<PAGE> 1
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported):
March 25, 1998
H. J. HEINZ COMPANY
(Exact name of registrant as specified in its charter)
Pennsylvania 1-3385 25-0542520
(State of Incorporation) (Commission File Number) (I.R.S. Employer
Identification No.)
600 Grant Street, Pittsburgh, 15219
Pennsylvania (Zip Code)
(Address of principal executive offices)
412-456-5700
(Registrant's telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
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ITEM 7. FINANCIAL STATEMENT AND EXHIBITS.
(C) EXHIBITS:
The exhibit listed below relates to the Registration Statement on Form
S-3 (Registration No. 333-48017) of the Registrant and is filed herewith for
incorporation by reference in such Registration Statement.
Exhibit Number
(Referenced to
Item 601 of
Regulation S-K) Description of Exhibit
- --------------- ----------------------
4 Officers' Certificate, dated March 25, 1998,
which has attached thereto as an exhibit
among others, a form of 6% Notes Due 2008 of
the Registrant.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
H. J. HEINZ COMPANY
By /s/ LAWRENCE J. MCCABE
-----------------------------
Lawrence J. McCabe
Senior Vice President,
General Counsel and Secretary
Dated: March 25, 1998
<PAGE> 1
EXHIBIT 4
OFFICERS' CERTIFICATE PURSUANT TO SECTIONS 301
AND 303 OF THE INDENTURE IDENTIFIED BELOW
The undersigned officers of H. J. Heinz Company (the
"Company"), acting pursuant to authorization contained in resolutions of a
Special Committee of the Board of Directors of the Company duly adopted on March
20, 1998, do hereby authorize, adopt and approve the following terms for a
series of the Company's debt securities designated by such Special Committee as
"6% Notes Due 2008" (as used in this Officers' Certificate, the "Notes") to be
issued under an indenture, dated as of July 15, 1992 (the "Indenture"), between
the Company and The First National Bank of Chicago, as trustee (the "Trustee"),
which debt securities have been registered for sale with the Securities and
Exchange Commission pursuant to a Registration Statement on Form S-3 (No.
333-48017) under the Securities Act of 1933, as amended. The terms set forth
below are qualified in their entirety by reference to the terms relating to the
Notes that are contained in (i) the form of Note attached hereto as Exhibit A,
and (ii) the Prospectus Supplement, dated March 20, 1998, to the Prospectus,
dated March 19, 1998 (the "Prospectus Supplement"), attached hereto as Exhibit
B, all of which terms are hereby authorized, adopted and approved. In the event
of any conflict or discrepancy between the terms contained in this Certificate
or the Prospectus Supplement or both and the terms contained in the form of
Note, the terms contained in the form of Note shall control. Capitalized terms
used herein and not otherwise defined herein shall have the meanings set forth
in the Prospectus Supplement.
It is contemplated that all of the Notes will be originally
issued at one time.
Subject to the foregoing, the following are hereby authorized,
adopted and approved as the terms of the Notes:
I. Title of the Notes: 6% Notes Due 2008.
II. Limit, if any, of the aggregate principal amount of Notes:
$300,000,000.
III. Date or dates on which the principal of Notes is payable (maturity
date): March 15, 2008.
IV. With respect to interest on Notes:
<PAGE> 2
A. The rate and method of calculation thereof: The Notes will
bear interest at a rate of 6% per annum.
B. The date from which such interest shall accrue: Each Note
will bear interest from March 25, 1998 or from the most recent Interest Payment
Date to which interest on such Note or a predecessor Note has been paid or duly
provided for.
C. Interest Payment Dates: Interest on the Notes will be
payable on each March 15 and September 15.
D. Regular Record Dates for interest payable on any Interest
Payment Date: The Regular Record Date with respect to the Notes shall be March 1
and September 1, as the case may be, prior to each Interest Payment Date,
whether or not such date shall be a Business Day.
V. Place or places where principal and interest on Notes shall be
payable, and where Notes may be surrendered for exchange: At the following
office of the Trustee: First Chicago Trust Company of New York, 14 Wall Street,
8th Floor, New York, New York 10005. The Company, by or through the Trustee, may
pay interest by check mailed to the Holder's address as it appears on the
Security Register; provided, however, that payments to the Depository Trust
Company will be made by wire transfer of immediately available funds to the
account of Depository Trust Company or its nominee.
VI. With respect to redemption, in whole or in part, the terms and
conditions applicable to Notes: Notes will not be redeemable or repayable prior
to their Stated Maturity.
VII. With respect to the mandatory redemption or purchase of Notes:
A. Any provisions for a sinking or analogous fund or upon the
happening of a specified event: None.
B. Provisions for redemption at the option of a holder, the
period or periods within which such redemption must be made, the applicable
redemption price, and the other terms and conditions of such redemption: None.
VIII. Denominations in which Notes are issuable: Minimum denomination
of $1,000, and integral multiples of $1,000 in excess of $1,000.
2
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IX. If other than the principal amounts thereof, the portion of the
principal amount of Notes payable on declaration of acceleration pursuant to
Section 502 of the Indenture: Not applicable.
X. Trustee, Paying Agent and Security Registrar: The First National
Bank of Chicago.
XI. Currency in which interest is payable if other than U.S. currency:
Not applicable.
XII. Currency in which principal is payable if other than U.S.
currency: Not applicable.
XIII. Basis for determining equivalent price in U.S. currency if Notes
denominated in more than one currency: Not applicable.
XIV. Manner in which principal and interest payments determined if
according to an index: Not applicable.
XV. A. Whether Notes are issuable as Registered Securities, Bearer
Securities or both: Registered Securities only.
B. Whether Notes are issuable in temporary or permanent global
form: A permanent global Security representing all of the aggregate principal
amount of the Notes will be registered in the name of the nominee of the
Depository Trust Company, which will act as depository. The Depository Trust
Company or any successor depository for the Notes permitted by the terms of this
Officers' Certificate and the Notes is hereinafter referred to as the
"Depository."
C. Whether, and the terms upon which, owners of interests in
any permanent global Securities may be exchanged for Notes of like tenor:
Notwithstanding any other provisions of the Indenture, this Officers'
Certificate or the Notes, but subject to the paragraph below, the global
Security representing Notes may be transferred, in whole but not in part and in
the manner provided in Section 305 of the Indenture, only to another nominee of
the Depository for the Notes, or to a successor Depository for the Notes
selected or approved by the Company or to a nominee of such successor
Depository. The global Security representing the Notes shall bear a legend
substantially to the following effect: "Except as otherwise provided in this
Note, this Note may be transferred, in whole but not in part, only to another
nominee of the Depository or to a successor Depository or to a nominee of such
successor Depository."
If at any time the Depository notifies the Company that it is unwilling or
unable to continue as Depository for the Notes or if at any time the Depository
shall no longer be registered or in good standing under the Securities Exchange
Act of
3
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1934, as amended, or other applicable statute or regulation and a successor
Depository for the Notes is not appointed by the Company within 90 days after
the Company receives such notice or becomes aware of such condition, as the case
may be, the provisions of this clause XV of the Officers' Certificate shall no
longer be applicable to the Notes and the Company will execute, and the Trustee
will authenticate and deliver, Notes in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount equal
to the principal amount of the global Security representing the Notes in
exchange for such global Security. In addition, the Company may at any time
determine that the Notes shall no longer be represented by a global Security and
that the provisions of this clause XV of the Officers' Certificate shall no
longer apply to the Notes. In such event the Company will execute and the
Trustee, upon receipt of an Officers' Certificate evidencing such determination
by the Company, will authenticate and deliver Notes in definitive registered
form without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the global Security representing the
Notes in exchange for such global Security. Upon the exchange of the global
Security for Notes in definitive registered form without coupons, in authorized
denominations, the global Security shall be canceled by the Trustee. Such Notes
in definitive registered form issued in exchange for the global Security
pursuant to the provisions of this Officers' Certificate shall be registered in
such names and in such authorized denominations as the Depository, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Notes to the Persons in
whose names such Notes are so registered, but without any liability on the part
of the Company or the Trustee for the accuracy of the Depository's instructions.
Except to the extent otherwise provided herein, the provisions of Section 305 of
the Indenture shall apply to an exchange of a global Security contemplated by
this paragraph.
XVI. The applicability of Section 403 of the Indenture (regarding
defeasance and discharge of Notes) to the Notes: The Notes are subject to the
defeasance and discharge provisions of Section 403 of the Indenture.
XVII. Any other terms of or provisions applicable to the Notes and the
sale thereof:
A. Forms of Notes: The Notes shall be substantially in the
form attached hereto as Exhibit A.
B. Form of Sale: The Company has engaged J. P. Morgan
Securities Inc. as representative of the several underwriters named in the
Pricing Agreement (defined below) for the purpose of selling the Notes in an
underwritten public offering in the United States, all as more fully set forth
in the Underwriting Agreement attached as Exhibit C hereto (the "Underwriting
4
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Agreement") and the Pricing Agreement attached hereto as Exhibit D (the "Pricing
Agreement").
C. Issue price to public of Notes: 99.337% of principal
amount.
D. Underwriters' commission or discount as a percentage of the
principal amount of Notes to be issued: .650% of principal amount.
IN WITNESS WHEREOF the undersigned have executed this Certificate on
behalf of the Company as of this 25th day of March, 1998
/s/ F. NICHOLAS GRASBERGER III
----------------------------------------
F. Nicholas Grasberger III
Treasurer
/s/ EDWARD J. MCMENAMIN
---------------------------------------
Edward J. McMenamin
Vice President and Corporate Controller
ATTEST:
/s/ KARYLL A. DAVIS
- ----------------------------
Karyll A. Davis
Assistant Secretary
5
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EXHIBIT A
Unless this certificate is presented by an authorized representative, the
Depository Trust Company ("DTC"), 55 Water Street, New York, New York to the
Company or its agent for registration of transfer, exchange or payment, and such
certificate issued is registered in the name of CEDE & CO., or such other name
as requested by an authorized representative of DTC, ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, since
the registered owner hereof, CEDE & CO., has an interest herein.
Except as otherwise provided in this Note, this Note may be transferred, in
whole but not in part, to another nominee of DTC, to a successor of DTC or a
nominee of such successor.
CUSIP NO.: 423074AG8 PRINCIPAL AMOUNT: $300,000,000
No. 1
H.J. HEINZ COMPANY
6% Notes Due 2008
H.J. HEINZ COMPANY, a corporation duly organized and existing
under the laws of the Commonwealth of Pennsylvania (herein called the "Company,"
which term includes any successor Person under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to CEDE & CO. or
registered assigns, the principal sum of three hundred million Dollars
($300,000,000) on March 15, 2008 or if such date is not a Business Day (as
defined below), the next succeeding Business Day (the "Maturity Date"), in such
coin or currency of the United States of America as at the time of payment shall
be legal tender for the payment of public and private debts, and to pay interest
on said principal sum from March 25, 1998 or the most recent Interest Payment
Date to which interest has been paid or duly provided for, in like coin or
currency, semi-annually in arrears on March 15 and September 15 in each year,
commencing September 15, 1998, at the rate of 6% per
<PAGE> 7
annum (computed on the basis of a 360-day year of twelve 30-day months). If this
Note has been issued upon transfer of, in exchange for, or in replacement of a
predecessor Note, interest on this Note shall accrue from the last Interest
Payment Date to which interest was paid on such predecessor Note or, if no
interest was paid on such predecessor Note, from March 25, 1998. The first
payment of interest on a Note originally issued and dated between a Record Date
(as defined below) and an Interest Payment Date will be due and payable on the
Interest Payment Date following the next succeeding Record Date to the
registered owner on such next succeeding Record Date. Subject to certain
exceptions provided in the Indenture, the interest so payable on any Interest
Payment Date will be paid to the person in whose name this Note is registered at
the close of business on March 1 or September 1, as the case may be, prior to
such Interest Payment Date, whether or not a Business Day (as herein defined)
(each such date a "Record Date").
All payments of principal, premium, and interest in respect of
this Note will be made by the Company in immediately available funds.
Any payment on this Note due on any day which is not a
Business Day need not be made on such day, but may be made on the next
succeeding Business Day with the same force and effect as if made on the due
date and no interest shall accrue for the period from and after such date.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
or Friday which is not a day on which banking institutions in The City of New
York generally are authorized or obligated by law or executive order to close.
2
<PAGE> 8
Additional provisions of this Note are contained on the
reverse hereof and such provisions shall for all purposes have the same effect
as though fully set forth at this place.
This Note shall not be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been signed by
an authorized officer of the Trustee under the Indenture.
IN WITNESS WHEREOF, H.J. HEINZ COMPANY has caused this
instrument to be signed by its duly authorized officer, and has caused a
facsimile of its corporate seal to be affixed hereto or imprinted hereon.
Dated: March 25, 1998
H.J. HEINZ COMPANY
By:
------------------------------
Name: F. Nicholas Grasberger, III
Title: Treasurer
Attest:
- ------------------------------
Name: Karyll A. Davis
Title: Assistant Secretary
[SEAL]
3
<PAGE> 9
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
herein referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK
OF CHICAGO, as Trustee
By:
---------------------
Authorized Officer
4
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[REVERSE]
H.J. HEINZ COMPANY
6% Notes Due 2008
This Note is one of a duly authorized issue of debentures,
notes or other evidences of indebtedness of the Company ("Debt Securities"), all
issued or to be issued under and pursuant to an indenture, dated as of July 15,
1992, (the "Indenture"), duly executed and delivered by the Company to The First
National Bank of Chicago, as Trustee (the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
duties and immunities thereunder of the Trustee and the rights thereunder of the
holders of the Debt Securities. As provided in the Indenture, the Debt
Securities may be issued in one or more series, which different series may be
issued in various aggregate principal amounts, may mature at different times,
may bear interest, if any, at different rates, may be subject to different
redemption provisions, if any, may be subject to different sinking, purchase or
analogous funds, if any, may be subject to different covenants and events of
default, and may otherwise vary as in the Indenture provided or permitted. This
Note is one of a series of the Debt Securities, which series is limited in
aggregate principal amount to $300,000,000, designated as "6% Notes Due 2008"
(the "Notes") of the Company.
5
<PAGE> 11
The Notes are not subject to redemption prior to maturity and
are not subject to any sinking fund requirement.
The Indenture contains provisions for defeasance of (a) the
entire indebtedness of this Note and (b) certain restrictive covenants upon
compliance by the Company with certain conditions set forth therein.
In case an Event of Default, as defined in the Indenture, with
respect to the Notes shall have occurred and be continuing, the principal hereof
may be declared, and upon such declaration shall become, due and payable in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the outstanding Debt Securities of each series
issued under the Indenture which are affected thereby, at the time outstanding,
evidenced as in the Indenture provided, to execute supplemental indentures
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or any indenture supplemental thereto or modifying
in any manner the rights of the holders of the Notes; provided, however, that no
such supplemental indenture shall (i) change the fixed maturity of any Debt
Security, or reduce the principal amount thereof, or reduce the rate or change
the time of payment of interest thereon, or reduce any premium payable upon the
redemption thereof without the consent of the holder of each such Debt Security
so affected, (ii) reduce the aforesaid percentage of Debt Securities, the
consent of the holders of which is required for any such supplemental indenture,
without the consent of the holders of all Debt Securities affected then
outstanding
6
<PAGE> 12
or (iii) modify, without the written consent of the Trustee, the rights, duties
or immunities of the Trustee. The Indenture also contains provisions permitting
the holders of a majority in aggregate principal amount of the Debt Securities
of any series then outstanding, by written notice to the Company and to the
Trustee, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences,
except in each case a failure to pay principal (or premium, if any) or interest
on such Debt Securities. Any such consent or waiver by the holder of this Note
(unless revoked as provided in the Indenture) shall be conclusive and binding
upon such holder and upon all future holders and owners of this Note and any
Notes which may be issued upon the registration of transfer hereof or in
exchange or substitution therefor, irrespective of whether or not any notation
thereof is made upon this Note or other such Notes.
The Notes are issuable in registered form without coupons in
denominations of $1,000 and integral multiples of $1,000 in excess thereof. Upon
due presentment for registration of transfer of this Note at the Corporate Trust
Office of the Trustee in the Borough of Manhattan, The City of New York, a new
Note or Notes in authorized denominations for an equal aggregate principal
amount will be issued to the transferee in exchange therefor, in the manner and
subject to the limitations provided in the Indenture and the Officers'
Certificate relating to the Note, without charge except for any tax or other
governmental charge imposed in connection therewith.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and
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unconditional, to pay the principal of and interest on this Note at the places,
at the respective times, at the rate and in the currency herein prescribed.
The Company, the Trustee and any paying agent may deem and
treat the Person in whose name this Note is registered as the absolute owner of
this Note (whether or not this Note shall be overdue), for the purpose of
receiving payment of or on account hereof and for all other purposes, and
neither the Company nor the Trustee nor any paying agent shall be affected by
any notice to the contrary. All payments made to or upon the order of such
registered holder shall, to the extent of the sum or sums paid, effectually
satisfy and discharge liability for moneys payable on this Note.
No recourse under or upon any obligation, covenant or
agreement contained in the Indenture or in any indenture supplemental thereto or
any Note, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, or against any past, present or future stockholder, officer or
director, as such, of the Company or of any successor corporation, either
directly or through the Company or any successor corporation, under any rule of
law, statute or constitutional provision or by the enforcement of any assessment
or by any legal or equitable proceeding or otherwise, all such personal
liability of every such incorporator, stockholder, officer and director, as
such, being expressly waived and released by the acceptance hereof and as a
condition of and as part of the consideration for the issuance of this Note.
Terms used herein which are defined in the Indenture shall
have the respective meanings assigned thereto in the Indenture.
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This Note shall be governed by and construed in accordance
with the laws of the State of New York.
9
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------------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though there were written out
in full according to applicable laws or regulations:
<TABLE>
<CAPTION>
<S> <C>
TEN COM -- as tenants in common UNIF GIFT MIN ACT-- _______CUSTODIAN_______
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with right Under Uniform Gifts to Minors Act
of survivorship and not as
tenants in common
</TABLE>
----------------------------
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
Please Insert Social Security or
Other Identifying Number or Assignee
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
the within Note of H.J. HEINZ COMPANY and does hereby irrevocably constitute and
appoint ___________________________ attorney to transfer said Note on the books
of the Company, with full power of substitution in the premises.
Dated:
----------------------- -----------------------
--------------------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any other change whatever.
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EXHIBIT B
PROSPECTUS SUPPLEMENT
(To Prospectus dated March 19, 1998)
Heinz Logo
H. J. HEINZ COMPANY
$300,000,000
6% Notes Due 2008
Interest payable March 15 and September 15
ISSUE PRICE: 99.337%
The 6% Notes due 2008 (the "Notes") are an issue of the Debt Securities
described in the accompanying Prospectus (the "Prospectus") to which this
Prospectus Supplement relates. Interest on the Notes is payable on March 15 and
September 15 of each year commencing September 15, 1998. The Notes mature on
March 15, 2008. The Notes are not redeemable at any time prior to maturity and
will not be subject to any sinking fund.
The Notes will be issued in book-entry form represented by a permanent global
Note registered in the name of The Depository Trust Company ("DTC"), or a
nominee of DTC. Interests in the Notes will only be evidenced by, and transfers
thereof will only be effected through, records maintained by DTC and its
participants. Except as described herein and in the accompanying Prospectus,
notes in definitive form will not be issued.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------
PRICE TO UNDERWRITING PROCEEDS TO
PUBLIC(1) DISCOUNT(2) COMPANY(1)(3)
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Per Note 99.337% .650% 98.687%
- --------------------------------------------------------------------------------------------------------
Total $298,011,000 $1,950,000 $296,061,000
- --------------------------------------------------------------------------------------------------------
</TABLE>
(1) Plus accrued interest, if any, from March 25, 1998.
(2) The Company has agreed to indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933, as
amended. See "Underwriting."
(3) Before deduction of expenses payable by the Company estimated at $254,350.
The Notes are being offered, subject to prior sale, when, as and if accepted by
the Underwriters, and subject to certain other conditions. It is expected that
delivery of the Notes will be through the facilities of DTC on or about March
25, 1998 against payment therefor in immediately available funds.
J.P. MORGAN & CO.
GOLDMAN, SACHS & CO.
SBC WARBURG DILLON READ INC.
March 20, 1998
<PAGE> 17
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS THAT
STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE NOTES, INCLUDING
OVER-ALLOTMENT, STABILIZING AND SHORT-COVERING TRANSACTIONS IN SUCH NOTES, AND
THE IMPOSITION OF A PENALTY BID, IN CONNECTION WITH THE OFFERING. FOR A
DESCRIPTION OF THESE ACTIVITIES, SEE "UNDERWRITING."
No dealer, salesman or any other person has been authorized to give any
information or to make any representations other than those contained in this
Prospectus Supplement and the accompanying Prospectus or incorporated by
reference therein, 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. This Prospectus Supplement and the accompanying Prospectus do not
constitute an offer to sell or the solicitation of an offer to buy the Notes 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 any person to whom it is unlawful to make such offer or solicitation.
Neither the delivery of this Prospectus Supplement or the accompanying
Prospectus, nor any sale made hereunder and thereunder shall, under any
circumstances, create any implication that there has been no change in the
affairs of the Company since the date hereof or that the information contained
or incorporated by reference herein or therein is correct as of any time
subsequent to the date of such information.
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Incorporation of Certain Documents by Reference............. S-3
Ratios of Earnings to Fixed Charges......................... S-3
Use of Proceeds............................................. S-3
Description of the Notes.................................... S-3
Underwriting................................................ S-6
Validity of Notes........................................... S-6
PROSPECTUS
Available Information....................................... 3
Incorporation of Certain Documents by Reference............. 3
The Company................................................. 4
Ratio of Earnings to Fixed Charges.......................... 5
Use of Proceeds............................................. 5
Description of Debt Securities.............................. 5
Description of Warrants..................................... 10
Plan of Distribution........................................ 11
Legal Opinions.............................................. 12
Experts..................................................... 12
Special Note Regarding Forward Looking Statements........... 12
</TABLE>
S-2
<PAGE> 18
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by H. J. Heinz Company (the "Company") with
the Securities and Exchange Commission under the Securities Exchange Act of 1934
are hereby incorporated by reference in this Prospectus Supplement and the
Prospectus:
(i) The Company's Annual Report on Form 10-K for the year ended April 30,
1997 (File No. 1-3385); and
(ii) The Company's Quarterly Reports on Form 10-Q for the three months
ended July 30, 1997, the six months ended October 29, 1997 and the nine
months ended January 28, 1998, respectively.
Reference is made to the information appearing under "Incorporation of
Certain Documents by Reference" in the Prospectus.
RATIOS OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for the year ended April 30, 1997
was 2.56. Such ratio for the nine months ended January 28, 1998 was 5.48. The
ratios of earnings to fixed charges were calculated by dividing earnings by
fixed charges. Earnings were calculated by adding income before income taxes and
the cumulative effect of accounting change, interest expense (including
amortization of debt expense and any discount or premium relating to
indebtedness), the interest component of rental expense and the amortization of
capitalized interest. Fixed charges were calculated by adding interest expense
(including amortization of debt expense and any discount or premium relating to
indebtedness), capitalized interest and the interest component of rental
expense. Reference is made to the information appearing under "Ratio of Earnings
to Fixed Charges" in the Prospectus.
USE OF PROCEEDS
The net proceeds to be received by the Company from the sale of the Notes
are estimated to be $295,806,650 after the deduction of the underwriting
discount and of the estimated expenses payable by the Company. The Company
intends to use all of the net proceeds from this offering to repay outstanding
commercial paper bearing interest based upon prevailing 30-day commercial paper
rates. On March 1, 1998, the weighted average interest rate on the outstanding
commercial paper expected to be repaid with the proceeds of this offering was
5.55% and the weighted average maturity of such indebtedness was approximately
45 days.
DESCRIPTION OF THE NOTES
The following description of the particular terms of the Notes offered
hereby (referred to in the Prospectus as the "Offered Debt Securities")
supplements, and to the extent inconsistent therewith, replaces, the description
of the general terms and provisions of the Debt Securities set forth in the
Prospectus, to which description reference is hereby made. The following summary
of the Notes is qualified in its entirety by reference to the Indenture referred
to in the Prospectus (the "Indenture").
The Notes constitute a separate series of Debt Securities to be issued
pursuant to the Indenture. The Notes will be limited to $300,000,000 in
aggregate principal amount. The Notes will be issued only in fully registered
book-entry form, in denominations of $1,000 and integral multiples of $1,000.
The Notes will bear interest from March 25, 1998 at the annual rate set forth on
the cover page of this Prospectus Supplement, and will mature on March 15, 2008
(the "Maturity Date"). Interest on the Notes will be payable semi-annually on
March 15 and September 15, commencing September 15, 1998, to the Persons in
whose names the Notes (or any predecessor Notes) are registered at the close of
business on the applicable Regular Record Date, which is the March 1 or
September 1 next preceding such Interest Payment Date. For so long as the Notes
are held solely in book-entry form through the facilities of DTC, the only
registered holder of the Notes ("Holder") will be Cede & Co., as nominee for
DTC. The Notes will not be redeemable by the Company prior to their stated
maturity and will not be subject to any sinking fund.
S-3
<PAGE> 19
The Notes will be subject to defeasance and discharge and to defeasance of
certain obligations as described under "Description of Securities--Defeasance"
in the Prospectus.
BOOK-ENTRY SYSTEM
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that the Company believes to be reliable, but the
Company takes no responsibility for the accuracy thereof.
The Notes initially will be represented by one or more global notes (the
"Global Notes") registered in the name of the nominee of DTC except as set forth
below. The Company has been informed by DTC that DTC's nominee will be Cede &
Co. Accordingly, Cede & Co. is expected to be the registered Holder of the
Global Notes. Unless and until Certificated Notes are issued under the limited
circumstances described herein, no person acquiring an interest in the Notes (a
"Book-Entry Note Owner") will be entitled to receive a certificate representing
such person's interest in such Notes. All references herein or in the Prospectus
to actions by Holders shall refer to actions taken by DTC upon instructions from
its Participants (as defined herein), and all references herein or in the
Prospectus to payments to Holders shall refer to payments to DTC or Cede & Co.,
as the registered Holder of the Global Notes, for distribution to Book-Entry
Note Owners in accordance with DTC procedures.
The following is based on information furnished by DTC:
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934. DTC holds securities that its participants ("Participants") deposit
with DTC. DTC also facilitates the settlement among Participants of securities
transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in Participants' accounts, thereby
eliminating the need for physical movement of securities certificates. Direct
Participants include securities brokers and dealers, banks, trust companies,
clearing corporations and certain other organizations ("Direct Participants").
DTC is owned by a number of its Direct Participants and by the New York Stock
Exchange, Inc., the American Stock Exchange, Inc. and the National Association
of Securities Dealers, Inc. Access to the DTC system is also available to
others, such as securities brokers and dealers, banks and trust companies that
clear through or maintain a custodial relationship with a Direct Participant,
either directly or indirectly ("Indirect Participants"). The Rules (as defined
herein) applicable to DTC and its Participants are on file with the Securities
and Exchange Commission.
Book-Entry Note Owners that are not Participants or Indirect Participants
but desire to purchase, sell or otherwise transfer ownership of, or other
interests in, Notes may do so only through Participants and Indirect
Participants. In addition, Book-Entry Owners will receive all payments of
principal, premium, if any, and interest from the Trustee through Participants
and, if applicable, Indirect Participants. Under a book-entry format, Book-Entry
Note Owners may experience some delay in their receipt of payments, since such
payments will be forwarded by the Trustee to Cede & Co., as nominee of DTC. DTC
will forward such payments to its Participants which thereafter will forward
them to Indirect Participants or Book-Entry Note Owners. Book-Entry Note Owners
will not be recognized by the Trustee as Holders, as such term is used in the
Indenture, and Book-Entry Note Owners will only be permitted to exercise the
rights of Holders indirectly through DTC and its Participants.
Under the rules, regulations and procedures creating and affecting DTC and
its operations (the "Rules"), DTC is required to make book-entry transfers among
Participants on whose behalf it acts with respect to the Notes and is required
to receive and transmit payments of principal, premium, if any, and interest on
the Notes. Participants and Indirect Participants with which Book-Entry Note
Owners have accounts with respect to the Notes similarly are required to make
book-entry transfers and receive and transmit such payments on behalf of their
respective Book-Entry Note Owners.
Because DTC can only act on behalf of Participants, which in turn act on
behalf of Indirect Participants and certain banks, the ability of a Book-Entry
Note Owner to pledge Notes to persons or entities that do not
S-4
<PAGE> 20
participate in the DTC system, or otherwise take actions in respect of such
Notes, may be limited due to the lack of a physical certificate for such Notes.
DTC has advised the Company that it will take any action permitted to be
taken by a Holder under the Indenture only at the direction of one or more
Participants to whose account with DTC the Notes are credited.
Notes in fully registered certificated form ("Certificated Notes") will be
issued to Book-Entry Note Owners or their nominees, rather than to DTC or its
nominees, only if (i) the Company advises the Trustee in writing that DTC is no
longer willing or able to discharge properly its responsibilities as depository
with respect to such Notes, and the Trustee or the Company is unable to locate a
qualified successor, or (ii) the Company, at its option, elects to terminate the
book-entry system through DTC.
Upon the occurrence of either of the events described in the immediately
preceding paragraph, DTC is required to notify all Participants of the
availability through DTC of Certificated Notes. Upon surrender by DTC of a
Global Note representing the Notes and instructions for re-registration, the
Trustee will issue the Notes in the form of Certificated Notes, and thereafter
the Trustee will recognize the registered holders of such Certificated Notes as
Holders under the Indenture.
S-5
<PAGE> 21
UNDERWRITING
Subject to the terms and conditions set forth in the Underwriting Agreement
and related Pricing Agreement referred to therein, the Company has agreed to
sell to each of the Underwriters named below, and each of the Underwriters has
severally agreed to purchase, the principal amounts of the Notes set forth
opposite its name below.
<TABLE>
<CAPTION>
PRINCIPAL
AMOUNT
UNDERWRITER OF NOTES
- ----------- ------------
<S> <C>
J.P. Morgan Securities Inc.................................. $100,000,000
Goldman, Sachs & Co......................................... 100,000,000
SBC Warburg Dillon Read Inc................................. 100,000,000
------------
Total.................................................. $300,000,000
============
</TABLE>
Under the terms and conditions of the Underwriting Agreement, the
Underwriters are committed to take and pay for all of the Notes, if any are
taken.
The Company has been advised by the Underwriters that they propose to offer
part of the Notes directly to the public at the initial public offering price
and on the terms set forth on the cover page of this Prospectus Supplement and
part to certain dealers at a price that represents a concession not in excess of
0.40% of the principal amount of the Notes. The Underwriters may allow, and such
dealers may reallow, a concession not in excess of 0.25% of the principal amount
of the Notes to certain other dealers. After the initial offering of the Notes,
the offering price, concessions and reallowances may be varied by the
Underwriters.
The Company does not intend to apply for listing of the Notes on a national
securities exchange, but has been advised by the Underwriters that they
currently intend to make a market in the Notes as permitted by applicable laws
and regulations. The Underwriters are not obligated, however, to make a market
in the Notes and any such market-making may be discontinued at any time at the
sole discretion of the Underwriters. Accordingly, no assurance can be given as
to the liquidity of, or trading market for, the Notes.
In connection with the offering, the Underwriters may purchase and sell the
Notes in the open market. These transactions may include over-allotment and
stabilizing transactions and purchases to cover syndicate short positions
created in connection with the offering. Stabilizing transactions consist of
certain bids or purchases for the purpose of preventing or retarding a decline
in the market price of the Notes, and syndicate short positions involve the sale
by the Underwriters of a greater aggregate principal amount of Notes than they
are required to purchase from the Company in the offering. The Underwriters also
may impose a penalty bid, whereby selling concessions allowed to syndicate
members or other broker-dealers in respect of the Notes sold in the offering for
their account may be reclaimed by the syndicate if such Notes are repurchased by
the syndicate in stabilizing or covering transactions. These activities may
stabilize, maintain or otherwise affect the market price of the Notes, which may
be higher than the price that might otherwise prevail in the open market; and
these activities, if commenced, may be discontinued at any time. These
transactions may be effected in the over-the-counter market or otherwise.
The Company has agreed to indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933, as amended.
In the ordinary course of business, certain of the Underwriters and their
affiliates have engaged and may engage in the future in transactions with the
Company and its affiliates.
VALIDITY OF NOTES
The validity of the Notes will be passed upon for the Company by Lawrence
J. McCabe, Senior Vice President, General Counsel and Secretary of the Company,
and for the Underwriters by Sullivan & Cromwell, New York, New York. Mr. McCabe
beneficially owns shares of the Company's common stock and holds options to
purchase additional shares of common stock.
S-6
<PAGE> 22
LOGO
H. J. HEINZ COMPANY
DEBT SECURITIES
AND WARRANTS TO PURCHASE
DEBT SECURITIES
------------------------
H. J. Heinz Company (the "Company") may offer, from time to time, debt
securities consisting of debentures, notes and/or other unsecured evidences of
indebtedness (the "Debt Securities") which Debt Securities may include warrants
(the "Warrants") in respect thereof at an aggregate principal amount not to
exceed $750,000,000 (including the principal amount of Debt Securities
deliverable upon exercise of Warrants), or, if the principal of the Debt
Securities is payable in a foreign or composite currency, the equivalent thereof
at the time of the offering. The Debt Securities may be offered as separate
series and may be offered in amounts, at prices and on terms to be determined at
the time of sale. When a particular series of Debt Securities (the "Offered Debt
Securities") are offered, a supplement to this Prospectus (a "Prospectus
Supplement") will be delivered with this Prospectus setting forth the terms of
such Offered Debt Securities, including, if applicable, the specific
designation, aggregate principal amount, denominations, currency, purchase
price, maturity, rate (which may be fixed or variable) and time of payment of
interest, redemption terms, and any listing on a securities exchange of the
Offered Debt Securities and terms of the Warrants (if applicable).
The Debt Securities may be issued in registered or bearer form or both. In
addition, all or a portion of the Debt Securities of a series may be issued in
temporary or permanent global form. Debt Securities in bearer form will be
offered only to non-United States persons and to offices located outside the
United States of certain United States financial institutions.
The Company may sell the Offered Debt Securities and Warrants to or through
underwriters, and also may sell the Offered Debt Securities and Warrants
directly to other purchasers or through agents. See "Plan of Distribution." The
accompanying Prospectus Supplement will set forth the names of any underwriters
or agents involved in the sale of the Offered Debt Securities and Warrants in
respect of which this Prospectus is being delivered, the principal amounts, if
any, of Offered Debt Securities to be purchased by such underwriters and the
compensation, if any, of such underwriters or agents. The net proceeds to the
Company from such sale will be set forth in the Prospectus Supplement.
------------------------
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 DATE OF THIS PROSPECTUS IS MARCH 19, 1998.
<PAGE> 23
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND ANY ACCOMPANYING PROSPECTUS
SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED. THIS PROSPECTUS AND ANY ACCOMPANYING
PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF
AN OFFER TO BUY ANY SECURITIES OTHER THAN THE REGISTERED SECURITIES TO WHICH
THEY RELATE OR AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY SUCH
SECURITIES IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH
OFFER OR SOLICITATION IN SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS
PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THEREOF OR THAT
THE INFORMATION IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
------------------
TABLE OF CONTENTS
<TABLE>
<S> <C>
Available Information....................................... 3
Incorporation of Certain Documents
by Reference.............................................. 3
The Company................................................. 4
Ratio of Earnings to Fixed Charges.......................... 5
Use of Proceeds............................................. 5
Description of Debt Securities.............................. 5
Description of Warrants..................................... 10
Plan of Distribution........................................ 11
Legal Opinions.............................................. 12
Experts..................................................... 12
Special Note Regarding Forward Looking Statements........... 12
</TABLE>
2
<PAGE> 24
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, proxy materials and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
materials and other information concerning the Company can be inspected and
copied at the public reference facilities maintained by the Commission at
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 or at its
Regional Offices located at Citicorp Center, Suite 1400, 500 West Madison
Street, Chicago, Illinois 60661 and 7 World Trade Center, 13th Floor, New York,
New York 10048. Copies can be obtained by mail 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 inspected on the Internet at the
Commission's website (http://www.sec.gov). In addition, reports, proxy materials
and other information concerning the Company can also be inspected at the
offices of the New York Stock Exchange, Inc., 20 Broad Street, New York, New
York 10005 and the Pacific Stock Exchange, Inc., 301 Pine Street, San Francisco,
California 94104, on which exchanges the Company's Common Stock, par value $.25
per share (the "Common Stock"), is listed.
The Company has filed with the Commission a registration statement on Form
S-3 (the "Registration Statement") (which term encompasses any amendments
thereto) under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to the Debt Securities offered hereby. This Prospectus does not
contain all the information set forth in the Registration Statement, certain
parts of which have been omitted in accordance with the rules and regulations of
the Commission. For further information, reference is hereby made to the
Registration Statement including the exhibits filed as a part thereof or
otherwise incorporated therein. Statements made in this Prospectus as to the
contents of any documents referred to are not necessarily complete, and in each
instance reference is made to such exhibit for a more complete description and
each such statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year ended April
30, 1997 filed with the Commission (File No. 1-3385) and the Company's Quarterly
Reports on Form 10-Q for the three months ended July 30, 1997, the six months
ended October 29, 1997 and the nine months ended January 28, 1998 are
incorporated herein by reference.
All other documents filed by the Company with the Commission pursuant to
Sections 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 made hereby shall be deemed to be incorporated by reference in this
Prospectus and to be a part hereof from the date of the filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated herein by reference, or contained in this Prospectus, shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus has been delivered, upon written or oral request of such person, a
copy (without exhibits other than exhibits specifically incorporated by
reference into such documents) of any or all documents incorporated by reference
into this Prospectus. Requests for such copies should be directed to the
Corporate Affairs Department, H. J. Heinz Company, P.O. Box 57, Pittsburgh,
Pennsylvania 15230-0057; telephone number (412) 456-6000.
3
<PAGE> 25
THE COMPANY
The Company was incorporated in Pennsylvania on July 27, 1900. In 1905, it
succeeded to the business of a partnership operating under the same name which
had developed from a food business founded in 1869 at Sharpsburg, Pennsylvania
by Henry J. Heinz. The principal executive offices of the Company are located at
600 Grant Street, Pittsburgh, Pennsylvania 15219 and its telephone number is
412-456-5700.
The Company and its subsidiaries manufacture and market an extensive line
of processed food products throughout the world. The Company's products include
ketchup and sauces/condiments, pet food, tuna and other seafood products, baby
food, frozen potato products, soup (canned and frozen), lower calorie products
(frozen entrees, frozen desserts, frozen breakfasts, dairy and other products),
beans, pasta, full calorie frozen dinners and entrees, coated products, bakery
products, vegetables and fruits (frozen and canned), chicken, frozen pizza and
pizza components, edible oils, margarine/shortening, vinegar, pickles, juices,
canned meats and other processed food products. The Company also operates and
franchises weight control classes and operates other related programs and
activities.
The Company's products are widely distributed around the world. Many of the
Company's products are marketed under the "Heinz" trademark, principally in the
United States, Canada, the United Kingdom, other western European countries,
Australia, Venezuela, Japan, the People's Republic of China, the Republic of
Korea and Thailand. Other important trademarks include "Star-Kist" for tuna
products, "Ore-Ida" for frozen retail potato products, "Bagel Bites" for pizza
snack products, "Moore's" for retail coated vegetables, "Rosetto" for frozen
pasta products, "Earth's Best" for baby food and "Dyna Bites" and "Cheese Bites"
for retail snack products, all of which are marketed in the United States. "9
Lives" is used for cat foods, "Kibbles N' Bits", "Ken-L-Ration", "Reward" and
"IVD" for dog food, "Jerky Treats", "Meaty Bone", "Snausages" and "Pup-Peroni"
for dog snacks, and "Nature's Recipe" for dog and cat foods, all of which are
marketed in the United States and Canada. "Amore" is used for cat foods, "Kozy
Kitten" for canned cat foods, "Cycle", "Gravy Train", "Skippy Premium", "Recipe"
and "Vets" for dog food, and "Pounce" for cat treats, all of which are marketed
in the United States. "Chef Francisco" is used for frozen soups and "Omstead" is
used for frozen vegetables, frozen coated products and frozen fish products,
both of which are marketed in the United States and Canada. "Pablum" is used for
baby food products marketed in Canada. "Plasmon", "Nipiol" and "Dieterba" are
used for baby food products, "Ortobuono" for pickled vegetables and fruit in
syrup, "Mare D'Oro" for seafood and "Mareblu" for tuna, "Mr. Foody" for table
and kitchen sauces, and "Bi-Aglut", "Aproten", "Polial" and "Dialibra" for
nutraceutical products, all of which are mainly marketed in Italy. "Petit
Navire" is used for tuna and mackerel products, "Marie Elisabeth" for sardines
and tuna and "Orlando" and "Guloso" for tomato products, all of which are
marketed in various European countries. "John West" is used for tuna, salmon and
other products in the United Kingdom and other European countries. "Pudliszki"
is used for ketchup and other products in Poland. "Wattie's" is used for various
grocery products and frozen foods, "Tegel" for poultry products, "Chef" and
"Champ" for cat and dog foods and "Craig's" for jams and marmalades, all of
which are marketed in New Zealand, Australia and the Asia/Pacific region.
"Hellaby" is used for canned meats in New Zealand and the Asia/Pacific region.
"Farley's" and "Farex" are used for baby food products marketed in Europe,
Canada, India, Australia and New Zealand. "Glucon D" and "Complan" are used for
nutritional drink mixes marketed in India and in the case of "Complan" also
Latin America and New Zealand. "Ganave" is used for pet food in Argentina. "N/R
Original Recipe" is used for dog and cat foods marketed in various European
countries and "Martins", "Medi-Cal" and "Techni-cal" are used for dog and cat
foods in Canada, certain European countries and Japan. "Weight Watchers" is used
in numerous countries in conjunction with owned and franchised weight control
classes, programs, related activities and certain food products. "Budget
Gourmet" is used for frozen entrees and dinners. The Company also markets
certain products under other trademarks and brand names and under private
labels.
4
<PAGE> 26
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's consolidated ratio of earnings
to fixed charges for the periods shown.
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
NINE MONTHS ENDED ----------------------------------------------------------------------------
JANUARY 28, 1998 APRIL 30, 1997 MAY 1, 1996 MAY 3, 1995 APRIL 27, 1994 APRIL 28, 1993
- ---------------- -------------- ----------- ----------- -------------- --------------
<S> <C> <C> <C> <C> <C>
5.48 2.56 4.34 4.98 6.20 4.88
</TABLE>
The ratios of earnings to fixed charges were calculated by dividing
earnings by fixed charges. Earnings were calculated by adding income before
income taxes and the cumulative effect of accounting change, interest expense
(including amortization of debt expense and any discount or premium relating to
indebtedness), the interest component of rental expense and the amortization of
capitalized interest. Fixed charges were calculated by adding interest expense
(including amortization of debt expense and any discount or premium relating to
indebtedness), capitalized interest and the interest component of rental
expense.
USE OF PROCEEDS
Except as may be set forth in a Prospectus Supplement, the Company intends
to use the net proceeds from the sale of the Debt Securities to repay short-term
debt, to reduce or retire from time to time other indebtedness, to purchase
common stock of the Company pursuant to the Company's ongoing stock repurchase
program and for other general corporate purposes, including for capital
expenditures for business development.
Depending on market conditions, the financial needs of the Company and
other factors, the Company may, from time to time, undertake additional
financings. The amount and timing of such financings, if any, cannot be
determined at this time.
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 Offered Debt
Securities and the extent, if any, to which such general provisions may apply to
the Offered Debt Securities will be described in the Prospectus Supplement
relating to such Offered Debt Securities.
The Debt Securities are to be issued under an Indenture (the "Indenture"),
dated as of July 15, 1992, between the Company and The First National Bank of
Chicago, as Trustee (the "Trustee"), which is filed as an exhibit to the
Registration Statement. The following summary of certain general provisions of
the Indenture and the Debt Securities does not purport to be complete and is
subject to, and is qualified in its entirety by reference to, the provisions of
the Indenture, including the definitions therein of certain terms. Whenever
particular provisions in the Indenture are referred to herein, such provisions
are incorporated by reference herein. Unless otherwise defined herein, all
capitalized terms in this section have the definitions ascribed to such terms in
the Indenture, which definitions are incorporated by reference herein.
GENERAL
The Indenture does not limit the amount of Debt Securities that may be
issued thereunder and provides that Debt Securities may be issued thereunder up
to the aggregate principal amount which may be authorized from time to time. The
Debt Securities may be issued from time to time in one or more series. The Debt
Securities will be unsecured and will rank pari passu with all other unsecured
and unsubordinated indebtedness of the Company. The Indenture does not limit the
amount of other indebtedness or securities, other than certain secured
indebtedness as described below, that may be issued by the Company.
Debt Securities of a series may be issued in registered form ("Registered
Securities") or bearer form ("Bearer Securities") or both as specified in the
terms of the series. Debt Securities in bearer form will be offered only to
non-United States persons and to offices located outside the United States of
certain United States financial institutions. Debt Securities of a series may be
issued in whole or in part in the form of one or more
5
<PAGE> 27
global securities ("Global Securities") registered in the name of a depository
or its nominee and, in such case, beneficial interests in the Global Securities
will be shown on, and transfers thereof will be effected only through, records
maintained by the designated depository and its participants.
Reference is made to the Prospectus Supplement relating to the particular
series of Offered Securities offered thereby for the following terms of the
Offered Debt Securities:
- The designation, aggregate principal amount and authorized denominations;
- The issue price expressed as a percentage of the aggregate principal
amount;
- The date or dates of maturity;
- The interest rate per annum (fixed or floating) or the method by which
such interest rate will be determined;
- The dates interest will commence accruing and, if applicable, be paid
and, for Registered Securities, the record dates for interest payments;
- Where principal and interest, if any, will be paid;
- Any optional or mandatory sinking fund provisions;
- The dates and redemption prices relating to any optional or mandatory
redemption provisions and other terms and provisions of any optional or
mandatory redemptions;
- The denominations of Registered Securities if other than denominations of
$1,000 and any multiple thereof, and the denominations of Bearer
Securities if other than denominations of $5,000;
- The portion of the principal amount payable on declaration of
acceleration of maturity or provable in bankruptcy, if other than the
principal amount;
- Any Events of Default, if not set forth in the Indenture;
- The currency or currencies, including composite currencies, of payment of
the principal of (and premium, if any) and interest (if any), if other
than the currency of the United States of America;
- If the principal (and premium, if any) or interest, if any, are to be
payable, at the election of the Company or any holder thereof, in coin or
currency other than that in which the Offered Debt Securities of the
series are stated to be payable, the period or periods within which, and
the terms and conditions on which, such election may be made;
- If such securities are to be denominated in a currency or currencies,
including composite currencies, other than the currency of the United
States of America, the equivalent price in the currency of the United
States of America for purposes of determining the voting rights of
Holders of such Offered Debt Securities as Outstanding Securities under
the Indenture;
- If the amount of payments of principal of (and premium, if any), or
portions thereof, or interest may be determined with reference to an
index, formula or other method, the manner of determining such amounts;
- Whether the Offered Debt Securities will be issuable in registered or
bearer form or both, any restrictions applicable to the offer, sale or
delivery of the Offered Debt Securities in bearer form and whether the
Offered Debt Securities in bearer form will be exchangeable (and the
terms on which such exchange may be made) for Offered Debt Securities in
registered form;
- Whether Offered Debt Securities will be issued in whole or in part in the
form of one or more Global Securities and, if so, the method of
transferring beneficial interest in such Global Security or Global
Securities;
- The application, if any, of certain provisions of the Indenture relating
to defeasance and discharge, and related conditions;
6
<PAGE> 28
- Any additional restrictive covenants or other material terms relating
thereto which may not be inconsistent with the Indenture; and
- Any applicable federal income tax consequences.
Reference also is made to the Prospectus Supplement relating to the
particular series of Offered Debt Securities offered thereby for information
with respect to Warrants to purchase such Offered Debt Securities, if any.
Unless otherwise indicated in the Prospectus Supplement relating thereto,
principal (and premium, if any) will be payable and the Registered Securities
will be transferable at the corporate trust office of the Trustee in New York,
New York. Unless other arrangements are made, interest, if any, will be paid by
checks mailed to the Holders of Registered Securities at their registered
addresses. To the extent set forth in the Prospectus Supplement relating
thereto, Bearer Securities and the coupons appertaining thereto will be payable,
against surrender thereof, subject to any applicable laws and regulations, at
the offices of such paying agencies outside the United States as the Company may
appoint from time to time. No service charge will be made for any transfer or
exchange of the Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
One or more series of the Debt Securities may be issued as discounted Debt
Securities (bearing no interest or interest at a rate which at the time of
issuance is below market rates) to be sold at a substantial discount below their
stated principal amount. Federal income tax consequences and other special
considerations applicable to any such discounted Debt Securities will be
described in the Prospectus Supplement relating thereto.
The Company will comply with Section 14(e) under the Exchange Act, and any
other tender offer rules under the Exchange Act which may then be applicable, in
connection with any obligation of the Company to purchase Offered Debt
Securities at the option of the holders thereof. Any such obligation applicable
to a Series of Debt Securities will be described in the Prospectus Supplement or
Prospectus Supplements relating thereto.
The Company may at any time purchase Debt Securities at any price in the
open market or otherwise. Debt Securities so purchased by the Company may, at
its sole option, be held, resold or surrendered to the Trustee for cancellation.
HIGHLY LEVERAGED TRANSACTIONS
Unless otherwise described in a Prospectus Supplement relating to any
Offered Debt Securities, there are no covenants or provisions contained in the
Indenture which may afford the holders of Offered Debt Securities direct
protection in the event of a highly leveraged transaction involving the Company.
CERTAIN DEFINITIONS
"Consolidated Net Assets" means total assets after deducting therefrom all
current liabilities as set forth on the most recent balance sheet of the Company
and its consolidated Subsidiaries and computed in accordance with generally
accepted accounting principles.
"Funded Debt" means (i) all indebtedness for money borrowed having a
maturity of more than 12 months from the date as of which the determination is
made or having a maturity of 12 months or less but by its terms being renewable
or extendible beyond 12 months from such date at the option of the borrower and
(ii) rental obligations payable more than 12 months from such date under leases
which are capitalized in accordance with generally accepted accounting
principles (such rental obligations to be included as Funded Debt at the amount
so capitalized and to be included for the purposes of the definition of
Consolidated Net Assets both as an asset and as Funded Debt at the amount so
capitalized).
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Principal Property" means any manufacturing or processing plant or
warehouse owned at the date hereof or hereafter acquired by the Company or any
Restricted Subsidiary of the Company which is located within the
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United States and the gross book value (including related land and improvements
thereon and all machinery and equipment included therein without deduction of
any depreciation reserves) of which on the date as of which the determination is
being made exceeds 2% of Consolidated Net Assets other than (i) any such
manufacturing or processing plant or warehouse or any portion thereof (together
with the land on which it is erected and fixtures comprising a part thereof)
which is financed by industrial development bonds which are tax exempt pursuant
to Section 103 of the Internal Revenue Code (or which receive similar tax
treatment under any subsequent amendments thereto or any successor laws thereof
or under any other similar statute of the United States), (ii) any property
which in the opinion of the Board of Directors is not of material importance to
the total business conducted by the Company as an entirety or (iii) any portion
of a particular property which is similarly found not to be of material
importance to the use or operation of such property.
"Restricted Subsidiary" means a Subsidiary of the Company (i) substantially
all the property of which is located, or substantially all the business of which
is carried on, within the United States and (ii) which owns a Principal
Property.
"Subsidiary" means any corporation more than 50% of the outstanding Voting
Stock of which at the time of determination is owned, directly or indirectly, by
the Company and/or by one or more other Subsidiaries.
"Voting Stock" means capital stock of a corporation of the class or classes
having general voting power under ordinary circumstances to elect at least a
majority of the Board of Directors, managers or trustees of such corporation
(irrespective of whether or not at the time stock of any other class or classes
shall have or might have voting power upon the occurrence of any contingency).
RESTRICTIONS ON SECURED DEBT
If the Company or any Restricted Subsidiary shall after the date of the
Indenture incur or guarantee any evidence of indebtedness for money borrowed
("Debt") secured by a mortgage, pledge or lien ("Mortgage") on any Principal
Property of the Company or any Restricted Subsidiary, or on any share of stock
or Debt of any Restricted Subsidiary, the Company will secure or cause such
Restricted Subsidiary to secure the Debt Securities, other than any series of
Debt Securities established by or pursuant to a Board Resolution or in one or
more supplemental indentures which specifically provide otherwise, equally and
ratably with (or, at the Company's option, prior to) such secured Debt, unless
the aggregate amount of all such secured Debt would not exceed 10% of
Consolidated Net Assets.
The above restrictions will not apply to, and there will be excluded from
secured Debt in any computation under such restrictions, Debt secured by (a)
Mortgages on property of, or on any shares of stock of or Debt of, any
corporation existing at the time such corporation becomes a Restricted
Subsidiary, (b) Mortgages in favor of the Company or a Restricted Subsidiary,
(c) Mortgages in favor of governmental bodies to secure progress, advance or
other payments pursuant to any contract or provisions of any statute, (d)
Mortgages on property, shares of capital stock or Debt existing at the time of
acquisition thereof (including acquisition through merger or consolidation) and
purchase money and construction Mortgages which are entered into within time
limits specified in the Indenture, (e) Mortgages securing industrial revenue
bonds, pollution control bonds or other similar tax-exempt bonds, (f) mechanics'
and similar liens arising in the ordinary course of business in respect of
obligations not due or being contested in good faith, (g) Mortgages arising from
deposits with or the giving of any form of security to any governmental agency
required as a condition to the transaction of business or to the exercise of any
privilege, franchise or license, (h) Mortgages for taxes, assessments or
governmental charges or levies which are not then due or, if delinquent, are
being contested in good faith, (i) Mortgages (including judgment liens) arising
from legal proceedings being contested in good faith, (j) Mortgages existing at
the date of the Indenture and (k) any extension, renewal or refunding of any
Mortgage referred to in the foregoing clauses (a) through (j) inclusive.
MERGER AND CONSOLIDATION
The Company covenants that it will not merge or sell, convey, transfer or
lease all or substantially all of its assets unless the successor Person is the
Company or another Person organized under the laws of the United States
(including any state thereof and the District of Columbia) which assumes the
Company's obligations on
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<PAGE> 30
the Debt Securities and under the Indenture and, after giving effect to such
transaction, the Company or the successor Person would not be in default under
the Indenture.
EVENTS OF DEFAULT
The Indenture defines "Events of Default" with respect to the Debt
Securities of any series as being one of the following events: (i) default in
the payment of any installment of interest on that series for 30 days after
becoming due; (ii) default in the payment of principal on that series when due;
(iii) default in the deposit of any sinking fund payment when due; (iv) default
in the performance or breach of any other covenant or warranty in the Debt
Securities of that series or the Indenture (other than a covenant included in
the Indenture solely for the benefit of any series of Debt Securities other than
that series) for 90 days after notice; (v) certain events of bankruptcy,
insolvency or reorganization; and (vi) any other Event of Default provided with
respect to Debt Securities of that series. If an Event of Default shall occur
and be continuing with respect to the Debt Securities of any series, either the
Trustee or the holders of at least 25% in principal amount of the Debt
Securities then outstanding of that series may declare the principal (or such
portion thereof as may be specified in the Prospectus Supplement relating to
such series) of the Debt Securities of such series to be due and payable. Under
certain conditions, such a declaration may be annulled.
The Indenture provides that the Trustee shall, within 90 days after the
occurrence of a default known to it, give the holders of Debt Securities notice
of all uncured defaults known to it (the term "default" to mean the events
specified above without grace periods); provided, however, that, except in the
case of default in the payment of principal of or interest on any Debt Security,
the Trustee shall be protected in withholding such notice if it in good faith
determines the withholding of such notice is in the interest of the holders of
Debt Securities.
The Company will be required to furnish to the Trustee annually a statement
by certain officers of the Company to the effect that to the best of their
knowledge the Company has complied with all of its conditions and covenants
under the Indenture or, if the Company has not so complied, specifying each such
default.
The holders of a majority in principal amount of the outstanding Debt
Securities of any series will have the right, subject to certain limitations, to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee with respect to the Debt Securities of such series, and to waive certain
defaults with respect thereto. The Indenture provides that in case an Event of
Default shall occur and be continuing, the Trustee shall exercise such of its
rights and powers under the Indenture, and use the same degree of care and skill
in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs. Subject to such provisions, the
Trustee will be under no obligation to exercise any of its rights or powers
under the Indenture at the request of any of the holders of Debt Securities
unless they shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request.
MODIFICATION OF THE INDENTURE
With certain exceptions, the Indenture may be modified or amended with the
consent of the holders of not less than a majority in principal amount of the
outstanding Debt Securities of each series affected by the modification;
provided, however, that no such modification or amendment may be made, without
the consent of the holder of each Debt Security affected, which would (i) reduce
the principal amount of or the interest on any Debt Security, change the stated
maturity of the principal of, or any installment of principal of or interest on,
any Debt Security, or the other terms of payment thereof, or (ii) reduce the
above-stated percentage of Debt Securities, the consent of the holders of which
is required to modify or amend the Indenture, or the percentage of Debt
Securities of any series, the consent of the holders of which is required to
waive compliance with certain provisions of the Indenture or to waive certain
past defaults.
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DEFEASANCE AND DISCHARGE
The Indenture provides that the Company may elect, with respect to the Debt
Securities of any series, either:
(i) to terminate (and be deemed to have satisfied) any and all
obligations in respect of such Debt Securities (except for certain
obligations to register the transfer or exchange or Debt Securities, to
replace stolen, lost or mutilated Debt Securities, to maintain paying
agencies and hold monies for payment in trust and, if so specified with
respect to the Debt Securities of a certain series, to pay the principal of
(and premium, if any) and interest, if any, on such specified Debt
Securities); or
(ii) to be released from its obligations with respect to such Debt
Securities under Section 1004 of the Indenture (being the restrictions
described above under "Restrictions on Secured Debt");
in either case on the 91st day after the deposit with the Trustee, in trust, of
money and/or U.S. Government Obligations (as defined) which through the payment
of interest and principal thereof in accordance with their terms will provide
money in an amount sufficient to pay any installment of principal (and premium,
if any) and interest, if any, on and any mandatory sinking fund payments in
respect of such Debt Securities on the stated maturity of such payments in
accordance with the terms of the Indenture and such Debt Securities. Such a
trust may be established only if, among other things, the Company has delivered
to the Trustee an Opinion of Counsel (who may be counsel to the Company) to the
effect that, based upon applicable Federal income tax law or a ruling published
by the United States Internal Revenue Service, such a defeasance and discharge
will not be deemed, or result in, a taxable event with respect to holders of
such Debt Securities. The designation of such provisions, Federal income tax
consequences and other considerations applicable thereto will be described in
the Prospectus Supplement relating thereto. If so specified with respect to the
Debt Securities of a series, such a trust may be established only if
establishment of the trust would not cause the Debt Securities of any such
series listed on any nationally recognized securities exchange to be de-listed
as a result thereof.
CONCERNING THE TRUSTEE
The First National Bank of Chicago is the Trustee under the Indenture and
has been appointed by the Company as initial Security Registrar with regard to
the Debt Securities. The Company currently does, and from time to time in the
future may, maintain lines of credit and have customary banking relationships
with the Trustee. The Trustee currently serves as trustee for the Company's
$300,000,000 6 3/4% Notes due 1999 and the $200,000,000 6 7/8% Notes due 2003.
In addition, the Trustee may serve as trustee for other debt securities issued
by the Company from time to time.
DESCRIPTION OF WARRANTS
The Company may issue, together with other Debt Securities, Warrants for
the purchase of Debt Securities. The Warrants will be issued under Warrant
Agreements (each a "Warrant Agreement") to be entered into between the Company
and a bank or trust company, as Warrant Agent (the "Warrant Agent"), all as
shall be set forth in the Prospectus Supplement or Prospectus Supplements
relating to Warrants being offered thereby. A copy of the form of Warrant
Agreement, including the form of Warrant Certificate representing the Warrants
(the "Warrant Certificates"), is filed as an exhibit to the Registration
Statement. The following summaries of certain provisions of the Warrant
Agreement and the Warrant Certificates do not purport to be complete and are
subject to, and are qualified in their entirety by reference to, all the
provisions of the Warrant Agreement and the Warrant Certificates, respectively,
including the definitions therein of certain terms.
GENERAL
The Prospectus Supplement or Prospectus Supplements relating to any
Warrants will describe the terms of the Warrants offered thereby, the Warrant
Agreement relating to such Warrants and the Warrant Certificates representing
such Warrants, including the following:
- The designation, aggregate principal amount and terms of the Debt
Securities purchasable upon exercise of such Warrants and the procedures
and conditions relating to the exercise of such Warrants;
- The designation and terms of any related Debt Securities with which such
Warrants are issued and the number of such Warrants issued with each such
Debt Security;
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- The date such Warrants and the related Debt Securities will be separately
transferrable, if applicable;
- The principal amount of Debt Securities purchasable upon exercise of such
Warrants and the applicable exercise price;
- The dates the right to exercise such Warrants shall commence and expire
(the "Expiration Date");
- A discussion of certain applicable United States Federal income tax
considerations; and
- Whether the Warrants represented by the Warrant Certificates will be
issued in registered or bearer form, and, if registered, where they may
be transferred and registered.
Warrant Certificates will be exchangeable for new Warrant Certificates of
different denominations and Warrants may be exercised at the corporate trust
office of the Warrant Agent or any other office indicated in the applicable
Prospectus Supplement. Prior to the exercise of their Warrants, holders of
Warrants will not have any of the rights of holders of the Debt Securities
purchasable upon such exercise (except to the extent that consent of holders of
Warrants may be required for certain modifications of the terms of the Indenture
and of a Series of Debt Securities issuable upon exercise of the Warrants) and
will not be entitled to payments of principal of or interest, if any, on the
Debt Securities purchasable upon such exercise.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder thereof to purchase for cash such
principal amount of Debt Securities at such exercise price as shall in each case
be set forth in, or be determinable as set forth in, the Prospectus Supplement
relating to the Warrants offered thereby. Warrants may be exercised at any time
up to the close of business on the Expiration Date set forth in the Prospectus
Supplement relating to the Warrants offered thereby. After the close of business
on the Expiration Date, unexercised Warrants will become void.
Warrants may be exercised as set forth in the Prospectus Supplement
relating to the Warrants offered thereby. As soon as practicable after the
proper exercise of a Warrant, the Company shall issue, pursuant to the
Indenture, the Debt Securities purchased upon such exercise. If less than all of
the Warrants represented by such Warrant Certificate are exercised, a new
Warrant Certificate will be issued for the remaining amount of Warrants.
PLAN OF DISTRIBUTION
The Company may sell Debt Securities and Warrants to or through
underwriters, and also may sell Debt Securities and Warrants directly to other
purchasers or through agents. The distribution of the Debt Securities and
Warrants may be effected from time to time in one or more transactions at a
fixed price or prices, which may be changed, or at market prices prevailing at
the time of sale, at prices related to such prevailing market prices or at
negotiated prices. The Prospectus Supplement will describe the method of
distribution of the Offered Debt Securities and Warrants.
In connection with the sale of Debt Securities and Warrants, underwriters
may receive compensation from the Company or from purchasers of Debt Securities
and Warrants for whom they may act as agents in the form of discounts,
concessions or commissions. Underwriters may sell Debt Securities and Warrants
to or through dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the purchasers for whom they may act
as agent. Underwriters, dealers and agents that participate in the distribution
of Debt Securities and Warrants may be deemed to underwriters, and any
discounts, commissions or concessions received by them and any profit on the
resale of Debt Securities or Warrants by them may be deemed to be underwriting
discounts and commissions under the Securities Act. Any such underwriter or
agent will be identified, and any such compensation will be described, in the
Prospectus Supplement.
Under agreements that may be entered into by the Company, underwriters,
dealers and agents that participate in the distribution of Debt Securities or
Warrants may be entitled to indemnification or contribution by the Company
against certain liabilities, including liabilities under the Securities Act.
Each underwriter, dealer and agent participating in the distribution of any
Debt Securities that are issuable as Bearer Securities will agree that it will
not offer, sell or deliver, directly or indirectly, Bearer Securities in the
United States or to United States persons (other than qualifying financial
institutions) in connection with the original issuance of such Debt Securities.
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LEGAL OPINIONS
The validity of the Offered Debt Securities and Warrants will be passed
upon for the Company by Lawrence J. McCabe, Senior Vice President, General
Counsel and Secretary of the Company, and for the underwriters, dealers or
agents, if any, by Sullivan & Cromwell, New York, New York, unless otherwise
specified in the Prospectus Supplement. Mr. McCabe beneficially owns shares of
the Company's common stock and holds options to purchase additional shares of
common stock.
EXPERTS
The consolidated financial statements of the Company as of April 30, 1997
and May 1, 1996 and for each of the three fiscal years in the period ended April
30, 1997 incorporated in this Prospectus by reference to the Annual Report on
Form 10-K for the fiscal year ended April 30, 1997 have been so incorporated in
reliance on the report of Coopers & Lybrand L.L.P., independent accountants,
given on the authority of said firm as experts in accounting and auditing.
SPECIAL NOTE REGARDING FORWARD LOOKING STATEMENTS
Section 21E of the Exchange Act provides a "safe harbor" for
forward-looking statements to encourage companies to provide prospective
information about their companies, so long as those statements are identified as
forward-looking and are accompanied by meaningful cautionary statements
identifying important factors that could cause actual results to differ
materially from those discussed in the statements. The Company desires to take
advantage of the "safe harbor" provisions of the Exchange Act with regard to the
forward-looking statements contained in this Prospectus and any document
incorporated by reference herein. The forward-looking statements are and will be
based on management's then current views and assumptions regarding future events
and financial performance. The factors identified by the Company include, among
other things, the following: general economic and business conditions in the
domestic and global markets; actions of competitors, including competitive
pricing; changes in consumer preferences and spending patterns; changes in
social and demographic trends; changes in laws and regulations, including
changes in taxation and accounting standards; foreign economic conditions,
including currency exchange rate fluctuations; interest rate fluctuations; the
effects of changing prices for, and availability of, the raw material used by
the Company; and the effectiveness of the Company's marketing, advertising and
promotional programs.
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EXHIBIT C
H.J. HEINZ COMPANY
DEBT SECURITIES AND WARRANTS
TO PURCHASE DEBT SECURITIES
UNDERWRITING AGREEMENT
March 20, 1998
TO THE REPRESENTATIVES OF THE
SEVERAL UNDERWRITERS NAMED IN THE
RESPECTIVE PRICING AGREEMENTS
HEREINAFTER DESCRIBED
Ladies and Gentlemen:
From time to time H.J. Heinz Company, a Pennsylvania corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Debt Securities") and
warrants to purchase Debt Securities (the "Warrants" and, together with the Debt
Securities, the "Securities") specified in Schedule II to such Pricing Agreement
(with respect to such Pricing Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the indenture (the "Indenture") or, if applicable, Warrant
Agreement (the "Warrant Agreement") identified in such Pricing Agreement.
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting Agreement
shall not be construed as an obligation of the Company to sell any of the
Securities or as an obligation of any of the Underwriters to purchase the
Securities. The obligation of the Company to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the aggregate principal amount of such Designated Securities, the initial public
offering price of such Designated Securities, the purchase price to the
Underwriters of such Designated Securities, the names of the Underwriters of
such Designated Securities, the names of the Representatives of such
Underwriters and the
<PAGE> 35
principal amount of such Designated Securities to be purchased by each
Underwriter and shall set forth the date, time and manner of delivery of such
Designated Securities and payment therefor. The Pricing Agreement shall also
specify (to the extent not set forth in the Indenture and the registration
statement and prospectus with respect thereto) the terms of such Designated
Securities. A Pricing Agreement shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) The Company meets the requirements for the use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and a
registration statement on Form S-3 (File No. 333-48017) (the "Initial
Registration Statement") in respect of the Securities has been filed
with the Securities and Exchange Commission (the "Commission"); such
Initial Registration Statement and any post-effective amendment
thereto, each in the form heretofore delivered or to be delivered to
the Representatives and, excluding exhibits to such registration
statement, but including all documents incorporated by reference in the
prospectus contained therein, to the Representatives for each of the
other Underwriters, have been declared effective by the Commission in
such form; other than a registration statement, if any, increasing the
size of the offering (a "Rule 462(b) Registration Statement") filed
pursuant to Rule 462(b) under the Act, which became effective upon
filing, no other document with respect to the Initial Registration
Statement or document incorporated by reference therein has heretofore
been filed or transmitted for filing with the Commission (other than
prospectuses filed pursuant to Rule 424(b) of the rules and regulations
of the Commission under the Act, each in the form heretofore delivered
to the Representatives); and no stop order suspending the effectiveness
of the Initial Registration Statement, any post-effective amendment
thereto or the Rule 462(b) Registration Statement, if any, has been
issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in
the Initial Registration Statement or filed with the Commission
pursuant to Rule 424(a) under the Act, is hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any, including
all exhibits thereto and the documents incorporated by reference in the
prospectus contained in the Initial Registration Statement at the time
such part of the registration statement became effective but excluding
Form T-1, each as amended at the time such part of the registration
statement became effective, or such part of the Rule 462(b)
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<PAGE> 36
Registration Statement, if any, became or hereafter becomes effective,
are hereinafter collectively called the "Registration Statement"; the
prospectus relating to the Securities, in the form in which it has most
recently been filed, or transmitted for filing, with the Commission on
or prior to the date of this Agreement, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under
the Act, as of the date of such Preliminary Prospectus or Prospectus,
as the case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated
by reference in such Preliminary Prospectus or Prospectus, as the case
may be; any reference to any amendment to the Registration Statement
shall be deemed to refer to and include any annual report of the
Company filed pursuant to Sections 13(a) or 15(d) of the Exchange Act
after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any
reference to the Prospectus as amended or supplemented shall be deemed
to refer to the Prospectus as amended or supplemented in relation to
the applicable Designated Securities in the form in which it is filed
with the Commission pursuant to Rule 424(b) under the Act in accordance
with Section 5(a) hereof, including any documents incorporated by
reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter of
Designated Securities through the
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<PAGE> 37
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating
to such Securities;
(d) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree which is
material to the business or operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any material change in the capital stock
or long-term debt of the Company and its subsidiaries (other than
increases in the amount of the Company's domestic commercial paper
borrowings, which are classified by the Company in accordance with
generally accepted accounting principles as long-term debt) or any
material adverse change, or any development which the Company has a
reasonable cause to believe will involve a prospective material adverse
change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company
and its subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus; the Company is qualified
4
<PAGE> 38
to transact business and is in good standing in each jurisdiction in
which the conduct of its business or ownership or leasing of property
requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole;
and each of Star-Kist Foods, Inc., Ore-Ida Foods, Inc., Weight Watchers
Gourmet Food Company, Portion Pac, Inc. and Weight Watchers
International, Inc. (collectively, the "Material Subsidiaries") has
been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation and is
duly qualified to transact business and is in good standing in each
jurisdiction of its principal place of business;
(f) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable;
(g) The Debt Securities have been duly authorized, and, when
Designated Securities that include Debt Securities (the "Designated
Debt Securities") are issued and delivered pursuant to this Agreement
and the Pricing Agreement with respect to such Designated Securities,
such Designated Debt Securities will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Indenture, which is filed as an exhibit to the
Registration Statement; the Indenture has been duly authorized and duly
qualified under the Trust Indenture Act and, the Indenture constitutes
and, at the Time of Delivery (as defined in Section 4 hereof) for such
Designated Debt Securities, the Indenture will constitute a valid and
legally binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the Indenture
conforms, and the Designated Securities will conform, to the
descriptions thereof contained in the Prospectus as amended or
supplemented with respect to such Designated Securities;
(h) The Warrants have been duly authorized, and, when
Designated Securities that include Warrants (the "Designated Warrants")
are issued and delivered pursuant to this Agreement and the Pricing
Agreement with respect to such Designated Securities, such Designated
Warrants will have been duly authenticated, issued and delivered and
will constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Warrant Agreement, which will
be substantially in the form filed as an exhibit to the Registration
Statement; and, at the Time of Delivery for such Designated Warrants,
the Warrant Agreement will constitute a valid and legally binding
instrument,
5
<PAGE> 39
enforceable in accordance with its terms, subject, as to enforcement,
to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; and the Warrant Agreement conforms, and the
Designated Warrants will conform, to the descriptions thereof contained
in the Prospectus as amended or supplemented with respect to such
Designated Warrants.
(i) The issue and sale of the Securities and the compliance by
the Company with all of the provisions of the Securities, the
Indenture, the Warrant Agreement, this Agreement and any Pricing
Agreement, and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company is a party or by which the
Company is bound or to which any of the property or assets of the
Company is subject, nor will such action result in any violation of the
provisions of the Articles of Incorporation, as amended, or By-laws of
the Company or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or any of its properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale
of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement or any Pricing Agreement or
the Indenture or Warrant Agreement, except such as have been, or will
have been prior to the Time of Delivery, obtained under the Act and the
Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(j) The statements set forth in the Prospectus under the
captions "Description of Debt Securities" and "Description of Notes,"
insofar as they purport to constitute a summary of the terms of the
Debt Securities, under the caption "Description of Warrants," insofar
as they purport to constitute a summary of the terms of the Warrants,
and in the first, second and third paragraphs under the caption "Plan
of Distribution" and in the second, third and fourth paragraphs under
the caption "Underwriting," insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate
and fair;
(k) Neither the Company nor any of its Material Subsidiaries
is (i) in violation of its Articles or Certificate of Incorporation or
By-laws or (ii) in default in the performance or observance of any
obligation, agreement, covenant or
6
<PAGE> 40
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound, which
default would have a material adverse effect on the business,
operations or condition (financial or otherwise) of the Company and its
subsidiaries, taken as a whole;
(l) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would individually
or in the aggregate have a material adverse effect on the consolidated
financial position, shareholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole; and, to the best of
the Company's knowledge, no such proceedings are threatened;
(m) The Company is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment
company" or an entity "controlled" by an "investment company," as such
terms are defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act"); and
(n) Coopers & Lybrand, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter pursuant
to the Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least forty-eight hours' prior notice to
the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor as specified in the
Pricing Agreement by (unless otherwise set forth in the Pricing Agreement) wire
transfer to the account specified by the Company, in the funds specified in such
Pricing Agreement, all in the manner and at the place and time and date
specified in such Pricing Agreement or at such other place and time and date as
the Representatives and the Company may agree upon in writing, such time and
date being herein called the "Time of Delivery" for such Securities.
7
<PAGE> 41
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in a form approved by
the Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Act not later than the Commission's close of business on the
second business day following the execution and delivery of the Pricing
Agreement relating to the applicable Designated Securities or, if
applicable, such earlier time as may be required by Rule 424(b); to
make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date of
the Pricing Agreement relating to such Securities and prior to the Time
of Delivery for such Securities which shall be disapproved by the
Representatives for such Securities promptly after reasonable notice
thereof; to advise the Representatives promptly of any such amendment
or supplement after such Time of Delivery and furnish the
Representatives with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by
the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act for so long as the delivery of a prospectus
is required in connection with the offering or sale of such Securities,
and during such same period to advise the Representatives, promptly
after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed
with the Commission, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
prospectus relating to the Securities, of the suspension of the
qualification of such Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any such
stop order or of any such order preventing or suspending the use of any
prospectus relating to the Securities or suspending any such
qualification, to use promptly its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Securities, provided that in connection therewith
the
8
<PAGE> 42
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities as the Representatives may
reasonably request, and, if the delivery of a prospectus is required at
any time in connection with the offering or sale of the Securities and
if at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus
or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act, the
Exchange Act or the Trust Indenture Act, to notify the Representatives
and upon their request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities as
many copies as the Representatives may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such
compliance;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and
including the earlier of (i) the termination of trading restrictions
for such Designated Securities, as notified to the Company by the
Representatives and (ii) the Time of Delivery for such Designated
Securities, not to offer, sell, contract to sell or otherwise dispose
of any debt securities of the Company which mature more than one year
after such Time of Delivery and which are substantially similar to such
Designated Securities, without the prior written consent of the
Representatives; and
(f) If the Company elects to rely upon Rule 462(b), the
Company shall file a Rule 462(b) Registration Statement with the
Commission in compliance with
9
<PAGE> 43
Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement, and the Company shall at the time of filing either pay to
the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such fee
pursuant to Rule 111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Indenture, any Blue Sky and Legal Investment Memoranda, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Securities; (iii) all expenses
in connection with the qualification of the Securities for offering and sale
under state securities laws as provided in Section 5(b) hereof, including the
fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and Legal Investment Surveys;
(iv) any fees charged by securities rating services for rating the Securities;
(v) any filing fees incident to, and the fees and disbursements of counsel for
the Underwriters in connection with, any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Securities; (vi) the cost of preparing the Securities; (vii) the fees and
expenses of any Trustee and any agent of any Trustee and the fees and
disbursements of counsel for any Trustee in connection with any Indenture and
the Securities; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, and Sections 8 and 11 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
10
<PAGE> 44
(a) The Prospectus as amended or supplemented in relation to
the applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 5(a) hereof; if the Company has elected
to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall
have become effective by 10:00 p.m. Washington, D.C. time, on the date
of this Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened
by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated the Time of Delivery
for such Designated Securities, with respect to the matters covered in
paragraphs (iv), (v), (vi), (vii), (viii), (xii) and (xv) of subsection
(c) below as well as such other related matters as the Representatives
may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to
pass upon such matters;
(c) Lawrence J. McCabe, Senior Vice President, General Counsel
and Secretary of the Company, or other counsel for the Company
satisfactory to the Representatives shall have furnished to the
Representatives his written opinion, dated the Time of Delivery for
such Designated Securities, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with power and
authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus as amended
or supplemented; the Company is qualified to transact business
and is in good standing in each jurisdiction in which the
conduct of its business or ownership or leasing of property
requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its
subsidiaries, taken as a whole; and each of the Material
Subsidiaries has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the
jurisdiction of its incorporation;
11
<PAGE> 45
(ii) The Company has an authorized capitalization as
set forth in the Prospectus as amended or supplemented and all
of the issued shares of capital stock of the Company have been
duly and validly authorized and issued and are fully paid and
non-assessable;
(iii) To the best of such counsel's knowledge and
other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or
any of its subsidiaries is (or would be) a party or of which
any property of the Company or any of its subsidiaries is (or
would be) the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in
the aggregate have a material adverse effect on the
consolidated financial position, shareholders' equity or
results of operations of the Company and its subsidiaries,
taken as a whole; and, to the best of such counsel's
knowledge, no such proceedings are threatened;
(iv) This Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly
authorized, executed and delivered by the Company;
(v) The Designated Debt Securities have been duly
authorized, executed, authenticated, issued and delivered and
constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture;
and the Designated Debt Securities and the Indenture conform
to the descriptions thereof in the Prospectus as amended or
supplemented;
(vi) The Indenture has been duly authorized, executed
and delivered by the Company and constitutes a valid and
legally binding instrument, enforceable against the Company in
accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors'
rights and to general equity principles; and the Indenture has
been duly qualified under the Trust Indenture Act;
(vii) If applicable, the Designated Warrants have
been duly authorized, authenticated, issued and delivered and
constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Warrant
Agreement; and the Designated Warrants and the Warrant
Agreement conform to the descriptions thereof in the
Prospectus as amended or supplemented;
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<PAGE> 46
(viii) If applicable, the Warrant Agreement has been
duly authorized, executed and delivered by the Company and
constitutes a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(ix) The issue and sale of the Designated Securities
and the compliance by the Company with all of the provisions
of the Designated Securities, the Indenture, the Warrant
Agreement (if applicable), this Agreement and the Pricing
Agreement with respect to the Designated Securities and the
consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument known to
such counsel to which the Company is a party or by which the
Company is bound or to which any of the material property or
assets of the Company is subject, nor will such actions result
in any violation of the provisions of the Articles of
Incorporation, as amended, or By-laws of the Company or any
statute or any order, rule or regulation known to such counsel
of any court or governmental agency or body having
jurisdiction over the Company or any of its properties;
(x) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale
of the Designated Securities or the consummation by the
Company of the transactions contemplated by this Agreement or
such Pricing Agreement or the Indenture or Warrant Agreement
(if applicable), except such as have been obtained under the
Act and the Trust Indenture Act and such consents, approvals,
authorizations, orders, registrations or qualifications as may
be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the
Designated Securities by the Underwriters;
(xi) Neither the Company nor any of its Material
Subsidiaries is (i) in violation of its By-laws or Articles or
Certificate of Incorporation or (ii) in default in the
performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to
which it is a party or by which it or any of its properties
may be bound, which default would have a material adverse
effect on the business, operations, or
13
<PAGE> 47
condition (financial or otherwise) of the Company and its
subsidiaries, taken as a whole;
(xii) The statements set forth in the Prospectus
under the captions "Description of Debt Securities", and
"Description of Notes" insofar as they purport to constitute a
summary of the terms of the Debt Securities and in the first,
second and third paragraphs under the caption "Plan of
Distribution" and in the second, third and fourth paragraphs
under the caption "Underwriting", insofar as they purport to
describe the provisions of the laws and documents referred to
therein, are accurate and fair;
(xiii) The Company is not an "investment company" or
an entity "controlled" by an "investment company", as such
terms are defined in the Investment Company Act;
(xiv) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder;
and such counsel has no reason to believe that any of such
documents, when they became effective or were so filed, as the
case may be, contained, in the case of a registration
statement which became effective under the Act, an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, or, in the case of other
documents which were filed under the Act or the Exchange Act
with the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they were made when such documents were so filed,
not misleading; and
(xv) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and
supplements thereto made by the Company prior to the Time of
Delivery for the Designated Securities (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion) comply as to form
in all material respects with the requirements of the Act and
the Trust Indenture Act and the rules and regulations
thereunder; although such counsel does not assume any
responsibility for the accuracy, completeness or fairness of
14
<PAGE> 48
the statements contained in the Registration Statement or the
Prospectus, except for those referred to in the opinion in
subsection (xii) of this Section 7(c), such counsel has no
reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made
by the Company prior to the Time of Delivery (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion) 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, as of its
date, the Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Company prior to
the Time of Delivery (other than the financial statements and
related schedules therein, as to which such counsel need
express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading or that, as of the
Time of Delivery, either the Registration Statement or the
Prospectus as amended or supplemented or any further amendment
or supplement thereto made by the Company prior to the Time of
Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion) contains an untrue statement of a material fact or
omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; and such counsel does
not know of any amendment to the Registration Statement
required to be filed or any contracts or other documents of a
character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by
reference into the Prospectus as amended or supplemented or
required to be described in the Registration Statement or the
Prospectus as amended or supplemented which are not filed or
incorporated by reference or described as required;
(d) On the date of the Pricing Agreement for such Designated
Securities at a time prior to the execution of the Pricing Agreement
with respect to such Designated Securities and at the Time of Delivery
for such Designated Securities, the independent accountants of the
Company who have certified the financial statements of the Company and
its subsidiaries included or incorporated by reference in the
Registration Statement shall have furnished to the Representatives a
letter, dated the effective date of the Registration Statement or the
date of the most recent report filed with the Commission containing
financial statements and incorporated by reference in the Registration
Statement, if the date of such report is later than such effective
date, and a letter dated such Time of Delivery,
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<PAGE> 49
respectively, to the effect set forth in Annex II hereto, and with
respect to such letter dated such Time of Delivery, as to such other
matters as the Representatives may reasonably request and in form and
substance satisfactory to the Representatives (the executed copy of the
letter delivered prior to the execution of this Agreement is attached
as Annex II(a) hereto and a draft of the form of letter to be delivered
on the effective date of any post-effective amendment to the
Registration Statement and as of each Time of Delivery is attached as
Annex II(b) hereto);
(e) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus as
amended prior to the date of the Pricing Agreement relating to the
Designated Securities any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus as amended prior to the date of the Pricing Agreement
relating to the Designated Securities, and (ii) since the respective
dates as of which information is given in the Prospectus as amended
prior to the date of the Pricing Agreement relating to the Designated
Securities there shall not have been any change in the capital stock or
long-term debt of the Company and its subsidiaries or any change, or
any development involving a prospective change, in or affecting the
general affairs, management, financial position, shareholders' equity
or results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus as amended prior to
the date of the Pricing Agreement relating to the Designated
Securities, the effect of which, in any such case described in Clause
(i) or (ii), is in the judgment of the Representatives so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Designated Securities on the
terms and in the manner contemplated in the Prospectus as first amended
or supplemented relating to the Designated Securities;
(f) On or after the date of the Pricing Agreement relating to
the Designated Securities (i) no downgrading shall have occurred in the
rating accorded the Company's rated securities by any "nationally
recognized statistical rating organization", as that term is defined by
the Commission for purposes of Rule 436(g)(2) under the Act, and (ii)
no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating
of any of the Company's rated securities;
(g) On or after the date of the Pricing Agreement relating to
the Designated Securities there shall not have occurred any of the
following: (i) a
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suspension or material limitation in trading in securities generally on
the New York Stock Exchange; (ii) a suspension or material limitation
in trading in the Company's common stock on the New York Stock
Exchange; (iii) a general moratorium on commercial banking activities
declared by either Federal or New York State authorities; or (iv) the
outbreak or escalation of hostilities involving the United States or
the declaration by the United States of a national emergency or war, if
the effect of any such event specified in this clause (iv) in the
judgment of the Representatives makes it impracticable or inadvisable
to proceed with the public offering or the delivery of the Designated
Securities on the terms and in the manner contemplated in the
Prospectus as first amended or supplemented relating to the Designated
Securities;
(h) The Company shall have furnished or caused to be furnished
to the Representatives at the Time of Delivery for the Designated
Securities a certificate or certificates of officers of the Company
satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of such
Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (e) of
this Section and as to such other matters as the Representatives may
reasonably request; and
(i) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on
the New York business day next succeeding the date of this Agreement.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Company shall 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 an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
17
<PAGE> 51
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by any
Underwriter of Designated Securities through the Representatives expressly for
use in the Prospectus as amended or supplemented relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof. Failure by the indemnified party to so
notify the indemnifying party shall relieve the indemnifying party from the
obligation to indemnify the indemnified party under subsection (a) or (b) above
only to the extent that the indemnifying party suffers actual prejudice as a
result of such failure, but shall not relieve the indemnifying party from its
obligation to provide reimbursement and contribution to the indemnified party.
With respect to any action or proceeding brought by a third party that is also
brought against the indemnifying party, the indemnifying party shall be entitled
to assume the defense of any such action or proceeding with counsel reasonably
satisfactory to the indemnified party. Upon assumption by the indemnifying party
of the defense of any such action or proceeding, the indemnified party shall
have the right to participate in such action or proceeding and to retain its own
counsel but the indemnifying party shall not be liable for any legal expenses of
other counsel
18
<PAGE> 52
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnifying party has agreed to pay such fees and
expenses, (ii) the indemnifying party shall have failed to employ counsel
reasonably satisfactory the indemnified party in a timely manner, or (iii) the
indemnified party shall have been advised by counsel that there are actual or
potential conflicting interests between the indemnifying party and the
indemnified party, including situations in which there are one or more legal
defenses available to the indemnified party that are different from or
additional to those available to the indemnifying party, provided, however, that
the indemnifying party shall not, in connection with any one such action or
proceeding or separate but substantially similar actions or proceedings arising
out of the same general allegations, be liable for the fees and expenses of more
than one separate firm of attorneys at any time for all indemnified parties
except to the extent that local counsel, in addition to its regular counsel, is
required in order to effectively defend against such action or proceeding. The
indemnifying party shall not consent to the terms of any compromise or
settlement of any action defended by the indemnifying party in accordance with
the foregoing without the prior consent of the indemnified party unless such
settlement, compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
of the Designated Securities on the other from the offering of the Designated
Securities to which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Underwriters of the Designated Securities on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and such Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by such Underwriters. The relative fault shall be
determined by
19
<PAGE> 53
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or such
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Designated Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Designated Securities in this subsection (d)
to contribute are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Designated Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives to
purchase such
20
<PAGE> 54
Designated Securities on such terms. In the event that, within the respective
prescribed period, the Representatives notify the Company that they have so
arranged for the purchase of such Designated Securities, or the Company notifies
the Representatives that it has so arranged for the purchase of such Designated
Securities, the Representatives or the Company shall have the right to postpone
the Time of Delivery for such Designated Securities for a period of not more
than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in subsection
(a) above, the aggregate principal amount of such Designated Securities which
remains unpurchased does not exceed one-eleventh of the aggregate principal
amount of the Designated Securities, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the principal amount of
Designated Securities which such Underwriter agreed to purchase under the
Pricing Agreement relating to such Designated Securities and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share (based on
the principal amount of Designated Securities which such Underwriter agreed to
purchase under such Pricing Agreement) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in subsection
(a) above, the aggregate principal amount of Designated Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of the
Designated Securities, as referred to in subsection (b) above, or if the Company
shall not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Designated Securities of a defaulting
Underwriter or Underwriters, then the Pricing Agreement relating to such
Designated Securities shall thereupon terminate, without liability on the part
of any non-defaulting Underwriter or the Company, except for the expenses to be
borne by the Company and the Underwriters as provided in Section 6 hereof and
the indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
21
<PAGE> 55
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Sections 6 and 8 hereof; but, if for any other reason
Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters
of Designated Securities shall act on behalf of each of such Underwriters, and
the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Senior Vice President, General Counsel and
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire, or telex constituting such Questionnaire, which address will be
supplied to the Company by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Company and, to the
extent provided
22
<PAGE> 56
in Sections 8 and 10 hereof, the officers and directors of the Company and each
person who controls the Company or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement or any such
Pricing Agreement. No purchaser of any of the Securities from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, except in Section 7(i), "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
23
<PAGE> 57
If the foregoing is in accordance with your understanding,
please sign and return to us 7 counterparts hereof.
Very truly yours,
H.J. HEINZ COMPANY
By: /s/ F. NICHOLAS GRASBERGER III
------------------------------
Name: F. Nicholas Grasberger III
Title: Treasurer
Accepted as of the date hereof:
J.P. Morgan Securities Inc.
Goldman, Sachs & Co.
SBC Warburg Dillon Read Inc.
By: J.P. Morgan Securities Inc.
By: /s/ MARGARET BRODY
----------------------------
Name: Margaret A. Brody
Title: Managing Director
24
<PAGE> 58
ANNEX I
PRICING AGREEMENT
J.P. Morgan Securities Inc.
Goldman, Sachs & Co.
SBC Warburg Dillon Read Inc.
c/o J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
March 20, 1998
Ladies and Gentlemen:
H.J. Heinz Company, a Pennsylvania corporation (the "Company"), proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement, dated March 20, 1998 (the "Underwriting Agreement"), between the
Company on the one hand and J.P. Morgan Securities Inc., Goldman Sachs & Co. and
SBC Warburg Dillon Read Inc. on the other hand, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities"). Each of the
provisions of the Underwriting Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating to
the Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Representatives and on behalf of each of the Underwriters
of the Designated Securities pursuant to Section 12 of the Underwriting
Agreement and the address of the Representatives referred to in such Section 12
are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the
<PAGE> 59
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at the time and place and at the purchase price to
the Underwriters set forth in Schedule II hereto, the principal amount of
Designated Securities set forth opposite the name of such Underwriter in
Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us 7 counterparts hereof, and upon acceptance hereof by you, on behalf
of each of the Underwriters, this letter and such acceptance hereof, including
the provisions of the Underwriting Agreement incorporated herein by reference,
shall constitute a binding agreement between each of the Underwriters and the
Company. It is understood that your acceptance of this letter on behalf of each
of the Underwriters is or will be pursuant to the authority set forth in a form
of Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
H.J. HEINZ COMPANY
By:
------------------------------
Name:
Title:
Accepted as of the date hereof:
J.P. Morgan Securities Inc.
Goldman, Sachs & Co.
SBC Warburg Dillon Read
By: J.P. Morgan Securities
By:
---------------------------------
Name:
Title:
2
<PAGE> 60
SCHEDULE I
[Principal
Amount]
[Number] of
Designated
Securities
to be
Underwriter Purchased
----------- ---------
J.P. Morgan Securities Inc. $100,000,000
Goldman, Sachs & Co. 100,000,000
SBC Warburg Dillon Read Inc. 100,000,000
Total $300,000,000
============
<PAGE> 61
SCHEDULE II
TITLE OF DESIGNATED DEBT SECURITIES:
6% Notes
due March 15, 2008
AGGREGATE PRINCIPAL AMOUNT:
$300,000,000
PRICE TO PUBLIC:
99.337% of the principal amount of the Designated Debt Securities, plus
accrued interest, if any, from March 25, 1998
PURCHASE PRICE BY UNDERWRITERS:
98.687% of the principal amount of the Designated Debt Securities, plus
accrued interest from March 25, 1998
FORM OF DESIGNATED DEBT SECURITIES:
Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian for trading in the Same Day Settlement System of DTC, and to be
made available for checking by the Representatives at least twenty-four
hours prior to the Time of Delivery at the office of DTC.
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same day) funds by wire transfer
TIME OF DELIVERY:
9:00 a.m. (New York City time), March 25, 1998
INDENTURE:
Indenture dated as of July 15, 1992, between the Company and First
National Bank of Chicago, as Trustee
MATURITY:
March 15, 2008
INTEREST RATE:
6%
INTEREST PAYMENT DATES:
March 15 and September 15, commencing September 15, 1998
<PAGE> 62
REDEMPTION PROVISIONS:
No provisions for redemption
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
Pittsburgh, PA
CLOSING CONDITIONS:
Subject to the satisfactory meeting of the terms and conditions set forth
in the Underwriting Agreement.
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
On behalf of the Representatives.
- -----------------------------
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10620
On behalf of the Company:
Attention Senior Vice President, General Counsel and Secretary
H.J. Heinz Company
World Headquarters USC Tower
600 Grant Street, 60th Floor
Pittsburgh, PA
2
<PAGE> 63
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and
the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, financial forecasts and/or pro forma financial information
examined) by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all
material respects with the applicable accounting requirements of the
Act or the Exchange Act, as applicable, and the related published rules
and regulations thereunder;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Company's quarterly report on Form 10-Q incorporated by
reference into the Prospectus as indicated in their reports thereon
copies of which have been separately furnished to the Representatives;
and on the basis of specified procedures including inquiries of
officials of the Company who have responsibility for financial and
accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i)
below comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
published rules and regulations, nothing came to their attention that
caused them to believe that the unaudited condensed consolidated
financial statements do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the Exchange
Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years incorporated by reference
in Item 6 of the Company's Annual Report on Form 10-K for the most
recent fiscal year agrees with the corresponding amounts (after
restatement where applicable) in the audited consolidated financial
statements for five such fiscal years which were included or
incorporated by reference in the Company's Annual Reports on Form 10-K
for such fiscal years;
<PAGE> 64
(v) They have compared the information in, or incorporated by
reference in, the Prospectus under selected captions with the
disclosure requirements of Regulation S-K and on the basis of limited
procedures specified in such letter nothing came to their attention as
a result of the foregoing procedures that caused them to believe that
this information does not conform in all material respects with the
disclosure requirements of Items 301, 302 and 503(d), respectively, of
Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements incorporated
by reference in the Prospectus, inquiries of officials of the Company
and its subsidiaries responsible for financial and accounting matters
and such other inquiries and procedures as may be specified in such
letter, nothing came to their attention that caused them to believe
that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated
statements of cash flows included in the Company's Quarterly
Reports on Form 10-Q incorporated by reference in the
Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Exchange
Act and the related published rules and regulations, or (ii)
any material modifications should be made to the unaudited
condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows
included in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus for them to be in
conformity with generally accepted accounting principles;
(B) if applicable, any other unaudited income statement
data and balance sheet items included in the Prospectus do
not agree with the corresponding items in the unaudited
consolidated financial statements from which such data and
items were derived, and any such unaudited data and items
were not determined on a basis substantially consistent with
the basis for the corresponding amounts in the audited
consolidated financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K for the
most recent fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial
2
<PAGE> 65
statements referred to in clause (A) and any unaudited income
statement data and balance sheet items included in the
Prospectus and referred to in Clause (B) were not determined
on a basis substantially consistent with the basis for the
audited financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K for the
most recent fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Act and the published rules and regulations thereunder or the
pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior
to the date of such letter, there have been any changes in
the consolidated capital stock (other than (i) issuances of
capital stock upon exercise of options and conversions of
convertible securities, in each case which were outstanding
on the date of the latest balance sheet included or
incorporated by reference in the Prospectus and (ii)
purchases by the Company under its programs of acquiring
treasury stock) or any increase in the consolidated long-term
debt of the Company and its subsidiaries (other than
increases in the amount of the Company's domestic commercial
paper borrowings, which are classified by the Company in
accordance with generally accepted accounting principles as
long-term debt), or any decreases in stockholders' equity or
other items specified by the Representatives, or any
increases in any items specified by the Representatives, in
each case as compared with amounts shown in the latest
balance sheet included or incorporated by reference in the
Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the
Prospectus to the specified date referred to in Clause (E)
there were any decreases in consolidated net sales (excluding
decreases of approximately $__________ as a result of
divestitures) or the total or per share amounts of
consolidated net income or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, in each case as compared with the
comparable period of the preceding year and with any other
period of corresponding length specified by the
Representatives, except in each case
3
<PAGE> 66
for increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an audit in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records
of the Company and its subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference), or in Part II of, or
in exhibits and schedules to, the Registration Statement specified by
the Representatives or in documents incorporated by reference in the
Prospectus specified by the Representatives, and have compared certain
of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have found
them to be in agreement.
All references in this Annex II to the Prospectus shall be
deemed to refer to the Prospectus (including the documents incorporated by
reference therein) as defined in the Underwriting Agreement as of the date of
the letter delivered on the date of the Pricing Agreement for purposes of such
letter and to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for such
Designated Securities.
4
<PAGE> 67
EXHIBIT D
PRICING AGREEMENT
J.P. Morgan Securities Inc.
Goldman, Sachs & Co.
SBC Warburg Dillon Read Inc.
c/o J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
March 20, 1998
Ladies and Gentlemen:
H.J. Heinz Company, a Pennsylvania corporation (the "Company"), proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement, dated March 20, 1998 (the "Underwriting Agreement"), between the
Company on the one hand and J.P. Morgan Securities Inc., Goldman Sachs & Co. and
SBC Warburg Dillon Read Inc. on the other hand, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities"). Each of the
provisions of the Underwriting Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating to
the Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Representatives and on behalf of each of the Underwriters
of the Designated Securities pursuant to Section 12 of the Underwriting
Agreement and the address of the Representatives referred to in such Section 12
are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the
<PAGE> 68
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at the time and place and at the purchase price to
the Underwriters set forth in Schedule II hereto, the principal amount of
Designated Securities set forth opposite the name of such Underwriter in
Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us 7 counterparts hereof, and upon acceptance hereof by you, on behalf
of each of the Underwriters, this letter and such acceptance hereof, including
the provisions of the Underwriting Agreement incorporated herein by reference,
shall constitute a binding agreement between each of the Underwriters and the
Company. It is understood that your acceptance of this letter on behalf of each
of the Underwriters is or will be pursuant to the authority set forth in a form
of Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
H.J. HEINZ COMPANY
By: /s/ F. NICHOLAS GRASBERGER III
------------------------------
Name: F. Nicholas Grasberger III
Title: Treasurer
Accepted as of the date hereof:
J.P. Morgan Securities Inc.
Goldman, Sachs & Co.
SBC Warburg Dillon Read
By: J.P. Morgan Securities
By: /s/ MARGARET BRODY
---------------------------------
Name: Margaret A. Brody
Title: Managing Director
2
<PAGE> 69
SCHEDULE I
[Principal
Amount]
[Number] of
Designated
Securities
to be
Underwriter Purchased
----------- ---------
J.P. Morgan Securities Inc. $100,000,000
Goldman, Sachs & Co. 100,000,000
SBC Warburg Dillon Read Inc. 100,000,000
Total $300,000,000
============
<PAGE> 70
SCHEDULE II
TITLE OF DESIGNATED DEBT SECURITIES:
6% Notes
due March 15, 2008
AGGREGATE PRINCIPAL AMOUNT:
$300,000,000
PRICE TO PUBLIC:
99.337% of the principal amount of the Designated Debt Securities, plus
accrued interest, if any, from March 25, 1998
PURCHASE PRICE BY UNDERWRITERS:
98.687% of the principal amount of the Designated Debt Securities, plus
accrued interest from March 25, 1998
FORM OF DESIGNATED DEBT SECURITIES:
Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian for trading in the Same Day Settlement System of DTC, and to be
made available for checking by the Representatives at least twenty-four
hours prior to the Time of Delivery at the office of DTC.
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same day) funds by wire transfer
TIME OF DELIVERY:
9:00 a.m. (New York City time), March 25, 1998
INDENTURE:
Indenture dated as of July 15, 1992, between the Company and First
National Bank of Chicago, as Trustee
MATURITY:
March 15, 2008
INTEREST RATE:
6%
INTEREST PAYMENT DATES:
March 15 and September 15, commencing September 15, 1998
<PAGE> 71
REDEMPTION PROVISIONS:
No provisions for redemption
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
Pittsburgh, PA
CLOSING CONDITIONS:
Subject to the satisfactory meeting of the terms and conditions set forth
in the Underwriting Agreement.
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
On behalf of the Representatives.
- -----------------------------
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10620
On behalf of the Company:
Attention Senior Vice President, General Counsel and Secretary
H.J. Heinz Company
World Headquarters USC Tower
600 Grant Street, 60th Floor
Pittsburgh, PA
2
