As filed with the Securities and Exchange Commission on September 25, 1998
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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BESTFOODS
(Exact name of registrant as specified in its charter)
Delaware 36-2385545
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
International Plaza, 700 Sylvan Avenue
Englewood Cliffs, New Jersey 07632
(201) 894-4000
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
HANES A. HELLER
Vice President,
General Counsel and Secretary
Bestfoods
International Plaza, 700 Sylvan Avenue
Englewood Cliffs, New Jersey 07632
(201) 894-4000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies of Correspondence to:
W. LESLIE DUFFY
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: / /
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. / /
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
================================= =================== ======================== ====================== ======================
Proposed maximum Proposed maximum
Title of Amount to offering price aggregate Amount of
Securities to be registered be per unit(3) offering price(1)(3) registration fee
registered(1)(2)
- --------------------------------- ------------------- ------------------------ ---------------------- ----------------------
<S> <C> <C> <C> <C>
Debt Securities............ $500,000,000 100% $500,000,000 $147,500
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</TABLE>
(1) In U.S. dollars or the equivalent thereof in one or more other currencies.
(2) Plus such additional principal amount as may be necessary such that, if
Debt Securities are issued with an original issue discount, the aggregate
initial offering price of all Debt Securities will equal $500,000,000.
(3) Estimated solely for the purpose of calculating the registration fee.
----------------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
<PAGE>
SUBJECT TO COMPLETION dated [ ], 1998
Prospectus
[LOGO]
Bestfoods
Debt Securities
Bestfoods (the "Company") may offer from time to time in one or more series
its unsecured debt securities consisting of debentures, notes and other
evidences of indebtedness (the "Debt Securities") up to an aggregate initial
public offering price of $500,000,000 or the equivalent thereof in one or more
currencies, including composite currencies, other than U.S. dollars. Debt
Securities of each series will be offered in amounts, at prices and on terms to
be determined at the time of sale and described in a supplement to this
Prospectus (a "Prospectus Supplement"). The price or prices of the Debt
Securities may be payable in one or more currencies, and the principal of and
any premium or interest on the Debt Securities may be payable in the same
currency or currencies or one or more other currencies.
The Indenture pursuant to which the Debt Securities are being offered
provides that Debt Securities of a series may be issued in registered form
without coupons, in bearer form with coupons attached or both, and may be issued
in whole or in part in the form of one or more global securities. At the present
time the Company does not intend to offer securities in bearer form unless
otherwise indicated in the applicable Prospectus Supplement.
When Debt Securities of a series are offered, a Prospectus Supplement will
be delivered setting forth the terms of such Debt Securities and the terms of
their offering and sale. The terms set forth will include, where applicable, the
specific designation, aggregate principal amount, authorized denominations,
maturity, initial public offering price or prices (including the currency in
which such price or prices are payable), rate or rates (which may be fixed,
variable or zero) and times of payment of interest, currency or currencies in
which payments in respect of such Debt Securities may be made, form or forms in
which such Debt Securities may be issued, place or places of payment, terms for
mandatory redemption or sinking fund payments or for redemption at the option of
the Company or the holder, terms of credit enhancement, terms for payment of
additional amounts, terms for defeasance, and listing on any securities
exchange.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The Debt Securities may be sold through underwriting syndicates represented
by managing underwriters, by underwriters without a syndicate, through agents
designated from time to time or directly to purchasers. The names of any
underwriters or agents of the Company involved in the sale of the Debt
Securities of a series in respect of which this Prospectus is being delivered
and any applicable commissions or discounts will be set forth in the applicable
Prospectus Supplement. The net proceeds to the Company from any such sale also
will be set forth in such Prospectus Supplement.
The date of this Prospectus is , 1998.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports and other information with the Securities and Exchange
Commission (the "Commission"). Such reports and other information can be
inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 and at the regional
offices of the Commission at 500 West Madison Street, Citicorp Center, Chicago,
Illinois 60661, and 7 World Trade Center, 13th Floor, New York, New York 10048.
Copies of such materials can be obtained from the Public Reference Section of
the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. Such material may also be accessed electronically by means of the
Commission's Web site (http://www.sec.gov). Reports and other information
concerning the Company also can be inspected at the offices of the New York
Stock Exchange, 20 Broad Street, New York, New York 10005, the Pacific Stock
Exchange, 115 Sansome Street, Suite 1104, San Francisco, California 94104 and
the Midwest Stock Exchange, 440 South LaSalle Street, Chicago, Illinois 60605.
The Company has filed with the Commission a registration statement on Form
S-3 (together with all amendments and exhibits thereto, the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
of which this Prospectus forms a part. This Prospectus does not contain all of
the information set forth in the Registration Statement, certain parts of which
are omitted in accordance with the rules and regulations of the Commission. For
further information, reference is hereby made to the Registration Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference herein its (i) Annual Report
on Form 10-K for the fiscal year ended December 31, 1997, (ii) Quarterly Report
on Form 10-Q for the quarter ended June 30, 1998, and (iii) Current Reports on
Form 8-K dated February 23, 1998, March 19, 1998 and May 21, 1998.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Debt Securities shall be deemed to be
incorporated by reference in this Prospectus and made a part hereof from the
date of filing of such documents. Any statement contained in this Prospectus or
in a document incorporated or deemed to be incorporated by reference in this
Prospectus shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained in this Prospectus or in any
subsequently filed document that also is or is deemed to be incorporated by
reference in this Prospectus modifies or supersedes such prior statement. Any
such prior statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a Prospectus
is delivered, upon written or oral request, a copy of any or all of the
documents incorporated by reference in this Prospectus (other than exhibits to
such documents that are not specifically incorporated by reference in such
documents). Written requests should be directed to Corporate Secretary,
Bestfoods, International Plaza, 700 Sylvan Avenue, Englewood Cliffs, New Jersey
07632. Telephone requests should be directed to Mr. Heller at (201) 894-4000.
--------------------------
References in this Prospectus to "$" or "U.S. dollars" are to the lawful
currency of the United States, and references to "currencies" are to U.S.
dollars, lawful currencies of countries other than the United States, and
composite currencies, including European Currency Units.
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<PAGE>
THE COMPANY
The Company and its consolidated subsidiaries constitute a worldwide
business, principally engaged in one industry segment, consumer foods. Following
the spin-off of its corn refining business on December 31, 1997 (the
"Spin-off"), the Company changed its name from CPC International Inc. to
Bestfoods. The Company has three worldwide core businesses: savory products
chiefly under the Knorr brand; dressings chiefly under the Hellmann's brand;
food service (catering); and several important regional businesses including:
baking, starches (basic nutritious foods), desserts and bread spreads. These
products are sold under more than 2000 trademarks including Best Foods,
Entenmann's, Hellmann's, Karo, Knorr, Maizena, Mazola, Mueller's, Oroweat,
Skippy and Thomas'.
In addition, the Company conducts product and process research and
development activities. Research related to food and food technology is
conducted at facilities in Somerset, New Jersey, Bay Shore, New York; Heilbronn,
Germany; and Thayngen, Switzerland. Research has resulted in the development of
new and improved products based on studies in nutrition and food technology as
well as developments and improvements in process technology.
The Company operates in more than 60 countries and employs approximately
44,200 people, of whom approximately 29,400 are located outside the United
States.
The Company is a Delaware corporation and has its principal executive
offices at International Plaza, 700 Sylvan Avenue, Englewood Cliffs, New Jersey
07362. The Company's telephone number is (201) 894-4000.
RATIOS OF EARNINGS TO FIXED CHARGES
The table below sets forth the ratios of earnings to fixed charges of the
Company and its consolidated subsidiaries on a total enterprise basis for the
years indicated and for continuing operations for the six months ended June 30,
1998. The ratios have been computed by dividing income before taxes and fixed
charges by fixed charges. Fixed charges consist of gross interest expense on
debt and a portion of rental expense deemed to be representative of interest.
<TABLE>
<CAPTION>
Six Months Ended Year Ended December 31,*
June 30, 1998 1997 1996 1995 1994 1993
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of 5.6 4.4 5.3 5.9 5.1** 6.3
earnings to
fixed charges
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</TABLE>
* Reflects the Spin-off.
** Includes a charge of $227 million for restructuring included in income
before taxes.
USE OF PROCEEDS
Except as may be stated otherwise in a Prospectus Supplement, the Company
intends to use the proceeds from the sales of the Debt Securities for general
corporate purposes, which may include repayment of short-term debt.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities of
the series offered by a Prospectus Supplement and the extent, if any, to which
such general provisions may apply to such Debt Securities will be described in
such Prospectus Supplement.
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<PAGE>
The Debt Securities will be issued under an indenture dated as of April 1,
1988, as amended and supplemented by the First Supplemental Indenture and
Amendment dated March 2, 1994 (the "Indenture"), between the Company and Bankers
Trust Company, as trustee (the "Trustee"), the forms of which are filed as
Exhibits 4.1 and 4.2 to the Registration Statement. The following summaries of
certain provisions of the Indenture and the Debt Securities are not complete and
are qualified in their entirety by reference to the provisions of the Indenture.
Numerical references in parentheses are to sections in the Indenture and, unless
otherwise indicated, capitalized terms have the meanings given them in the
Indenture.
General
The Debt Securities are limited to an aggregate initial public offering
price of $500,000,000, or the equivalent thereof, in one or more currencies
other than U.S. dollars. The Indenture does not limit the aggregate principal
amount of Debt Securities that may be issued from time to time. (Section 301)
Debt Securities of a series may be issued in registered form without
coupons and may be issued in whole or in part in the form of one or more global
securities ("Global Securities"), as described below under "Global Securities."
Except as provided in the applicable Prospectus Supplement, Registered
Securities denominated in U.S. dollars will be issued only in denominations of
$1,000 or any integral multiple thereof. One or more Global Securities will be
issued in a denomination or aggregate denominations equal to the aggregate
principal amount of Outstanding Debt Securities of the series to be represented
by such Global Security or Securities. (Sections 302 and 305) The applicable
Prospectus Supplement will specify the authorized denominations of Debt
Securities of any series denominated in a currency other than U.S. dollars.
The Debt Securities will be unsecured obligations of the Company and will
rank pari passu with all other unsecured and unsubordinated indebtedness of the
Company.
Reference is made to the applicable Prospectus Supplement for a description
of the terms of the Debt Securities of a series, including, where applicable,
(i) the designation, aggregate principal amount and authorized denominations
(including the currency of denomination) of such Debt Securities; (ii) the price
or prices (each expressed as a percentage of principal amount) at which such
Debt Securities will be issued (including the currency or currencies in which
any such price may be paid) and, if any such price is less than 100%, the
portion of the principal amount (if other than 100%) that will become due and
payable upon the occurrence of an Event of Default (as defined below); (iii) the
date or dates on which such Debt Securities will mature; (iv) the rate or rates
(which may be fixed or variable), if any, at which such Debt Securities will
bear interest, the date or dates from which any such interest will accrue, each
Interest Payment Date on which any such interest will be payable and, if any of
such Debt Securities are Registered Securities, the Regular Record Date for the
interest payable on such Registered Securities on any Interest Payment Date; (v)
the currency or currencies in which payment of the principal of (and any
premium) and any interest on such Debt Securities will be made and any other
currency or currencies in which any such payment may be payable at the election
of the registered holders (the "Holders") of such Debt Securities; (vi) whether
such Debt Securities are to be issued in whole or in part in the form of one or
more Global Securities and, if so, the identity of the Depositary (as defined
below) for such Global Security or Securities; (vii) if a temporary Global
Security is to be issued with respect to such series, (A) whether any interest
thereon payable on an Interest Payment Date prior to the issuance of a permanent
Global Security will be credited to the account of the persons entitled thereto
on such Interest Payment Date, (B) the terms upon which beneficial interests in
such temporary Global Security may be exchanged for beneficial interests in a
permanent Global Security or for definitive Debt Securities of such series and
(C) the terms upon which beneficial interests in a permanent Global Security, if
any, may be exchanged for definitive Debt Securities of such series; (viii) each
office or agency where the principal of (and any premium, if any) and any
interest on such Debt Securities will be payable and each office or agency where
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<PAGE>
any such Debt Securities may be presented for exchange and any such Debt
Securities that are Registered Securities may be presented for registration of
transfer; (ix) any terms upon which such Debt Securities will be subject to
mandatory redemption (including any terms upon which Holders of such Debt
Securities may elect to have their Debt Securities not redeemed in such a
redemption) or to a sinking fund or upon which any of such Debt Securities may
be redeemed at the option of the Company or their Holders; (x) information
regarding any surety bond or other form of credit enhancement to be issued or
entered into with respect to such Debt Securities; (xi) any terms upon which
payments of additional amounts will be made with respect to such Debt
Securities; (xii) any terms upon which such Debt Securities may be defeased;
(xiii) any additional Events of Default or restrictive covenants provided for
with respect to such Debt Securities; and (xiv) any other terms not inconsistent
with the Indenture, including any terms that may be required by or advisable
under United States laws or regulations. (Section 301)
Reference should also be made to the applicable Prospectus Supplement for a
description of any special United States income tax considerations with respect
to Debt Securities of a series.
Exchanges and Transfers
At the option of the Holder, upon request confirmed in writing, and subject
to the terms of the Indenture, Debt Securities of a series will be exchangeable
into an equal aggregate principal amount of registered Debt Securities of the
same series and terms but having different authorized denominations.
Debt Securities may be presented for exchange or transfer, in the manner,
at the places, and subject to the restrictions set forth in the Indenture and
the Debt Securities. No service charge will be made for any such exchange or
registration of transfer of Debt Securities, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith. (Section 305)
Global Securities
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Securities that will be deposited with, or on behalf
of, a depositary (the "Depositary") identified in the applicable Prospectus
Supplement. Global Securities may be issued in registered form and in either
temporary or permanent form. Unless and until it is exchanged in whole or in
part for Debt Securities in definitive form, a Global Security may not be
transferred except as a whole (i) by the Depositary for such Global Security to
a nominee of such Depositary, (ii) by a nominee of such Depositary to such
Depositary or to another nominee of such Depositary or (iii) by such Depositary
or any such nominee to a successor of such Depositary or to a nominee of such
successor. (Sections 303 and 305)
The specific terms of the depositary arrangement with respect to any Debt
Securities of a series will be described in the Prospectus Supplement relating
to such series. The Company anticipates that the following provisions will apply
to all depositary arrangements.
Upon the issuance of a Global Security, the Depositary for such Global
Security will credit, on its book-entry registration and transfer system, the
respective principal amounts of the Debt Securities represented by such Global
Security to the accounts of Persons that have accounts with such Depositary
("participants"). The accounts to be credited shall be designated by the
underwriters or agents of such Debt Securities or by the Company if such Debt
Securities are offered and sold directly by it. Ownership of beneficial
interests in a Global Security will be limited to participants or persons that
may hold interests through participants. Ownership of beneficial interests in
such Global Security will be shown on, and the transfer of that ownership will
be effected only through, records maintained by the Depositary for such Global
Security or by participants or persons that hold through participants. The laws
of certain states require that certain purchasers of securities
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<PAGE>
take physical delivery of such securities in definitive form. Such limits and
such laws may impair the ability of owners to transfer beneficial interests in a
Global Security.
So long as the Depositary for a Global Security, or its nominee, is the
Holder of such Global Security, such Depositary or such nominee, as the case may
be, will be considered the sole owner or holder of the Debt Securities
represented by such Global Security for all purposes under the Indenture. Except
as set forth below, owners of beneficial interests in a Global Security will not
be entitled to have Debt Securities of the series represented by such Global
Security registered in their names, will not receive or be entitled to receive
physical delivery of Debt Securities of such series in definitive form and will
not be considered the owners or holders thereof under the Indenture.
Payments of principal of (and premium, if any) and any interest on Debt
Securities registered in the name of a Depositary or its nominee will be made to
the Depositary or its nominee, as the case may be, as the Holder of the Global
Security representing such Debt Securities. None of the Company, the Trustee,
any Paying Agent or the Security Registrar will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests in such Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
The Company expects that the Depositary for Debt Securities of a series,
upon receipt of any payment of principal, premium or interest in respect of a
permanent Global Security, will credit immediately participants' accounts with
payments in amounts proportionate to their respective beneficial interests in
the principal amount of such Global Security as shown on the records of such
Depositary. The Company also expects that payments by participants to owners of
beneficial interests in such Global Security held through such participants will
be governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers registered in "street name,"
and will be the responsibility of such participants.
If a Depositary for Debt Securities of a series is at any time unwilling or
unable to continue as Depositary and a successor Depositary is not appointed by
the Company within ninety days, the Company will issue Debt Securities of such
series in definitive form in exchange for the Global Security or Securities
representing Debt Securities of such series. In addition, the Company may at any
time and in its sole discretion determine not to have the Debt Securities of a
series represented by one or more Global Securities and, in such event, will
issue Debt Securities of such series in definitive form in exchange for the
Global Security or Securities representing the Debt Securities of such series.
Further, if the Company so specifies with respect to the Debt Securities of a
series, an owner of a beneficial interest in a Global Security representing Debt
Securities of such series may, on terms acceptable to the Company and the
Depositary for such Global Security, receive Debt Securities of such series in
definitive form. In any such instance, an owner of a beneficial interest in a
Global Security will be entitled to have Debt Securities of the series
represented by such Global Security equal in principal amount to such beneficial
interest registered in its name and will be entitled to physical delivery of
such Debt Securities in definitive form. Debt Securities of such series so
issued in definitive form will be issued in denominations, unless otherwise
specified by the Company, of $1,000 and integral multiples thereof.
Payment and Paying Agents
Payment of principal of (and premium, if any) on Debt Securities will be
made in the currency designated for payment, against surrender of such Debt
Securities at the Corporate Trust Office of the Trustee in the City of New York.
Unless otherwise indicated in the applicable Prospectus Supplement, payment of
any installment of interest on Debt Securities will be made to the Person in
whose name such Debt Security is registered at the close of business on the
Regular Record Date for such interest payment. Unless otherwise indicated in the
applicable Prospectus Supplement, payments of such interest will be made at such
Corporate Trust Office of the Trustee or by a check in the designated currency
mailed to the Holder at such Holder's registered address. (Section 307)
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<PAGE>
Unless otherwise indicated in the applicable Prospectus Supplement, the
Corporate Trust Office of the Trustee in the Borough of Manhattan, The City of
New York will be appointed as the Company's Paying Agent. Any other Paying Agent
in the United States and any Paying Agents outside the United States initially
appointed by the Company for the Debt Securities of a series will be named in
the applicable Prospectus Supplement. The Company may terminate the appointment
of any of the Paying Agents from time to time, except that the Company will
maintain at least one Paying Agent in the Borough of Manhattan, The City of New
York for payments with respect to Debt Securities, provided that so long as the
Debt Securities of a series are listed on The International Stock Exchange of
the United Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange
or any other stock exchange located outside the United States and such stock
exchange shall so require, the Company will maintain a Paying Agent in London or
Luxembourg or any other required city located outside the United States, as the
case may be, for such Debt Securities. (Section 1002)
All moneys paid by the Company to a Paying Agent or the Trustee for the
payment of principal of (or premium, if any) or interest on any Debt Security
that remains unclaimed at the end of two years after such principal, premium or
interest shall have become due and payable will be repaid to the Company, and
the Holder of such Debt Security or any coupon relating thereto will thereafter
look only to the Company for payment thereof. (Section 1003)
Limitation on Secured Indebtedness
The Company will not (nor will it permit any Restricted Subsidiary to)
issue, assume or guarantee any debt for money borrowed ("Debt") secured by any
mortgage, pledge, lien or other encumbrance upon any Principal Property of the
Company or any Restricted Subsidiary or on any shares of stock or indebtedness
of the Company or any Restricted Subsidiary without providing that the Debt
Securities of each series and any related coupons shall be secured equally and
ratably with such Debt; provided, however, that the foregoing restrictions shall
not apply to:
(i) encumbrances on property, shares of stock or indebtedness of any
corporation existing at the time such corporation becomes a Restricted
Subsidiary;
(ii) encumbrances on property, shares of stock or indebtedness
existing at the time of acquisition of such property, shares of stock or
indebtedness, or encumbrances to secure the payment of all or any part of
the purchase price of such property or shares of stock or to secure any
Debt incurred prior to, at the time of, or within ninety days after the
acquisition of such property or shares of stock for the purpose of
financing all or any part of the purchase price thereof;
(iii) encumbrances securing Debt of a Restricted Subsidiary owing to
the Company or to another Restricted Subsidiary;
(iv) encumbrances on property of a corporation existing at the time
such corporation is merged into or consolidated with the Company or a
Restricted Subsidiary or at the time of a sale, lease or other disposition
of the properties of a corporation or firm as an entirety or substantially
as an entirety to the Company or a Restricted Subsidiary;
(v) encumbrances on property of the Company or a Restricted Subsidiary
in favor of the United States or any state thereof, or in favor of any
other country, or any political subdivision thereof, to secure partial,
progress, advance or other payments pursuant to any contract or statute or
to secure any indebtedness incurred for the purpose of financing all or any
part of the purchase price or the cost of construction of the property
subject to such encumbrances; or
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<PAGE>
(vi) any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part of any encumbrance referred
to in the foregoing clauses (i) to (v), inclusive; provided, however, that
the principal amount of Debt secured thereby shall not exceed the principal
amount of Debt so secured at the time of such extension, renewal or
replacement, and that such extension, renewal or replacement shall be
limited to all or a part of the property subject to the encumbrance so
extended, renewed or replaced (plus improvements on such property).
Notwithstanding the foregoing provisions, the Company and any one or more
Restricted Subsidiaries may issue, assume or guarantee Debt secured by an
encumbrance that would otherwise be subject to the foregoing restrictions in an
aggregate amount which, together with all other Debt of the Company and its
Restricted Subsidiaries that would otherwise be subject to the foregoing
restrictions (not including Debt permitted to be secured under clauses (i)
through (vi) above) and the aggregate value of the Sale and Leaseback
Transactions in existence at such time (not including Sale and Leaseback
Transactions the proceeds of which have been applied to reduce Debt, as set
forth below), does not at the time exceed fifteen percent of the stockholders'
equity (as defined) of the Company. In the event that the Company shall apply an
amount equal to the value of a Sale and Leaseback Transaction to the retirement
(other than any mandatory retirement) within ninety days of the effective date
of such Sale and Leaseback Transaction of Debt incurred or assumed by the
Company or any Restricted Subsidiary which by its terms (i) matures at, or is
extendible or renewable at the sole option of the obligor without requiring the
consent of the obligee to, a date more than twelve months after the date of
creation of such Debt and (ii) is not subordinated to the Debt Securities, then
the value of such Sale and Leaseback Transaction shall not be taken into
consideration for purposes of calculating whether the fifteen percent limitation
referred to above has been met or exceeded.
For purposes of the foregoing, (i) "Principal Property" means any
manufacturing plant or facility located within the United States (other than its
territories or possessions) owned by the Company or any Restricted Subsidiary
that, in the opinion of the Board of Directors of the Company, is of material
importance to the total business conducted by the Company and its Restricted
Subsidiaries as a whole, (ii) "Restricted Subsidiary" means any Subsidiary of
the Company (other than a Subsidiary principally engaged in financing the
operations of the Company or its Subsidiaries outside the United States)
substantially all the property of which is located, or substantially all the
business of which is carried on, within the United States (other than its
territories or possessions) and that owns a Principal Property, (iii) "value"
means, with respect to a Sale and Leaseback Transaction, as of any particular
time, the amount equal to the net proceeds of such property at the time of
entering into such Sale and Leaseback Transaction and (iv) "Sale and Leaseback
Transaction" means any arrangement with any person providing for the leasing by
the Company or any Restricted Subsidiary of any Principal Property owned as of
June 20, 1967 (except for temporary leases for a term of not more than three
years and except for leases between the Company and a Restricted Subsidiary or
between Restricted Subsidiaries), which property has been or is to be sold or
transferred by the Company or such Restricted Subsidiary to such person.
(Section 1004)
Consolidation, Merger and Transfer of Assets
The Company may not consolidate with or merge into any corporation, or
transfer or lease its properties and assets substantially as an entirety to any
Person, unless: (i) the successor corporation or transferee assumes the
Company's obligations on the Debt Securities and under the Indenture; (ii) after
giving effect to the transaction, no Event of Default and no event which, after
notice or lapse of time, would become an Event of Default shall have occurred
and be continuing; and (iii) certain other conditions are met. (Section 801)
Events of Default
The following will constitute Events of Default with respect to Debt
Securities of any series: (i) default in payment of principal of (or premium, if
any, on) any Debt Security of such series when due; (ii) de-
-8-
<PAGE>
fault in payment of interest on any Debt Security of such series when due, and
the continuance of such default for a period of 30 days; (iii) default in the
deposit of any sinking fund payment on any Debt Security of such series when
due; (iv) default in the performance or breach of any other covenant of the
Company in the Indenture for the benefit of Debt Securities of such series, and
the continuance of such default for a period of 60 days after written notice
thereof by the Trustee or the Holders of at least 25% in aggregate principal
amount of the Debt Securities of such series at the time Outstanding; (v)
default resulting in acceleration of maturity of any other indebtedness of the
Company or any Restricted Subsidiary in an amount aggregating in excess of
$25,000,000; (vi) certain events of bankruptcy, insolvency or reorganization;
and (vii) any other Event of Default provided with respect to Debt Securities of
such series. (Section 501) An Event of Default with respect to Debt Securities
of a series does not necessarily constitute an Event of Default with respect to
Debt Securities of any other series. (Section 502)
If an Event of Default has occurred and is continuing with respect to Debt
Securities of a series, either the Trustee or the Holders of at least 25% in
aggregate principal amount of the Debt Securities of such series then
Outstanding may declare the principal of all such Debt Securities (or in the
case of certain securities sold initially at a substantial discount below their
principal amounts, the portion of such principal amounts specified in such Debt
Securities and set forth in the applicable Prospectus Supplement) to be due and
payable. In certain cases, the Holders of a majority in principal amount of the
Outstanding Debt Securities of a series may, on behalf of the Holders of all
Debt Securities of such series, rescind and annul such declaration of
acceleration. (Section 502)
If a default has occurred and is continuing with respect to Debt Securities
of a series, the Trustee, subject to its duty to act with the required standard
of care, will be entitled to indemnification by the Holders of such Debt
Securities before proceeding to exercise any right or power under the Indenture
with respect to such Debt Securities at the request of such Holders. (Section
603) No Holders of Debt Securities of a series may institute any proceedings,
judicial or otherwise, to enforce the Indenture except in the case of failure of
the Trustee thereunder, for sixty days, to act after it has received a request
to enforce such Indenture and an offer of reasonable indemnity from the Holders
of at least twenty-five percent in aggregate principal amount of the Outstanding
Debt Securities of such series. (Section 507) This provision will not prevent
any Holder of Debt Securities of such series from enforcing payment of the
principal of (and premium, if any) and interest on such Debt Securities at the
respective due dates thereof. (Section 508) The Holders of a majority in
aggregate principal amount of the Outstanding Debt Securities of a series may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on it with
respect to the Debt Securities of such series. The Trustee may, however, refuse
to follow any direction that it determines may not lawfully be taken or would be
illegal or in conflict with the Indenture or involve it in personal liability or
which would be unjustly prejudicial to Holders not joining therein. (Section
512)
The Trustee shall, within ninety days after the occurrence of a default
with respect to Debt Securities of a series, give to the Holders of Debt
Securities of such series notice of such default, unless such default has been
cured or waived. Except in the case of a default in the payment of principal of
(or premium, if any) or interest on any Debt Securities of such series, the
Trustee shall be protected in withholding such notice if it determines in good
faith that the withholding of such notice is in the interest of the Holders of
the Debt Securities of such series. (Section 602)
The Company will be required to file with the Trustee annually an Officers'
Certificate as to the absence of certain defaults under the terms of the
Indenture. (Section 1006)
-9-
<PAGE>
Modification and Waiver
Modifications of and amendments to the Indenture may be made by the Company
and the Trustee with the consent of the Holders of a majority in aggregate
principal amount of the Outstanding Debt securities of each series affected by
such modification or amendment; provided, however, that no such modification or
amendment may, without the consent of the Holder of each Outstanding Debt
Security affected thereby: (i) change the stated maturity date of any
installment of the principal of, or interest on, any Debt Security or coupon;
(ii) reduce the principal amount of (or premium, if any) or interest on any Debt
Security or related coupon; (iii) adversely affect the right of repayment or
repurchase, if any, at the option of the Holder; (iv) reduce the amount of, or
postpone the date fixed for, any payment under any sinking fund or analogous
provisions for any Debt Security; (v) change the place or currency of payment of
the principal of (or premium, if any) or interest on any Debt Security or
coupon; (vi) change or eliminate the rights of a Holder to receive payment in a
designated currency; (vii) impair the right to institute suit for the
enforcement of any payment on or with respect to any Debt Security or coupon; or
(viii) reduce the percentage of the principal amount of the outstanding Debt
Securities of any series the consent of whose Holders is required for
modification or amendment of the Indenture, for waiver of compliance with
certain provisions of the Indenture or for waiver of certain defaults. (Section
902)
The Holders of a majority in principal amount of the Outstanding Debt
Securities of a series may, on behalf of all Holders of Debt Securities of such
series, waive, insofar as such series is concerned, compliance by the Company
with the provisions of the Indenture described above in "Limitation on Secured
Indebtedness" and "Consolidation, Merger and Transfer of Assets" before the time
for such compliance. (Section 1007) The Holders of a majority in principal
amount of the Outstanding Debt Securities of a series may, on behalf of all
Holders of Debt Securities of such series, waive any past default under the
Indenture with respect to Debt Securities of such series except a default in the
payment of the principal of (or premium, if any) or interest on any Debt
Security of such series and except a default in respect of a covenant or
provision the modification or amendment of which would require the consent of
the Holder of each Outstanding Debt Security affected thereby. (Section 513)
Satisfaction and Discharge; Defeasance
At the request of the Company, the Indenture will be canceled by the
Trustee if all sums due to the Trustee under the Indenture have been paid in
full and (i) all Debt Securities previously issued have been canceled or
delivered to the Trustee for cancellation, (ii) the principal of (and premium,
if any) and any interest on all Outstanding Debt Securities have been paid in
full or (iii) funds have been deposited with the Trustee at the maturity of the
Debt Securities sufficient to pay in full the principal of (and premium, if any)
and any interest on all Outstanding Debt Securities and the Company has
delivered to the Trustee an Opinion of Counsel to the effect that the deposit
and related cancellation would not cause the Holders of the Debt Securities of
any series to recognize income, gain or loss for United States federal income
tax purposes. (Sections 401 and 402).
If so specified in the Prospectus Supplement applicable to Debt Securities
of a series, the Company at its option (i) will be discharged from any and all
obligations in respect of the Debt Securities of such series (except for certain
obligations to register the transfer or exchange of Debt Securities of such
series, replace stolen, lost, or mutilated Debt Securities of such series,
maintain paying agencies and hold moneys for payment in trust) or (ii) will not
be subject to provisions of the Indenture described above under "Limitation of
Secured Indebtedness" and "Consolidation, Merger and Transfer of Assets" with
respect to the Debt Securities of such series, in each case if the Company
deposits with the Trustee, in trust, money or U.S. Government Obligations that,
through the payment of interest (and premium, if any) thereon and principal
thereof in accordance with their terms, will provide money in an amount
sufficient to pay all the principal (including any mandatory sinking fund
payments) of, and interest (and premium, if any) on, the Debt Securities of such
series on
-10-
<PAGE>
the dates such payments are due in accordance with the terms of such Debt
Securities. To exercise any such option, the Company is required to deliver to
the Trustee an Opinion of Counsel to the effect that (1) the deposit and related
defeasance would not cause the Holders of the Debt Securities of such series to
recognize income, gain or loss for United States federal income tax purposes and
(2) if the Debt Securities of such series are then listed on the New York Stock
Exchange, such Debt Securities would not be delisted as a result of the exercise
of such option. (Sections 1301 and 1302) The Company will not exercise any such
option with respect to Debt Securities of a series at any time when such Debt
Securities are subject to mandatory redemption.
Concerning the Trustee
Bankers Trust Company is the Trustee under the Indenture. Bankers Trust
Company is a depository for funds, participates in certain revolving credit and
commercial paper facilities, and performs other services for the Company and its
subsidiaries.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities of a series in any of three ways:
(i) through underwriters or dealers, (ii) through agents or (iii) directly to a
limited number of purchasers or to a single purchaser. The applicable Prospectus
Supplement will set forth the terms of the offering of the Debt Securities of a
series, including the name or names of any underwriters or agents, the initial
public offering price or prices of such Debt Securities (and the currency or
currencies in which any such price is payable), the proceeds to the Company from
such sale, any underwriting discounts and other items constituting underwriters'
compensation, any discounts or concessions allowed or reallowed or paid to
dealers and any securities exchanges on which the Debt Securities of such series
may be listed.
If underwriters are used in the sale, Debt Securities of a series will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
The Debt Securities of such series may be offered to the public through
underwriting syndicates represented by managing underwriters or by underwriters
without a syndicate. Unless otherwise set forth in the applicable Prospectus
Supplement, the obligations of the underwriters to purchase Debt Securities of a
series will be subject to certain conditions precedent and the underwriters will
be obligated to purchase all the Debt Securities of such series if any are
purchased. Any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
The Debt Securities of a series may be sold directly by the Company or
through agents designated by the Company from time to time. Any agent involved
in the offer or sale of the Debt Securities of such series will be named, and
any commissions payable by the Company to such agent will be set forth in the
applicable Prospectus Supplement. Unless otherwise indicated in such Prospectus
Supplement, any such agent will be acting on a reasonable efforts basis for the
period of its appointment.
If so indicated in the applicable Prospectus Supplement, the Company will
authorize agents, underwriters or dealers to solicit offers by certain specified
entities to purchase Debt Securities of a series from the Company at the public
offering price set forth in such Prospectus Supplement pursuant to delayed
delivery contracts providing for payment and delivery on a specified date. Such
contracts will be subject only to those conditions set forth in such Prospectus
Supplement. Such Prospectus Supplement will set forth the commissions payable
for solicitation of such contracts.
Agents and underwriters may be entitled under agreements entered into with
the Company to indemnification by the Company against certain civil liabilities,
including liabilities under the Securities Act, or to
-11-
<PAGE>
contribution with respect to payments which the agents or underwriters may be
required to make in respect thereof. Agents and underwriters may be customers
of, engage in transactions with, or perform services for the Company or its
affiliates in the ordinary course of business.
The Debt Securities may not be offered or sold in Great Britain, by means
of this Prospectus, any Prospectus Supplement or any other document, other than
to persons whose ordinary business is to buy or sell shares or debentures,
whether as principal or agent (except in circumstances that do not constitute an
offer to the public within the meaning of the Companies Act 1985), nor may this
Prospectus, any Prospectus Supplement or any other offering material relating to
the Debt Securities be distributed in or from Great Britain (except by persons
permitted to do so under the securities laws of Great Britain) otherwise than to
persons whose ordinary business involves the acquisition and disposal, or the
holding, of securities, whether as principal or as agent.
LEGAL MATTERS
Certain legal matters in connection with the Debt Securities will be passed
on for the Company by Hanes A. Heller, Esq., Vice President, General Counsel and
Secretary of the Company. As of June 30, 1998, Mr. Heller owned beneficially and
of record 23,850 shares of the Company's common stock and owned currently
exercisable stock options to purchase an additional 35,284 shares of such common
stock.
EXPERTS
The financial statements of Bestfoods and its consolidated subsidiaries as
of December 31, 1997, 1996 and 1995 and for each of the years in the three-year
period ended December 31, 1997, incorporated by reference herein and elsewhere
in the Registration Statement, have been incorporated herein in reliance upon
the report (incorporated by reference herein) of KPMG Peat Marwick LLP,
independent certified public accountants, given on the authority of that firm as
experts in auditing and accounting.
-12-
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
No dealer, salesperson or other individual has been $500,000,000
authorized to give any information or to make any
representations other than those contained in this
Prospectus in connection with the offer made by this
Prospectus and, if given or made, such information or
representations must not be relied upon as having been
authorized by the Company or by any underwriter or
agent. Neither the delivery of this Prospectus nor
any sale made hereunder shall, under any
circumstances, create an implication that there has Bestfoods
been no change in the affairs of the Company since the
date hereof. This Prospectus does not constitute an
offer or solicitation by anyone in any jurisdiction in
which such offer or solicitation is not authorized or
in which the person making such offer or solicitation
is not qualified to do so or to anyone to whom it is
unlawful to make such offer or solicitation.
Debt Securities
___________________ [LOGO]
Table of Contents
Page
Available Information...................... 2
Incorporation of Certain Documents by
Reference............................... 2
The Company................................ 3
Ratios of Earnings to Fixed Charges........ 3 Prospectus
Use of Proceeds............................ 3
Description of Debt Securities............. 3
Plan of Distribution....................... 11 Dated , 1998
Legal Matters.............................. 12
Experts.................................... 12
</TABLE>
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuances and Distribution
The following table sets forth the estimated amounts of expenses, other
than underwriting or agency discounts or commissions, expected to be incurred by
the Registrant in connection with the offering and sale of the Debt Securities
registered hereby:
Expense Amount
Securities and Exchange Commission
registration fee .............................. $147,500
Legal fees and expenses.......................... 40,000
Printing expenses ............................... 80,000
Accounting fees and expenses .................... 40,000
Blue sky fees and expenses ...................... 7,500
Trustee's fees .................................. 20,000
Rating agency fees .............................. 125,000
Miscellaneous expenses .......................... 15,000
------
Total ...................................... $475,000
========
Item 15. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law provides for
indemnification of directors and officers against any legal liability (other
than liability arising from derivative suits) if the officer or director acted
in good faith and in a manner that he or she reasonably believed to be in or not
opposed to the best interests of the corporation. In criminal actions, the
officer or director must also have had no reasonable cause to believe that his
or her conduct was unlawful. A corporation may indemnify an officer or director
in a derivative suit if the officer or director acted in good faith and in a
manner that he or she reasonably believed to be in or not opposed to the best
interests of the corporation unless the officer or director is found liable to
the corporation. However, if the Court of Chancery or the court in which the
officer or director was found liable determines that the officer or director is
fairly and reasonably entitled to indemnity, then the Court of Chancery or such
other court may permit indemnity for such officer or director to the extent it
deems proper.
The Registrant's Certificate of Incorporation provides that a director of
the Registrant shall not be personally liable to the Registrant or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability for (i) any breach of the director's duty of loyalty to the
Registrant or its stockholders, (ii) acts or omissions not in good faith or that
involve intentional misconduct or a knowing violation of law, (iii) payment of
an improper dividend or for an improper repurchase or redemption of the stock of
the Corporation in violation of Section 174 of the Delaware General Corporation
Law or (iv) transactions in which the director derives any improper personal
benefit.
Article VII of the By-laws of the Registrant contains provisions requiring
indemnification by the Registrant of its past and present directors and officers
to the fullest extent permitted by the laws of Delaware as they may exist from
time to time. These provisions extend to expenses reasonably incurred by the
director or officer in defense or settlement of any such action or proceeding,
whether civil, criminal, administrative or investigative.
II-1
<PAGE>
The By-laws provide that the Registrant may purchase and maintain insurance
to protect any person against any liability or expense asserted against or
incurred by such person in connection with any proceeding, whether or not the
Registrant would have the power to indemnify such person against such liability
or expense by law or under the By-laws or otherwise. Pursuant to this provision,
the Registrant has entered into a Directors' and Officers' Liability and
Registrant Reimbursement Liability Insurance Policy.
The Registrant's By-laws also provide that indemnification thereunder is
not exclusive and that the Registrant may, among other things, enter into
indemnification agreements. The Registrant has entered into indemnification
agreements with each of its directors and officers providing that the
indemnification provisions in effect under the By-laws at the time such
agreements were entered into will continue to apply with respect to such
directors and officers, regardless of any subsequent change in the By-laws. The
indemnification agreements also establish procedures governing claims
thereunder, including procedures with respect to the review and advancement of
expenses claimed and, in the event of a change in control (as defined therein),
the creation of a trust into which funds would be deposited (promptly after such
change) in an amount sufficient to satisfy reasonably anticipated expenses
arising under such agreements.
Reference is made to Section 7 of the form of Underwriting Agreement filed
as Exhibit 1 to this Registration Statement for a description of the
indemnification arrangements expected to be provided if the offering of the
securities being registered is made through underwriters.
Item 16. Exhibits
Exhibit
No. Description of Exhibit
1* Proposed form of Underwriting Agreement (including form of
Delayed Delivery Contract).
4.1 Indenture dated as of April 15, 1988 between the Registrant
and Bankers Trust Company, as Trustee. Incorporated by
reference to Exhibit 4.1 to the Company's Registration
Statement on Form S-3 (File No. 33-20813) as filed on March
24, 1988.
4.2 First Supplemental Indenture and Amendment dated as of March
2, 1994 to the Indenture dated as of April 15, 1988 between
the Registrant and Bankers Trust Company, as Trustee.
Incorporated by reference to Exhibit 4.2 to the Company's
Registration Statement on Form S-3 (File No. 33-65171) as
filed on December 20, 1995.
4.3 Form of Registered Debt Security. Incorporated by reference to
Exhibit 4.3 to the Company's Registration Statement on Form
S-3 (File No.33- 52213) as filed on February 9, 1994.
4.4 Form of Bearer Debt Security. Incorporated by reference to
Exhibit 4.4 to the Company's Registration Statement on Form
S-3 (File No. 33- 52213) as filed on February 9, 1994.
5* Opinion of Hanes A. Heller, Esq., Vice President, General
Counsel and Secretary of the Registrant.
II-2
<PAGE>
12* Statement regarding computation of ratios of earnings to fixed
charges.
23.1* Consent of KPMG Peat Marwick LLP, independent accountants.
23.2* Consent of Hanes A. Heller, Esq., Vice President, General
Counsel and Secretary of the Registrant (included in opinion
filed as Exhibit 5).
24* Powers of attorney.
25* Form T-1, Statement of Eligibility of Bankers Trust Company,
as Trustee, under the Indenture between the Registrant and
Bankers Trust Company, as Trustee.
- ------------------
* Filed herewith.
All exhibits other than those listed above are omitted because of the
absence of the conditions under which they are required.
Item 17. Undertakings
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(l)(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 Securities and Exchange Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to the initial bona fide offering thereof.
II-3
<PAGE>
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in this Registration
Statement shall be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the provisions 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 such
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the Securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in such 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, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Borough of Englewood Cliffs, State of New Jersey, on the 25th
day of September 1998.
BESTFOODS
By: /s/ Charles R. Shoemate
---------------------------------------
Charles R. Shoemate, Chairman,
President and Chief Executive Officer
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 the 25th day of September 1998.
/s/ Charles R. Shoemate Chairman, President and Chief Executive
- ------------------------------- Officer
(Charles R. Shoemate)
/s/ Bernard H. Kastory Senior Vice President, Finance and
- ------------------------------- Administration
(Bernard H. Kastory)
/s/ Philip Terenzio Vice President and Comptroller
- -------------------------------
(Philip Terenzio)
* Director
- -------------------------------
(Theodore H. Black)
* Director
- -------------------------------
(Clateo Castellini)
* Director
- -------------------------------
(Alfred C. DeCrane, Jr.)
* Director
- -------------------------------
(William C. Ferguson)
* Director
- -------------------------------
(Robert J. Gillespie)
* Director
- -------------------------------
(Ellen R. Gordon)
* Director
- -------------------------------
(George V. Grune)
* Director
- -------------------------------
(Leo I. Higdon, Jr.)
II-5
<PAGE>
* Director
- -------------------------------
(Richard G. Holder)
* Director
- -------------------------------
(Eileen S. Kraus)
* Director
- -------------------------------
(Alain Labergere)
* Director
- -------------------------------
(H. de C. Meirelles)
* Director
- -------------------------------
(William S. Norman)
*By /s/ Hanes A. Heller
--------------------------
(Hanes A. Heller)
Attorney-in-Fact
II-6
<PAGE>
Exhibit Index to Exhibits Page
No. Number
1* Proposed form of Underwriting Agreement (including
form of Delayed Delivery
Contract).
4.1 Indenture dated as of April 15, 1988 between the
Registrant and Bankers Trust Company, as Trustee.
Incorporated by reference to Exhibit 4.1 to the
Company's Registration Statement on Form S-3 (File
No. 33-20813) as filed on March 24, 1988.
4.2 First Supplemental Indenture and Amendment dated
as of March 2, 1994 to the Indenture dated as of
April 15, 1988 between the Registrant and Bankers
Trust Company, as Trustee. Incorporated by
reference to Exhibit 4.2 to the Company's
Registration Statement on Form S-3 (File No.
33-65171) as filed on December 20, 1995.
4.3 Form of Registered Debt Security. Incorporated by
reference to Exhibit 4.3 to the Company's
Registration Statement on Form S-3 (File No.33-
52213) as filed on February 9, 1994.
4.4 Form of Bearer Debt Security. Incorporated by
reference to Exhibit 4.4 to the Company's
Registration Statement on Form S-3 (File No. 33-
52213) as filed on February 9, 1994.
5* Opinion of Hanes A. Heller, Esq., Vice President,
General Counsel and Secretary of the Registrant.
12* Statement regarding computation of ratios of
earnings to fixed charges.
23.1* Consent of KPMG Peat Marwick LLP, independent
accountants.
23.2* Consent of Hanes A. Heller, Esq., Vice President,
General Counsel and Secretary of the Registrant
(included in opinion filed as Exhibit 5).
24* Powers of attorney.
25* Form T-1, Statement of Eligibility of Bankers
Trust Company, as Trustee, under the Indenture
between the Registrant and Bankers Trust Company,
as Trustee.
- ----------------------------
* Filed herewith.
II-7
EXHIBIT 1
Bestfoods
[Title of Debt Securities]
Underwriting Agreement
New York, New York
[Date]
To the Representatives named
in Schedule I hereto of
the Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
Bestfoods, a Delaware corporation (the "Company"), proposes to sell to the
underwriters named in Schedule II hereto (the "Underwriters"), for whom you are
acting as representatives (the "Representatives"), the principal amount of its
securities identified in Schedule I hereto (the "Securities") to be issued under
an indenture dated as of April 15, 1988, as amended by the First Supplemental
Indenture and Amendment dated March 2, 1994 (collectively, the "Indenture")
between the Company and Bankers Trust Company, as trustee (the "Trustee"). If
the firm or firms listed in Schedule II hereto include only the firm or firms
listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives," as used herein, shall each be deemed to refer to such firm or
firms.
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, each Underwriter as set forth below in this Section 1. Certain
terms used in this Section 1 are defined in paragraph (c) hereof.
a. If the offering of the Securities is a Delayed Offering (as
specified in Schedule I hereto), paragraph (i) below is applicable, and if
the offering of the Securities is a Non-Delayed Offering (as so specified),
paragraph (ii) below is applicable.
(i) The Company meets the requirements for the use of Form S-3
under the Securities Act of 1933 (the
<PAGE>
-2-
"Act") and has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (the file number of which is
set forth in Schedule I hereto) on such Form, including a basic
prospectus, for registration under the Act of the offering and sale of
the Securities. The Company may have filed one or more amendments
thereto, and may have used a Preliminary Final Prospectus, each of
which has previously been furnished to you. Such registration
statement, as so amended, has become effective. The offering of the
Securities is a Delayed Offering and, accordingly, it is not necessary
that any further information, with respect to the Securities and the
offering thereof required by the Act and the rules thereunder to be
included in the Final Prospectus, be included in an amendment to such
registration statement prior to the Effective Date. The Company will
next file with the Commission pursuant to Rules 415 and 424(b)(2) or
(5) a final supplement to the form of prospectus included in such
registration statement relating to the Securities and the offering
thereof. As filed, such final prospectus supplement shall include all
required information with respect to the Securities and the offering
thereof and, except to the extent the Representatives shall agree in
writing to a modification, shall be in all substantive respects in the
form furnished to you prior to the Execution Time or, to the extent
not completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond those contained in
the Basic Prospectus and any Preliminary Final Prospectus) as the
Company has advised you, prior to the Execution Time, will be included
or made therein.
(ii) The Company meets the requirements for the use of Form S-3
under the Act and has filed with the Commission a registration
statement (the file number of which is set forth in Schedule I hereto)
on such Form, including a basic prospectus, for registration under the
Act of the offering and sale of the Securities. The Company may have
filed one or more amendments thereto, including a Preliminary Final
Prospectus, each of which has previously been furnished to you. The
Company will next file with the Commission either (x) a final
prospectus supplement relating to the Securities in accordance with
Rules 430A and 424(b)(1) or (4), or (y) prior to the effectiveness
<PAGE>
-3-
of such registration statement, an amendment to such registration
statement, including the form of final prospectus supplement. In the
case of clause (x), the Company has included in such registration
statement, as amended at the Effective Date, all information (other
than Rule 430A Information) required by the Act and the rules
thereunder to be included in the Final Prospectus with respect to the
Securities and the offering thereof. As filed, such final prospectus
supplement or such amendment and form of final prospectus supplement
shall contain all Rule 430A Information, together with all other such
required information, with respect to the Securities and the offering
thereof and, except to the extent the Representatives shall agree in
writing to a modification, shall be in all substantive respects in the
form furnished to you prior to the Execution Time or, to the extent
not completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond those contained in
the Basic Prospectus and any Preliminary Final Prospectus) as the
Company has advised you, prior to the Execution Time, will be included
or made therein.
b. On the Effective Date, the Registration Statement did or will, and
when the Final Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date, the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the
applicable requirements of the Act and the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and the respective rules thereunder; on
the Effective Date, the Registration Statement did not or will not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading; on the Effective Date and on the Closing Date the Indenture
did or will comply in all material respects with the requirements of the
Trust Indenture Act of 1939 (the "Trust Indenture Act") and the rules
thereunder; and, on the Effective Date, the Final Prospectus, if not filed
pursuant to Rule 424(b), did not or will not, and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus
(together with any supplement thereto) will not, include any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, how-
<PAGE>
-4-
ever, that the Company makes no representations or warranties as to (i)
that part of the Registration Statement which shall constitute the
Statement of Eligibility (Form T-1) under the Trust Indenture Act of the
Trustee or (ii) the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any supplement thereto)
in reliance upon and in conformity with information furnished in writing to
the Company by or on behalf of any Underwriter through the Representatives
specifically for use in connection with the preparation of the Registration
Statement or the Final Prospectus (or any supplement thereto).
c. The terms which follow, when used in this Agreement, shall have the
meanings indicated. The term "Effective Date" shall mean each date that the
Registration Statement and any post-effective amendment or amendments
thereto became or become effective. "Execution Time" shall mean the date
and time that this Agreement is executed and delivered by the parties
hereto. "Basic Prospectus" shall mean the prospectus referred to in
paragraph (a) above contained in the Registration Statement at the
Effective Date including, in the case of a Non-Delayed Offering, any
Preliminary Final Prospectus. "Preliminary Final Prospectus" shall mean any
preliminary prospectus supplement to the Basic Prospectus which describes
the Securities and the offering thereof and is used prior to filing of the
Final Prospectus. "Final Prospectus" shall mean the prospectus supplement
relating to the Securities that is first filed pursuant to Rule 424(b)
after the Execution Time, together with the Basic Prospectus or, if, in the
case of a Non-Delayed Offering, no filing pursuant to Rule 424(b) is
required, shall mean the form of final prospectus relating to the
Securities, including the Basic Prospectus, included in the Registration
Statement at the Effective Date. "Registration Statement" shall mean the
registration statement referred to in paragraph (a) above, including
incorporated documents, exhibits and financial statements, as amended at
the Execution Time (or, if not effective at the Execution Time, in the form
in which it shall become effective) and, in the event any post-effective
amendment thereto becomes effective prior to the Closing Date (as
hereinafter defined), shall also mean such registration statement as so
amended. Such term shall include any Rule 403A Information deemed to be
included therein at the Effective Date as provided by Rule 430A. "Rule
415", "Rule 424", "Rule 430A" and "Regulation SK" refer to such rules and
regulations under
<PAGE>
-5-
the Act. "Rule 430A Information" means information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A. Any
reference herein to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
pursuant to item 12 of Form S-3 which were filed under the Exchange Act on
or before the Effective Date of the Registration Statement or the issue
date of the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be,
deemed to be incorporated therein by reference. A "Non-Delayed Offering"
shall mean an offering of Securities which is intended to commence promptly
after the effective date of a registration statement, with the result that,
pursuant to Rules 415 and 430A, all information (other than Rule 430A
Information) with respect to the Securities so offered must be included in
such registration statement at the effective date thereof. A "Delayed
Offering" shall mean an offering of Securities pursuant to Rule 415 which
does not commence promptly after the effective date of a registration
statement with the result that only information required pursuant to Rule
415 need be included in such registration statement at the effective date
thereof with respect to the Securities so offered. Whether the offering of
the Securities is a Non-Delayed Offering or a Delayed Offering shall be set
forth in Schedule I hereto.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto, the principal amount of Securities set forth opposite such
Underwriter's name in Schedule II hereto, except that, if Schedule I hereto
provides for the sale of Securities pursuant to delayed delivery arrangements,
the respective principal amounts of Securities to be purchased by
<PAGE>
-6-
the Underwriters shall be as set forth in Schedule II hereto less the respective
amounts of Contract Securities determined as provided below. Securities to be
purchased by the Underwriters are herein sometimes called the "Underwriters'
Securities" and Securities to be purchased pursuant to Delayed Delivery
Contracts as hereinafter provided are herein called "Contract Securities."
If so provided in Schedule I hereto, the Underwriters are authorized to
solicit offers to purchase Securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts") substantially in the form of
Schedule III hereto but with such changes therein as the Company may authorize
or approve. The Underwriters will endeavor to make such arrangements and, as
compensation therefor, the Company will pay to the Representatives, for the
account of the Underwriters, on the Closing Date, the percentage set forth in
Schedule I hereto of the principal amount of the Securities for which Delayed
Delivery Contracts are made. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable
institutions. The Company will enter into Delayed Delivery Contracts in all
cases where sales of Contract Securities arranged by the Underwriters have been
approved by the Company but, except as the Company may otherwise agree, each
such Delayed Delivery Contract must be for not less than the minimum principal
amount set forth in Schedule I hereto and the aggregate principal amount of
Contract Securities may not exceed the maximum aggregate principal amount set
forth in Schedule I hereto. The Underwriters will not have any responsibility in
respect of the validity or performance of Delayed Delivery Contracts. The
principal amount of Securities to be purchased by each Underwriter as set forth
in Schedule II hereto shall be reduced by an amount which shall bear the same
proportion to the total principal amount of Contract Securities as the principal
amount of Securities set forth opposite the name of such Underwriter bears to
the aggregate principal amount set forth in Schedule II hereto, except to the
extent that you determine that such reduction shall be otherwise than in such
proportion and so advise the Company in writing; provided, however, that the
total principal amount of Securities to be purchased by all Underwriters shall
be the aggregate principal amount set forth in Schedule II hereto less the
aggregate principal amount of Contract Securities.
3. Delivery and Payment. Delivery of and payment for the Underwriters'
Securities shall be made at the office,
<PAGE>
-7-
on the date and at the time specified in Schedule I hereto (or such later date
not later than five business days after such specified date as the
Representatives shall designate), which date and time may be postponed by
agreement between the Representatives and the Company or as provided in Section
8 hereof (such date and time of delivery and payment for the Underwriters'
Securities being herein called the "Closing Date"). Delivery of the
Underwriters' Securities shall be made to the Representatives for the respective
accounts of the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by certified or official bank
check or checks drawn on or by a New York Clearing House bank and payable in
next day funds or by wire transfer in same-day funds to an account or accounts
designated by the Company (the Company shall pay the Representatives the
overnight cost of providing such immediately available funds). Certificates for
the Underwriters' Securities shall be registered in such names and in such
denominations as the Representatives may request not less than two full business
days in advance of the Closing Date.
The Company agrees to have the Underwriters' Securities available for
inspection, checking and packaging by the Representatives in New York, New York,
not later than 1:00 P.M. on the business day prior to the Closing Date.
4. Agreements. The Company agrees with the several Underwriters that:
a. The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereto, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment to the Registration
Statement or supplement (including the Final Prospectus or any Preliminary
Final Prospectus) to the Basic Prospectus unless the Company has furnished
you with a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object. Subject to
the foregoing sentence, the Company will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within the
time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly advise the
Representatives (i) when the Registration Statement, if not effective at
the Execution Time, and any amendment
<PAGE>
-8-
thereto, shall have become effective, (ii) when the Final Prospectus, and
any supplement thereto, shall have been filed with the Commission pursuant
to Rule 424(b), (iii) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (iv) of any request by the Commission for any
amendment of the Registration Statement or supplement to the Final
Prospectus or for any additional information, (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (vi) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
b. If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it shall be necessary to
amend the Registration Statement or supplement the Final Prospectus to
comply with the Act or the Exchange Act or the respective rules thereunder,
the Company promptly will prepare and file with the Commission, subject to
the second sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or effect such
compliance.
c. As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earning statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
d. The Company will furnish to the Representatives and counsel for the
Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies of
<PAGE>
-9-
any Preliminary Final Prospectus and the Final Prospectus and any
supplement thereto as the Representatives may reasonably request. The
Company will pay the expenses of printing or other production of all
documents relating to the offering.
e. The Company will furnish to the Representatives and their counsel
such information as may be reasonably required by, and otherwise to
cooperate with, the Representatives in qualifying the Securities for
offering and sale under the securities or blue sky laws of such states as
the Representatives may designate (including the provisions of Florida blue
sky law, if requested, relating to issuers doing business with Cuba) and to
maintain such qualifications in effect as long as required for the
distribution of the Securities, provided that the Company shall not be
required to qualify as a foreign corporation or a dealer or to consent to
the service of process under the laws of any such state (except service of
process with respect to the offering and sale of the Securities) or to take
any action which would or could subject the Company to taxation in any
state where it is not now so subject; and promptly advise the
Representatives of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities for sale
in any jurisdiction or the initiation or threatening of any proceeding for
such purpose.
5. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Underwriters' Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
a. If the Registration Statement has not become effective prior to the
Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 P.M., New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 P.M.,
New York City time, on such date or (ii) 12:00 Noon, New York City time, on
the business day following the day on which the public offering price was
determined, if such determination occurred after 3:00
<PAGE>
-10-
P.M., New York City time, on such date; if filing of the Final Prospectus,
or any supplement thereto, is required pursuant to Rule 424(b), the Final
Prospectus, and any such supplement, shall have been filed in the manner
and within the time period required by Rule 424(b); and no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or
threatened.
b. The Company shall have furnished to the Representatives the opinion
of Hanes A. Heller, Esq., Vice President, General Counsel and Secretary for
the Company, dated the Closing Date, to the effect that:
(i) each of the Company and the Subsidiaries of the Company set
forth in Schedule IV hereto (individually a "Subsidiary" and
collectively the "Subsidiaries") has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the jurisdiction in which it is chartered or organized (which
jurisdiction is set forth in Schedule IV hereto), with full corporate
power and authority to own its properties and conduct its business as
described in the Final Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing under the
laws of each jurisdiction which requires such qualification wherein it
owns or leases material properties or conducts material business;
(ii) all the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and, except as otherwise set forth in
the Final Prospectus, all outstanding shares of capital stock of the
Subsidiaries are owned by the Company either directly or through
wholly owned subsidiaries free and clear of any perfected security
interest and, to the knowledge of such counsel after due inquiry, any
other security interests, claims, liens or encumbrances;
(iii) the Company's authorized equity capitalization is as set
forth in the Final Prospectus; the Securities conform in all material
respects to the description thereof contained in the Final Prospectus;
[if the Securities are to be listed on any stock exchange, insert: and
authorization for listing on the
<PAGE>
-11-
_______ Exchange has been given, subject to official notice of
issuance and evidence of satisfactory distribution, or the Company has
filed a preliminary listing application and all required supporting
documents with respect to the Securities with such stock exchange and
such counsel has no reason to believe that the Securities will not be
authorized for listing, subject to official notice of issuance and
evidence of satisfactory distribution;]
(iv) to the best knowledge of such counsel, there is no pending
or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries, of a character required to be
disclosed in the Registration Statement which is not adequately
disclosed in the Final Prospectus, and there is no franchise, contract
or other document of a character required to be described in the
Registration Statement or Final Prospectus, or to be filed as an
exhibit, which is not described or filed as required; and the
statements included or incorporated in the Final Prospectus describing
any legal proceedings or material contracts or agreements relating to
the Company fairly summarize such matters in all material respects;
(v) no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the
transactions contemplated herein or in any Delayed Delivery Contract,
except such as have been obtained under the Act and such as may be
required under the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the
Underwriters and such other approvals (specified in such opinion) as
have been obtained;
(vi) neither the execution and delivery of the Indenture nor the
issue and sale of the Securities nor the consummation of any other of
the transactions herein contemplated nor the fulfillment of the terms
hereof or of any Delayed Delivery Contract will conflict with, result
in a breach of or constitute a default under the charter or by-laws of
the Company or the terms of any indenture or other agreement or
instrument known to such counsel and to which the Company or any of
its subsidiaries is a party or bound,
<PAGE>
-12-
or any order or regulation known to such counsel to be applicable to
the Company or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its subsidiaries, except as
such conflict, breach or default which, whether individually or in the
aggregate, would not be expected to have a material adverse effect on
the operations, business or financial condition of the Company and the
Subsidiaries, taken as a whole; and
(vii) no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
In addition, such counsel shall state that it has participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants of the Company and
representatives of the Underwriters, at which the contents of the
Registration Statement and Prospectus were discussed and, although such
counsel has not independently verified, is not passing upon and does not
assume responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement or Prospectus, no facts
have come to the attention of such counsel, in the course of such
participation, that cause it to believe that the Registration Statement, or
any post-effective amendment thereto, as of the date it was declared
effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading, or that the Prospectus or any
supplement thereto, at the date of such Prospectus or such supplement and
at all times up to and including the Closing Date, contained or contains an
untrue statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being understood that such counsel need express no
opinion with respect to the financial statements and schedules and other
financial and statistical data included in the Registration Statement or
Prospectus or with respect to the Trustee's Statement of Eligibility on
Form T-1).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any
<PAGE>
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jurisdiction other than the corporate laws of the State of Delaware or the
laws of the State of New York or the United States, to the extent deemed
proper and specified in such opinion, upon the opinion of other counsel of
good standing believed to be reliable and who are satisfactory to counsel
for the Underwriters and (B) as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the Company and public
officials. References to the Final Prospectus in this paragraph (b) include
any supplements thereto at the Closing Date.
c. The Company shall have furnished to the Representatives the opinion
of a law firm designated by the Company and reasonably acceptable to the
Representatives or from Hanes A. Heller, Esq., Vice President, General
Counsel and Secretary for the Company, dated the Closing Date, to the
effect that:
(i) the Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act, and assuming due authorization, execution and delivery
thereof by the Trustee, constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with its
terms, except as enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or other laws relating to or
affecting creditors' rights generally, by general equitable principles
(regardless of whether such enforceability is considered in a
proceeding in equity or at law) or by an implied covenant of good
faith and fair dealing; and the Securities have been duly authorized
and, when executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the Underwriters
pursuant to this Agreement, in the case of the Underwriters'
Securities, or by the purchasers thereof pursuant to Delayed Delivery
Contracts, in the case of any Contract Securities, will constitute
legal, valid and binding obligations of the Company entitled to the
benefits of the Indenture, except as enforceability may be limited by
bankruptcy, reorganization, insolvency, moratorium or other laws
relating to or affecting creditors' rights generally, by general
equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law) or by an implied
covenant of good faith and fair dealing;
<PAGE>
-14-
(ii) the Registration Statement and any amendments thereof have
become effective under the Act; any required filing of the Basic
Prospectus, any Preliminary Final Prospectus and the Final Prospectus,
and any supplements thereto, pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b); and to
the best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement as amended has been
issued, no proceedings for that purpose have been instituted or
threatened, and the Registration Statement and the Final Prospectus
(other than the financial statements and other financial and
statistical information contained therein as to which such counsel
need express no opinion) comply as to form in all material respects
with the applicable requirements of the Act and the Exchange Act and
the respective rules and regulations thereunder; and
(iii) this Agreement and any Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Company.
In addition, such counsel shall state that it has participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants of the Company and
representatives of the Underwriters, at which the contents of the
Registration Statement and Prospectus were discussed and, although such
counsel has not independently verified, is not passing upon and does not
assume responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement or Prospectus, no facts
have come to the attention of such counsel, in the course of such
participation, that cause it to believe that the Registration Statement, or
any post-effective amendment thereto, as of the date it was declared
effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading, or that the Prospectus or any
supplement thereto, at the date of such Prospectus or such supplement and
at all times up to and including the Closing Date, contained or contains an
untrue statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being under-
<PAGE>
-15-
stood that such counsel need express no opinion with respect to the
financial statements and schedules and other financial and statistical data
included in the Registration Statement or Prospectus or with respect to the
Trustee's Statement of Eligibility on Form T-1).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
corporate laws of the State of Delaware or the laws of the State of New
York or the United States, to the extent deemed proper and specified in
such opinion, upon the opinion of other counsel of good standing believed
to be reliable and who are satisfactory to counsel for the Underwriters and
(B) as to matters of fact, to the extent deemed proper, on certificates of
responsible officers of the Company and public officials. References to the
Final Prospectus in this paragraph (c) include any supplements thereto at
the Closing Date.
d. The Representatives shall have received from a law firm, which law
firm shall be designated by the Company and approved by the Representatives
to act as counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the Securities, the
Indenture, any Delayed Delivery Contracts, the Registration Statement, the
Final Prospectus (together with any supplement thereto) and other related
matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
e. The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President or a Senior Vice President and the Treasurer or the Comptroller
of the Company, dated the Closing Date, to the effect that the signers of
such certificate have carefully examined the Registration Statement, the
Final Prospectus, any supplement to the Final Prospectus and this Agreement
and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as to
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
the Closing Date;
<PAGE>
-16-
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the actual knowledge of such
officers, threatened; and
(iii) since the date of the most recent financial statements
included in the Final Prospectus (exclusive of any supplement
thereto), there has been no material adverse change in the condition
(financial or other), earnings, business or properties of the Company
and its subsidiaries, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in
the Final Prospectus (exclusive of any supplement thereto).
f. The Representatives shall have received from the Company's
independent public accountants letters dated, respectively, as of the
Execution Time and the Closing Date, and addressed to the Underwriters
containing statements and information of the type customarily included in
accountants' "comfort letters" to underwriters.
g. Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exercise of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (e) of this Section 5 or
(ii) any change, or any development involving a prospective change, in or
affecting the business or properties of Company or its subsidiaries, the
effect of which in any case referred to in clause (i) or (ii) above is, in
the reasonable judgment of the Representatives, so material and adverse as
to make it impractical or inadvisable to proceed with the offering or the
delivery of the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus (exclusive of
any supplement thereto).
h. Subsequent to the Execution Time, there shall not have been any
decrease in the ratings of any of the Company's debt securities by Moody's
Investors Service, Inc. or Standard & Poor's Corporation.
<PAGE>
-17-
i. Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
j. The Company shall have accepted Delayed Delivery Contracts in any
case where sales of Contract Securities arranged by the Underwriters have
been approved by the Company.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives. Notice of such cancellation
shall be given to the Company in writing or by telephone or telegraph confirmed
in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 5 hereof is not satisfied, because of
any termination pursuant to Section 9 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally upon
demand for all reasonable out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution. a. The Company agrees to indemnify and
hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of a material
fact contained in the registration statement for the registration of the
Securities as originally filed or
<PAGE>
-18-
in any amendment thereof, or in the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that (i) the Company will
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for use in
connection with the preparation thereof and (ii) such indemnity with respect to
the Basic Prospectus or any Preliminary Final Prospectus shall not inure to the
benefit of any Underwriter (or any person controlling such Underwriter) from
whom the person asserting any such loss, claim, damage or liability purchased
the Securities which are the subject thereof if such person did not receive a
copy of the Final Prospectus (or the Final Prospectus as supplemented) excluding
documents incorporated therein by reference at or prior to the confirmation of
the sale of such Securities to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a material fact
contained in the Basic Prospectus or any Preliminary Final Prospectus was
corrected in the Final Prospectus (or the Final Prospectus as supplemented).
This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
b. Each Underwriter severally agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for use in the preparation
of the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any Underwriter may
otherwise have. The Company acknowledges that the statements set forth in the
last paragraph of the cover page, under the headings "Underwriting" and "Plan of
Distribution" and, if Schedule I hereto provides
<PAGE>
-19-
for sales of Securities pursuant to delayed delivery arrangements, in the last
sentence under the heading "Delayed Delivery Arrangements" in any Preliminary
Final Prospectus or the Final Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for inclusion
in the documents referred to in the foregoing indemnity, and you as the
Representatives, confirm that such statements are correct.
c. Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 7. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to appoint counsel satisfactory to such
indemnified party to represent the indemnified party in such action; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to appoint counsel to defend such action
and approval by the indemnified party of such counsel, the indemnifying party
will not be liable to such indemnified party under this Section 7 for any legal
or other expense subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel, approved by the
Representatives in the case of paragraph (a) of this Section 7, representing the
indemnified parties under such paragraph (a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the
<PAGE>
-20-
indemnified party at the expense of the indemnifying party; and except that, if
clause (i) or (iii) is applicable, such liability shall be only in respect of
the counsel referred to in such clause (i) or (iii).
d. In order to provide for just and equitable contribution in circumstances
in which the indemnification provided for in paragraph (a) of this Section 7 is
due in accordance with its terms but is for any reason held by a court to be
unavailable from the Company on grounds of policy or otherwise, the Company and
the Underwriters shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) to which the Company and one or more of
the Underwriters may be subject in such proportion so that the Underwriters are
responsible for that portion represented by the percentage that the underwriting
discount bears to the sum of such discount and the purchase price of the
Securities specified in Schedule I hereto and the Company is responsible for the
balance; provided, however, that (y) in no case shall any Underwriter (except as
may be provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the underwriting
discount applicable to the Securities purchased by such Underwriter hereunder
and (z) no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of this
Section 7, each person who controls an Underwriter within the meaning of the Act
shall have the same rights to contribution as such Underwriter, and each person
who controls the Company within the meaning of either the Act or the Exchange
Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to clause (z) of this
paragraph (d). Any party entitled to contribution will, promptly after receipt
of notice of commencement of any action, suit or proceeding against such party
in respect of which a claim for contribution may be made against another party
or parties under this paragraph (d), notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise than under this
paragraph (d).
8. Default by an Underwriter. If any one or more Underwriters shall fail to
purchase and pay for any of the Se-
<PAGE>
-21-
curities agreed to be purchased by such Underwriter or Underwriters hereunder
and such failure to purchase shall constitute a default in the performance of
its or their obligations under this Agreement, the remaining Underwriters shall
be obligated severally to take up and pay for (in the respective proportions
which the amount of Securities set forth opposite their names in Schedule II
hereto bears to the aggregate amount of Securities set forth opposite the names
of all the remaining Underwriters) the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided, however,
that in the event that the aggregate amount of Securities which the defaulting
Underwriter or Underwriters agreed but fail to purchase shall exceed 10% of the
aggregate amount of Securities set forth in Schedule II hereto, the remaining
underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Securities, and if such nondefaulting
Underwriters do not purchase all the Securities, this Agreement will terminate
without liability to any nondefaulting Underwriter or the Company. In the event
of a default by any Underwriter as set forth in this Section 8, the closing date
shall be postponed for such period, not exceeding seven days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
9. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i) trading
in the Company's Common Stock shall have been suspended by the Commission or the
New York, Chicago or Pacific Stock Exchange or trading in securities generally
on the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (ii) a banking moratorium
shall have been declared either by Federal or New York State authorities or
(iii) there shall have occurred any outbreak or material escalation of
hostilities or other calamity or crisis the effect of which on the financial
markets of the United States is such as to make it, in the judgment of the
Representatives, impracticable to market the Securities.
10. Representation and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the
<PAGE>
-22-
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of any
Underwriter or the Company or any of the officers, directors or controlling
persons referred to in Section 7 hereof, and will survive delivery of an payment
for the Securities. The provisions of Sections 6 and 7 hereof shall survive the
termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telegraphed and confirmed to them, at the address specified in Schedule I
hereto; or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at International Plaza, P.O. Box 8000, Englewood Cliffs, New
Jersey 07632, attention of the Senior Vice President, Secretary and General
Counsel.
12. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7 hereof, and no other
person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of laws.
<PAGE>
-23-
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
BESTFOODS
By:______________________________
[Title]
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
[[Name of Representative]
- ----------------------------
(name of co-manager, if any)
By: [Name of Representative]
By: ________________________
[Title]
For themselves and the other sev-
eral Underwriters, if any,
named in Schedule II to the
Foregoing Agreement.]
[[Name of Representative]
By: ________________________
[Title]
For itself and the other sev-
eral Underwriters, if any,
named in Schedule II to the
Foregoing Agreement.]
<PAGE>
SCHEDULE I
Underwriting Agreement dated
Registration Statement No. 333-
Representative(s): [Name of Representative]
[Name of co-manager, if any]
[Address of Representative]
Attention:
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Purchase price (include accrued interest or amortization, if any):
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location:
Type of Offering: [Delayed Offering] [Non-Delayed Offering]
Delayed Delivery Arrangements:
Fee:
Minimum principal amount of each contract: $
Maximum aggregate principal amount of all contracts: $
<PAGE>
SCHEDULE II
Principal Amount
of Securities to
Underwriters Be Purchased
$
Total.......................................... $______________
<PAGE>
SCHEDULE III
Delayed Delivery Contract
[Date]
Name of Underwriter
[address]
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Bestfoods (the "Company"),
and the Company agrees to sell the undersigned, on ________, 19__ (the "Delivery
Date"), $______ principal amount of the Company's (the "Securities") offered by
the Company's prospectus dated ________, 19__, and related Prospectus Supplement
dated ________, 19__, receipt of a copy of which is hereby acknowledged, at a
price of __% of the principal amount thereof, plus [accrued interest]
[amortization of original issue discount], if any, thereon from _________, 19__,
to the date of payment and delivery, and on the further terms and conditions set
forth in this contract.
Payment for the Securities to be purchased by the undersigned shall be made
on or before 11:00 A.M., New York City time, on the Delivery Date to or upon the
order of the Company in New York Clearing House (next day) funds, at your office
or at such other place as shall be agreed between the Company and the
undersigned, upon delivery to the undersigned of the Securities in definitive
fully registered form and in such authorized denominations and registered in
such names as the undersigned may request by written or telegraphic
communication addressed to the Company not less than three full business days
prior to the Delivery Date. If no request is received, the Securities will be
registered in the name of the undersigned and issued in a denomination equal to
the aggregate principal amount of Securities to be purchased by the undersigned
on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date, and the obligation of the Company to sell and
deliver Securities on the Delivery Date, shall be subject to the conditions (and
neither party shall incur any liability by reason of the failure
<PAGE>
-2-
thereof) that (1) the purchase of Securities to be made by the undersigned,
which purchase the undersigned represents is not prohibited on the date hereof,
shall not on the Delivery Date be prohibited under the laws of the jurisdiction
to which the undersigned is subject and (2) the Company, on or before the
Delivery Date, shall have sold to certain underwriters (the "Underwriters") such
principal amount of the Securities as is to be sold to them pursuant to the
Underwriting Agreement referred to in the Prospectus and Prospectus Supplement
mentioned above. Promptly after completion of such sale to the Underwriters, the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by a copy of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith. The obligation of
the undersigned to take delivery of and make payment for the Securities, and the
obligation of the Company to cause the Securities to be sold and delivered,
shall not be affected by the failure of any purchaser to take delivery of and
make payment for the Securities pursuant to other contracts similar to this
contract.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract is
acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
<PAGE>
This agreement shall be governed by and construed in accordance with the
laws of the State of New York, without regard to the principles of conflicts of
laws.
Very truly yours,
---------------------------------
(Name of Purchaser)
By ______________________________
(Signature and Title of
Officer)
---------------------------------
(Address)
Accepted:
Bestfoods
By ____________________
[Title]
<PAGE>
SCHEDULE IV
Bestfoods
Jurisdiction of
Subsidiaries Incorporation
Arnold Foods Company, Inc. Delaware
Best Foods-Caribbean, Inc. Delaware
S. B. Thomas, Inc. New York
Entenmann's, Inc. Delaware
EXHIBIT 5
September 25, 1998
Board of Directors
Bestfoods
International Plaza
P.O. Box 8000
Englewood Cliffs, NJ 07632
Ladies and Gentlemen:
I am Vice President, General Counsel and Secretary of Bestfoods (the
"Company") and am rendering this opinion in connection with the shelf
registration by the Company of debt securities (the "Debt Securities") in an
aggregate initial public offering price of up to $500,000,000 for issuance from
time to time pursuant to Rule 415 under the Securities Act of 1933, as amended.
In arriving at the opinion expressed below, I have examined and relied on
the Registration Statement on Form S-3 as filed by the Company with the
Securities and Exchange Commission on September 25, 1998 (the "Registration
Statement") and the exhibits thereto, including the indenture dated as of April
15, 1988, as amended by the first supplemental indenture and amendment dated
March 2, 1994 between the Company and Bankers Trust Company, as trustee
(collectively the "Indenture"), under which the Debt Securities are to be issued
and the proposed forms of certain Debt Securities. In addition, I have examined
and relied on originals or copies, certified or otherwise identified to my
satisfaction, of all such corporate records of the Company and such other
instruments and other certificates of public officials, officers and
representatives of the Company and such other persons, and have made such
investigations of law, as I have deemed appropriate as a basis for the opinions
expressed below. In rendering the opinions expressed below, I have assumed and
have not verified that the signatures on all documents I have examined are
genuine, and that the definitive documents will conform to the forms thereof
that I have examined.
Based on the foregoing, I advise you that in my opinion:
1. The Debt Securities have been validly authorized for issuance, and when
duly authorized, executed, authenticated, issued and delivered in accordance
with the terms of the Indenture, will be valid and legally binding obligations
of the Company in accordance with and subject to the terms thereof and of the
Indenture.
<PAGE>
-2-
2. The Indenture has been duly authorized and executed by the Company and,
assuming due authorization and execution by the Trustee, constitutes a valid,
binding and enforceable agreement of the Company.
Insofar as the foregoing opinions relate to legality, validity, binding
effect or enforceability of any instrument or agreement, such opinions are
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or
at law).
As a member of the Bar of the State of New York and Vice President, General
Counsel and Secretary of the Company, I hereby consent to the filing of this
opinion as Exhibit 5 to the Registration Statement and to the use of my name
under the caption "Legal Matters" in the Registration Statement and related
prospectus.
Very truly yours,
/s/ Hanes A. Heller
------------------------
Hanes A. Heller
EXHIBIT 12
<TABLE>
<CAPTION>
BESTFOODS AND SUBSIDIARIES
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
For the
six
($ Millions) months
ended For the years ended December 31,
June 30, 1998 1997 1996 1995 1994 1993
-----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Income from Continuing
Operations before Income Taxes $492.9 $704.2 $880.2 $654.9 $446.6 $624.4
- ------------------------------
-----------------------------------------------------------------------------
Add (subtract):
Portion of rents representative of
interest 16.6 32.2 33.4 25.6 24.6 20.2
Interest on bonds, mortgages &
similar debt 61.6 100.9 68.4 52.6 50.1 53.6
Other interest 28.3 72.8 100.0 55.7 33.9 42.4
Interest expense included in cost of
plant construction (1.7) (3.4) (4.8) (3.7) (4.2) (5.6)
Income of unconsolidated venture - - - - 3.9 -
----------------- ----------- ----------- ----------- ----------- -----------
Income as adjusted $597.7 $906.7 $1,077.2 $785.1 $554.9 $735.0
----------------- ----------- ----------- ----------- ----------- -----------
Fixed Charges:
Portion of rents representative of
interest $16.6 $32.2 $33.4 $25.6 $24.6 $20.2
Interest on bonds, mortgages &
similar debt 61.6 100.9 68.4 52.6 50.1 53.6
Other interest 28.3 72.8 100.0 55.7 33.9 42.4
----------------- ----------- ----------- ----------- ----------- -----------
$106.5 $205.9 $201.8 $133.9 $108.6 $116.2
----------------- ----------- ----------- ----------- ----------- -----------
Ratio of Earnings to
Fixed Charges 5.6 4.4 5.3 5.9 5.1 6.3
- -------------
----------------- ----------- ----------- ----------- ----------- -----------
</TABLE>
EXHIBIT 23.1
Consent of Independent Auditors
The Board of Directors
Bestfoods
We consent to the use of our report incorporated herein by reference and to
the reference to our firm under the heading "Experts" in the Prospectus.
KPMG Peat Marwick LLP
/s/ KPMG Peat Marwick LLP
New York, New York
September 25, 1998
===============================================================================
POWER OF ATTORNEY
Registration Statement on Form S-3
Relating to Shelf Registration of Debt Securities
===============================================================================
KNOW ALL MEN BY THESE PRESENTS, that I, a director of Bestfoods, a Delaware
corporation (the "Company"), do hereby constitute and appoint ROBERT S. GLUCK
and HANES A. HELLER, and each of them severally, as my true and lawful
attorneys, for me and in my name, place and stead, to execute the Registration
Statement on Form S-3 relating to the sale of Debt Securities of the Company and
any and all amendments thereto, and to file the same (together with any exhibits
thereto) and other documents in connection therewith with the Securities and
Exchange Commission, granting unto each of said attorneys, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in the premises as fully as and to the same extent that I might or
could do in person, thereby ratifying and confirming all that each of said
attorneys may lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, I have executed this instrument this 15th day of
January, 1998.
/s/ Robert J. Gillespie
Robert J. Gillespie
<PAGE>
===============================================================================
POWER OF ATTORNEY
Registration Statement on Form S-3
Relating to Shelf Registration of Debt Securities
===============================================================================
KNOW ALL MEN BY THESE PRESENTS, that I, a director of Bestfoods, a Delaware
corporation (the "Company"), do hereby constitute and appoint ROBERT S. GLUCK
and HANES A. HELLER, and each of them severally, as my true and lawful
attorneys, for me and in my name, place and stead, to execute the Registration
Statement on Form S-3 relating to the sale of Debt Securities of the Company and
any and all amendments thereto, and to file the same (together with any exhibits
thereto) and other documents in connection therewith with the Securities and
Exchange Commission, granting unto each of said attorneys, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in the premises as fully as and to the same extent that I might or
could do in person, thereby ratifying and confirming all that each of said
attorneys may lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, I have executed this instrument this 19th day of
January, 1998.
/s/ Alain Labergere
Alain Labergere
<PAGE>
===============================================================================
POWER OF ATTORNEY
Registration Statement on Form S-3
Relating to Shelf Registration of Debt Securities
===============================================================================
KNOW ALL MEN BY THESE PRESENTS, that I, a director of Bestfoods, a Delaware
corporation (the "Company"), do hereby constitute and appoint ROBERT S. GLUCK
and HANES A. HELLER, and each of them severally, as my true and lawful
attorneys, for me and in my name, place and stead, to execute the Registration
Statement on Form S-3 relating to the sale of Debt Securities of the Company and
any and all amendments thereto, and to file the same (together with any exhibits
thereto) and other documents in connection therewith with the Securities and
Exchange Commission, granting unto each of said attorneys, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in the premises as fully as and to the same extent that I might or
could do in person, thereby ratifying and confirming all that each of said
attorneys may lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, I have executed this instrument this 20th day of
January, 1998.
/s/ Theodore H. Black
Theodore H. Black
<PAGE>
===============================================================================
POWER OF ATTORNEY
Registration Statement on Form S-3
Relating to Shelf Registration of Debt Securities
===============================================================================
KNOW ALL MEN BY THESE PRESENTS, that I, a director of Bestfoods, a Delaware
corporation (the "Company"), do hereby constitute and appoint ROBERT S. GLUCK
and HANES A. HELLER, and each of them severally, as my true and lawful
attorneys, for me and in my name, place and stead, to execute the Registration
Statement on Form S-3 relating to the sale of Debt Securities of the Company and
any and all amendments thereto, and to file the same (together with any exhibits
thereto) and other documents in connection therewith with the Securities and
Exchange Commission, granting unto each of said attorneys, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in the premises as fully as and to the same extent that I might or
could do in person, thereby ratifying and confirming all that each of said
attorneys may lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, I have executed this instrument this 18th day of
January, 1998.
/s/ Clateo Castellini
Clateo Castellini
<PAGE>
===============================================================================
POWER OF ATTORNEY
Registration Statement on Form S-3
Relating to Shelf Registration of Debt Securities
===============================================================================
KNOW ALL MEN BY THESE PRESENTS, that I, a director of Bestfoods, a Delaware
corporation (the "Company"), do hereby constitute and appoint ROBERT S. GLUCK
and HANES A. HELLER, and each of them severally, as my true and lawful
attorneys, for me and in my name, place and stead, to execute the Registration
Statement on Form S-3 relating to the sale of Debt Securities of the Company and
any and all amendments thereto, and to file the same (together with any exhibits
thereto) and other documents in connection therewith with the Securities and
Exchange Commission, granting unto each of said attorneys, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in the premises as fully as and to the same extent that I might or
could do in person, thereby ratifying and confirming all that each of said
attorneys may lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, I have executed this instrument this 19th day of
January, 1998.
/s/ Alfred C. DeCrane, Jr.
Alfred C. DeCrane, Jr.
<PAGE>
===============================================================================
POWER OF ATTORNEY
Registration Statement on Form S-3
Relating to Shelf Registration of Debt Securities
===============================================================================
KNOW ALL MEN BY THESE PRESENTS, that I, a director of Bestfoods, a Delaware
corporation (the "Company"), do hereby constitute and appoint ROBERT S. GLUCK
and HANES A. HELLER, and each of them severally, as my true and lawful
attorneys, for me and in my name, place and stead, to execute the Registration
Statement on Form S-3 relating to the sale of Debt Securities of the Company and
any and all amendments thereto, and to file the same (together with any exhibits
thereto) and other documents in connection therewith with the Securities and
Exchange Commission, granting unto each of said attorneys, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in the premises as fully as and to the same extent that I might or
could do in person, thereby ratifying and confirming all that each of said
attorneys may lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, I have executed this instrument this 16th day of
January, 1998.
/s/ William C. Ferguson
William C. Ferguson
<PAGE>
===============================================================================
POWER OF ATTORNEY
Registration Statement on Form S-3
Relating to Shelf Registration of Debt Securities
===============================================================================
KNOW ALL MEN BY THESE PRESENTS, that I, a director of Bestfoods, a Delaware
corporation (the "Company"), do hereby constitute and appoint ROBERT S. GLUCK
and HANES A. HELLER, and each of them severally, as my true and lawful
attorneys, for me and in my name, place and stead, to execute the Registration
Statement on Form S-3 relating to the sale of Debt Securities of the Company and
any and all amendments thereto, and to file the same (together with any exhibits
thereto) and other documents in connection therewith with the Securities and
Exchange Commission, granting unto each of said attorneys, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in the premises as fully as and to the same extent that I might or
could do in person, thereby ratifying and confirming all that each of said
attorneys may lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, I have executed this instrument this 19th day of
January, 1998.
/s/ Ellen R. Gordon
Ellen R. Gordon
<PAGE>
===============================================================================
POWER OF ATTORNEY
Registration Statement on Form S-3
Relating to Shelf Registration of Debt Securities
===============================================================================
KNOW ALL MEN BY THESE PRESENTS, that I, a director of Bestfoods, a Delaware
corporation (the "Company"), do hereby constitute and appoint ROBERT S. GLUCK
and HANES A. HELLER, and each of them severally, as my true and lawful
attorneys, for me and in my name, place and stead, to execute the Registration
Statement on Form S-3 relating to the sale of Debt Securities of the Company and
any and all amendments thereto, and to file the same (together with any exhibits
thereto) and other documents in connection therewith with the Securities and
Exchange Commission, granting unto each of said attorneys, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in the premises as fully as and to the same extent that I might or
could do in person, thereby ratifying and confirming all that each of said
attorneys may lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, I have executed this instrument this 20th day of
January, 1998.
/s/ George V. Grune
George V. Grune
<PAGE>
===============================================================================
POWER OF ATTORNEY
Registration Statement on Form S-3
Relating to Shelf Registration of Debt Securities
===============================================================================
KNOW ALL MEN BY THESE PRESENTS, that I, a director of Bestfoods, a Delaware
corporation (the "Company"), do hereby constitute and appoint ROBERT S. GLUCK
and HANES A. HELLER, and each of them severally, as my true and lawful
attorneys, for me and in my name, place and stead, to execute the Registration
Statement on Form S-3 relating to the sale of Debt Securities of the Company and
any and all amendments thereto, and to file the same (together with any exhibits
thereto) and other documents in connection therewith with the Securities and
Exchange Commission, granting unto each of said attorneys, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in the premises as fully as and to the same extent that I might or
could do in person, thereby ratifying and confirming all that each of said
attorneys may lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, I have executed this instrument this 20th day of
January, 1998.
/s/ Leo I. Higdon, Jr.
Leo I. Higdon, Jr.
<PAGE>
===============================================================================
POWER OF ATTORNEY
Registration Statement on Form S-3
Relating to Shelf Registration of Debt Securities
===============================================================================
KNOW ALL MEN BY THESE PRESENTS, that I, a director of Bestfoods, a Delaware
corporation (the "Company"), do hereby constitute and appoint ROBERT S. GLUCK
and HANES A. HELLER, and each of them severally, as my true and lawful
attorneys, for me and in my name, place and stead, to execute the Registration
Statement on Form S-3 relating to the sale of Debt Securities of the Company and
any and all amendments thereto, and to file the same (together with any exhibits
thereto) and other documents in connection therewith with the Securities and
Exchange Commission, granting unto each of said attorneys, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in the premises as fully as and to the same extent that I might or
could do in person, thereby ratifying and confirming all that each of said
attorneys may lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, I have executed this instrument this 20th day of
January, 1998.
/s/ Richard G. Holder
Richard G. Holder
<PAGE>
===============================================================================
POWER OF ATTORNEY
Registration Statement on Form S-3
Relating to Shelf Registration of Debt Securities
===============================================================================
KNOW ALL MEN BY THESE PRESENTS, that I, a director of Bestfoods, a Delaware
corporation (the "Company"), do hereby constitute and appoint ROBERT S. GLUCK
and HANES A. HELLER, and each of them severally, as my true and lawful
attorneys, for me and in my name, place and stead, to execute the Registration
Statement on Form S-3 relating to the sale of Debt Securities of the Company and
any and all amendments thereto, and to file the same (together with any exhibits
thereto) and other documents in connection therewith with the Securities and
Exchange Commission, granting unto each of said attorneys, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in the premises as fully as and to the same extent that I might or
could do in person, thereby ratifying and confirming all that each of said
attorneys may lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, I have executed this instrument this 20th day of
January, 1998.
/s/ Eileen S. Kraus
Eileen S. Kraus
<PAGE>
===============================================================================
POWER OF ATTORNEY
Registration Statement on Form S-3
Relating to Shelf Registration of Debt Securities
===============================================================================
KNOW ALL MEN BY THESE PRESENTS, that I, a director of Bestfoods, a Delaware
corporation (the "Company"), do hereby constitute and appoint ROBERT S. GLUCK
and HANES A. HELLER, and each of them severally, as my true and lawful
attorneys, for me and in my name, place and stead, to execute the Registration
Statement on Form S-3 relating to the sale of Debt Securities of the Company and
any and all amendments thereto, and to file the same (together with any exhibits
thereto) and other documents in connection therewith with the Securities and
Exchange Commission, granting unto each of said attorneys, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in the premises as fully as and to the same extent that I might or
could do in person, thereby ratifying and confirming all that each of said
attorneys may lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, I have executed this instrument this 26th day of
January, 1998.
/s/ Henrique de Campos Meirelles
Henrique de Campos Meirelles
<PAGE>
===============================================================================
POWER OF ATTORNEY
Registration Statement on Form S-3
Relating to Shelf Registration of Debt Securities
===============================================================================
KNOW ALL MEN BY THESE PRESENTS, that I, a director of Bestfoods, a Delaware
corporation (the "Company"), do hereby constitute and appoint ROBERT S. GLUCK
and HANES A. HELLER, and each of them severally, as my true and lawful
attorneys, for me and in my name, place and stead, to execute the Registration
Statement on Form S-3 relating to the sale of Debt Securities of the Company and
any and all amendments thereto, and to file the same (together with any exhibits
thereto) and other documents in connection therewith with the Securities and
Exchange Commission, granting unto each of said attorneys, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in the premises as fully as and to the same extent that I might or
could do in person, thereby ratifying and confirming all that each of said
attorneys may lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, I have executed this instrument this 19th day of
January, 1998.
/s/ William S. Norman
William S. Norman
<PAGE>
===============================================================================
POWER OF ATTORNEY
Registration Statement on Form S-3
Relating to Shelf Registration of Debt Securities
===============================================================================
KNOW ALL MEN BY THESE PRESENTS, that I, a director of Bestfoods, a Delaware
corporation (the "Company"), do hereby constitute and appoint ROBERT S. GLUCK
and HANES A. HELLER, and each of them severally, as my true and lawful
attorneys, for me and in my name, place and stead, to execute the Registration
Statement on Form S-3 relating to the sale of Debt Securities of the Company and
any and all amendments thereto, and to file the same (together with any exhibits
thereto) and other documents in connection therewith with the Securities and
Exchange Commission, granting unto each of said attorneys, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in the premises as fully as and to the same extent that I might or
could do in person, thereby ratifying and confirming all that each of said
attorneys may lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, I have executed this instrument this 20th day of
January, 1998.
/s/ Charles R. Shoemate
Charles R. Shoemate
- -------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE
ACT OF 1939 OF A CORPORATION DESIGNATED TO
ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ___________
----------------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
Bankers Trust Company
Legal Department
130 Liberty Street, 31st Floor
New York, New York 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
-----------------------------------------------
BESTFOODS
(Exact name of Registrant as specified in its charter)
Delaware 36-2385545
(State or other jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification no.)
International Plaza, P.O. Box 8000
Englewood Cliffs, New Jersey 07632
(201) 894-4000
(Address, including zip code, of principal executive offices)
$500,000,000 Debt Securities
(Title of the indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising authority to which
it is subject.
Name Address
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust powers. Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each such
affiliation.
None.
Item 3. -15. Not Applicable.
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of Bankers Trust Company
dated August 7, 1990, Certificate of Amendment of the
Organization Certificate of Bankers Trust Company dated June 21,
1995 - Incorporated herein by reference to Exhibit 1 filed with
Form T-1 Statement, Registration No. 33-65171, Certificate of
Amendment of the Organization Certificate of Bankers Trust
Company dated March 20, 1996, incorporated by reference to
Exhibit 1 filed with Form T-1 Statement, Registration No.
333-25843 and Certificate of Amendment of the Organization
Certificate of Bankers Trust Company dated June 19, 1997, copy
attached.
Exhibit 2 - Certificate of Authority to commence business -
Incorporated herein by reference to Exhibit 2 filed with Form
T-1 Statement, Registration No. 33-21047.
Exhibit 3 - Authorization of the Trustee to exercise corporate trust
powers - Incorporated herein by reference to Exhibit 2 filed
with Form T-1 Statement, Registration No. 33-21047.
-2-
<PAGE>
Exhibit 4 - Existing By-Laws of Bankers Trust Company, as amended on
November 18, 1997. Copy attached.
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company required by Section
321(b) of the Act. - Incorporated herein by reference to Exhibit
4 filed with Form T-1 Statement, Registration No. 22-18864.
Exhibit 7 - The latest report of condition of Bankers Trust Company
dated as of June 30, 1998. Copy attached.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on the 23rd day
of September, 1998.
BANKERS TRUST COMPANY
By: /s/ Susan Johnson
----------------------------------
Susan Johnson
Assistant Vice President
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on the 23rd day
of September, 1998.
BANKERS TRUST COMPANY
By: Susan Johnson
---------------------------------
Susan Johnson
Assistant Vice President
<PAGE>
STATE OF NEW YORK,
BANKING DEPARTMENT
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New York,
DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF AMENDMENT OF
THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8005 of the
Banking Law," dated June 19, 1997, providing for an increase in authorized
capital stock from $1,601,666,670 consisting of 100,166,667 shares with a par
value of $10 each designated as Common Stock and 600 shares with a par value of
$1,000,000 each designated as Series Preferred Stock to $2,001,666,670
consisting of 100,166,667 shares with a par value of $10 each designated as
Common Stock and 1,000 shares with a par value of $1,000,000 each designated as
Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of New
York, this 27th day of June in the Year of our Lord one thousand nine hundred
and ninety-seven.
Manuel Kursky
------------------------------
Deputy Superintendent of Banks
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of March, 1903.
3. The organization certificate as heretofore amended is hereby amended to
increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is One Billion, Six Hundred and One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($1,601,666,670), divided into One
Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(100,166,667) shares with a par value of $10 each designated as Common
Stock and 600 shares with a par value of One Million Dollars ($1,000,000)
each designated as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Two Billion One Million, Six Hundred Sixty-Six Thousand, Six
Hundred Seventy Dollars ($2,001,666,670), divided into One Hundred Million,
One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (100,166,667)
shares with a par value of $10 each designated as Com-
<PAGE>
mon Stock and 1000 shares with a par value of One Million Dollars
($1,000,000) each designated as Series Preferred Stock."
5. The foregoing amendment of the organization certificate was authorized
by unanimous written consent signed by the holder of all outstanding shares
entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 19th
day of June, 1997.
James T. Byrne, Jr.
---------------------------------
James T. Byrne, Jr.
Managing Director
Lea Lahtinen
---------------------------------
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is an Assistant
Secretary of Bankers Trust Company, the corporation described in the foregoing
certificate; that she has read the foregoing certificate and knows the contents
thereof, and that the statements herein contained are true.
Lea Lahtinen
---------------------------------
Lea Lahtinen
Sworn to before me this 19th day
of June, 1997.
Sandra L. West
- ---------------------------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
<PAGE>
BY-LAWS
NOVEMBER 18, 1997
Bankers Trust Company
New York
<PAGE>
BY-LAWS
of
Bankers Trust Company
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. The annual meeting of the stockholders of this Company shall be
held at the office of the Company in the Borough of Manhattan, City of New York,
on the third Tuesday in January of each year, for the election of directors and
such other business as may properly come before said meeting.
SECTION 2. Special meetings of stockholders other than those regulated by
statute may be called at any time by a majority of the directors. It shall be
the duty of the Chairman of the Board, the Chief Executive Officer or the
President to call such meetings whenever requested in writing to do so by
stockholders owning a majority of the capital stock.
SECTION 3. At all meetings of stockholders, there shall be present, either
in person or by proxy, stockholders owning a majority of the capital stock of
the Company, in order to constitute a quorum, except at special elections of
directors, as provided by law, but less than a quorum shall have power to
adjourn any meeting.
SECTION 4. The Chairman of the Board or, in his absence, the Chief
Executive Officer or, in his absence, the President or, in their absence, the
senior officer present, shall preside at meetings of the stockholders and shall
direct the proceedings and the order of business. The Secretary shall act as
secretary of such meetings and record the proceedings.
<PAGE>
ARTICLE II
DIRECTORS
SECTION 1. The affairs of the Company shall be managed and its corporate
powers exercised by a Board of Directors consisting of such number of directors,
but not less than ten nor more than twenty-five, as may from time to time be
fixed by resolution adopted by a majority of the directors then in office, or by
the stockholders. In the event of any increase in the number of directors,
additional directors may be elected within the limitations so fixed, either by
the stockholders or within the limitations imposed by law, by a majority of
directors then in office. One-third of the number of directors, as fixed from
time to time, shall constitute a quorum. Any one or more members of the Board of
Directors or any Committee thereof may participate in a meeting of the Board of
Directors or Committee thereof by means of a conference telephone or similar
communications equipment which allows all persons participating in the meeting
to hear each other at the same time. Participation by such means shall
constitute presence in person at such a meeting.
All directors hereafter elected shall hold office until the next annual
meeting of the stockholders and until their successors are elected and have
qualified. No person who shall have attained age 72 shall be eligible to be
elected or re-elected a director. Such director may, however, remain a director
of the Company until the next annual meeting of the stockholders of Bankers
Trust New York Corporation (the Company's parent) so that such director's
retirement will coincide with the retirement date from Bankers Trust New York
Corporation.
No Officer-Director who shall have attained age 65, or earlier relinquishes
his responsibilities and title, shall be eligible to serve as a director.
SECTION 2. Vacancies not exceeding one-third of the whole number of the
Board of Directors may be filled by the affirmative vote of a majority of the
directors then in office, and the directors so elected shall hold office for the
balance of the unexpired term.
SECTION 3. The Chairman of the Board shall preside at meetings of the Board
of Directors. In his absence, the Chief Executive Officer or, in his absence,
such other director as the Board of Directors from time to time may designate
shall preside at such meetings.
SECTION 4. The Board of Directors may adopt such Rules and Regulations for
the conduct of its meetings and the management of the affairs of the Company as
it may deem proper, not inconsistent with the laws of the State of New
<PAGE>
York, or these By-Laws, and all officers and employees shall strictly adhere to,
and be bound by, such Rules and Regulations.
SECTION 5. Regular meetings of the Board of Directors shall be held from
time to time on the third Tuesday of the month. If the day appointed for holding
such regular meetings shall be a legal holiday, the regular meeting to be held
on such day shall be held on the next business day thereafter. Special meetings
of the Board of Directors may be called upon at least two day's notice whenever
it may be deemed proper by the Chairman of the Board or, the Chief Executive
Officer or, in their absence, by such other director as the Board of Directors
may have designated pursuant to Section 3 of this Article, and shall be called
upon like notice whenever any three of the directors so request in writing.
SECTION 6. The compensation of directors as such or as members of
committees shall be fixed from time to time by resolution of the Board of
Directors.
ARTICLE III
COMMITTEES
SECTION 1. There shall be an Executive Committee of the Board consisting of
not less than five directors who shall be appointed annually by the Board of
Directors. The Chairman of the Board shall preside at meetings of the Executive
Committee. In his absence, the Chief Executive Officer or, in his absence, such
other member of the Committee as the Committee from time to time may designate
shall preside at such meetings.
The Executive Committee shall possess and exercise to the extent permitted
by law all of the powers of the Board of Directors, except when the latter is in
session, and shall keep minutes of its proceedings, which shall be presented to
the Board of Directors at its next subsequent meeting. All acts done and powers
and authority conferred by the Executive Committee from time to time shall be
and be deemed to be, and may be certified as being, the act and under the
authority of the Board of Directors.
A majority of the Committee shall constitute a quorum, but the Committee
may act only by the concurrent vote of not less than one-third of its members,
at least one of whom must be a director other than an officer. Any one or more
directors, even though not members of the Executive Committee, may attend any
meeting of the Committee, and the member or members of the Committee present,
even though less than a quorum, may designate any one or more of such directors
as a substitute or substitutes for any absent member or members of the
Committee, and each such substitute or substitutes shall be counted for quorum,
voting, and all other purposes as a member or members of the Committee.
<PAGE>
SECTION 2. There shall be an Audit Committee appointed annually by
resolution adopted by a majority of the entire Board of Directors which shall
consist of such number of directors, who are not also officers of the Company,
as may from time to time be fixed by resolution adopted by the Board of
Directors. The Chairman shall be designated by the Board of Directors, who shall
also from time to time fix a quorum for meetings of the Committee. Such
Committee shall conduct the annual directors' examinations of the Company as
required by the New York State Banking Law; shall review the reports of all
examinations made of the Company by public authorities and report thereon to the
Board of Directors; and shall report to the Board of Directors such other
matters as it deems advisable with respect to the Company, its various
departments and the conduct of its operations.
In the performance of its duties, the Audit Committee may employ or retain,
from time to time, expert assistants, independent of the officers or personnel
of the Company, to make studies of the Company's assets and liabilities as the
Committee may request and to make an examination of the accounting and auditing
methods of the Company and its system of internal protective controls to the
extent considered necessary or advisable in order to determine that the
operations of the Company, including its fiduciary departments, are being
audited by the General Auditor in such a manner as to provide prudent and
adequate protection. The Committee also may direct the General Auditor to make
such investigation as it deems necessary or advisable with respect to the
Company, its various departments and the conduct of its operations. The
Committee shall hold regular quarterly meetings and during the intervals thereof
shall meet at other times on call of the Chairman.
SECTION 3. The Board of Directors shall have the power to appoint any other
Committees as may seem necessary, and from time to time to suspend or continue
the powers and duties of such Committees. Each Committee appointed pursuant to
this Article shall serve at the pleasure of the Board of Directors.
ARTICLE IV
OFFICERS
SECTION 1. The Board of Directors shall elect from among their number a
Chairman of the Board and a Chief Executive Officer; and shall also elect a
President, and may also elect a Senior Vice Chairman, one or more Vice Chairmen,
one or more Executive Vice Presidents, one or more Senior Managing Directors,
one or more Managing Directors, one or more Senior Vice Presidents, one or more
Principals, one or more Vice Presidents, one or more General Managers, a
Secretary, a Controller, a Treasurer, a General Counsel, one or more Associate
General Counsels, a General Auditor, a General Credit Auditor, and one or more
Deputy Auditors, who need not be directors. The officers of the corporation may
also include such other
<PAGE>
officers or assistant officers as shall from time to time be elected or
appointed by the Board. The Chairman of the Board or the Chief Executive Officer
or, in their absence, the President, the Senior Vice Chairman or any Vice
Chairman, may from time to time appoint assistant officers. All officers elected
or appointed by the Board of Directors shall hold their respective offices
during the pleasure of the Board of Directors, and all assistant officers shall
hold office at the pleasure of the Board or the Chairman of the Board or the
Chief Executive Officer or, in their absence, the President, the Senior Vice
Chairman or any Vice Chairman. The Board of Directors may require any and all
officers and employees to give security for the faithful performance of their
duties.
SECTION 2. The Board of Directors shall designate the Chief Executive
Officer of the Company who may also hold the additional title of Chairman of the
Board, President, Senior Vice Chairman or Vice Chairman and such person shall
have, subject to the supervision and direction of the Board of Directors or the
Executive Committee, all of the powers vested in such Chief Executive Officer by
law or by these By-Laws, or which usually attach or pertain to such office. The
other officers shall have, subject to the supervision and direction of the Board
of Directors or the Executive Committee or the Chairman of the Board or, the
Chief Executive Officer, the powers vested by law or by these By-Laws in them as
holders of their respective offices and, in addition, shall perform such other
duties as shall be assigned to them by the Board of Directors or the Executive
Committee or the Chairman of the Board or the Chief Executive Officer.
The General Auditor shall be responsible, through the Audit Committee, to
the Board of Directors for the determination of the program of the internal
audit function and the evaluation of the adequacy of the system of internal
controls. Subject to the Board of Directors, the General Auditor shall have and
may exercise all the powers and shall perform all the duties usual to such
office and shall have such other powers as may be prescribed or assigned to him
from time to time by the Board of Directors or vested in him by law or by these
By-Laws. He shall perform such other duties and shall make such investigations,
examinations and reports as may be prescribed or required by the Audit
Committee. The General Auditor shall have unrestricted access to all records and
premises of the Company and shall delegate such authority to his subordinates.
He shall have the duty to report to the Audit Committee on all matters
concerning the internal audit program and the adequacy of the system of internal
controls of the Company which he deems advisable or which the Audit Committee
may request. Additionally, the General Auditor shall have the duty of reporting
independently of all officers of the Company to the Audit Committee at least
quarterly on any matters concerning the internal audit program and the adequacy
of the system of internal controls of the Company that should be brought to the
attention of the directors except those matters responsibility for which has
been vested in the General Credit Auditor. Should the General Auditor deem any
matter to be of special immediate importance, he shall report thereon forthwith
to the Audit Committee. The General Auditor shall report to the Chief Financial
Officer only for administrative purposes.
<PAGE>
The General Credit Auditor shall be responsible to the Chief Executive
Officer and, through the Audit Committee, to the Board of Directors for the
systems of internal credit audit, shall perform such other duties as the Chief
Executive Officer may prescribe, and shall make such examinations and reports as
may be required by the Audit Committee. The General Credit Auditor shall have
unrestricted access to all records and may delegate such authority to
subordinates.
SECTION 3. The compensation of all officers shall be fixed under such plan
or plans of position evaluation and salary administration as shall be approved
from time to time by resolution of the Board of Directors.
SECTION 4. The Board of Directors, the Executive Committee, the Chairman of
the Board, the Chief Executive Officer or any person authorized for this purpose
by the Chief Executive Officer, shall appoint or engage all other employees and
agents and fix their compensation. The employment of all such employees and
agents shall continue during the pleasure of the Board of Directors or the
Executive Committee or the Chairman of the Board or the Chief Executive Officer
or any such authorized person; and the Board of Directors, the Executive
Committee, the Chairman of the Board, the Chief Executive Officer or any such
authorized person may discharge any such employees and agents at will.
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 1. The Company shall, to the fullest extent permitted by Section
7018 of the New York Banking Law, indemnify any person who is or was made, or
threatened to be made, a party to an action or proceeding, whether civil or
criminal, whether involving any actual or alleged breach of duty, neglect or
error, any accountability, or any actual or alleged misstatement, misleading
statement or other act or omission and whether brought or threatened in any
court or administrative or legislative body or agency, including an action by or
in the right of the Company to procure a judgment in its favor and an action by
or in the right of any other corporation of any type or kind, domestic or
foreign, or any partnership, joint venture, trust, employee benefit plan or
other enterprise, which any director or officer of the Company is servicing or
served in any capacity at the request of the Company by reason of the fact that
he, his testator or intestate, is or was a director or officer of the Company,
or is serving or served such other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise in any capacity, against
judgments, fines, amounts paid in settlement, and costs, charges and expenses,
including attorneys' fees, or any appeal therein; provided, however, that no
indemnification shall be provided to any such person if a judgment or other
final adjudication adverse to the
<PAGE>
director or officer establishes that (i) his acts were committed in bad faith or
were the result of active and deliberate dishonesty and, in either case, were
material to the cause of action so adjudicated, or (ii) he personally gained in
fact a financial profit or other advantage to which he was not legally entitled.
SECTION 2. The Company may indemnify any other person to whom the Company
is permitted to provide indemnification or the advancement of expenses by
applicable law, whether pursuant to rights granted pursuant to, or provided by,
the New York Banking Law or other rights created by (i) a resolution of
stockholders, (ii) a resolution of directors, or (iii) an agreement providing
for such indemnification, it being expressly intended that these By-Laws
authorize the creation of other rights in any such manner.
SECTION 3. The Company shall, from time to time, reimburse or advance to
any person referred to in Section 1 the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action or proceeding
referred to in Section 1, upon receipt of a written undertaking by or on behalf
of such person to repay such amount(s) if a judgment or other final adjudication
adverse to the director or officer establishes that (i) his acts were committed
in bad faith or were the result of active and deliberate dishonesty and, in
either case, were material to the cause of action so adjudicated, or (ii) he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
SECTION 4. Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the Company, or (ii) any employee benefit plan of
the Company or any corporation referred to in clause (i) in any capacity shall
be deemed to be doing so at the request of the Company. In all other cases, the
provisions of this Article V will apply (i) only if the person serving another
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise so served at the specific request of the Company, evidenced by
a written communication signed by the Chairman of the Board, the Chief Executive
Officer or the President, and (ii) only if and to the extent that, after making
such efforts as the Chairman of the Board, the Chief Executive Officer or the
President shall deem adequate in the circumstances, such person shall be unable
to obtain indemnification from such other enterprise or its insurer.
SECTION 5. Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article V may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of
occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time indemnification is sought.
<PAGE>
SECTION 6. The right to be indemnified or to the reimbursement or
advancement of expense pursuant to this Article V (i) is a contract right
pursuant to which the person entitled thereto may bring suit as if the
provisions hereof were set forth in a separate written contract between the
Company and the director or officer, (ii) is intended to be retroactive and
shall be available with respect to events occurring prior to the adoption
hereof, and (iii) shall continue to exist after the rescission or restrictive
modification hereof with respect to events occurring prior thereto.
SECTION 7. If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Company
within thirty days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstance, nor an actual determination by the Company (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant is
not entitled to indemnification or to the reimbursement or advancement of
expenses, shall be a defense to the action or create a presumption that the
claimant is not so entitled.
SECTION 8. A person who has been successful, on the merits or otherwise, in
the defense of a civil or criminal action or proceeding of the character
described in Section 1 shall be entitled to indemnification only as provided in
Sections 1 and 3, notwithstanding any provision of the New York Banking Law to
the contrary.
ARTICLE VI
SEAL
SECTION 1. The Board of Directors shall provide a seal for the Company, the
counterpart dies of which shall be in the charge of the Secretary of the Company
and such officers as the Chairman of the Board, the Chief Executive Officer or
the Secretary may from time to time direct in writing, to be affixed to
certificates of stock and other documents in accordance with the directions of
the Board of Directors or the Executive Committee.
SECTION 2. The Board of Directors may provide, in proper cases on a
specified occasion and for a specified transaction or transactions, for the use
of a printed or engraved facsimile seal of the Company.
<PAGE>
ARTICLE VII
CAPITAL STOCK
SECTION 1. Registration of transfer of shares shall only be made upon the
books of the Company by the registered holder in person, or by power of
attorney, duly executed, witnessed and filed with the Secretary or other proper
officer of the Company, on the surrender of the certificate or certificates of
such shares properly assigned for transfer.
ARTICLE VIII
CONSTRUCTION
SECTION 1. The masculine gender, when appearing in these By-Laws, shall be
deemed to include the feminine gender.
ARTICLE IX
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or added to by the Board
of Directors at any meeting, or by the stockholders at any annual or special
meeting, provided notice thereof has been given.
<PAGE>
I, Susan Johnson, Assistant Vice President of Bankers Trust Company, New
York, New York, hereby certify that the foregoing is a complete, true and
correct copy of the By-Laws of Bankers Trust Company, and that the same are in
full force and effect at this date.
/s/ Susan Johnson
--------------------------
ASSISTANT VICE PRESIDENT
DATED: September 23, 1998
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 06/30/98 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D 00623 Page RC-1
CERT:
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: /0/0/6/2/3
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
</TABLE>
<TABLE>
<CAPTION>
Schedule RC-Balance Sheet
C400
Dollar Amounts in Thousands RCFD Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository
institutions (from Schedule RC-A):
a. Noninterest-bearing balances and
currency and coin (1)..................... 0081 1,868,000 1.a.
b. Interest-bearing balances (2)............. 0071 2,041,000 1.b.
2. Securities:
a. Held-to-maturity securities (from
Schedule RC-B, column A).................. 1754 0 2.a.
b. Available-for-sale securities (from
Schedule RC-B, column D).................. 1773 7,419,000 2.b.
3. Federal funds sold and securities purchased
under agreements to resell................ 1350 41,837,000 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income
(from Schedule RC-C)...................... RCFD 2122 20,707,000 4.a.
b. LESS: Allowance for loan and lease
losses.................................... RCFD 3123 629,000 4.b.
c. LESS: Allocated transfer risk reserve.... RCFD 3128 0 4.c
d. Loans and leases, net of unearned
income, allowance, and reserve (items
4.a minus 4.b and 4.c).................... 2125 20,078,000 4.d.
5. Trading Assets (from schedule RC-D)........... 3545 49,665,000 5.
6. Premises and fixed assets (including
capitalized leases)....................... 2145 848,000 6.
7. Other real estate owned (from
Schedule RC-M)............................ 2150 180,000 7.
8. Investments in unconsolidated subsidiaries
and associated companies (from Schedule
RC-M)..................................... 2130 92,000 8.
9. Customers' liability to this bank on
acceptances outstanding................... 2155 512,000 9.
10. Intangible assets (from Schedule RC-M)........ 2143 270,000 10.
11. Other assets (from Schedule RC-F)............. 2160 6,442,000 11.
12. Total assets (sum of items 1 through 11)...... 2170 131,252,000 12.
-------- ---------------
</TABLE>
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(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 06/30/98 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-2
City, State ZIP: New York, NY 10006 12
FDIC Certificate No.: / 0 / 0 / 6 / 2 / 3
</TABLE>
<TABLE>
<CAPTION>
Schedule RC - Continued
----------------------------
Dollar Amounts in Thousands Bil Mil Thou
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C from 13.a.
Schedule RC-E part I) RCON 2200 26,791,000
(1) Noninterest-bearing(1)....................RCON 6631.........3,362,000 13.a(1)
(2) Interest-bearing..........................RCON 6636........23,429,000 13.a(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from
Schedule RC-E part II) RCFN 2200 22,089,000 13.b.
(1) No interest-bearing.......................RCFN 6631.........1,810,000 13.b(1)
(2) Interest-bearing..........................RCFN 6636........20,279,000 13.b(2)
14. Federal funds purchased and securities sold under agreements to repurchase RCFD 2800 19,274,000 14.
15. a. Demand notes issued to the U.S. Treasury................................. RCON 2840 0 15.a
b. Trading liabilities (from Schedule RC-D)................................. RCFD 3548 30,729,000 15.b
16. Other borrowed money (includes mortgage indebtedness and obligations
under capitalized leases):
a. With a remaining maturity of one year or less............................ RCFD 2332 7,891,000 16.a
b. With a remaining maturity of more than one year through three years...... A547 3,576,000 16.b.
c. With a remaining maturity of more than three years....................... A548 2,872,000 16.c
17. Not Applicable. 17.
18. Bank's liability on acceptances executed and outstanding..................... RCFD 2920 512,000 18.
19. Subordinated notes and debentures (2)........................................ RCFD 3200 1,534,000 19.
20. Other liabilities (from Schedule RC-G)....................................... RCFD 2930 9,202,000 20.
21 Total liabilities (sum of items 13 through 20)............................... RCFD 2948 124,470,000 21.
22. Not Applicable............................................................... 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus................................ RCFD 3838 1,000,000 23.
24. Common stock................................................................. RCFD 3230 2,001,000 24.
25. Surplus (exclude all surplus related to preferred stock)..................... RCFD 3839 540,000 25.
26. a. Undivided profits and capital reserves................................... RCFD 3632 3,693,000 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities... RCFD 8434 (71,000) 26.b
27. Cumulative foreign currency translation adjustments.......................... RCFD 3284 (381,000) 27.
28. Total equity capital (sum of items 23 through 27)............................ RCFD 3210 6,782,000 28.
29. Total liabilities and equity capital (sum of items 21 and 28)................ RCFD 3300 131,252,000 29.
------------------------------
</TABLE>
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(1) Including total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 06/30/98 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-2
City, State ZIP: New York, NY 10006 12
FDIC Certificate No.: / 0 / 0 / 6 / 2 / 3
</TABLE>
Memorandum
<TABLE>
<CAPTION>
To be reported only with the March Report of Condition.
<S> <C> <C> <C>
1. Indicate in the box at the right the number of
the statement below that best describes the
most comprehensive level of auditing work
performed for the bank by independent Number
external auditors as of any date during 1997................................... RCFD.....6724.....N/A M.1
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by
with generally accepted auditing standards by a certified other external auditors (may be required by state
public accounting firm which submits a report on the bank chartering authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by
conducted in accordance with generally accepted auditing external auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company (but external auditors
not on the bank separately) 7 = Other audit procedures (excluding tax preparation
3 = Directors' examination of the bank conducted in work)
accordance with generally accepted auditing standards by 8 = No external audit work
a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
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