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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): July 15, 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 July 15, 1998, which has
attached thereto as an exhibit among others, a form
of 6.375% Debentures Due 2028 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: July 16, 1998
<PAGE> 1
Exhibit 4
[Heinz Logo & Letterhead]
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 July 10, 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 "6.375% Debentures Due
2028" (as used in this Officers' Certificate, the "Debentures") 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
Debentures that are contained in (i) the form of Debenture attached hereto as
Exhibit A, and (ii) the Prospectus Supplement, dated July 10, 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 Debenture, the terms contained in the form of Debenture 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 Debentures will be originally
issued at one time.
Subject to the foregoing, the following are hereby authorized, adopted
and approved as the terms of the Debentures:
I. Title of the Debentures: 6.375% Debentures Due 2028.
II. Limit, if any, of the aggregate principal amount of
Debentures: $250,000,000.
III. Date or dates on which the principal of Debentures is payable
(maturity date): July 15, 2028.
IV. With respect to interest on Debentures:
<PAGE> 2
A. The rate and method of calculation thereof: The Debentures
will bear interest at a rate of 6.375% per annum.
B. The date from which such interest shall accrue: Each
Debenture will bear interest from July 15, 1998 or from the most recent
Interest Payment Date to which interest on such Debenture or a predecessor
Debenture has been paid or duly provided for.
C. Interest Payment Dates: Interest on the Debentures will be
payable on each January 15 and July 15.
D. Regular Record Dates for interest payable on any Interest
Payment Date: The Regular Record Date with respect to the Debentures shall be
January 1 and July 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 Debentures shall
be payable, and where Debentures 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 Debentures: Debentures will not be redeemable or
repayable prior to their Stated Maturity.
VII. With respect to the mandatory redemption or purchase of
Debentures:
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 Debentures are issuable: Minimum
denomination of $1,000, and integral multiples of $1,000 in excess of $1,000.
<PAGE> 3
IX. If other than the principal amounts thereof, the portion of the
principal amount of Debentures payable on declaration of acceleration pursuant
to Section 502 of the Indenture: Not applicable.
X. Trustee, Paying Agent and Security Register: 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
Debentures 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 Debentures are issuable as Registered Securities,
Bearer Securities or both: Registered Securities only.
B. Whether Debentures are issuable in temporary or permanent
global form: A permanent global Security representing all of the aggregate
principal amount of the Debentures 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 Debentures
permitted by the terms of this Officers' Certificate and the Debentures 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 Debentures of like tenor:
Notwithstanding any other provisions of the Indenture, this Officers'
Certificate or the Debentures, but subject to the paragraph below, the global
Security representing Debentures 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 Debentures, or to a successor Depository for
the Debentures selected or approved by the Company or to a nominee of such
successor Depository. The global Security representing the Debentures shall
bear a legend substantially to the following effect: "Except as otherwise
provided in this Debenture, this Debenture 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."
<PAGE> 4
If at any time the Depository notifies the Company that it is unwilling or
unable to continue as Depository for the Debentures or if at any time the
Depository shall no longer be registered or in good standing under the
Securities Exchange Act of 1934, as amended, or other applicable statue or
regulation and a successor Depository for the Debentures 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 Debentures and the
Company will execute, and the Trustee will authenticate and deliver, Debentures
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 Debentures in exchange for such global Security. In
addition, the Company may at any time determine that the Debentures 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 Debentures.
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 Debentures 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 Debentures in
exchange for such global Security. Upon the exchange of the global Security for
Debentures in definitive registered form without coupons, in authorized
denominations, the global Security shall be canceled by the Trustee. Such
Debentures 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 Debentures to the
Persons in whose names such Debentures 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 Debentures) to the Debentures: The Debentures are
subject to the defeasance and discharge provisions of Section 403 of the
Indenture.
XVII. Any other terms of or provisions applicable to the Debentures
and the sale thereof:
A. Forms of Debentures: The Debentures shall be
substantially in the form attached hereto as Exhibit A.
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B. Form of Sale: The Company has engaged Goldman, Sachs & Co. as
representative of the several underwriters named in the Pricing Agreement
(defined below) for the purpose of selling the Debentures 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
Agreement") and the Pricing Agreement attached hereto as Exhibit D (the
"Pricing Agreement").
C. Issue price to public of Debentures: 99.549% of principal amount.
D. Underwriters' commission or discount as a percentage of the principal
amount of Debentures to be issued: .875% of principal amount.
IN WITNESS WHEREOF the undersigned have executed this Certificate on
behalf of the Company as of this 15th day of July, 1998.
/s/ Paul F. Renne
---------------------------------------
Paul F. Renne
Executive Vice President and
Chief Financial Officer
/s/ F. Nicholas Grasberger III
---------------------------------------
F. Nicholas Grasberger III
Treasurer
ATTEST:
/s/ Karyll A. Davis
- ---------------------------------------
Karyll A. Davis
Assistant Secretary
<PAGE> 6
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 Debenture, this Debenture 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.: 423074AF0 PRINCIPAL AMOUNT: $250,000,000
No. 1
H.J. HEINZ COMPANY
6.375% Debentures due 2028
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 its
registered assigns, the principal sum of Two Hundred Fifty Million Dollars
($250,000,000) on July 15, 2028 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 July 15, 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 January 15 and July 15 in each year,
commencing January 15, 1999, at the rate of 6.375% per
<PAGE> 7
annum (computed on the basis of a 360-day year of twelve 30-day months). If this
Debenture has been issued upon transfer of, in exchange for, or in replacement
of a predecessor Debenture, interest on this Debenture shall accrue from the
last Interest Payment Date to which interest was paid on such predecessor
Debenture or, if no interest was paid on such predecessor Debenture, from July
15, 1998. The first payment of interest on a Debenture 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 Debenture is
registered at the close of business on January 1, or July 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
Debenture will be made by the Company in immediately available funds.
Any payment on this Debenture 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 Debenture 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 Debenture 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: July 15, 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
6.375% Debentures due 2028
This Debenture 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 by subject to different covenants and events of
default, and may otherwise vary as in the Indenture provided or permitted. This
Debenture is one of a series of Debt Securities, which series is limited in
aggregate principal amount to $250,000,000, designated as "6.375% Debenture due
2028" (the "Debenture") of the Company.
<PAGE> 11
The Debentures 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 Debenture 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 Debentures 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 Debentures; 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
2
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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
Debenture (unless revoked as provided in the Indenture) shall be conclusive and
binding upon such holder and upon all future holders and owners of this
Debenture and any Debentures 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 Debenture or other such
Debentures.
The Debentures 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 Debenture at the Corporate
Trust Office of the Trustee in the Borough of Manhattan, The City of New York, a
new Debenture or Debentures 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 Debenture, 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 Debenture or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and
3
<PAGE> 13
unconditional, to pay the principal of and interest on this Debenture 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 Debenture is registered as the absolute owner of this
Debenture (whether or not this Debenture 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 Debenture.
No recourse under or upon any obligation, covenant or agreement contained
in the Indenture or in any indenture supplemental thereto or any Debenture, 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
Debenture.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
4
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This Debenture shall be governed by and construed in accordance with the
laws of the State of New York.
5
<PAGE> 15
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:
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
_________________________________
(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 of Assignee
_______________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
_______________________________________________________________________________
_______________________________________________________________________________
the within Debenture of H.J. HEINZ COMPANY and does hereby irrevocably
constitute and appoint _________________________ attorney to transfer said
Debenture 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.
6
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EXHIBIT B
PROSPECTUS SUPPLEMENT TO PROSPECTUS DATED MARCH 19, 1998
$250,000,000
H.J. HEINZ COMPANY
6.375% DEBENTURES DUE JULY 15, 2028
------------------------
Interest on the Debentures is payable on January 15 and July 15 of each
year, commencing January 15, 1999. The Debentures are not redeemable prior to
maturity. The Debentures will be represented by one or more global Debentures
registered in the name of the nominee of The Depository Trust Company.
Beneficial interests in the global Debentures will be shown on, and transfers
thereof will be effected only through, records maintained by DTC and its
participants. Except as described herein, Debentures in definitive form will not
be issued. The Debentures will be issued only in denominations of $1,000 and
integral multiples thereof. The Debentures will trade in DTC's Same-Day Funds
Settlement System until maturity, and secondary market trading activity for the
Debentures will therefore settle in immediately available funds. All payments of
principal and interest will be made by the Company in immediately available
funds. See "Description of the Debentures--Book-Entry System".
------------------------
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 TO WHICH IT
RELATES. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
<TABLE>
<CAPTION>
INITIAL PUBLIC UNDERWRITING PROCEEDS TO
OFFERING PRICE(1) DISCOUNT(2) COMPANY(1)(3)
----------------- ----------- -------------
<S> <C> <C> <C>
Per Debenture................................ 99.549% 0.875% 98.674%
Total........................................ $248,872,500 $2,187,500 $246,685,000
</TABLE>
- ---------
(1) Plus accrued interest, if any, from July 15, 1998.
(2) The Company has agreed to indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933.
(3) Before deducting estimated expenses of $122,600 payable by the Company.
------------------------
The Debentures offered hereby are offered severally by the Underwriters, as
specified herein, subject to receipt and acceptance by them and subject to their
right to reject any order in whole or in part. It is expected that the
Debentures will be ready for delivery in book-entry form only through the
facilities of DTC in New York, New York, on or about July 15, 1998 against
payment therefor in immediately available funds.
GOLDMAN, SACHS & CO.
J.P. MORGAN & CO.
WARBURG DILLON READ LLC
------------------------
THE DATE OF THIS PROSPECTUS SUPPLEMENT IS JULY 10, 1998.
<PAGE> 17
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS THAT
STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE DEBENTURES, INCLUDING
OVER-ALLOTMENT, STABILIZING AND SHORT-COVERING TRANSACTIONS IN SUCH DEBENTURES,
AND THE IMPOSITION OF A PENALTY BID, IN CONNECTION WITH THE OFFERING. FOR A
DESCRIPTION OF THESE ACTIVITIES, SEE "UNDERWRITING".
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);
(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; and
(iii) The Company's Current Reports on Form 8-K, dated March 25, 1998 and
July 10, 1998.
Reference is made to the information appearing under "Incorporation of
Certain Documents by Reference" in the Prospectus.
------------------------
THE COMPANY
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 and other products), beans,
pasta, bakery products, full calorie frozen dinners and entrees, chicken,
vegetables and fruits (frozen and canned), frozen pizza and pizza components,
coated products, meats, edible oils, pickles, vinegar, nutritional/performance
drinks, margarine/shortening, juices and other processed food products. The
Company also operates and franchises weight control classes and operates other
related programs and activities.
RATIOS OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for the year ended April 29, 1998
was 5.29. 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 in Exhibit 12 to the
Company's Current Report on Form 8-K dated July 10, 1998.
S-2
<PAGE> 18
USE OF PROCEEDS
The net proceeds to be received by the Company from the sale of the
Debentures are estimated to be $246,562,400 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 July 1, 1998, the weighted average interest rate on
the outstanding commercial paper expected to be repaid with the proceeds of this
offering was 5.60% and the weighted average maturity of such indebtedness was
approximately 45 days.
DESCRIPTION OF THE DEBENTURES
The following description of the particular terms of the Debentures 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 Debentures is qualified in its entirety by reference to the Indenture
referred to in the Prospectus (the "Indenture").
The Debentures constitute a separate series of Debt Securities to be issued
pursuant to the Indenture. The Debentures will be limited to $250,000,000 in
aggregate principal amount. The Debentures will be issued only in fully
registered book-entry form, in denominations of $1,000 and integral multiples of
$1,000. The Debentures will bear interest from July 15, 1998 at the annual rate
set forth on the cover page of this Prospectus Supplement, and will mature on
July 15, 2028 (the "Maturity Date"). Interest on the Debentures will be payable
semi-annually on January 15 and July 15, commencing January 15, 1999, to the
Persons in whose names the Debentures (or any predecessor Debentures) are
registered at the close of business on the applicable Regular Record Date, which
is the January 1 or July 1 next preceding such Interest Payment Date. For so
long as the Debentures are held solely in book-entry form through the facilities
of DTC, the only registered holder of the Debentures ("Holder") will be Cede &
Co., as nominee for DTC. The Debentures will not be redeemable by the Company
prior to their stated maturity and will not be subject to any sinking fund.
The Debentures 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 Debentures initially will be represented by one or more global
debentures (the "Global Debentures") 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 Debentures. Unless and until Certificated
Debentures are issued under the limited circumstances described herein, no
person acquiring an interest in the Debentures (a "Book-Entry Debenture Owner")
will be entitled to receive a certificate representing such person's interest in
such Debentures. 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 Debentures, for distribution to Book-Entry
Debenture 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
S-3
<PAGE> 19
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 Debenture Owners that are not Participants or Indirect
Participants but desire to purchase, sell or otherwise transfer ownership of, or
other interests in, Debentures 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
Debenture 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 Debenture Owners. Book-Entry
Debenture Owners will not be recognized by the Trustee as Holders, as such term
is used in the Indenture, and Book-Entry Debenture 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 Debentures and is
required to receive and transmit payments of principal, premium, if any, and
interest on the Debentures. Participants and Indirect Participants with which
Book-Entry Debenture Owners have accounts with respect to the Debentures
similarly are required to make book-entry transfers and receive and transmit
such payments on behalf of their respective Book-Entry Debenture 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
Debenture Owner to pledge Debentures to persons or entities that do not
participate in the DTC system, or otherwise take actions in respect of such
Debentures, may be limited due to the lack of a physical certificate for such
Debentures.
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 Debentures are credited.
Debentures in fully registered certificated form ("Certificated
Debentures") will be issued to Book-Entry Debenture 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 Debentures, 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 Debentures. Upon surrender by DTC
of a Global Debenture representing the Debentures and instructions for
re-registration, the Trustee will issue the Debentures in the form of
Certificated Debentures, and thereafter the Trustee will recognize the
registered holders of such Certificated Debentures as Holders under the
Indenture.
S-4
<PAGE> 20
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 Debentures set forth
opposite its name below.
<TABLE>
<CAPTION>
PRINCIPAL
AMOUNT
UNDERWRITER OF DEBENTURES
----------- -------------
<S> <C>
Goldman, Sachs & Co......................................... $ 84,000,000
J.P. Morgan Securities Inc.................................. 83,000,000
Warburg Dillon Read LLC..................................... 83,000,000
------------
Total.................................................. $250,000,000
============
</TABLE>
Under the terms and conditions of the Underwriting Agreement, the
Underwriters are committed to take and pay for all of the Debentures, if any are
taken.
The Underwriters propose to offer the Debentures in part directly to the
public at the initial public offering price set forth on the cover page of this
Prospectus Supplement and in part to certain securities dealers at such price
less a concession of 0.500% of the principal amount of the Debentures. The
Underwriters may allow, and such dealers may reallow, a concession not in excess
of 0.250% of the principal amount of the Debentures to certain brokers and
dealers. After the Debentures are released for sale to the public, the offering
price and other selling terms may be varied by the Underwriters.
The Debentures are a new issue of securities with no established trading
market. The Underwriters have advised the Company that they intend to make a
market in the Debentures but are not obligated to do so and may discontinue
market making at any time without notice. No assurance can be given as to the
liquidity of the trading market for the Debentures.
In connection with the offering, the Underwriters may purchase and sell the
Debentures in the open market. These transactions may include over-allotment and
stabilizing transactions and purchases to cover short positions created by the
Underwriters 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 Debentures, and short positions created by
the Underwriters involve the sale by the Underwriters of a greater aggregate
principal amount of Debentures 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 broker-dealers in respect of Debentures sold in
the offering may be reclaimed by the Underwriters if such Debentures are
repurchased by the Underwriters in stabilizing or covering transactions. These
activities may stabilize, maintain or otherwise affect the market price of the
Debentures, 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.
In the ordinary course of business, certain of the Underwriters and their
affiliates have engaged and may engage in the future in investment banking and
commercial banking transactions with the Company and its affiliates.
S-5
<PAGE> 21
VALIDITY OF DEBENTURES
The validity of the Debentures 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
[HEINZ 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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<PAGE> 29
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
8
<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.
9
<PAGE> 31
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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<PAGE> 32
- 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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<PAGE> 33
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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<PAGE> 34
===============================================================================
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS SUPPLEMENT OR THE
PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS PROSPECTUS SUPPLEMENT AND THE
PROSPECTUS DO NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO
BUY ANY SECURITIES OTHER THAN THE SECURITIES DESCRIBED IN THIS PROSPECTUS
SUPPLEMENT OR AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY SUCH
SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION IS UNLAWFUL.
NEITHER THE DELIVERY OF THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS NOR ANY
SALE MADE HEREUNDER OR 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 HEREIN OR THEREIN IS CORRECT
AS OF ANY TIME SUBSEQUENT TO ITS DATE.
------------------------
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Incorporation of Certain Documents by
Reference............................. S-2
The Company............................. S-2
Ratios of Earnings to Fixed Charges..... S-2
Use of Proceeds......................... S-3
Description of the Debentures........... S-3
Underwriting............................ S-5
Validity of Debentures.................. 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>
===============================================================================
===============================================================================
$250,000,000
H.J. HEINZ COMPANY
6.375% DEBENTURES DUE JULY 15, 2028
------------------------
[HEINZ LOGO]
------------------------
GOLDMAN, SACHS & CO.
J.P. MORGAN & CO.
WARBURG DILLON READ LLC
===============================================================================
<PAGE> 35
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> 36
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)
2
<PAGE> 37
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> 38
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
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<PAGE> 39
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,
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<PAGE> 40
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> 41
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
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> 42
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(e), 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> 43
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> 44
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:
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<PAGE> 45
(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> 46
(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> 47
(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
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<PAGE> 48
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
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<PAGE> 49
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> 50
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
16
<PAGE> 51
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> 52
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> 53
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> 54
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> 55
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> 56
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> 57
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> 58
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:
Title:
Accepted as of the date hereof:
J.P. Morgan Securities Inc.
Goldman, Sachs & Co.
SBC Warburg Dillon Read
By: J.P. Morgan Securities Inc.
By:
----------------------------
Name:
Title:
24
<PAGE> 59
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:_________________________
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 Inc.
By: /s/ Margaret A. Brody
-----------------------------
Name: Margaret A. Brody
Title: Managing Director
24
<PAGE> 60
ANNEX 1
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> 61
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> 62
SCHEDULE I
<TABLE>
<CAPTION>
[Principal
Amount]
[Number] of
Designated
Securities
to be
Underwriter Purchased
----------- ----------
<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>
<PAGE> 63
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> 64
REDEMPTION PROVISIONS:
No provisions for redemption
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
Pittsburg, 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> 65
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> 66
(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> 67
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> 68
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> 69
EXHIBIT D
Pricing Agreement
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
Warburg Dillon Reed LLC
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
July 10, 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 Goldman, Sachs & Co., J.P. Morgan Securities Inc.
and Warburg Dillon Reed LLC 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 as 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.
<PAGE> 70
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time
and place and at the purchase price to the Underwriters set forth in Schedule
II hereto, the principal amount of Designated Securities set forth opposite the
name of such Underwriter in Schedule I hereto.
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:
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
Warburg Dillon Read LLC
By:
---------------------------
(Goldman, Sachs & Co.)
2
<PAGE> 71
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto.
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: F. Nicholas Grasberger III
Title: Treasurer
Accepted as of the date hereof:
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
Warburg Dillon Read LLC
By: Goldman Sachs & Co.
---------------------------
(Goldman, Sachs & Co.)
2
<PAGE> 72
SCHEDULE I
<TABLE>
<CAPTION>
Principal
Amount
of
Designated
Securities
to be
Underwriter Purchased
----------- ----------
<S> <C>
Goldman, Sachs & Co. $84,000,000
J.P. Morgan Securities Inc. 83,000,000
Warburg Dillon Read LLC 83,000,000
-----------
Total $250,000,000
============
</TABLE>
<PAGE> 73
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
6.375% Debentures due July 15, 2028
AGGREGATE PRINCIPAL AMOUNT:
$250,000,000
PRICE TO PUBLIC:
99.549% of the principal amount of the Designated Securities, plus accrued
interest, if any, from July 15, 1998
PURCHASE PRICE BY UNDERWRITERS:
99.674% of the principal amount of the Designated Securities, plus accrued
interest from July 15, 1998
FORM OF DESIGNATED 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), July 15, 1998
INDENTURE:
Indenture dated as of July 15, 1992, between the Company and First National
Bank of Chicago, as Trustee
MATURITY:
July 15, 2028
INTEREST RATE:
6.375%
<PAGE> 74
INTEREST PAYMENT DATES:
January 15 and July 15, commencing January 15, 1999
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:
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
Warburg Dillon Read LLC
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
On behalf of the Company:
H.J. Heinz Company
World Headquarters USC Tower
600 Grant Street, 60th Floor
Pittsburgh, PA
Attention: Senior Vice President, General Counsel and Secretary
2
<PAGE> 75
SCHEDULE II
Title of Designated Securities:
6.375% Debentures due July 15, 2028
Aggregate principal amount:
$250,000,000
Price to Public:
99.549% of the principal amount of the Designated Securities, plus accrued
interest, if any, from July 15, 1998
Purchase Price by Underwriters:
98.674% of the principal amount of the Designated Securities, plus accrued
interest from July 15, 1998
Form of Designated 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), July 15, 1998
Indenture:
Indenture dated as of July 15, 1992, between the Company and First
National Bank of Chicago, as Trustee
Maturity:
July 15, 2028
Interest Rate:
6.375%
