant Agent. The
obligation of the Company under Section 6.02(a) shall continue to the extent
set forth therein notwithstanding the resignation or removal of the Warrant
Agent and shall survive the termination of this Agreement.
(c) In case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or shall file a voluntary petition in bankruptcy or make an
assignment for the benefit of its creditors or consent to the appointment of
a receiver or custodian of all or any substantial part of its property, or
shall admit in writing its inability to pay or meet its debts as they mature,
or if a receiver or custodian of it or all or any substantial part of its
property shall be appointed, or if an order of any court shall be entered
approving any petition filed by or against it under the provisions of any
applicable bankruptcy or similar law, or if any public officer shall have
taken charge or control of the Warrant Agent or of its property or affairs, a
successor Warrant Agent, qualified as aforesaid, shall be appointed by the
Company by an instrument in writing filed with the successor Warrant Agent.
Upon the appointment as aforesaid of a successor Warrant Agent and acceptance
by the latter of such appointment, the Warrant Agent so superseded shall
cease to be Warrant Agent hereunder.
-12-
<PAGE>
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with
all the authority, rights, powers, trusts, immunities, duties and obligations
of such predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to transfer,
deliver and pay over, and such successor Warrant Agent shall be entitled to
receive, all monies, securities and other property on deposit with or held by
such predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Warrant Agent, provided that it shall be qualified as aforesaid, shall be the
successor Warrant Agent under this Agreement without the execution or filing
of any paper or any further act on the part of any of the parties hereto.
ARTICLE VII
MISCELLANEOUS
Section 7.01 CONSOLIDATIONS AND MERGERS OF THE COMPANY AND SALES,
LEASES AND CONVEYANCES PERMITTED SUBJECT TO CERTAIN CONDITIONS. The Company
may consolidate with, or sell, lease or convey all or substantially all of
its assets to, or merge with or into any other corporation, provided that in
any such case, the Company shall be the continuing corporation, or the
successor corporation shall be a corporation organized and existing under the
laws of the United States of America or a State thereof, and such successor
corporation shall expressly assume the obligations of the Company hereunder.
Section 7.02 RIGHTS AND DUTIES OF SUCCESSOR CORPORATION. In case of
any such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it
had been named herein, and the predecessor corporation, except in the event
of a lease, shall be relieved of any further obligation under this Agreement
and the Warrants. Such successor corporation thereupon may cause to be
signed, and may issue either in its own name or in the name of the Company,
any or all of the shares of Common Stock issuable pursuant to the terms
hereof.
Section 7.03 AMENDMENT. (a) This Agreement may be amended by the
parties hereto, without the consent of the Holder of any Warrant Certificate,
for the purpose of curing any ambiguity, or curing, correcting or
supplementing any defective or inconsistent provision contained herein, or
making such provisions in regard to matters or questions arising under this
Agreement as the Company may deem necessary or desirable; provided that such
action will not materially and adversely affect the interests of the Holders
of the Warrant Certificates. The Warrant Agent may, but shall not be
obligated to, enter into any amendment to this Agreement
-13-
<PAGE>
which affects the Warrant Agent's own rights, duties or immunities under this
Agreement or otherwise.
(b) The Company and the Warrant Agent may modify or amend this
Agreement and the Warrant Certificates, with the consent of the Holders
holding not fewer than a majority in number of the then outstanding
unexercised Warrants affected by such modification or amendment, for any
purpose; PROVIDED, HOWEVER, that no such modification or amendment that
increases the Call Price, shortens the period of time during which the
Warrants may be exercised, or otherwise materially and adversely affects the
exercise rights of the Holders or reduces the percentage of the number of
outstanding Warrants the consent of the Holders of which is required for
modification or amendment of this Agreement or the Warrant Certificates may
be made without the consent of each Holder affected thereby.
Section 7.04 NOTICES AND DEMANDS TO THE COMPANY AND WARRANT AGENT. If
the Warrant Agent shall receive any notice or demand addressed to the Company
by the Holder of a Warrant Certificate pursuant to the provisions of the
Warrant Certificates, the Warrant Agent shall promptly forward such notice or
demand to the Company.
Section 7.05 NOTICES TO WARRANTHOLDERS. Upon any adjustment of the
number of Shares purchasable upon exercise of each Warrant, the Exercise
Price or the number of Warrants outstanding pursuant to Section 3.02, the
Company within ___________ calendar days thereafter shall (1) cause to be
filed with the Warrant Agent a certificate of a firm of independent public
accountants of recognized standing selected by the Company (who may be the
regular auditors of the Company) setting forth the Exercise Price and either
the number of shares of Common Stock purchasable upon exercise of each
Warrant or the additional number of Warrants to be issued for each previously
outstanding Warrant, as the case may be, after such adjustment and setting
forth in reasonable detail the method of calculation and the facts upon which
such adjustment as made, which certificate shall be conclusive evidence of
the correctness of the matters set forth therein, and (2) cause to be given
to each of the registered holders of the Warrant Certificates at such
holder's address appearing on the Warrant Register written notice of such
adjustments by first-class mail, postage prepaid. Where appropriate, such
notice may be given in advance and included as part of the notice required to
be mailed under the other provisions of this Section 7.05.
Pursuant to Sections 3.01 [ADD OTHER SECTIONS AS APPLICABLE], the
Company shall cause written notice of such Call Price, Call Date and Call
Terms [REFERENCE OTHER ITEMS AS APPLICABLE], as the case may be, to be given
as soon as practicable to the Warrant Agent and to each of the registered
holders of the Warrant Certificates by first class mail, postage prepaid, at
such holder's address appearing on the Warrant register. In addition to the
written notice referred to in the preceding sentence, the Company shall make
a public announcement in a daily morning newspaper of general circulation in
______________ of such Call Price, Call Date, and Call Terms
[REFERENCE OTHER ITEMS AS APPLICABLE], as the case may be, at least once a
week for two successive weeks prior to the implementation of such terms.
If:
-14-
<PAGE>
(a) the Company shall declare any dividend payable in any
securities upon its shares of Common Stock or make any distribution (other
than a cash dividend) to the holders of its shares of Common Stock; or
(b) the Company shall offer to the holders of its shares of Common
Stock any additional shares of Common Stock or securities convertible into
shares of Common Stock or any right to subscribe thereto; or
(c) there shall be a dissolution, liquidation or winding up of the
Company (other than in connection with a consolidation, merger, or sale of
all or substantially all of its property, assets, and business as an
entirety);
then the Company shall (1) cause written notice of such event to be filed
with the Warrant Agent and shall cause written notice of such event to be
given to each of the registered holders of the Warrant Certificates at such
holder's address appearing on the Warrant Register, by first-class mail,
postage prepaid, and (2) make a public announcement in a daily newspaper of
general circulation in _______________ of such event, such giving of notice
and publication to be completed at least _________ calendar days prior to the
date fixed as a record date or the date of closing the transfer books for the
determination of the stockholders entitled to such dividend, distribution, or
subscription rights, or for the determination of stockholders entitled to
vote on such proposed dissolution, liquidation or winding up. Such notice
shall specify such record date or the date of closing the transfer books, as
the case may be. The failure to give the notice required by this Section
7.05 or any defect therein shall not affect the legality or validity of any
distribution, right, warrant, dissolution, liquidation or winding up or the
vote upon or any other action taken in connection therewith.
Section 7.06 ADDRESSES. Any communications from the Company to the
Warrant Agent with respect to this Agreement shall be addressed to
_________________________, Attention: ________________________, and any
communications from the Warrant Agent to the Company with respect to this
Agreement shall be addressed to Sara Lee Corporation, ____________________,
Attention:____________________, with a copy to the __________________ (or
such other address as shall be specified in writing by the Warrant Agent or
by the Company).
Section 7.07 GOVERNING LAW. This Agreement and each Warrant
Certificate issued hereunder shall be governed by and construed in accordance
with the laws of the State of New York.
Section 7.08 DELIVERY OF PROSPECTUS. The Company will furnish to the
Warrant Agent sufficient copies of a prospectus, appropriately supplemented,
relating to the Common Stock (the "PROSPECTUS"), and the Warrant Agent agrees
that, upon the exercise of any Warrant Certificate, the Warrant Agent will
deliver to the person designated to receive a certificate representing shares
of Common Stock, prior to or concurrently with the delivery of such
Securities, a Prospectus.
-15-
<PAGE>
Section 7.09 OBTAINING OF GOVERNMENTAL APPROVALS. The Company will
from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental
agencies and authorities and securities acts filings under United States
Federal and state laws (including, without limitation, the maintenance of the
effectiveness of a registration statement in respect of the Common Stock
under the Securities Act of 1933), which may be or become required in
connection with the exercise of the Warrant Certificates and the original
issuance and delivery of the Common Stock.
Section 7.10 PERSONS HAVING RIGHTS UNDER WARRANT AGREEMENT. Nothing
in this Agreement expressed or implied and nothing that may be inferred from
any of the provisions hereof is intended, or shall be construed, to confer
upon, or give to, any person or corporation other than the Company, the
Warrant Agent and the Holders of the Warrant Certificates any right, remedy
or claim under or by reason of this Agreement or of any covenant, condition,
stipulation, promise or agreement hereof; and all covenants, conditions,
stipulations, promises and agreements in this Agreement contained shall be
for the sole and exclusive benefit of the Company and the Warrant Agent and
their successors and of the Holders of the Warrant Certificates.
Section 7.11 HEADINGS. The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the
construction hereof.
Section 7.12 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original; but such counterparts shall together constitute but one and the
same instrument.
Section 7.13 INSPECTION OF AGREEMENT. A copy of this Agreement shall
be available at all reasonable times at the principal corporate trust office
of the Warrant Agent [and at _____________] for inspection by the Holder of
any Warrant Certificate. The Warrant Agent may require such Holder to submit
his Warrant Certificate for inspection by it.
-16-
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the day and year first above written.
SARA LEE CORPORATION
By________________________
[SEAL]
Attest:
____________________________
[Assistant] Secretary
[Name of Warrant Agent]
___________________________
By_________________________
[SEAL]
Attest:
_______________________
[Assistant] Secretary
-17-
<PAGE>
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
[FACE]
FORM OF LEGEND IF OFFERED [Prior to ________________, this
SECURITIES WITH Warrant Certificate may be
WARRANTS WHICH ARE NOT exchanged or transferred if
IMMEDIATELY DETACHABLE: and only if the [Title of
Security] to which it was
initially attached is so
exchanged or transferred.]
FORM OF LEGEND IF WARRANTS [Prior to __________, Warrants
ARE NOT IMMEDIATELY EXERCISABLE: evidenced by this Warrant Certificate
cannot be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN.
VOID AFTER THE CLOSE OF BUSINESS, NEW YORK CITY TIME, ON ______, 20__
SARA LEE CORPORATION
WARRANT CERTIFICATE REPRESENTING
WARRANTS TO PURCHASE
COMMON STOCK
AS DESCRIBED HEREIN.
******************
No. ___________________ Warrants
This certifies that _____________ or registered assigns is the
registered owner of the above indicated number of Warrants, each Warrant
entitling such registered owner to purchase, at any time [after the close of
business, New York City time, on __________, 20__, and] on or before the close
of business, New York City time, on _________, 20__, one share of the common
stock, $.01 par value ("COMMON STOCK") of Sara Lee Corporation (the "COMPANY"),
on the following basis.(*)[During the period from ______, 20__ through and
including
- ------------------------------
* Complete and modify the following provisions as appropriate to reflect the
terms of the Warrants.
A-1
<PAGE>
__________, 20__, each Warrant shall entitle the Holder thereof, subject to the
provisions of this Agreement, to purchase from the Company one share of Common
Stock at the exercise price of $_____; during the period from ______, 20__
through and including ________, 20___, each Warrant shall entitle the Holder
thereof, subject to the provisions of this Agreement, to purchase from the
Company one share of Common Stock at the exercise price of $_____ (the "EXERCISE
PRICE"). The Holder of this Warrant Certificate may exercise the Warrants
evidenced hereby, in whole or in part, by surrendering this Warrant Certificate,
with the purchase form set forth hereon duly completed, accompanied by payment
in full, in lawful money of the United States of America, [in cash or by bank
wire transfer in immediately available funds], the Exercise Price for each
Warrant exercised, to the Warrant Agent (as hereinafter defined), at the
corporate trust office of [name of Warrant Agent], or its successor as warrant
agent (the "WARRANT AGENT") [or at _____________,], at the addresses specified
on the reverse hereof and upon compliance with and subject to the conditions set
forth herein and in the Warrant Agreement (as hereinafter defined).
The term "HOLDER" as used herein shall mean [IF OFFERED DEBT SECURITIES
WITH WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE --, prior to ____, 20__ (the
"DETACHABLE DATE"), the registered owner of the Company's [title of Offered
Securities] to which this Warrant Certificate was initially attached, and after
such Detachable Date,] the person in whose name at the time this Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose pursuant to Section 4.01.
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase shares of Common Stock. Upon any exercise of fewer
than all of the Warrants evidenced by this Warrant Certificate, there shall
be issued to the registered owner hereof a new Warrant Certificate evidencing
the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of ________, 20__ (the "WARRANT AGREEMENT"),
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the holder of this Warrant Certificate consents by acceptance
hereof. Copies of the Warrant Agreement are on file at the above-mentioned
office of the Warrant Agent [and at _________________].
[IF OFFERED SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY
DETACHABLE -- Prior to the Detachable Date, this Warrant Certificate may be
exchanged or transferred only together with the [title of Offered Security] (the
"OFFERED SECURITY") to which this Warrant Certificate was initially attached,
and only for the purpose of effecting, or in conjunction with, an exchange or
transfer of such Offered Security. Additionally, on or prior to the Detachable
Date, each transfer of such Offered Security on the register of the Offered
Securities shall operate also to transfer this Warrant Certificate. After the
Detachable Date, this] [IF OFFERED DEBT SECURITIES WITH WARRANTS WHICH ARE
IMMEDIATELY DETACHABLE OR WARRANTY ALONE -- This] Warrant Certificate, and all
rights hereunder, may be transferred when surrendered at the corporate trust
A-2
<PAGE>
office of the Warrant Agent [or __________] by the registered owner or his
assigns, in person or by an attorney duly authorized in writing, in the manner
and subject to the limitations provided in the Warrant Agreement.
[If Offered Securities with Warrants which are not immediately detachable
- -- Except as provided in the immediately preceding paragraph, after] [If Offered
Debt Securities with Warrants which are immediately detachable or Warrants alone
- -- After] authentication by the Warrant Agent and prior to the expiration of
this Warrant Certificate, this Warrant Certificate may be exchanged at the
corporate trust office of the Warrant Agent [or at ______________] for Warrant
Certificates representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the registered owner hereof
to any of the rights of a stockholder, including, without limitation, the
right to vote or receive dividends.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Warrant Certificate shall not be valid or obligatory for any
purpose until authenticated by the Warrant Agent.
A-3
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
duly executed under its corporate seal.
Dated: ____________________, 20__
SARA LEE CORPORATION
By______________________________
Attest:
_______________________________
Countersigned
_______________________________
As Warrant Agent
By_____________________________
Authorized Signature
A-4
<PAGE>
[REVERSE] [FORM OF WARRANT CERTIFICATE]
(Instructions for Exercise of Warrants)
To exercise Warrants evidenced hereby, the Holder of this Warrant
Certificate must pay [in cash or by bank wire transfer in immediately available
funds], the Exercise Price in full for each of the Warrants exercised, to
_____________, Corporate Trust Department, ______________, Attn: [or
__________], which payment should specify the name of the Holder of this
Warrant Certificate and the number of Warrants exercised by such Holder.
In addition, the Holder of this Warrant Certificate should complete the
information required below and present in person or mail by registered mail
this Warrant Certificate to the Warrant Agent at the addresses set forth below.
(FORM OF EXERCISE)
(To be executed upon exercise of Warrants.)
The undersigned hereby irrevocably elects to exercise Warrants,
represented by this Warrant Certificate, to purchase __________ shares of the
common stock, $.01 par value ("COMMON STOCK") of Sara Lee Corporation and
represents that he has tendered payment for such shares of Common Stock
[in cash or by bank wire transfer in immediately available funds] to the
order of Sara Lee Corporation, c/o ________, in the amount of $_______ in
accordance with the terms hereof. The undersigned requests that said shares
of Common Stock be registered in such names and delivered, all as specified
in accordance with the instructions set forth below.
If said number of shares of Common Stock is less than all of the shares
of Common Stock purchasable hereunder, the undersigned requests that a new
Warrant Certificate representing the remaining balance of the Warrants
evidenced hereby be issued and delivered to the undersigned unless otherwise
specified in the instructions below.
A-5
<PAGE>
Dated: ______________________
Name______________________________
(Please Print)
____________________________ Address____________________________
(Insert Social Security, Taxpayer ____________________________
Identification or Other ____________________________
Identifying Number of Holder)
Signature ___________________________
(Signature must conform in all respects
to name of holder as specified on the
face of this Warrant Certificate and all
signatures must be guaranteed by a firm
that is a member of the New York,
Chicago or Pacific Stock Exchange or the
National Association of Securities
Dealers, Inc. or by a commercial bank or
trust company having an office or
correspondent in the United States which
is a participant in an approved
Signature Guarantee Medallion Program.)
This Warrant may be exercised at the following addresses:
By hand at ___________________________
___________________________
___________________________
___________________________
By mail at ___________________________
___________________________
___________________________
___________________________
(Instructions as to form and delivery of certificates representing shares of
Common Stock and/or Warrant Certificates):
Signature Guaranteed:
____________________________
A-6
<PAGE>
[FORM OF ASSIGNMENT]
(TO BE EXECUTED TO TRANSFER
THE WARRANT CERTIFICATE)
FOR VALUE RECEIVED _________________________ hereby sells, assigns
and transfer unto
Please insert social security,
taxpayer identification or
other identifying number
________________________
_____________________________________________________________________________
Please print name and address
including zip code)
_____________________________________________________________________________
the right represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _______________, Attorney, to transfer said
Warrant Certificate on the books of the Warrant Agent with full power of
substitution.
Dated: ________________________________
Signature
(Signature must conform in all respects to
name of holder as specified on the face of
this Warrant Certificate and all signatures
must be guaranteed by a firm that is a
member of the New York, Chicago or Pacific
Stock Exchange or the National Association
of Securities Dealers, Inc. or by a
commercial bank or trust company having an
office or correspondent in the United States
which is a participant in an approved
Signature Guarantee Medallion Program.)
Signature Guaranteed:
______________________________
A-7
<PAGE>
EXHIBIT 4.11
FORM OF CURRENCY WARRANT AGREEMENT
- -------------------------------------------------------------------------------
SARA LEE CORPORATION
and
______________________,
As Warrant Agent
_______________
WARRANT AGREEMENT
dated as of _______________, 20__
______________________________
UP TO _____________ CURRENCY [PUT/CALL] WARRANTS
EXPIRING ____________, 20__
- -------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE I
ISSUANCE, FORM, EXECUTION, DELIVERY AND
REGISTRATION OF WARRANTS
SECTION 1.01 Issuance of Warrants; Book Entry Procedures; Successor Depository. . .1
SECTION 1.02 Form, Execution and Delivery of Global Warrant Certificate . . . . . .2
SECTION 1.03 Global Warrant Certificate . . . . . . . . . . . . . . . . . . . . . .3
SECTION 1.04 Registration of Transfers and Exchanges . . . . . . . . . . . . . . .4
SECTION 1.05 Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . .4
ARTICLE II
DURATION AND EXERCISE OF WARRANTS
SECTION 2.01 Duration of Warrants; Minimum Exercise Amounts; Notice of
Exercise . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.02 Exercise and Delivery of Warrants. . . . . . . . . . . . . . . . . . 11
SECTION 2.03 Automatic Exercise of the Warrants . . . . . . . . . . . . . . . . . 13
SECTION 2.04 Covenant of the Company. . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.05 Return of Global Warrant Certificate . . . . . . . . . . . . . . . . 14
SECTION 2.06 Return of Money Held Unclaimed for Two Years.. . . . . . . . . . . . 14
SECTION 2.07 Designation of Agent for Receipt of Notice . . . . . . . . . . . . . 14
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
SECTION 3.01 Holder of Warrant May Enforce Rights . . . . . . . . . . . . . . . . 14
SECTION 3.02 Merger, Consolidation, Sale, Transfer or Conveyance. . . . . . . . . 15
ARTICLE IV
CANCELLATION OF WARRANTS
SECTION 4.01 Cancellation of Warrants . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 4.02 Treatment of Holders . . . . . . . . . . . . . . . . . . . . . . . . 15
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.01 Warrant Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.02 Conditions of Warrant Agent`s Obligations. . . . . . . . . . . . . . 16
SECTION 5.03 Resignation, Removal and Appointment of Successor. . . . . . . . . . 18
ARTICLE VI
MISCELLANEOUS
SECTION 6.01 Consolidations and Mergers of the Company and Sales, Leases and
Conveyances Permitted Subject to Certain Conditions . . . . . . . . 19
SECTION 6.02 Rights and Duties of Successor Corporation . . . . . . . . . . . . . 19
SECTION 6.03 Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 6.04 Notices and Demands to the Company and Warrant Agent . . . . . . . . 20
SECTION 6.05 Addresses for Notices. . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 6.06 Notices to Holders . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 6.07 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 6.08 Obtaining of Governmental Approvals. . . . . . . . . . . . . . . . . 21
SECTION 6.09 Persons Having Rights Under Warrant Agreement. . . . . . . . . . . . 21
SECTION 6.10 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 6.11 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 6.12 Inspection of Agreement. . . . . . . . . . . . . . . . . . . . . . . 21
</TABLE>
<PAGE>
THIS WARRANT AGREEMENT, dated as of _____________, 20__, between Sara Lee
Corporation, a corporation duly organized and existing under the laws of the
State of Maryland (the "COMPANY"), and [name of Warrant Agent], a [corporation]
[national banking association] organized and existing under the laws of
__________, as Warrant Agent (the "WARRANT AGENT"),
W I T N E S S E T H T H A T:
WHEREAS, the Company proposes to sell warrants (the "Warrants" or,
individually, a "WARRANT") representing the right to receive from the Company
the Cash Settlement Value (as defined herein) in U.S. dollars of the right to
[purchase/sell] ____________ at a price of U.S. [$50]; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, transfer and exercise of the Warrants, and desires to set forth, among
other things, the form and provisions of the Warrants and the terms and
conditions on which they may be issued, transferred, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE, FORM, EXECUTION,
DELIVERY AND REGISTRATION OF WARRANTS
SECTION 1.01 ISSUANCE OF WARRANTS; BOOK ENTRY PROCEDURES; SUCCESSOR
DEPOSITORY. (a) The Warrants shall be represented by a single certificate (the
"GLOBAL WARRANT CERTIFICATE"). Each Warrant shall represent the right, subject
to the provisions contained herein and in the Global Warrant Certificate, to
receive the Cash Settlement Value (as defined in paragraph (f) of Section 2.02)
of such Warrant. In no event shall Holders (as defined in Section 2.01) be
entitled to receive any interest on any Cash Settlement Value (unless the
Company shall default in the payment of such Cash Settlement Value). Holders
will not be entitled to receive definitive Warrants evidencing the Warrants;
PROVIDED, HOWEVER, that if the Depository (as defined in Section 1.01(b)) is at
any time unwilling or unable to continue as Depository for the Warrants and a
successor Depository is not appointed by the Company within 90 days, the Company
will issue Warrants in definitive form in exchange for the Global Warrant
Certificate. In addition, the Company may at any time determine not to have the
Warrants represented by a Global Warrant Certificate and, in such event, will
issue Warrants in definitive form in exchange for the Global Warrant
Certificate. In either instance, and in accordance with the provisions of this
Agreement, each Holder will be entitled to have a number of Warrants equivalent
to such Holder's beneficial interest in the Global Warrant
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Certificate registered in its name and will be entitled to physical delivery
of such Warrants in definitive form by the Depository Participant (as defined
in Section 1.01(c)) through which such Holder's beneficial interest is
reflected. The provisions of Section 1.05 shall apply only if and when
Warrants in definitive form ("WARRANT CERTIFICATES") are issued hereunder.
Unless the context shall otherwise require, all references in this Agreement
to the Global Warrant Certificate shall include the Warrant Certificates in
the event that Warrant Certificates are issued.
(b) The Global Warrant Certificate shall be deposited with the
Depository or its agent (the term "DEPOSITORY," as used herein, initially refers
to The Depository Trust Company and includes any successor depository selected
by the Company as provided in Section 1.01(d)) for credit to the accounts of the
Depository Participants as shown on the records of the Depository from time to
time.
(c) The Global Warrant Certificate will initially be registered
in the name of a nominee of the Depository selected by the Company for the
Warrants. The Warrant holdings of Depository Participants will be recorded on
the books of the Depository. The holdings of customers of Depository
Participants will be reflected on the books and records of such Depository
Participants and will not be known to the Warrant Agent, the Company or to the
Depository. "DEPOSITORY PARTICIPANTS" include securities brokers and dealers,
banks and trust companies, clearing organizations and certain other
organizations which are participants in the DTC system. Access to the
Depository's system is also available to others such as banks, securities
brokers and dealers and trust companies that clear or maintain a custodial
relationship with a Depository Participant, either directly or indirectly. The
Global Warrant Certificate will be held by the Depository or its agent.
(d) The Company may from time to time select a new entity to
act as Depository and, if such selection is made, the Company shall promptly
give the Warrant Agent notice to such effect identifying the new Depository and
the Global Warrant Certificate shall be delivered to the Warrant Agent and shall
be transferred to the new Depository as provided in Section 1.04 as promptly as
possible. Appropriate changes may be made in the Global Warrant Certificate, the
notice of exercise and the related notices delivered in connection with an
exercise of Warrants to reflect the selection of the new Depository.
SECTION 1.02 FORM, EXECUTION AND DELIVERY OF GLOBAL WARRANT CERTIFICATE.
The Global Warrant Certificate, whenever issued, shall be in registered form
substantially in the form set forth in EXHIBIT A hereto, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Agreement. The Global Warrant Certificate may have imprinted
or otherwise reproduced thereon such letters, numbers or other marks of
identification or designation and such legends or endorsements as the officers
of the Company executing the same may approve (execution thereof to be
conclusive evidence of such approval) and are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation
of any stock exchange on which the Warrants may be listed or of the
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Depository, or to conform to usage. The Global Warrant Certificate shall be
signed on behalf of the Company by its Chairman of the Board, President,
Chief Financial Officer or Treasurer under its corporate seal reproduced
thereon and attested by its Secretary or any Assistant Secretary. The
signature of any of these officers on the Global Warrant Certificate may be
manual or facsimile. Typographical and other minor errors or defects in any
such reproduction of the seal or any such signature shall not affect the
validity or enforceability of the Global Warrant Certificate that has been
duly countersigned and delivered by the Warrant Agent.
In case any officer of the Company who shall have signed the Global
Warrant Certificate either manually or by facsimile signature shall cease to be
such officer before the Global Warrant Certificate so signed shall have been
countersigned and delivered by the Warrant Agent to the Company or delivered by
the Company, such Global Warrant Certificate nevertheless may be countersigned
and delivered as though the person who signed such Global Warrant Certificate
had not ceased to be such officer of the Company; and the Global Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Global Warrant Certificate, shall be the
proper officers of the Company, although at the date of the execution of this
Agreement any such person was not such officer.
SECTION 1.03 GLOBAL WARRANT CERTIFICATE. One or more Global Warrant
Certificates relating to no more than __________ Warrants originally issued may
be executed by the Company and delivered to the Warrant Agent on or after the
date of execution of this Agreement, provided that only one Global Warrant
Certificate shall be outstanding at any one time. The Warrant Agent is
authorized, upon receipt of a Global Warrant Certificate from the Company, duly
executed on behalf of the Company, to countersign such Global Warrant
Certificate. The Global Warrant Certificate shall be manually countersigned and
dated the date of countersignature by the Warrant Agent and shall not be valid
for any purpose unless so countersigned. The Warrant Agent shall countersign and
deliver the Global Warrant Certificate to or upon the order of the Company.
The Global Warrant Certificate may be exchanged for a new Global Warrant
Certificate to reflect the issuance by the Company of additional Warrants;
PROVIDED, HOWEVER, that in no event shall the number of Warrants represented by
the Global Warrant Certificate exceed ____________ originally issued. To effect
such an exchange the Company shall deliver to the Warrant Agent a new Global
Warrant Certificate duly executed on behalf of the Company as provided in
Section 1.02. The Warrant Agent shall countersign the new Global Warrant
Certificate as provided in this Section 1.03 and, upon a written order of the
Company, shall deliver the new Global Warrant Certificate to the Depository in
exchange for, and upon receipt of, the Global Warrant Certificate then held by
the Depository. The Warrant Agent shall cancel the Global Warrant Certificate
delivered to it by the Depository and return the canceled Global Warrant
Certificate to the Company.
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SECTION 1.04 REGISTRATION OF TRANSFERS AND EXCHANGES. Except as
otherwise provided herein or in the Global Warrant Certificate, the Warrant
Agent shall from time to time register the transfer of the Global Warrant
Certificate in the records of the Warrant Agent only to the Depository, to a
nominee of the Depository, to a successor Depository or to a nominee of a
successor Depository, upon surrender of such Global Warrant Certificate, duly
endorsed and accompanied by a written instrument or instruments of transfer in
form satisfactory to the Warrant Agent and the Company, duly signed by the
registered Holder thereof or by the duly appointed legal representative thereof
or by a duly authorized attorney, such signature to be guaranteed by a firm that
is a member of the New York, Chicago or Pacific Stock Exchange or the National
Association of Securities Dealers, Inc. or by a commercial bank or trust company
having an office or correspondent in the United States which is a participant in
an approved Signature Guarantee Medallion Program. Upon any such registration
of transfer, the Company shall execute and the Warrant Agent shall countersign
and deliver in the name of the designated transferee a new Global Warrant
Certificate of like tenor and evidencing a like number of unexercised Warrants
as evidenced by the Global Warrant Certificate at the time of such registration
of transfer.
The Global Warrant Certificate may be transferred as provided above at
the option of the Holder thereof when surrendered to the Warrant Agent at its
office or agency maintained for the purpose of transferring and exercising the
Warrants, which shall be south of Chambers Street in the Borough of Manhattan,
The City of New York (the "WARRANT AGENT OFFICE"), and which is, on the date of
this Agreement, ______________, New York, New York ____________ , Attention:
[Corporate Trust Department], or at the office of any successor Warrant Agent as
provided in Section 5.03, for another Global Warrant Certificate of like tenor
and representing a like number of unexercised Warrants.
SECTION 1.05 WARRANT CERTIFICATES. Any Warrant Certificates issued in
accordance with Section 1.01(a) shall be in registered form substantially in the
form set forth in EXHIBIT A hereto, with such appropriate insertions, omissions,
substitutions and other variations as are necessary or desirable for individual
Warrant Certificates, and may represent any integral multiple of Warrants. The
Warrant Certificates may have imprinted or otherwise reproduced thereon such
letters, numbers or other marks of identification or designation and such
legends or endorsements as the officers of the Company executing the same may
approve (execution thereof to be conclusive evidence of such approval) and are
not inconsistent with the provisions of this Agreement, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which the Warrants may be listed
or of the Depository, or to conform to usage. Warrant Certificates shall be
signed on behalf of the Company upon the same conditions, in substantially the
same manner and with the same effect as the Global Warrant Certificate.
Each Warrant Certificate, when so signed on behalf of the Company, shall
be delivered to the Warrant Agent, which shall manually countersign and deliver
the same to or upon the written order of the Company. Each Warrant Certificate
shall be dated the date of its countersignature.
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No Warrant shall be valid for any purpose, and no Warrant evidenced
thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence that the Warrant Certificate so countersigned has been duly
issued hereunder.
Warrant Certificates delivered in exchange for the Global Warrant
Certificate shall be registered in such names and addresses (including tax
identification numbers) and in such denominations as shall be requested in
writing by the Depository or its nominee in whose name the Global Warrant
Certificate is registered, upon written certification to the Company and the
Warrant Agent in form satisfactory to each of them of a beneficial ownership
interest in the Global Warrant Certificate.
The Company shall cause to be kept at an office of the Warrant Agent in
the City of New York a register (the register maintained in such office and in
any other office or agency maintained by or on behalf of the Company for such
purchase being herein sometimes collectively referred to as the "WARRANT
REGISTER") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Warrant Certificates and of
transfers of Warrant Certificates. The Warrant Agent is hereby appointed
"WARRANT REGISTRAR" for the purpose of registering Warrant Certificates and
transfers of Warrant Certificates as herein provided.
For purposes of this Section 1.05, a "WARRANTHOLDER" of a Warrant
Certificate at any particular time is the person in whose name such Warrant
Certificate is registered in the Warrant Register at such time.
Upon surrender for registration of transfer of any Warrant Certificate at
an office or agency of the Company maintained for such purpose, the Company
shall execute, and the Warrant Agent shall countersign and deliver, in the name
of the designated transferee or transferees, one or more new Warrant
Certificates of any authorized denominations and representing Warrants of a like
aggregate number.
At the option of the Warrantholder, Warrant Certificates may be exchanged
for other Warrant Certificates of any authorized denominations and representing
Warrants of a like aggregate number, upon surrender of the Warrant Certificates
to be exchanged at such office or agency. Whenever any Warrant Certificates are
so surrendered for exchange, the Company shall execute, and the Warrant Agent
shall countersign and deliver, the Warrant Certificates which the Warrantholder
making the exchange is entitled to receive.
All Warrant Certificates issued upon any registration of transfer or
exchange of Warrant Certificates shall be the valid obligations of the Company,
evidencing the same obligations of the Company, and entitled to the same
benefits under this Warrant Agreement, as the Warrant Certificates surrendered
upon such registration of transfer or exchange.
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Every Warrant Certificate presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Warrant
Agent) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Company and the Warrant Registrar duly executed, by
the Warrantholder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Warrant Certificates, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Warrant
Certificates.
If any mutilated Warrant Certificate is surrendered to the Warrant Agent,
the Company shall execute and the Warrant Agent shall countersign and deliver in
exchange therefor a new Warrant Certificate of like tenor representing Warrants
of a like number and bearing a number not contemporaneously outstanding.
If there shall be delivered by a Warrantholder to the Company and the
Warrant Agent (1) evidence to their satisfaction of the destruction, loss or
theft of any Warrant Certificate and (2) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Warrant Agent that such
Warrant Certificate has been acquired by a bona fide purchaser, the Company
shall execute and upon its request the Warrant Agent shall countersign and
deliver, in lieu of any such destroyed, lost or stolen Warrant Certificate, a
new Warrant Certificate of like tenor representing Warrants of a like number and
bearing a number not contemporaneously outstanding. Upon the issuance of any
new Warrant Certificate under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Warrant Agent) connected therewith.
In case the Warrants evidenced by any such mutilated, destroyed, lost or
stolen Warrant Certificate have been exercised, or have been or are about to be
deemed to be exercised, the Company in its discretion may, instead of issuing a
new Warrant Certificate, treat the same as if it had received written
irrevocable notice of exercise in good form in respect thereof, as provided
herein.
Every new Warrant Certificate issued pursuant to this Section 1.05 in
lieu of any destroyed, lost or stolen Warrant Certificate shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Warrant Certificate shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Warrant Agreement
equally and proportionately with any and all other Warrant Certificates duly
issued hereunder.
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The provisions of this Section 1.05 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Warrant Certificates.
Prior to due presentment of a Warrant Certificate for registration of
transfer, the Company, the Warrant Agent and any agent of the Company or the
Warrant Agent may treat the person in whose name such Warrant Certificate is
registered as the owner of such Warrant Certificate for all purposes hereunder
whatsoever, whether or not such Warrant Certificate be exercised or deemed to be
exercised and neither the Company, the Warrant Agent nor any agent of the
Company or the Warrant Agent shall be affected by notice to the contrary.
All Warrant Certificates surrendered for exercise, registration of
transfer or exchange shall, if surrendered to any person other than the Warrant
Agent, be delivered to the Warrant Agent and shall be promptly canceled by it.
The Company may at any time deliver to the Warrant Agent for cancellation any
Warrant Certificates previously countersigned and delivered hereunder which the
Company may have acquired in any manner whatsoever, and all Warrant Certificates
so delivered shall be promptly canceled by the Warrant Agent. No Warrant
Certificates shall be countersigned in lieu of or in exchange for any Warrant
Certificates canceled as provided in this Section 1.05, except as expressly
permitted by this Warrant Agreement. All canceled Warrant Certificates held by
the Warrant Agent shall be disposed of as directed by the Company.
ARTICLE II
DURATION AND EXERCISE OF WARRANTS
SECTION 2.01 DURATION OF WARRANTS; MINIMUM EXERCISE AMOUNTS; NOTICE OF
EXERCISE. Subject to the limitations described herein, each Warrant evidenced by
the Global Warrant Certificate may be irrevocably exercised in whole but not in
part on any New York Business Day from its date of issuance until 3:00 P.M., New
York City time, five New York Business Days prior to _____________, 20__ (the
"EXPIRATION DATE") or until earlier automatic exercise as provided in Section
2.03. Except in the case of automatic exercise, each Warrant may be exercised by
written notice to the Warrant Agent from a Depository Participant acting on
behalf of the beneficial owner of such Warrant (each a "HOLDER"); PROVIDED,
HOWEVER, that notices of exercise are subject to rejection by the Warrant Agent
as provided herein. Not fewer than [2,000] Warrants may be exercised by or on
behalf of any one Holder at any one time, except that no such minimum exercise
amount shall apply in the case of automatic exercise on the Expiration Date or
earlier automatic exercise as provided in Section 2.03. Irrevocable notice of
exercise to the Warrant Agent shall be in the form set forth in EXHIBIT B hereto
and shall be sent to the Warrant Agent in writing (which shall include facsimile
transmissions) at its address set forth in such form of notice or at such other
address as the Warrant Agent may specify from time to time. As used herein, "NEW
YORK BUSINESS DAY" means any day other than a Saturday or a Sunday or a day on
which commercial banks in the City of New York are
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required or authorized to be closed. Except as provided in Section 2.02(b),
the Warrant Agent shall be entitled to rely conclusively on any notice of
exercise received by it with no duty of inquiry by the Warrant Agent.
SECTION 2.02 EXERCISE AND DELIVERY OF WARRANTS.
(a) Except in the case of automatic exercise on the
Expiration Date or earlier automatic exercise as provided in Section 2.03 of
this Agreement and subject to Section 2.02(b)(i) of this Agreement, the
exercise date (the "EXERCISE DATE") for a Warrant shall be the New York
Business Day next succeeding the date on which the Warrant Agent has received
written irrevocable notice of exercise in good form at or prior to 3:00 P.M.,
New York City time; and if the Warrant Agent shall receive such notice of
exercise after 3:00 P.M., New York City time, on such date, such notice shall
be deemed to have been received at or prior to 3:00 P.M., New York City time,
on the next succeeding New York Business Day, and in such event the Exercise
Date shall be the second New York Business Day succeeding the date on which
the Warrant Agent actually received such notice of exercise. Any notice of
exercise received after 3:00 P.M., New York City time, on the fifth New York
Business Day preceding the Expiration Date or, if earlier, any Delisting Date
(as defined in Section 2.03(a)) shall be void and of no effect and shall be
deemed not to have been delivered.
(b) Following receipt of a written irrevocable notice of
exercise in good form, the Warrant Agent shall (1) promptly verify that the
entity that executed such notice is listed as a Depository Participant in the
most recent published edition of the Depository's Eligible Corporate
Securities Book (or comparable publication of a successor Depository) and, if
such entity is not listed therein, the Warrant Agent shall make reasonable
efforts to obtain telephonic verification from the Depository's Planning
Department (telephone no. ________) (or comparable department of a successor
Depository) that such entity is a Depository Participant, and if the Warrant
Agent is unable through the above-described procedures to verify that such
entity is a Depository Participant, the Warrant Agent shall reject the notice
of exercise; (2) notify the Company by 5:00 P.M., New York City time, on the
New York Business Day such notice of exercise is received (or deemed to have
been received) of the number of Warrants in respect of which exercise
notices, not rejected pursuant to clause (1) above, were received after 3:00
P.M., New York City time, the preceding New York Business Day and at or prior
to 3:00 P.M., New York City time, on such date; (3) obtain the Spot Rate (as
defined in Section 2.02(f)) and determine the Case Settlement Value of the
exercised Warrants in the manner described in Section 2.02(f); (4) advise the
Company by 5:00 P.M., New York City time, on the Exercise Date of the amount
payable in respect of the exercise of such Warrants, and of the Spot Rate and
Case Settlement Value with respect to such Warrants, and send notice of
confirmation of exercise in the form set forth in EXHIBIT B hereto to such
Depository Participant; and (5) promptly deliver a copy of such notice of
exercise to the Company and advise the Company of such other matters relating
to the exercised Warrants as the Company shall reasonably request. Any notice
to be given to the Company by the Warrant Agent pursuant to this Section 2.02
or Section 2.03 shall be by telephone and shall be promptly confirmed in
writing. Any notice to be given to the Spot Rate Reference Bank (as defined
in
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Section 2.02(f)) pursuant to this Section 2.02 or Section 2.03 shall be by
facsimile transmission to the address of the Spot Rate Reference Bank set
forth in Section 6.03.
(c) Provided that the Company has made adequate funds available
to the Warrant Agent in a timely manner, which shall, in no event, be later that
3:00 P.M., New York City time on the second New York Business Day (the
"SETTLEMENT DATE") following an Exercise Date of Warrants, the Warrant Agent
will be responsible for making its payment available to the Depository in the
form of a treasurer's check or official bank check, after 3:00 P.M., New York
City time, but prior to the close of business, on such Settlement Date, such
payment to be in the amount of the aggregate Cash Settlement Value in respect of
such exercised Warrants for which delivery has been accepted by the Warrant
Agent.
(d) The Warrant Agent shall cause its records, which may be
kept electronically, to be marked to reduce the number of Warrants evidenced by
the Global Warrant Certificate, by the Warrants delivered to the Warrant
Agent's Depository Participant Account (entitled _________), or such other
account of the Warrant Agent at the Depository as the Warrant Agent shall
designate in writing to the Company (the "WARRANT ACCOUNT"), promptly after such
delivery.
(e) If any Depository Participant fails to transfer Warrants
with respect to which it delivered a notice of exercise (a "FAILED DELIVERY") by
11:30 A.M., New York City time, on the Settlement Date therefor, the Warrant
Agent shall notify the Company (and, if requested by the Company in writing, a
designated agent of the Company) of such Failed Delivery and the number of
Warrants to which it relates by ____ P.M., New York City time, on such
Settlement Date by telephone, promptly confirmed in writing by transmitting to
the Company (by telecopy or other similar rapid communication system) a copy of
the notice of exercise to which such Failed Delivery relates. At such times as
the Warrants are evidenced by a Global Warrant Certificate, a Failed Delivery
shall be deemed to occur as a result of a failure by a Depository Participant to
take any action required to effectuate a transfer of the Warrants on the records
of the Depository.
(f) Except as provided in section 2.03, "CASH SETTLEMENT VALUE"
of an exercised Warrant is an amount stated in U.S. dollars which is the greater
of (1) zero and (2) the amount computed by subtracting [from 50](1) [50 from]
(2) an amount equal to 50 times a fraction, the numerator of which is the Spot
Rate on the Exercise Date and the denominator of which is ______________ (the
"STRIKE PRICE"). The "SPOT RATE" on such Exercise Date shall mean the offered
spot rate of _________ U.S. dollars for ______ as quoted by _________ (the
"SPOT RATE REFERENCE BANK") at 10:00 A.M., New York City time, on such date
or, if such bank is not quoting such rate at such time, the rate quoted by
such other leading bank in the foreign exchange markets as may be selected by
the Company in good faith and notified to the
- ------------------------------
(1) In the case of Put Warrants
(2) In the case of Call Warrants
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Warrant Agent. The Spot Rate shall be calculated to ______decimal places.
References in this Agreement to "U.S. dollars," "U.S. $" or "$" are to the
currency of the United States of America. References to _______________ or
____________ are to the currency of __________________
SECTION 2.03 AUTOMATIC EXERCISE OF THE WARRANTS. (a) All Warrants with
respect to which no accepted notice of exercise in good form has been received
by the Warrant Agent by 3:00 P.M., New York City time, on the fifth New York
Business Day preceding the earliest to occur of (1) the Expiration Date, (2) the
close of business on the New York Business Day on which the Warrants are
delisted from the ____________ Stock Exchange, and (3) the close of business on
the New York Business Day that the Warrants are permanently suspended from
trading on the ____________ Stock Exchange (the effective date of any such
delisting or permanent suspension, the "DELISTING DATE") will be automatically
exercised, without any required delivery of notice of exercise from any relevant
Depository Participant to the Warrant Agent. Such Expiration Date or Delisting
Date, as the case may be, shall be the Exercise Date for such Warrants and the
Spot Rate and Cash Settlement Value of such Warrants shall be determined as of
the New York Business Day following such Exercise Date. The Company will advise
the Warrant Agent of the date of any expected delisting or permanent suspension
of trading of the Warrants as soon as is practicable and will immediately inform
the Warrant Agent after the Company has received notice that such delisting or
suspension has occurred, but in no event will notice of such delisting or
suspension be given to the Warrant Agent later than 5:00 P.M., New York City
time, on the New York Business Day preceding the date that such delisting or
suspension occurs.
(b) By 5:00 P.M., New York City time, on the fifth New York
Business Day preceding the Expiration Date or the Delisting Date, as the case
may be, the Warrant Agent shall advise the Company of the number of unexercised
Warrants outstanding after 3:00 P.M., New York City time, on such day. The
Warrant Agent shall, on the New York Business Day following the Expiration Date
or the Delisting Date, as the case may be, (1) obtain the Spot Rate and
determine the Cash Settlement Value (in the manner provided in paragraph (f) of
Section 2.02, except that the Spot Rate shall be the Spot Rate on the New York
Business Day next succeeding the Expiration Date or the Delisting Date, as the
case may be) of the unexercised Warrants, (2) advise the Company of the Spot
Rate and the Cash Settlement Value of the unexercised Warrants evidenced by the
Global Warrant Certificate, and (3) advise the Company of such other matters
relating to the unexercised Warrants as the Company shall reasonably request.
Provided that the Company has made adequate funds available to the Warrant Agent
in a timely manner which shall, in no event, be later than 3:00 P.M., New York
City time, on the third New York Business Day following the Expiration Date or
the Delisting Date, as the case may be, the Warrant Agent will make its
treasurer's check or an official bank check available to the Depository against
receipt by the Warrant Agent from the Depository of the Global Warrant
Certificate on the third New York Business Day following the Expiration Date,
such check to be in the amount of the aggregate Cash Settlement Value in respect
of the number of unexercised Warrants evidenced by the Global Warrant
Certificate at the close of business on the Expiration Date. The Warrant Agent
shall
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promptly cancel the Global Warrant Certificate following its receipt thereof
from the Depository.
(c) The Company will notify the Holders, or will cause the
Holders to be notified, as promptly as is practicable of any expected delisting
or suspension of trading of the Warrants.
SECTION 2.04 COVENANT OF THE COMPANY. The Company covenants, for the
benefit of the Holders, that it will not seek the delisting of the Warrants, or
suspension of their trading on, the ___________ Stock Exchange.
SECTION 2.05 RETURN OF GLOBAL WARRANT CERTIFICATE. At such time as the
Warrants have been exercised, deemed automatically exercised or otherwise
canceled, the Warrant Agent shall return the canceled Global Warrant Certificate
to the Company.
SECTION 2.06 RETURN OF MONEY HELD UNCLAIMED FOR TWO YEARS. Any money
deposited with or paid to the Warrant Agent for the payment of the Cash
Settlement Value of any Warrants and not applied but remaining unclaimed for two
years after the date upon which such Cash Settlement Value shall have become due
and payable, shall be repaid by the Warrant Agent to the Company and the Holder
of such Warrants shall thereafter look only to the Company for any payment which
such Holder may be entitled to collect and all liability of the Warrant Agent
with respect to such money shall thereupon cease; PROVIDED, HOWEVER, that the
Warrant Agent before making such repayment, may at the expense of the Company
notify the Holders concerned that said money has not been so applied and remains
unclaimed and that after a date named therein any unclaimed balance of said
money then remaining will be returned to the Company.
SECTION 2.07 DESIGNATION OF AGENT FOR RECEIPT OF NOTICE. The Company may
from time to time designate in writing to the Warrant Agent a designee for
receipt of all notices required to be given by the Warrant Agent pursuant to
this Article II and all such notices thereafter shall be given in the manner
herein provided by the Warrant Agent to such designee.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
SECTION 3.01 HOLDER OF WARRANT MAY ENFORCE RIGHTS. Notwithstanding any
of the provisions of this Agreement, any Holder, without the consent of the
Warrant Agent, may, in and for his own behalf, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce,
or otherwise in respect of, his right to exercise, and to receive payment for,
his Warrants as provided in the Global Warrant Certificate and in this
Agreement.
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SECTION 3.02 MERGER, CONSOLIDATION, SALE, TRANSFER OR CONVEYANCE. If at
any time there shall be a merger, consolidation, sale, transfer, conveyance or
other disposition of substantially all of the assets of the Company, then in any
such event the successor or assuming corporation shall succeed to and be
substituted for the Company, with the same effect as if it had been named herein
and in the Warrants as the Company; the Company shall thereupon be relieved of
any further obligation hereunder or under the Warrants, and, in the event of any
such sale, transfer, conveyance (other than by way of lease) or other
disposition, the Company as the predecessor corporation may thereupon or at any
time thereafter be dissolved, wound up or liquidated. Such successor or assuming
corporation thereupon may cause to be signed, and may issue, either in its own
name or in the name of the Company, a new Global Warrant Certificate
representing the Warrants not theretofore exercised, in exchange and
substitution for the Global Warrant Certificate theretofore issued. Such Global
Warrant Certificate shall in all respects have the same legal rank and benefit
under this Agreement as the Global Warrant Certificate theretofore issued in
accordance with the terms of this Agreement as though such new Global Warrant
Certificate had been issued at the date of the execution hereof. In any case of
any such consolidation, merger, sale, transfer, conveyance or other disposition
of substantially all of the assets of the Company, such changes in phraseology
and form (but not in substance) may be made in the new Global Warrant
Certificate as may be appropriate.
The Warrant Agent may receive a written opinion of legal counsel as
conclusive evidence that any such consolidation, merger, sale, transfer,
conveyance or other disposition of substantially all of the assets of the
Company complies with the provisions of this Section 3.02 and that the
assumption of this Agreement by the successor or assuming corporation is
effective.
ARTICLE IV
CANCELLATION OF WARRANTS
SECTION 4.01 CANCELLATION OF WARRANTS. In the event the Company shall
purchase or otherwise acquire Warrants, such Warrants may, at the option of the
Company and upon notification to the Warrant Agent, be surrendered free through
a Depository Participant for credit to the Warrant Account and if so credited
the Warrant Agent shall promptly note the cancellation of such Warrants by
notation on the records of the Warrant Agent.
SECTION 4.02 TREATMENT OF HOLDERS. The Company, the Warrant Agent and
any agent of the Company or the Warrant Agent may deem and treat the person in
whose name the Global Warrant Certificate shall be registered in the records of
the Warrant Agent as the absolute owner of such Global Warrant Certificate
(notwithstanding any notation of ownership or other writing thereon) for any
purpose and as the person entitled to exercise the rights represented by the
Warrants evidenced hereby, and neither the Company nor the Warrant
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Agent, nor any agent of the Company or the Warrant Agent shall be affected by
any notice to the contrary, except that the Warrant Agent and the Company
shall be entitled to rely on and act pursuant to instructions of Depository
Participants as contemplated by Article II of this Agreement. This Section
4.02 shall be without prejudice to the rights of Holders as described
elsewhere herein.
ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.01 WARRANT AGENT. The Company hereby appoints
___________ as Warrant Agent of the Company in respect of the Warrants and
the Global Warrant Certificate upon the terms and subject to the conditions
set forth herein and in the Global Warrant Certificate; and
_________________________________________________ hereby accepts such
appointment. The Warrant Agent shall have the power and authority granted to
and conferred upon it in the Global Warrant Certificate and hereby and such
further power and authority acceptable to it to act on behalf of the Company
as the Company may hereafter grant to or confer upon it. All of the terms and
provisions with respect to such power and authority contained in the Global
Warrant Certificate are subject to and governed by the terms and provisions
hereof.
SECTION 5.02 CONDITIONS OF WARRANT AGENT'S OBLIGATIONS. The Warrant
Agent accepts its obligations herein set forth upon the terms and conditions
hereof and of the Global Warrant Certificate, including the following, to all of
which the Company agrees and to all of which the rights hereunder of the Holders
from time to time of the Warrants shall be subject:
(a) COMPENSATION AND INDEMNIFICATION. The Company agrees
promptly to pay the Warrant Agent the compensation to be agreed upon with the
Company for all services rendered by the Warrant Agent and to reimburse the
Warrant Agent for reasonable out-of-pocket expenses (including counsel fees)
incurred by the Warrant Agent in connection with the services rendered hereunder
by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent
for, and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on the part of the Warrant Agent, arising out of
or in connection with its acting as such Warrant Agent hereunder or with respect
to the Global Warrant Certificate, including the reasonable costs and expenses
of defending against any claim or liability in connection with the exercise or
performance at any time of its power or duties hereunder. The obligations of
the Company under this subsection (a) shall survive the exercise of the Warrant
Certificates and the resignation or removal of the Warrant Agent.
(b) AGENT OF THE COMPANY. In acting under this Warrant
Agreement and in connection with the Global Warrant Certificate, the Warrant
Agent is acting solely as agent of the Company and does not assume any
obligation or relationship of agency or trust for
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or with any of the owners or Holders of the Warrants.
(c) COUNSEL. The Warrant Agent may consult with counsel, which
may include counsel for the Company, and the written advice of such counsel
shall be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
(d) DOCUMENTS. The Warrant Agent shall be protected and shall
incur no liability for or in respect of any action taken or omitted by it in
reliance upon any Global Warrant Certificate, notice, direction, consent,
certificate, affidavit, statement or other paper or document reasonably believed
by it to be genuine and to have been presented or signed by the proper parties.
(e) CERTAIN TRANSACTIONS. The Warrant Agent, any of its
officers, directors and employees, or any other agent of the Company, in its
individual or any other capacity, may become the owner of, or acquire any
interest in, any Warrants, with the same rights that it would have if it were
not the Warrant Agent, officer, director, employee or other agent, and, to the
extent permitted by applicable law, it may engage or be interested in any
financial or other transaction with the Company and may act on, or as
depositary, trustee or agent for, any committee or body of Holders of Warrants
or other obligations of the Company as freely as if it were not the Warrant
Agent, officer, director, employee or other agent.
(f) NO LIABILITY FOR INTEREST. The Warrant Agent shall not be
under any liability for interest on any monies at any time received by it
pursuant to any of the provisions of this Agreement or of the Global Warrant
Certificate.
(g) NO LIABILITY FOR INVALIDITY. The Warrant Agent shall not
incur any liability with respect to the validity of this Agreement or the Global
Warrant Certificate.
(h) NO RESPONSIBILITY FOR REPRESENTATIONS. The Warrant Agent
shall not be responsible for any of the recitals or representations contained
herein or in the Global Warrant Certificate (except as to the Warrant Agent's
countersignature thereon), all of which are made solely by the Company.
(i) NO IMPLIED OBLIGATIONS. The Warrant Agent shall be
obligated to perform only such duties as are herein and in the Global Warrant
Certificate specifically set forth and no implied duties or obligations shall be
read into this Agreement or the Global Warrant Certificate against the Warrant
Agent. The Warrant Agent shall not be under any obligation to take any action
hereunder likely to involve it in any expense or liability, the payment of which
is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be
accountable or under any duty or responsibility for the use by the Company of
the Global Warrant Certificate countersigned by the Warrant Agent and delivered
by it to the Company pursuant to this Agreement or for the application by the
Company of any proceeds of the Global Warrant Certificate or any exercise of the
Warrants evidenced thereby. The Warrant
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Agent shall have no duty or responsibility in case of any default by the
Company in the performance of its covenants or agreements contained herein or
in the Global Warrant Certificate or in the case of the receipt of any
written demand from a Holder of a Warrant with respect to such default,
except as provided in Section 6.02 hereof, including, without limiting the
generality of the foregoing, any duty or responsibility to initiate or
attempt to initiate any proceedings at law or otherwise or, except as
provided in Section 6.02 hereof, to make any demand upon the Company.
SECTION 5.03 RESIGNATION, REMOVAL AND APPOINTMENT OF SUCCESSOR.
(a) The Company agrees, for the benefit of the Holders from time to
time of the Warrants, that there shall at all times be a Warrant Agent
hereunder until all the Warrants are no longer outstanding.
(b) The Warrant Agent may at any time resign as such agent by
giving written notice to the Company of such intention on its part, specifying
the date on which it desires its resignation to become effective; provided that,
without the consent of the Company, such date shall not be less than three
months after the date on which such notice is given. The Warrant Agent
hereunder may be removed at any time by the filing with it of an instrument in
writing signed by or on behalf of the Company and specifying such removal and
the date when it shall become effective. Such resignation or removal shall take
effect upon the appointment by the Company of a successor Warrant Agent (which
shall be a banking institution organized under the laws of the United States of
America, or any state thereof and having an office or an agent's office south of
Chambers Street in the Borough of Manhattan, the City of New York) by an
instrument in writing filed with such successor Warrant Agent and the acceptance
of such appointment by such successor Warrant Agent pursuant to Section 5.03(d).
In the event a successor Warrant Agent has not been appointed and accepted its
duties within three months of the Warrant Agent's notice of resignation, the
Warrant Agent may apply to any court of competent jurisdiction for the
designation of a successor Warrant Agent. The obligation of the Company under
Section 5.02(a) shall continue to the extent set forth therein notwithstanding
the resignation or removal of the Warrant Agent and shall survive the
termination of this Agreement.
(c) In case at any time the Warrant Agent shall resign, or
shall be removed, or shall become incapable of acting, or shall be adjudged
bankrupt or insolvent, or shall file a voluntary petition in bankruptcy, or make
an assignment for the benefit of its creditors or consent to the appointment of
a receiver or custodian of all or any substantial part of its property, or shall
admit in writing its inability to pay or meet its debts as they mature, or if a
receiver or custodian of it or all or any substantial part of its property shall
be appointed, or if an order of any court shall be entered approving any
petition filed by or against it under the provisions of any applicable
bankruptcy or similar law, or if any public officer shall have taken charge or
control of the Warrant Agent or of its property or affairs, a successor Warrant
Agent, qualified as aforesaid, shall be appointed by the Company by an
instrument in writing, filed with the successor Warrant Agent. Upon the
appointment as aforesaid of a successor
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Warrant Agent and acceptance by the latter of such appointment, the Warrant
Agent so superseded shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Warrant Agent, without any further act, deed or conveyance, shall become vested
with all the authority, rights, powers, trusts, immunities, duties and
obligations of such predecessor with like effect as if originally named as
Warrant Agent hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to transfer, deliver
and pay over, and such successor Warrant Agent shall be entitled to receive, all
monies, securities and other property on deposit with or held by such
predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may
be merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Warrant Agent, provided that it shall be qualified as aforesaid, shall be the
successor Warrant Agent under this Agreement without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01 CONSOLIDATIONS AND MERGERS OF THE COMPANY AND SALES, LEASES
AND CONVEYANCES PERMITTED SUBJECT TO CERTAIN CONDITIONS. The Company may
consolidate with, or sell, lease or convey all or substantially all of its
assets to, or merge with or into any other corporation, provided that in any
such case, the Company shall be the continuing corporation, or the successor
corporation shall be a corporation organized and existing under the laws of the
United States of America or a State thereof, and such successor corporation
shall expressly assume the obligations of the Company hereunder.
SECTION 6.02 RIGHTS AND DUTIES OF SUCCESSOR CORPORATION. In case of any
such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it had
been named herein, and the predecessor corporation, except in the event of a
lease, shall be relieved of any further obligation under this Agreement and the
Warrants.
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SECTION 6.03 AMENDMENT. (a) This Agreement and the Global Warrant
Certificate may be amended by the parties hereto, without the consent of the
Holder of the Global Warrant Certificate or the Holders, for the purpose of
curing any ambiguity, or curing, correcting or supplementing any defective or
inconsistent provision contained herein or therein, for the purpose of
appointing a successor Depository in accordance with paragraph (d) of Section
1.01, for the purpose of issuing Warrants in definitive form in accordance
with paragraph (a) of Section 1.01, or in any other manner which the Company
may deem to be necessary or desirable and which will not materially and
adversely affect the interests of the Holders of the Warrants.
Notwithstanding anything in this Section 6.03 to the contrary, this Agreement
may not be amended to provide for the countersigning by the Warrant Agent of
one or more Global Warrant Certificates evidencing in excess of
____________________ warrants originally issued.
(b) The Company and the Warrant Agent may modify or amend this
Agreement and the Global Warrant Certificate, with the consent of the Holders
holding not fewer than a majority in number of the then outstanding unexercised
Warrants affected by such modification or amendment, for any purpose; PROVIDED,
HOWEVER, that no such modification or amendment that increases the Strike Price
in the case of a Call Warrant, or decreases the Strike Price in the case of a
Put Warrant, shortens the period of time during which the Warrants may be
exercised, or otherwise materially and adversely affects the exercise rights of
the Holders or reduces the percentage of the number of outstanding Warrants the
consent of the Holders of which is required for modification or amendment of
this Agreement or the Global Warrant Certificate may be made without the consent
of each Holder affected thereby.
SECTION 6.04 NOTICES AND DEMANDS TO THE COMPANY AND WARRANT AGENT. If
the Warrant Agent shall receive any notice or demand addressed to the Company by
any Holder pursuant to the provisions of the Global Warrant Certificate, the
Warrant Agent shall promptly forward such notice or demand to the Company.
SECTION 6.05 ADDRESSES FOR NOTICES. Any communications from the Company
to the Warrant Agent with respect to this Agreement shall be addressed to
[name of Warrant Agent], [address], New York (facsimile: _____________)
(telephone: _____________), Attention: Corporate Trust Department; any
communications from the Warrant Agent to the Company with respect to this
Agreement shall be addressed to Sara Lee Corporation,
_____________________________ (facsimile: _____________) (telephone:
_____________), Attention: _____________, with a copy to the _____________;
and any communications from the Warrant Agent to the Spot Rate Reference Bank
with respect to this Agreement shall be addressed to _____________ [address],
Attention: Corporate Foreign Exchange (facsimile: _____________) (telephone:
_____________), Attention: _____________ (or such other address as shall be
specified in writing by the Warrant Agent, the Company or the Spot Rate
Reference Bank, respectively).
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SECTION 6.06 NOTICES TO HOLDERS. The Company or the Warrant Agent may
cause to have notice given to the Holders of Warrants by providing the
Depository with a form of notice to be distributed by the Depository to
Depository Participants in accordance with the custom and practices of the
Depository.
SECTION 6.07 GOVERNING LAW. This Agreement and each Warrant issued
hereunder shall be governed by and construed in accordance with the laws of the
State of New York.
SECTION 6.08 OBTAINING OF GOVERNMENTAL APPROVALS. The Company will from
time to time take all action which may be necessary to obtain and keep effective
any and all permits, consents and approvals of governmental agencies and
authorities and the ____________ Stock Exchange and securities acts filings
under United States Federal and state laws (including, without limitation, the
maintenance of the effectiveness of a registration statement in respect of the
Warrants under the Securities Act of 1933), which may be or become required in
connection with the exercise of the Warrants and the original issuance and
delivery of the Warrants.
SECTION 6.09 PERSONS HAVING RIGHTS UNDER WARRANT AGREEMENT. Nothing in
this Agreement expressed or implied and nothing that may be inferred from any of
the provisions hereof is intended, or shall be construed, to confer upon, or
give to, any person or corporation other than the Company, the Warrant Agent,
the registered Holder of the Global Warrant Certificate and the Holders any
right, remedy or claim under or by reason of this Agreement or of any covenant,
condition, stipulation, promise or agreement hereof; and all covenants,
conditions, stipulations, promises and agreements in this Agreement contained
shall be for the sole and exclusive benefit of the Company and the Warrant Agent
and their successors and of the registered Holder of the Global Warrant
Certificate and the Holders.
SECTION 6.10 HEADINGS. The Article and Section headings herein and the
Table of Contents are for convenience only and shall not affect the construction
hereof.
SECTION 6.11 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original;
but such counterparts shall together constitute but one and the same instrument.
SECTION 6.12 INSPECTION OF AGREEMENT. A copy of this Agreement shall be
available at all reasonable times at the principal corporate trust office of the
Warrant Agent [and at ____________], for inspection by the registered holder of
the Global Warrant Certificate, Depository Participants and Holders.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the day and year first above written.
SARA LEE CORPORATION
By:_______________________________
[Title]
[SEAL]
Attest:
______________________________
[Assistant] Secretary
[name of Warrant Agent]
By:_______________________________
[Title]
[SEAL]
Attest:
______________________________
[Assistant] Secretary
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EXHIBIT A
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
WARRANT AGENT AS PROVIDED HEREIN
NO. CUSIP NO._____
GLOBAL WARRANT CERTIFICATE
REPRESENTING
UP TO ____________ CURRENCY [PUT/CALL] WARRANTS
EXPIRING __________, 20__
SARA LEE CORPORATION
This certifies that [CEDE & Co.] or registered assigns is the registered
Holder of ___________Currency [Call/Put] Warrants (the "WARRANTS") or such
lesser amount as is indicated in the records of [name of Warrant Agent], as
Warrant Agent. Each Warrant entitles the beneficial owner thereof (a "HOLDER"),
subject to the provisions contained herein and in the Warrant Agreement referred
to below, to receive from Sara Lee Corporation (the "COMPANY") the cash
settlement value (the "CASH SETTLEMENT VALUE") of the right to [sell/purchase]
_______ at a price of U.S. [$50], as further described below. Holders will not
be entitled to any interest on any Cash Settlement Value to which they are
otherwise entitled (unless the Company shall default in the payment of such Cash
Settlement Value). The Warrants may be exercised at or prior to 3:00 P.M., New
York City time, on any New York Business Day from their date of issuance until
3:00 P.M., New York City time, on the fifth New York Business Day preceding (i)
their expiration on _________, 20__ (the "EXPIRATION DATE") or (ii) the date of
earlier automatic exercise as further described below and as provided in the
Warrant Agreement. Except in the case of automatic exercise, not fewer than
[2,000] Warrants may be exercised by or on behalf of any one Holder on any one
day. Reference herein to "U.S. dollars" or "U.S. $" are to the currency of the
United States of America. References to____________ or ____________ are to the
currency of ____________. The term "NEW YORK BUSINESS DAY," as used herein,
means any day other than a Saturday or Sunday or a day on which commercial banks
in New York City are required or authorized to be closed.
This Global Warrant Certificate is issued under and in accordance with
the Warrant Agreement, dated as of ____________, 20__ (the "WARRANT AGREEMENT"),
between the Company and the Warrant Agent, and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions all beneficial owners of the Warrants evidenced by this Global
Warrant Certificate and the Holder of this Global Warrant Certificate consent by
acceptance hereof by the Depository (as defined below). Copies of the Warrant
Agreement are on file at the principal corporate trust office of the Warrant
Agent in New York City. Except as provided in the Warrant Agreement, Holders
will not be entitled to receive
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definitive Warrants evidencing their Warrants. Warrant holdings will be held
through a depository selected by the Company which initially is The
Depository Trust Company (the "DEPOSITORY," which term, as used herein,
includes any successor depository selected by the Company) as further
provided in the Warrant Agreement.
Capitalized terms including herein but not defined herein have the
meanings assigned thereto in the Warrant Agreement.
The Cash Settlement Value of an exercised Warrant will be an amount
stated in U.S. dollars which is the greater of (i) zero and (ii) the amount
computed by subtracting [from 50](1) [50 from](2) an amount equal to 50 times a
fraction, the numerator of which is the Spot Rate on the Exercise Date and the
denominator of which is ___________________ (except in the case of automatic
exercises as described below). The "SPOT RATE" on any date will be the offered
spot rate of ____________ U.S. dollars for _______________________ as quoted by
____________ at 10:00 A.M., New York City time, on such date or, if such bank is
not quoting such rate at such time, the rate quoted by such other leading bank
in the foreign exchange markets as may be selected by the Company in good faith
and notified to the Warrant Agent.
Subject to the provisions hereof and of the Warrant Agreement, each
Warrant shall be deemed to be exercised on the next New York Business Day after
the New York Business Day on which the notice of exercise in good form is
received by the Warrant Agent at or prior to 3:00 P.M., New York City time, on
such date (the "EXERCISE DATE"). If the Warrant Agent receives such notice of
exercise after 3:00 P.M., New York City time, on such date, such notice shall be
deemed to have been received at or prior to 3:00 P.M., New York City time, on
the next New York Business Day, and in such event the Exercise Date shall be the
second New York Business Day succeeding the date on which the Warrant Agent
actually received such notice. If the notice of exercise is not rejected as
provided in the Warrant Agreement, the Warrant Agent will obtain the Spot Rate
and determine the Cash Settlement Value of the exercised Warrants in the manner
described in the Warrant Agreement. Any notice of exercise received after 3:00
P.M., New York City time, on the fifth New York Business Day preceding the
Expiration Date or the date of earlier automatic exercise as further described
below and as provided in the Warrant Agreement shall be void and of no effect
and shall be deemed not to have been delivered. Provided that the Company has
made adequate funds available to the Warrant Agent in a timely manner, the
Warrant Agent will be responsible for making its payment available by
treasurer's check or official bank check to the Depository on the second New
York Business Day following an Exercise Date (the "SETTLEMENT DATE"), all as
provided in the Warrant Agreement, such payment to be in the amount of the
aggregate Cash Settlement Value in respect of such exercised Warrants for which
delivery has been accepted by the Warrant Agent. If any Depository Participant
fails to transfer by 11:30 A.M., New York City time, on the Settlement Date the
Warrants with respect to which it
- ---------------------------------------
(1) In the case of Put Warrants.
(2) In the case of Call Warrants.
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delivered a notice of exercise, such Depository Participant will be liable to
the Company as provided in the notice of exercise and be subject to all of
the provisions set forth therein and in the Warrant Agreement.
The Warrant Agent will promptly cause its records to be marked to reduce
the number of unexercised Warrants evidenced by this Global Warrant Certificate
by the number of Warrants transferred to the Warrant Agent's Depository
Participant Account (No. ___ ) from time to time.
All Warrants with respect to which no notice of exercise in good form has
been received by the Warrant Agent by 3:00 P.M., New York City time, on the
fifth New York Business Day preceding the earliest to occur of (1) the
Expiration Date, (2) the close of business on the New York Business Day on which
the Warrants are delisted from the ____________ Stock Exchange, and (3) the
close of business on the New York Business Day that the Warrants are permanently
suspended from trading on the ____________ Stock Exchange will be automatically
exercised, without any required delivery of notice of exercise from the
Depository Participant to the Warrant Agent, in the case of clause (1), as of
the Expiration Date, in the case of clause (2), as of the date of such
delisting, and, in the case of clause (3), as of the date of such suspension.
The Cash Settlement Value of such Warrants will be determined as provided above,
except that, in the case of clause (1), the Spot Rate shall be the Spot Rate on
the New York Business Day next succeeding the Expiration Date and, in the case
of clauses (2) and (3), the Spot Rate shall be the Spot Rate on the New York
Business Day following the date of such delisting or suspension, as the case may
be. The Settlement Date with respect to any such automatically exercised
Warrants shall be the third New York Business Day following the Expiration Date
or the date of such delisting or permanent suspension.
The Company, the Warrant Agent and any agent of the Company or the
Warrant Agent may deem and treat the registered owner hereof as the absolute
owner of the Warrants evidenced hereby (notwithstanding any notation of
ownership or other writing hereon) for any purpose and as the person entitled to
exercise the rights represented by the Warrants evidenced hereby, and neither
the Company nor the Warrant Agent nor any agent of the Company or the Warrant
Agent shall be affected by any notice to the contrary, subject to certain
provisions of the Warrant Agreement, except that the Company and the Warrant
Agent shall be entitled to rely on and act pursuant to instructions of
Depository Participants as contemplated herein and in the Warrant Agreement.
Subject to the terms of the Warrant Agreement, upon due presentment for
registration of transfer of this Global Warrant Certificate at the principal
corporate trust office of the Warrant Agent in New York City, the Company shall
execute and the Warrant Agent shall countersign and deliver in the name of the
designated transferee a new Global Warrant Certificate of like tenor and
evidencing a like number of unexercised Warrants as evidenced by this Global
Warrant Certificate at the time of such registration of transfer and shall be
issued to
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the designated transferee in exchange for this Global Warrant Certificate,
subject to the limitations provided in the Warrant Agreement, without charge.
This Global Warrant Certificate and the Warrant Agreement are subject to
amendment as provided in the Warrant Agreement.
This Global Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated as of _____________, 20__
SARA LEE CORPORATION
By__________________________________
[title]
[SEAL]
Attest_______________________________
[title]
Countersigned on the date above written:
[name of Warrant Agent],
as Warrant Agent
By_______________
[title]
A-5
<PAGE>
FORM OF TRANSFER OF GLOBAL WARRANT CERTIFICATE
________________________________, as Warrant Agent
Corporate Trust Department
[address]
(Telex: ___________)
(Facsimile: ____________)
____________________________________, the registered Holder of the Global
Warrant Certificate representing all unexercised Sara Lee Corporation Currency
[Put/Call] Warrants Expiring _____________, 20__, hereby requests the transfer
of such Global Warrant Certificate to _________________________.
Date: ______________________ [NAME OF REGISTERED HOLDER]
By______________________________
A-6
<PAGE>
EXHIBIT B
FORM OF IRREVOCABLE NOTICE OF EXERCISE
__________________________________,
as Warrant Agent
[address]
Attention: [Corporate Trust Department]
(Telex: ____________________)
(Facsimile: ____________________)
Re: Exercise of Sara Lee Corporation Currency [Put/Call] Warrants
Expiring _________________________ , 20_____ ("WARRANTS")
1. We refer to the Warrant Agreement dated as of __________________,
20__ (the "WARRANT AGREEMENT") between Sara Lee Corporation (the "COMPANY") and
[name of Warrant Agent] (the "WARRANT AGENT"). On behalf of certain clients,
each of whom is exercising no fewer than [2,000] Warrants and whose Warrants are
held in our name, we hereby irrevocably exercise ________ Warrants (the
"EXERCISED WARRANTS"). We hereby certify that, at the time this notice is
delivered to you, we hold in our name on behalf of each such client a settled
position of Warrants in an amount at least equal to the number of Warrants that
we are hereby exercising on behalf of such client. We hereby acknowledge that
this Irrevocable Notice of Exercise must be received by you by 3:00 P.M., New
York City time, on the date hereof in order for the Exercise Date of the
Exercised Warrants to be the next succeeding New York Business Day and that if
this Irrevocable Notice of Exercise is received by you after 3:00 P.M., New York
City time, the Exercise Date of the Exercised Warrants shall be the second
succeeding New York Business Day.
2. We hereby certify that we are a participant of [The Depository
Trust Company] (the "DEPOSITORY") with the present right to use and receive its
services.
3. We hereby agree to transfer such Warrants by 11:30 A.M., New York
City time, on the second New York Business Day following the Exercise Date of
the Exercised Warrants (____________, 20__) (the "SETTLEMENT DATE") to the
Warrant Agent's Participant Account No. _____ (the "WARRANT ACCOUNT"). We hereby
acknowledge that once we have delivered this Irrevocable Notice of Exercise to
you in good form we must transfer the Exercised Warrants by 11:30 A.M., New York
City time, on the Settlement Date and, from and after the time this notice is
delivered to you, we will not effect any transactions with respect to the
Exercised Warrants except for the transfer to the Warrant Account of the
Exercised Warrants on the Settlement Date.
B-1
<PAGE>
4. We understand and agree that if we fail to transfer any of the
Exercised Warrants by 11:30 A.M., New York City time, on the Settlement Date:
(i) we shall be held liable for any and all damages which may accrue to the
Company in accordance with (a) the rules and procedures of the _______________
Stock Exchange governing the Warrants, and (b) market custom and usage; (ii) we
shall be held liable to our client for, and agree to hold the Company and the
Warrant Agent harmless against any liability resulting from, any and all damages
which may accrue to such client with respect to such failure; (iii) we will
promptly pay to the Company any funds credited to our account in excess of the
aggregate Cash Settlement Value of the Exercised Warrants that we fail to
transfer to the Warrant Account on the Settlement Date; and (iv) we agree that,
at such time as transfer of the Warrants to which this Irrevocable Notice of
Exercise relates is made, the Cash Settlement Value for such Warrants will be
determined in accordance with the Warrant Agreement as if such Warrants had been
timely transferred as required in paragraph 3 above.
Capitalized terms used herein and not defined have the meanings assigned thereto
in the Warrant Agreement.
Dated:___________, 20__
[NAME OF DEPOSITORY PARTICIPANT]
By_________________________________
Authorized Signature
[Address]
Telephone:__________________________
Facsimile:___________________________
Participant Number:___________________
B-2
<PAGE>
CONFIRMATION OF EXERCISE
We hereby confirm that the total number of Warrants mentioned above (the
"EXERCISED WARRANTS") have been exercised at a Spot Rate of ______________ per
U.S.$1.00 and that the aggregate Cash Settlement Value of U.S. $ ____________
(U.S. $ ____ per warrant) will be made available to [The Depository Trust
Company] in the form of a treasurer's check or an official bank check for
payment against transfer of Warrants, in New York Clearing House funds, two New
York Business Days after the date hereof.
Capitalized terms included herein but not defined have the
meanings assigned thereto in the Warrant Agreement, dated as of _____________,
20__, between Sara Lee Corporation and [name of Warrant Agent], as Warrant
Agent.
Dated: _______________, 20__
[name of Warrant Agent],
as Warrant Agent
By_____________________________
Authorized Officer
NOTICE OF REJECTION
You are hereby notified that we were not able to verify that you
are a participant of [The Depository Trust Company] in the manner, and pursuant
to the procedures, set forth in the Warrant Agreement, dated as of _________,
20__ between Sara Lee Corporation and [name of Warrant Agent], as Warrant Agent.
Accordingly, we have rejected your Irrevocable Notice of Exercise as being
unsatisfactory as to form.
Dated: _______________, 20__
[name of Warrant Agent],
as Warrant Agent
By______________________________
Authorized Officer
B-3
<PAGE>
EXHIBIT 5.1
February 1, 2000
Board of Directors
Sara Lee Corporation
Three First National Plaza
Suite 4600
Chicago, Illinois 60602-4260
Re: Sara Lee Corporation
Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
As General Counsel of Sara Lee Corporation, a Maryland corporation
(the "Company"), I have participated in the preparation and filing by the
Company of a Registration Statement on Form S-3 (the "Registration
Statement") in connection with the registration under the Securities Act of
1933, as amended (the "Securities Act"), of $1,150,000,000 in aggregate
public offering price of (a) debt securities ("Debt Securities"), (b)
warrants to purchase Debt Securities ("Debt Warrants"), (c) shares of its
common stock, par value $.01 per share ("Common Stock"), accompanied by
preferred stock purchase rights ("Rights"), (d) warrants to purchase Common
Stock ("Stock Warrants"), (e) shares of its preferred stock, no par value
("Preferred Stock") and (f) warrants to receive from the Company the cash
value in U.S. dollars of the right to purchase and to sell such foreign
currencies or units of two or more foreign currencies as shall be designated
by the Company at the time of offering ("Currency Warrants," and collectively
with the Debt Securities, Debt Warrants, Common Stock, Rights, Stock Warrants
and Preferred Stock, the "Securities"). The Securities were authorized for
issuance, offering and sale by the Board of Directors of the Company by
resolutions duly adopted on January 27, 2000 (the "Resolutions"). The Debt
Securities will be issued under an Indenture (the "Indenture") between the
Company and The Bank of New York, as successor to Continental Bank, N.A., as
Trustee. The Debt Warrants, Stock Warrants and/or Currency Warrants
(together, the "Warrants") will be issued under warrant agreements ("Warrant
Agreements") between the Company and a Warrant Agent.
This opinion is furnished by me, as General Counsel of the
Company, in accordance with the requirements of Item 601(b)(5) of Regulation
S-K under the Securities Act.
In connection with this opinion, I have examined such agreements,
documents, instruments and records I deemed appropriate under the
circumstances for me to express the opinions set forth below.
Based on and subject to the foregoing, I am of the opinion that:
<PAGE>
Board of Directors
Sara Lee Corporation
February 1, 2000
Page 2
1. The Company is duly incorporated and validly existing under the
laws of the State of Maryland.
2. The Indenture has been duly authorized, executed and delivered
by the Company pursuant to resolutions duly adopted by the Board of Directors
of the Company on January 25, 1990, and assuming due authorization, execution
and delivery thereof by the Trustee, constitutes a valid and legally binding
instrument of the Company enforceable against the Company in accordance with
its terms; and each series of Debt Securities will be duly authorized and
legally issued and valid and binding obligations of the Company enforceable
against the Company in accordance with their terms when (i) the Registration
Statement, as finally amended (including any necessary post-effective
amendments, shall have become effective under the Securities Act; (ii) a
prospectus supplement with respect to such series of Debt Securities shall
have been filed with the Securities and Exchange Commission ("SEC") in
compliance with the Securities Act and the rules and regulations thereunder;
(iii) the final terms of such series of Debt Securities shall have been
established and duly approved in accordance with the Resolutions and the
Indenture; and (iv) such series of Debt Securities shall have been duly
executed and authenticated as provided in the Indenture and shall have been
delivered to purchasers thereof against payment of the agreed consideration
therefor.
3. The Common Stock and accompanying Rights will be duly
authorized and legally issued, fully paid and nonassessable when (i) the
Registration Statement, as finally amended (including any necessary
post-effective amendments), shall have become effective under the Securities
Act; (ii) a prospectus supplement with respect to the sale of Common Stock
shall have been filed with the SEC in compliance with the Securities Act and
the rules and regulations thereunder; and (iii) certificates representing the
Common Stock shall have been duly executed, countersigned and registered and
duly delivered to the purchasers thereof against payment of the agreed
consideration therefor.
4. Each series of Preferred Stock will be duly authorized and
legally issued, fully paid and nonassessable when (i) the Registration
Statement, as finally amended (including any necessary post-effective
amendments), shall have become effective under the Securities Act; (ii) a
prospectus supplement with respect to the sale of such series of Preferred
Stock shall have been filed with the SEC in compliance with the Securities
Act and the rules and regulations thereunder; (iii) the terms of such series
of Preferred Stock shall have been established and duly approved in
accordance with the Resolutions; (iv) the Articles Supplementary to the
Charter setting forth the terms of such series of Preferred Stock shall have
been filed with, and accepted for record by, the Department of Assessments
and Taxation of the State of Maryland; and (v) certificates representing such
series of Preferred Stock shall have been duly executed, countersigned and
registered and
<PAGE>
Board of Directors
Sara Lee Corporation
February 1, 2000
Page 3
duly delivered to the purchasers thereof against payment of the agreed
consideration therefor.
5. Each Warrant Agreement will constitute a duly authorized and
valid and legally binding instrument of the Company enforceable against the
Company in accordance with its terms, assuming due authorization, execution
and delivery thereof by the applicable Warrant Agent, when (i) the final
terms of such Warrant Agreement shall have been established and duly approved
in accordance with the Resolutions and (ii) such Warrant Agreement shall have
been duly executed and delivered by the Company pursuant to the Resolutions;
and the Warrants will be duly authorized and legally issued and valid and
binding obligations of the Company enforceable against the Company in
accordance with their terms when (i) the Registration Statement, as finally
amended (including any necessary post-effective amendments), shall have
become effective under the Securities Act; (ii) a prospectus supplement with
respect to the sale of such Warrants shall have been filed with the SEC in
compliance with the Securities Act and the rules and regulations thereunder;
and (iii) certificates representing such Warrants shall have been duly
executed, countersigned and registered and duly delivered to the purchasers
thereof against payment of the agreed consideration therefor.
The opinions set forth above are subject to the qualifications that
(a) enforcement of the Company's obligations under the Indenture, the Debt
Securities, the Warrant Agreements and the Warrants may be subject to (i)
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other similar laws affecting the enforcement of creditors' rights
generally and (ii) general principles of equity (regardless of whether such
enforcement is sought in a proceeding in equity or at law), and (b) the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the
court before which any proceeding therefor may be brought.
This opinion is limited to the laws of the State of Maryland, the
State of New York and the Securities Act.
I hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the reference made to me under the heading
"Legal Matters" set forth in the prospectus forming a part of said
Registration Statement.
Very truly yours,
/s/ Roderick A. Palmore
<PAGE>
EXHIBIT 12.1
SARA LEE CORPORATION AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(IN MILLIONS EXCEPT RATIOS)
<TABLE>
<CAPTION>
Year Ended
--------------------------------------------------------------
July 1, June 29, June 28, June 27, July 3,
1995 1996 1997 1998(1) 1999(2)
------- --------- --------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Fixed charges:
Interest expense $ 243 $ 228 $ 202 $ 224 $ 237
Interest portion of rental expense 68 68 66 64 66
------- ------- ------- ------- -------
Total fixed charges before capitalized interest 311 296 268 288 303
Capitalized interest 12 10 12 10 3
------- ------- ------- ------- -------
Total fixed charges $ 323 $ 306 $ 280 $ 298 $ 306
------- ------- ------- ------- -------
------- ------- ------- ------- -------
Earnings available for fixed charges:
(Loss) income before income taxes $ 1,219 $ 1,378 $ 1,484 $ (443) $ 1,671
Less undistributed income in minority owned
companies (10) (5) (7) (6) (6)
Add minority interest in majority-owned
subsidiaries 36 36 30 25 31
Add amortization of capitalized interest 21 22 23 25 23
Add fixed charges before capitalized interest 311 296 268 288 303
------- ------- ------- ------- -------
Total (losses) earnings available
for fixed charges $ 1,577 $ 1,727 $ 1,798 $ (111) $ 2,022
------- ------- ------- ------- -------
------- ------- ------- ------- -------
Ratio of (losses) earnings to fixed charges 4.9 5.6 6.4 (0.4) 6.6
------- ------- ------- ------- -------
------- ------- ------- ------- -------
</TABLE>
- ------------------------------------
(1) During the second quarter of fiscal 1998, the corporation recorded a
pretax charge of $2,040 million in connection with various
restructuring actions.
(2) During the first quarter of fiscal 1999, the corporation recorded a
pretax gain of $137 million in connection with the sale of its tobacco
business. During the second quarter of fiscal 1999, the corporation
recorded a pretax charge of $76 million in connection with the recall
of certain of its meat products.
<PAGE>
EXHIBIT 12.3
SARA LEE CORPORATION AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
AND PREFERRED STOCK DIVIDEND REQUIREMENTS
(IN MILLIONS EXCEPT RATIOS)
<TABLE>
<CAPTION>
Year Ended
--------------------------------------------------------------
July 1, June 29, June 28, June 27, July 3,
1995 1996 1997 1998(1) 1999(2)
-------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
Fixed charges:
Interest expense $ 243 $ 228 $ 202 $ 224 $ 237
Interest portion of rental expense 68 68 66 64 66
--------- ------- ------- ------- -------
Total fixed charges before capitalized interest 311 296 268 288 303
Capitalized interest 12 10 12 10 3
Preferred stock dividend requirements (3) 44 43 41 24 20
--------- ------- ------- ------- -------
Total fixed charges $ 367 $ 349 $ 321 $ 322 $ 326
--------- ------- ------- ------- -------
--------- ------- ------- ------- -------
Earnings available for fixed charges:
(Loss) income before income taxes $ 1,219 $ 1,378 $ 1,484 $ (443) $ 1,671
Less undistributed income in minority owned
companies (10) (5) (7) (6) (6)
Add minority interest in majority-owned
subsidiaries 36 36 30 25 31
Add amortization of capitalized interest 21 22 23 25 23
Add fixed charges before capitalized interest 311 296 268 288 303
--------- ------- ------- ------- -------
Total (losses) earnings available
for fixed charges $ 1,577 $ 1,727 $ 1,798 $ (111) $ 2,022
--------- ------- ------- ------- -------
--------- ------- ------- ------- -------
Ratio of (losses) earnings to fixed charges 4.3 4.9 5.6 (0.3) 6.2
--------- ------- ------- ------- -------
--------- ------- ------- ------- -------
</TABLE>
- ------------------------------------
(1) During the second quarter of fiscal 1998, the corporation recorded a
pretax charge of $2,040 million in connection with various
restructuring actions.
(2) During the first quarter of fiscal 1999, the corporation recorded a
pretax gain of $137 million in connection with the sale of its tobacco
business. During the second quarter of fiscal 1999, the corporation
recorded a pretax charge of $76 million in connection with the recall
of certain of its meat products.
(3) Preferred stock dividends in the computation have been increased to an
amount representing the pretax earnings that would have been required
to cover such dividends.
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Board of Directors
and Stockholders,
Sara Lee Corporation:
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated August 2, 1999
included in the Sara Lee Corporation Form 10-K for the year ended July 3,
1999 and to all references to our Firm included in this registration
statement.
/s/ Arthur Andersen LLP
Chicago, Illinois
January 28, 2000
<PAGE>
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that the person whose signature
appears below constitutes and appoints Roderick A. Palmore and R. Henry
Kleeman each of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, to act for him and in his
name, place and stead, in any and all capabilities to sign the Registration
Statement on Form S-3 in connection with the issuance of up to $1.5 billion
of securities of Sara Lee Corporation, and any and all amendments thereto
(including post-effective amendments) and to file the same with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent full power
and authority to do and perform each and every act and thing requisite or
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent, or his substitute, may lawfully do
or cause to be done by virtue hereof.
Dated: January 27, 2000 /s/ Paul A. Allaire
------------------------------------
Paul A. Allaire
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that the person whose signature
appears below constitutes and appoints Roderick A. Palmore and R. Henry
Kleeman each of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, to act for him and in his
name, place and stead, in any and all capabilities to sign the Registration
Statement on Form S-3 in connection with the issuance of up to $1.5 billion
of securities of Sara Lee Corporation, and any and all amendments thereto
(including post-effective amendments) and to file the same with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent full power
and authority to do and perform each and every act and thing requisite or
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent, or his substitute, may lawfully do
or cause to be done by virtue hereof.
Dated: January 27, 2000 /s/ Frans H.J.J. Andriessen
--------------------------------------
Frans H.J.J. Andriessen
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that the person whose signature
appears below constitutes and appoints Roderick A. Palmore and R. Henry
Kleeman each of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, to act for him and in his
name, place and stead, in any and all capabilities to sign the Registration
Statement on Form S-3 in connection with the issuance of up to $1.5 billion
of securities of Sara Lee Corporation, and any and all amendments thereto
(including post-effective amendments) and to file the same with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent full power
and authority to do and perform each and every act and thing requisite or
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent, or his substitute, may lawfully do
or cause to be done by virtue hereof.
Dated: January 27, 2000 /s/ Duane L. Burnham
--------------------------------------
Duane L. Burnham
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that the person whose signature
appears below constitutes and appoints Roderick A. Palmore and R. Henry
Kleeman each of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, to act for him and in his
name, place and stead, in any and all capabilities to sign the Registration
Statement on Form S-3 in connection with the issuance of up to $1.5 billion
of securities of Sara Lee Corporation, and any and all amendments thereto
(including post-effective amendments) and to file the same with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent full power
and authority to do and perform each and every act and thing requisite or
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent, or his substitute, may lawfully do
or cause to be done by virtue hereof.
Dated: January 27, 2000 /s/ Charles W. Coker
--------------------------------------
Charles W. Coker
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that the person whose signature
appears below constitutes and appoints Roderick A. Palmore and R. Henry
Kleeman each of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, to act for him and in his
name, place and stead, in any and all capabilities to sign the Registration
Statement on Form S-3 in connection with the issuance of up to $1.5 billion
of securities of Sara Lee Corporation, and any and all amendments thereto
(including post-effective amendments) and to file the same with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent full power
and authority to do and perform each and every act and thing requisite or
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent, or his substitute, may lawfully do
or cause to be done by virtue hereof.
Dated: January 27, 2000 /s/ James S. Crown
--------------------------------------
James S. Crown
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that the person whose signature
appears below constitutes and appoints Roderick A. Palmore and R. Henry
Kleeman each of them, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, to act for him and
in his name, place and stead, in any and all capabilities to sign the
Registration Statement on Form S-3 in connection with the issuance of up to
$1.5 billion of securities of Sara Lee Corporation, and any and all
amendments thereto (including post-effective amendments) and to file the same
with all exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every act and
thing requisite or necessary to be done in and about the premises, as fully
to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or his
substitute, may lawfully do or cause to be done by virtue hereof.
Dated: January 27, 2000 /s/ Willie D. Davis
--------------------------------------
Willie D. Davis
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that the person whose signature
appears below constitutes and appoints Roderick A. Palmore and R. Henry
Kleeman each of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, to act for him and in his
name, place and stead, in any and all capabilities to sign the Registration
Statement on Form S-3 in connection with the issuance of up to $1.5 billion
of securities of Sara Lee Corporation, and any and all amendments thereto
(including post-effective amendments) and to file the same with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent full power
and authority to do and perform each and every act and thing requisite or
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent, or his substitute, may lawfully do
or cause to be done by virtue hereof.
Dated: January 27, 2000 /s/ Vernon E. Jordan, Jr.
--------------------------------------
Vernon E. Jordan, Jr.
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that the person whose signature
appears below constitutes and appoints Roderick A. Palmore and R. Henry
Kleeman each of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, to act for him and in his
name, place and stead, in any and all capabilities to sign the Registration
Statement on Form S-3 in connection with the issuance of up to $1.5 billion
of securities of Sara Lee Corporation, and any and all amendments thereto
(including post-effective amendments) and to file the same with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent full power
and authority to do and perform each and every act and thing requisite or
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent, or his substitute, may lawfully do
or cause to be done by virtue hereof.
Dated: January 27, 2000 /s/ James L. Ketelsen
--------------------------------------
James L. Ketelsen
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that the person whose signature
appears below constitutes and appoints Roderick A. Palmore and R. Henry
Kleeman each of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, to act for him and in his
name, place and stead, in any and all capabilities to sign the Registration
Statement on Form S-3 in connection with the issuance of up to $1.5 billion
of securities of Sara Lee Corporation, and any and all amendments thereto
(including post-effective amendments) and to file the same with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent full power
and authority to do and perform each and every act and thing requisite or
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent, or his substitute, may lawfully do
or cause to be done by virtue hereof.
Dated: January 27, 2000 /s/ Hans B. van Liemt
--------------------------------------
Hans B. van Liemt
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that the person whose signature
appears below constitutes and appoints Roderick A. Palmore and R. Henry
Kleeman each of them, her true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, to act for her and in her
name, place and stead, in any and all capabilities to sign the Registration
Statement on Form S-3 in connection with the issuance of up to $1.5 billion
of securities of Sara Lee Corporation, and any and all amendments thereto
(including post-effective amendments) and to file the same with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent full power
and authority to do and perform each and every act and thing requisite or
necessary to be done in and about the premises, as fully to all intents and
purposes as she might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent, or his substitute, may lawfully do
or cause to be done by virtue hereof.
Dated: January 27, 2000 /s/ Joan D. Manley
--------------------------------------
Joan D. Manley
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that the person whose signature
appears below constitutes and appoints Roderick A. Palmore and R. Henry
Kleeman each of them, her true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, to act for her and
in her name, place and stead, in any and all capabilities to sign the
Registration Statement on Form S-3 in connection with the issuance of up to
$1.5 billion of securities of Sara Lee Corporation, and any and all
amendments thereto (including post-effective amendments) and to file the same
with all exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every act and
thing requisite or necessary to be done in and about the premises, as fully
to all intents and purposes as she might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or his
substitute, may lawfully do or cause to be done by virtue hereof.
Dated: January 27, 2000 /s/ Rozanne L. Ridgway
--------------------------------------
Rozanne L. Ridgway
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that the person whose signature
appears below constitutes and appoints Roderick A. Palmore and R. Henry
Kleeman each of them, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, to act for him and
in his name, place and stead, in any and all capabilities to sign the
Registration Statement on Form S-3 in connection with the issuance of up to
$1.5 billion of securities of Sara Lee Corporation, and any and all
amendments thereto (including post-effective amendments) and to file the same
with all exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every act and
thing requisite or necessary to be done in and about the premises, as fully
to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or his
substitute, may lawfully do or cause to be done by virtue hereof.
Dated: January 27, 2000 /s/ Richard L. Thomas
--------------------------------------
Richard L. Thomas
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that the person whose signature
appears below constitutes and appoints Roderick A. Palmore and R. Henry
Kleeman each of them, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, to act for him and
in his name, place and stead, in any and all capabilities to sign the
Registration Statement on Form S-3 in connection with the issuance of up to
$1.5 billion of securities of Sara Lee Corporation, and any and all
amendments thereto (including post-effective amendments) and to file the same
with all exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every act and
thing requisite or necessary to be done in and about the premises, as fully
to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or his
substitute, may lawfully do or cause to be done by virtue hereof.
Dated: January 27, 2000 /s/ John D. Zeglis
--------------------------------------
John D. Zeglis
<PAGE>
Exhibit 25.1
==============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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) / /
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THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
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Sara Lee Corporation
(Exact name of obligor as specified in its charter)
Maryland 36-2089049
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
Three First National Plaza
Suite 4600
Chicago, Illinois 60602-4260
(Address of principal executive offices) (Zip code)
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Debt Securities
(Title of the indenture securities)
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<PAGE>
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.
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<CAPTION>
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Name Address
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<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
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(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE
COMMISSION, ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO,
PURSUANT TO RULE 7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE
"ACT") AND 17 C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, 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 the 3rd day of February, 2000.
THE BANK OF NEW YORK
By: /s/ MICHAEL CULHANE
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Name: MICHAEL CULHANE
Title: VICE PRESIDENT
<PAGE>
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Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September
30, 1999, published in accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions of the Federal Reserve Act.
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<CAPTION>
Dollar Amounts
In Thousands
<S> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin................... $ 6,394,412
Interest-bearing balances............................................ 3,966,749
Securities:
Held-to-maturity securities.......................................... 805,227
Available-for-sale securities........................................ 4,152,260
Federal funds sold and Securities purchased under agreements to resell... 1,449,439
Loans and lease financing receivables:
Loans and leases, net of unearned income............................. 37,900,739
LESS: Allowance for loan and lease losses............................ 572,761
LESS: Allocated transfer risk reserve................................ 11,754
Loans and leases, net of unearned income, allowance, and reserve..... 37,316,224
Trading Assets........................................................... 1,646,634
Premises and fixed assets (including capitalized leases)................. 678,439
Other real estate owned.................................................. 11,571
Investments in unconsolidated subsidiaries and associated companies...... 183,038
Customers' liability to this bank on acceptances outstanding............. 349,282
Intangible assets........................................................ 790,558
Other assets............................................................. 2,498,658
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Total assets............................................................. $60,242,491
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</TABLE>
<PAGE>
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<S> <C>
LIABILITIES
Deposits:
In domestic offices.................................................. $26,030,231
Noninterest-bearing.................................................. 11,348,986
Interest-bearing..................................................... 14,681,245
In foreign offices, Edge and Agreement subsidiaries, and IBFs........ 18,530,950
Noninterest-bearing.................................................. 156,624
Interest-bearing..................................................... 18,374,326
Federal funds purchased and Securities sold under agreements
to repurchase.......................................................... 2,094,678
Demand notes issued to the U.S.Treasury.................................. 232,459
Trading liabilities...................................................... 2,081,462
Other borrowed money:
With remaining maturity of one year or less.......................... 863,201
With remaining maturity of more than one year through three years.... 449
With remaining maturity of more than three years..................... 31,080
Bank's liability on acceptances executed and outstanding................. 351,286
Subordinated notes and debentures........................................ 1,308,000
Other liabilities........................................................ 3,055,031
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Total liabilities........................................................ 54,578,827
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EQUITY CAPITAL
Common stock............................................................. 1,135,284
Surplus.................................................................. 815,314
Undivided profits and capital reserves................................... 3,759,164
Net unrealized holding gains (losses) on available-for-sale securities... (15,440)
Cumulative foreign currency translation adjustments...................... (30,658)
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Total equity capital..................................................... 5,663,664
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Total liabilities and equity capital..................................... $60,242,491
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</TABLE>
<PAGE>
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true to the best of my
knowledge and belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of
our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System
and is true and correct.
Thomas A. Reyni
Alan R. Griffith Directors
Gerald L. Hassell
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