<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 16, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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H. J. HEINZ COMPANY
(Exact name of registrant as specified in its charter)
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PENNSYLVANIA 25-0542520
(State or other jurisdiction of incorporation or (I.R.S. Employer Identification
organization) No.)
</TABLE>
600 GRANT STREET
PITTSBURGH, PENNSYLVANIA 15219
(412) 456-5700
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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LAWRENCE J. MCCABE, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
H. J. HEINZ COMPANY
600 GRANT STREET
PITTSBURGH, PENNSYLVANIA 15219
(412) 456-5700
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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COPY TO:
MITCHELL S. FISHMAN, ESQ.
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
1285 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10019-6064
(212) 373-3000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement as determined by
market conditions and other factors.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED PER UNIT OFFERING PRICE(2) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Debt Securities....................... 750,000,000(1) 100%(2) $750,000,000 $221,250
Warrants to Purchase Debt
Securities.......................... (3)
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</TABLE>
(1) Or, if any Debt Securities are issued (i) with a principal amount
denominated in a foreign currency, such principal amount as shall result in
an aggregate principal amount equivalent to $750,000,000 at the time of the
initial offering or (ii) at an original issue discount, such greater amount
as shall result in aggregate proceeds to the Registrant of $750,000,000.
(2) Estimated solely for the purpose of calculating the registration fee.
Exclusive of accrued interest, if any.
(3) Warrants may be issued to purchase Debt Securities. The amount to be
registered is the maximum aggregate principal amount of Debt Securities to
be issued with or without any such Warrants and includes all Debt Securities
deliverable upon the exercise of such Warrants.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED MARCH 16, 1998
LOGO
H. J. HEINZ COMPANY
DEBT SECURITIES
AND WARRANTS TO PURCHASE
DEBT SECURITIES
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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.
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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.
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THE DATE OF THIS PROSPECTUS IS , 1998.
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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.
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TABLE OF CONTENTS
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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
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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
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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 on frozen entrees and dinners. The Company also markets certain
products under other trademarks and brand names and under private labels.
4
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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
- ---------------- -------------- ----------- ----------- -------------- --------------
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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 Debt Securities
offered by any Prospectus Supplement (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
5
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financial institutions. Debt Securities of a series may be issued in whole or in
part in the form of one or more 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 of (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;
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- The application, if any, of certain provisions of the Indenture relating
to defeasance and discharge, and related conditions;
- 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 is also 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.
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<PAGE> 9
"Principal Property" means any manufacturing or processing plant or
warehouse owned at the date hereof or hereafter acquired by the Company or any
Restricted Subsidiary of the Company which is located within the United States
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, (d) Mortgages on property, shares of stock or Debt existing at
the time of acquisition thereof (including acquisition through merger or
consolidation) and purchase money and construction Mortgages which are entered
into within 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
8
<PAGE> 10
States (including any state thereof and the District of Columbia) which assumes
the Company's obligations on the Debt Securities and under the Indenture and,
after giving effect to such transaction, the Company or the successor Person
would not be in default under the Indenture.
EVENTS OF DEFAULT
The Indenture defines "Events of Default" with respect to the Debt
Securities of any series as being one of the following events: (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 of any other covenant 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 and the accrued interest thereon, if any, 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> 11
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:
10
<PAGE> 12
- 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.
11
<PAGE> 13
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 Paul, Weiss, Rifkind, Wharton & Garrison, 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. Paul, Weiss, Rifkind, Wharton & Garrison from
time to time performs legal services for the Company.
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
The Private Securities Litigation Reform Act of 1995 (the "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 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.
12
<PAGE> 14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following are the expenses of the issuance and distribution of the
securities being registered, other than underwriting discounts and commissions,
(which will be described in the applicable Prospectus Supplement). All amounts
shown are estimates, except the SEC registration fee. All of such expenses are
being borne by the Company.
<TABLE>
<S> <C>
SEC registration fee........................................ $221,250
Accounting fees and expenses................................ 25,000
Legal fees and expenses..................................... 6,000
Printing and engraving expenses............................. 40,000
Blue Sky fees and expenses.................................. 5,000
Trustee's fees and expenses................................. 6,250
Rating agency fees.......................................... 146,500
Miscellaneous expenses...................................... 25,000
--------
Total............................................. $475,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company provides in Article Sixth of its Articles of Incorporation and
Article VII of its By-Laws for the limitation of the liability of the Company's
directors to the maximum extent permitted under Pennsylvania law from time to
time in effect. These provisions were approved by the Company's shareholders on
September 9, 1987 and were adopted as a result of the passage of the Directors'
Liability Act (an amendment to the Pennsylvania Judicial Code) which became
effective on January 27, 1987 (the "Act"). The Act permitted Pennsylvania
corporations to eliminate, subject to shareholder approval of a provision in a
corporation's by-laws, the personal liability (including liability to the
corporation or to its shareholders) of directors for monetary damages for a
breach of, or a failure to perform, their duties as directors, except to the
extent their acts or omissions constitute self-dealing, willful misconduct or
recklessness. The Act did not apply, however, to the responsibility or liability
of a director pursuant to any criminal statute or to the liability of a director
for the payment of taxes pursuant to local, state or Federal law.
In addition, the Company provides in Article Sixth of its Articles of
Incorporation and Article VIII of its By-Laws for the indemnification of the
Company's directors, officers and others who may be later designated by the
Board of Directors of the Company to the maximum extent permitted under
Pennsylvania law from time to time in effect with respect to proceedings based
on acts or omissions on or after January 27, 1987. These provisions were also
adopted in response to the Act, which provided that directors, officers and
other persons designated by the directors may be indemnified against liabilities
and expenses incurred in the performance of their duties subject to the
limitation that no indemnification may be made in any case where the act or
failure to act giving rise to the claim for indemnification is determined by a
court to have constituted self-dealing, willful misconduct or recklessness. The
Act has been repealed and provisions comparable to those contained in the Act
are now set forth in Subchapter B of Chapter 17 of the Pennsylvania Business
Corporation Law of 1988, as amended (the "BCL"). Given that the aforementioned
provisions relating to indemnification incorporate the full extent of
indemnification permitted under Pennsylvania law as from time to time in effect,
such provisions would implement automatically any future changes in the law
which expand the scope of permissible indemnification of the Company's directors
and officers. However, any amendment or repeal of these provisions would not
limit the rights of directors or officers to be indemnified with respect to acts
or omissions which occurred prior to any such change.
In connection with the adoption of Article VIII of the By-Laws relating to
indemnification, the Company retained Article IX (formerly Article VII) of its
By-Laws which provides for the indemnification of its present and former
directors, officers, and managerial employees to the fullest extent permitted by
and in accordance with the standards and procedures provided under Subchapter D
of Chapter 17 of the BCL unless such persons have
II-1
<PAGE> 15
received the benefits of indemnification under Article VIII of the Company's
By-Laws. Subchapter D of the BCL sets forth comprehensive indemnification
provisions authorizing corporations to indemnify present and former directors,
officers, employees and agents against liabilities incurred in connection with
their service in such capacities. Under these sections of the BCL, such persons
could be indemnified only if (i) the director or officer was successful on the
merits of the suit or proceeding in respect of which indemnification was sought
or (ii) indemnification was ordered by a court or (iii) a determination was made
by the board of directors by a majority vote of a quorum consisting of directors
who were not parties to the suit or proceeding, by independent legal counsel or
by the stockholders that the director or officer has acted in good faith and in
a manner he reasonably believed to be in, or not opposed to, the best interests
of the corporation and, with respect to any criminal proceeding, had no
reasonable cause to believe his conduct was unlawful.
The Company is also authorized under Pennsylvania law, including the BCL,
its Articles of Incorporation (Article Sixth) and its By-Laws (Article VIII and
Article IX) to purchase insurance against such liabilities, whether or not the
Company would have the power to indemnify such person against such liability by
law or under the provisions of the Company's Articles of Incorporation or
By-Laws. The Company has obtained directors' and officers' insurance against
loss, within certain policy limits, arising from any claim made against the
Company's directors and officers by reason of any wrongful act, as defined in
such insurance policies, in their respective capacities as directors or officers
or as fiduciaries under certain of the Company's employee benefit plans.
ITEM 16. EXHIBITS
The following Exhibits are either filed as part of this Registration
Statement or incorporated herein by reference:
1(a) -- Form of Underwriting Agreement
4(a) -- Indenture between H. J. Heinz Company and The First National Bank of
Chicago dated July 15, 1992
4(b) -- Forms of Securities (included in Exhibit 4(a))
4(c) -- Form of Warrant Agreement
4(d) -- Form of Warrant (included in Exhibit 4(c))
5 -- Opinion of Lawrence J. McCabe, Senior Vice President, General Counsel
and Secretary of the Company
12 -- Computation of Ratios of Earnings to Fixed Charges
23(a) -- Consent of Coopers & Lybrand L.L.P.
23(b) -- Consent of Lawrence J. McCabe (included in his opinion filed as
Exhibit 5)
24 -- Powers of Attorney
25 -- Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939 of The First National Bank of Chicago, as Trustee, on
Form T-1
99 -- Restatement of Certain Historical Earnings Per Share Data in
accordance with SFAS No. 128 "Earnings Per Share"
ITEM 17. UNDERTAKINGS
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
II-2
<PAGE> 16
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act") that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(d) The Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-3
<PAGE> 17
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THE
REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL
OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF PITTSBURGH, STATE OF PENNSYLVANIA, ON MARCH 16, 1998.
H. J. HEINZ COMPANY
(REGISTRANT)
BY /s/ PAUL F. RENNE
--------------------------------------
PAUL F. RENNE
Executive Vice President
and Chief Financial Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED ON MARCH 16, 1998.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY
<C> <S>
/s/ ANTHONY J. F. O'REILLY Chairman of the Board and
- --------------------------------------------------- Chief Executive Officer
ANTHONY J. F. O'REILLY (Principal Executive Officer)
/s/ PAUL F. RENNE Executive Vice President and
- --------------------------------------------------- Chief Financial Officer
PAUL F. RENNE (Principal Financial Officer)
/s/ EDWARD J. MCMENAMIN Vice President and
- --------------------------------------------------- Corporate Controller
EDWARD J. MCMENAMIN (Principal Accounting Officer)
Anthony J. F. O'Reilly Director
Joseph J. Bogdanovich Director
Nicholas F. Brady Director
Richard M. Cyert Director
Edith E. Holiday Director
Samuel C. Johnson Director
William R. Johnson Director
Donald R. Keough Director
Lawrence J. McCabe Director
Paul F. Renne Director
Luigi Ribolla Director
Herman J. Schmidt Director
Eleanor B. Sheldon Director
William P. Snyder III Director
William C. Springer Director
S. Donald Wiley Director
David R. Williams Director
By: /s/ LAWRENCE J. MCCABE
----------------------------------------------
Lawrence J. McCabe
Director and Attorney-in-Fact
</TABLE>
II-4
<PAGE> 18
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBITS DESCRIPTION
- -------- -----------
<S> <C> <C>
1(a) -- Form of Underwriting Agreement
4(a) -- Indenture between H. J. Heinz Company and The First National
Bank of Chicago dated July 15, 1992
4(b) -- Forms of Securities (included in Exhibit 4(a))
4(c) -- Form of Warrant Agreement
4(d) -- Form of Warrant (included in Exhibit 4(c))
5 -- Opinion of Lawrence J. McCabe, Senior Vice President,
General Counsel and Secretary of the Company
12 -- Computation of Ratios of Earnings to Fixed Charges
23(a) -- Consent of Coopers & Lybrand L.L.P.
23(b) -- Consent of Lawrence J. McCabe (included in his opinion filed
as Exhibit 5)
24 -- Powers of Attorney
25 -- Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of The First National Bank of Chicago,
as Trustee, on Form T-1
99 -- Restatement of Certain Earnings Per Share Data in accordance
with SFAS No. 128 "Earnings Per Share"
</TABLE>
<PAGE> 1
Exhibit 1(a)
H.J. HEINZ COMPANY
DEBT SECURITIES [AND WARRANTS
TO PURCHASE DEBT SECURITIES]
UNDERWRITING AGREEMENT
------------, ----
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
<PAGE> 2
the 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-) (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)
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
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<PAGE> 3
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 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
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<PAGE> 4
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 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;
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<PAGE> 5
(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, 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
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<PAGE> 6
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]
[Debentures]," 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 ____, ____ and ____ paragraphs under the
caption "Plan of Distribution" and in the ____, ____ and ____
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 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
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<PAGE> 7
(n) Coopers & Lybrand, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in the form specified in
such Pricing Agreement, and in such authorized denominations and registered in
such names as the Representatives may request upon at least forty-eight hours'
prior notice to the Company, shall be delivered by or on behalf of the Company
to the Representatives for the account of such Underwriter, against payment by
such Underwriter or on its behalf of the purchase price therefor as specified in
the Pricing Agreement by (unless otherwise set forth in the Pricing Agreement)
wire transfer to the account specified by the Company, in the funds specified in
such Pricing Agreement, all in the manner and at the place and time and date
specified in such Pricing Agreement or at such other place and time and date as
the Representatives and the Company may agree upon in writing, such time and
date being herein called the "Time of Delivery" for such Securities.
5. The Company agrees with each of the Underwriters of any
Designated Securities:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in a form approved by
the Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Act not later than the Commission's close of business on the
second business day following the execution and delivery of the Pricing
Agreement relating to the applicable Designated Securities or, if
applicable, such earlier time as may be required by Rule 424(b); to
make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date of
the Pricing Agreement relating to such Securities and prior to the Time
of Delivery for such Securities which shall be disapproved by the
Representatives for such Securities promptly after reasonable notice
thereof; to advise the Representatives promptly of any such amendment
or supplement after such Time of Delivery and furnish the
Representatives with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by
the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act for so long as the delivery of a prospectus
is required in connection with the offering or sale of such Securities,
and during such same period to advise the Representatives, promptly
after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed
with the Commission, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
prospectus relating
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<PAGE> 8
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 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);
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<PAGE> 9
(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 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.
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<PAGE> 10
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:
(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;
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<PAGE> 11
(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;
(viii) If applicable, the Warrant Agreement has been
duly authorized, executed and delivered by the Company and
constitutes a valid
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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 condition (financial or
otherwise) of the Company and its subsidiaries, taken as a
whole;
12
<PAGE> 13
(xii) The statements set forth in the Prospectus
under the captions "Description of Debt Securities", and
"Description of [Notes] [Debentures]" 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 ____, ____ and ____
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
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
13
<PAGE> 14
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, 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
14
<PAGE> 15
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 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
15
<PAGE> 16
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 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
16
<PAGE> 17
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 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
17
<PAGE> 18
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 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.
18
<PAGE> 19
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 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
19
<PAGE> 20
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.
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 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,
20
<PAGE> 21
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.
If the foregoing is in accordance with your understanding,
please sign and return to us [____] counterparts hereof.
Very truly yours,
H.J. HEINZ COMPANY
By: __________________________
Name:
Title:
Accepted as of the date hereof:
[[Name(s) of Co-Representative Corporation(s)]
By:.......................................................
Name:
Title:
.....................................................
[(Name(s) of Co-Representative
Partnership(s))]]
21
<PAGE> 22
ANNEX I
PRICING AGREEMENT
[Names of Co-Representative(s)
As Representatives of the several
Underwriters named in Schedule I hereto]
------------, ----
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 ____________, ____ (the "Underwriting Agreement"), between the
Company on the one hand and [(names of Co-Representatives named therein)] 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 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 [_] 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
<PAGE> 23
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:
[[Name(s) of Co-Representative Corporation(s)]
By:...........................................................
Name:
Title:
.........................................................
[(Name(s) of Co-Representative
Partnership(s))]
On behalf of each of the Underwriters
2
<PAGE> 24
SCHEDULE I
[Principal
Amount]
[Number] of
Designated
Securities
to be
Underwriter Purchased
----------- ---------
[Name(s) of Co-Representative(s)] $
[Names of other Underwriters]
Total $
========
<PAGE> 25
SCHEDULE II
Title of Designated Debt Securities:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due ,
AGGREGATE PRINCIPAL AMOUNT:
[$]
PRICE TO PUBLIC:
% of the principal amount of the Designated Debt Securities, plus
accrued interest[, if any,] from to [and accrued
amortization[, if any,] from to ]
PURCHASE PRICE BY UNDERWRITERS:
% of the principal amount of the Designated Debt Securities, plus
accrued interest from to [and accrued
amortization[, if any,] from to ]
FORM OF DESIGNATED DEBT SECURITIES:
[Definitive form to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery at the office of [The
Depository Trust Company or its designated custodian] [the
Representatives]]
[Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian for trading in the Same Day Settlement System of DTC, and to be
made available for checking by the Representatives at least twenty-four
hours prior to the Time of Delivery at the office of DTC.]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same day) funds by wire transfer
TIME OF DELIVERY:
a.m. (New York City time), ____________, ____
INDENTURE:
Indenture dated as of July 15, 1992, between the Company and [First
National Bank of Chicago], as Trustee
MATURITY:
INTEREST RATE:
[ %] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
[months and dates, commencing ____________, ____]
REDEMPTION PROVISIONS:
[No provisions for redemption]
<PAGE> 26
[The Designated Debt Securities may be redeemed, otherwise than through
the sinking fund, in whole or in part at the option of the Company, in
the amount of [$
] or an integral multiple thereof,
[on or after , at the following redemption prices (expressed in
percentages of principal amount). If [redeemed on or before , %,
and if] redeemed during the 12-month period beginning ,
Redemption
Year Price
---- -----
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.]
[on any interest payment date falling on or after , , at the election of
the Company, at a redemption price equal to the principal amount thereof,
plus accrued interest to the date of redemption.]]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Designated Debt Securities are entitled to the benefit of a sinking
fund to retire [$ ] principal amount of Designated Debt Securities on
in each of the years through at 100% of their principal amount plus
accrued interest[, together with [cumulative] [noncumulative] redemptions
at the option of the Company to retire an additional [$ ] principal
amount of Designated Debt Securities in the years through at 100% of
their principal amount plus accrued interest.]
[If Designated Debt Securities are extendable debt securities,
insert--
EXTENDABLE PROVISIONS:
Designated Debt Securities are repayable on , [insert date and years], at
the option of the holder, at their principal amount with accrued
interest. The initial annual interest rate will be %, and thereafter the
annual interest rate will be adjusted on
, and to a rate not less than % of the effective annual interest
rate on U.S. Treasury obligations with -year maturities as of the [insert
date 15 days prior to maturity date] prior to such [insert maturity
date].]
[If Designated Debt Securities are floating rate debt securities,
insert--
FLOATING RATE PROVISIONS:
Initial annual interest rate will be % through [and thereafter
will be adjusted [monthly] [on each , , and ] [to an
annual rate of % above the average rate for -year [month]
[securities][certificates of deposit] issued by
2
<PAGE> 27
and [insert names of banks].] [and the annual interest rate
[thereafter] [from through ] will be the interest
yield equivalent of the weekly average per annum market discount rate for
-month Treasury bills plus % of Interest Differential (the excess, if any,
of (i) the then current weekly average per annum secondary market yield for
-month certificates of deposit over (ii) the then current interest yield
equivalent of the weekly average per annum market discount rate for -month
Treasury bills); [from and thereafter the rate will be the then current
interest yield equivalent plus % of Interest Differential].]
DEFEASANCE PROVISIONS:
[OTHER TERMS:]
TITLE OF DESIGNATED WARRANTS:
NUMBER OF DESIGNATED WARRANTS:
WARRANT AGENT:
NUMBER OF WARRANTS ISSUED WITH EACH $_______ PRINCIPAL AMOUNT OF DESIGNATED DEBT
SECURITIES:
DATE(S) FROM WHICH OR PERIOD(S) DURING WHICH DESIGNATED WARRANTS ARE
EXERCISABLE:
DATE(S) ON WHICH DESIGNATED WARRANTS EXPIRE:
EXERCISE PRICE(S):
INITIAL PRICE TO PUBLIC:
3
<PAGE> 28
PRINCIPAL AMOUNT PURCHASABLE UPON EXERCISE OF ONE WARRANT:
[OTHER TERMS:]
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
[ADDITIONAL CLOSING CONDITIONS:]
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
4
<PAGE> 29
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;
(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
<PAGE> 30
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 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
2
<PAGE> 31
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 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.
3
<PAGE> 1
================================================================================
Exhibit 4(a)
H.J. HEINZ COMPANY
--------------------------------
INDENTURE
Dated as of July 15, 1992
--------------------------------
The First National Bank of Chicago,
Trustee
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
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<S> <C>
Parties.......................................................................1
Recitals......................................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions......................................................1
"Act"............................................................2
"Affiliate"......................................................2
"Authorized Newspaper"...........................................2
"Authorized Officer".............................................2
"Bearer Security"................................................2
"Board of Directors".............................................2
"Board Resolution"...............................................2
"Business Day"...................................................3
"Capital Stock"..................................................3
"CEDEL S.A.".....................................................3
"Commission".....................................................3
"Company"........................................................3
"Company Request" and "Company Order"............................3
"Consolidated Net Assets"........................................3
"Corporate Trust Office".........................................3
"Coupon".........................................................4
"Default Interest"...............................................4
"Dollar or $"....................................................4
"DTC"............................................................4
"Euro-clear".....................................................4
"Event of Default"...............................................4
"Funded Debt"....................................................4
"Holder".........................................................4
"Indenture"......................................................4
"Interest".......................................................4
"Interest Payment Date"..........................................4
"Internal Revenue Code"..........................................5
"Maturity".......................................................5
"Officers' Certificate"..........................................5
"Opinion of Counsel".............................................5
"Original Issue Discount Security"...............................5
</TABLE>
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"Outstanding"....................................................5
"Paying Agent"...................................................6
"Person".........................................................6
"Place of Payment"...............................................6
"Predecessor Security"...........................................7
"Principal Property".............................................7
"Redemption Date"................................................7
"Redemption Price"...............................................7
"Registered Security"............................................7
"Regular Record Date"............................................7
"Responsible Officer"............................................8
"Restricted Subsidiary"..........................................8
"Securities".....................................................8
"Security Register" and "Security Registrar".....................8
"Special Record Date"............................................8
"Stated Maturity"................................................8
"Subsidiary".....................................................8
"Trustee"........................................................8
"Trust Indenture Act"............................................8
"United States"..................................................9
"United States Alien"............................................9
"U.S. Government Obligations"....................................9
"Voting Stock"...................................................9
SECTION 102. Compliance Certificates and Opinions.............................9
SECTION 103. Form of Documents Delivered to Trustee..........................10
SECTION 104. Acts of Holders.................................................11
SECTION 105. Notices, Etc., to Trustee and Company...........................12
SECTION 106. Notice to Holders; Waiver.......................................13
SECTION 107. Language of Notices, Etc........................................14
SECTION 108. Conflict with Trust Indenture Act...............................14
SECTION 109. Effect of Headings and Table of Contents........................14
SECTION 110. Successors and Assigns..........................................14
SECTION 111. Separability Clause.............................................14
</TABLE>
<PAGE> 4
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SECTION 112. Benefits of Indenture...........................................15
SECTION 113. Governing Law...................................................15
SECTION 114. Legal Holidays..................................................15
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.................................................15
SECTION 202. Form of Trustee's Certificate of Authentication.................16
SECTION 203. Securities in Global Form.......................................17
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series............................18
SECTION 302. Denominations...................................................20
SECTION 303. Execution, Authentication, Delivery and Dating..................21
SECTION 304. Temporary Securities............................................23
SECTION 305. Registration, Registration of
Transfer and Exchange...........................................25
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities................29
SECTION 307. Payment of Interest; Interest Rights Preserved..................30
SECTION 308. Persons Deemed Owners...........................................32
SECTION 309. Cancellation....................................................32
SECTION 310. Computation of Interest.........................................32
</TABLE>
<PAGE> 5
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.........................33
SECTION 402. Application of Trust Money......................................34
SECTION 403. Discharge and Defeasance of
Securities of any Series........................................34
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default...............................................37
SECTION 502. Acceleration of Maturity;
Rescission and Annulment........................................38
SECTION 503. Collection of Indebtedness and
Suits for Enforcement by Trustee................................39
SECTION 504. Trustee May File Proofs of Claim................................40
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons.............................41
SECTION 506. Application of Money Collected..................................41
SECTION 507. Limitation on Suits.............................................42
SECTION 508. Unconditional Rights of Holders to
Receive Principal, Premium and Interest.........................42
SECTION 509. Restoration of Rights and Remedies..............................43
SECTION 510. Rights and Remedies Cumulative..................................43
SECTION 511. Delay or Omission Not Waiver....................................43
SECTION 512. Control by Holders..............................................43
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SECTION 513. Waiver of Past Defaults.........................................44
SECTION 514. Undertaking for Costs...........................................44
SECTION 515. Waiver of Stay or Extension Laws................................45
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.............................45
SECTION 602. Notice of Defaults..............................................47
SECTION 603. Certain Rights of Trustee.......................................47
SECTION 604. Not Responsible for Recitals
or Issuance of Securities.......................................48
SECTION 605. May Hold Securities.............................................49
SECTION 606. Money Held in Trust.............................................49
SECTION 607. Compensation and Reimbursement..................................49
SECTION 608. Disqualification; Conflicting Interests.........................50
SECTION 609. Corporate Trustee Required; Eligibility.........................50
SECTION 610. Resignation and Removal;
Appointment of a Successor......................................50
SECTION 611. Acceptance of Appointment by Successor..........................52
SECTION 612. Merger, Conversion, Consolidation
or Succession to Business.......................................54
SECTION 613. Preferential Collection of
Claims Against Company..........................................54
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<PAGE> 7
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
<S> <C>
SECTION 701. Company to Furnish Trustee Names and
Addresses of Holders of Registered Securities...................54
SECTION 702. Preservation of Information;
Communications to Holders.......................................55
SECTION 703. Reports by Trustee..............................................56
SECTION 704. Reports by Company..............................................58
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc.,
Only on Certain Terms...........................................59
SECTION 802. Successor Substituted...........................................60
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without
Consent of Holders..............................................60
SECTION 902. Supplemental Indentures with
Consent of Holders..............................................62
SECTION 903. Execution of Supplemental Indentures............................63
SECTION 904. Effect of Supplemental Indentures...............................63
SECTION 905. Conformity with Trust Indenture Act.............................63
SECTION 906. Reference in Securities to
Supplemental Indentures.........................................64
</TABLE>
<PAGE> 8
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ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest......................64
SECTION 1002. Maintenance of Office or Agency.................................64
SECTION 1003. Money for Security Payments
to Be Held in Trust.............................................66
SECTION 1004. Restrictions on Secured Debt....................................67
SECTION 1005. Statement as to Compliance......................................69
SECTION 1006. Corporate Existence.............................................70
SECTION 1007. Waiver of Certain Covenants.....................................70
SECTION 1008. Additional Amounts..............................................70
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of This Article...................................71
SECTION 1102. Election to Redeem; Notice to Trustee...........................71
SECTION 1103. Selection by Trustee of
Securities to be Redeemed.......................................72
SECTION 1104. Notice of Redemption............................................72
SECTION 1105. Deposit of Redemption Price.....................................73
SECTION 1106. Securities Payable on Redemption Date...........................73
SECTION 1107. Securities Redeemed in Part.....................................75
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ARTICLE TWELVE
SINKING FUNDS
<S> <C>
SECTION 1201. Applicability of Article........................................75
SECTION 1202. Satisfaction of Sinking Fund
Payments With Securities........................................75
SECTION 1203. Redemption of Securities for Sinking Fund.......................76
ARTICLE THIRTEEN
MEETINGS OF THE HOLDERS OF SECURITIES
SECTION 1301. Purposes for Which Meetings May be Called.......................76
SECTION 1302. Call, Notice and Place of Meetings..............................77
SECTION 1303. Persons Entitled to Vote at Meetings............................77
SECTION 1304. Quorum; Action..................................................78
SECTION 1305. Determination of Voting Rights;
Conduct and Adjournmen..........................................79
SECTION 1306. Counting Votes and Recording
Action of Meetings..............................................80
COUNTERPARTS.................................................................
TESTIMONIUM..................................................................
SIGNATURE AND SEALS..........................................................
ACKNOWLEGEMENTS..............................................................
Exhibit A. Form of Registered Security....................................
Exhibit B. Form of Bearer Security........................................
Exhibit C. Forms of Certification.........................................
</TABLE>
<PAGE> 10
INDENTURE, dated as of July 15, 1992, from H.J. HEINZ COMPANY, a
Pennsylvania corporation (hereinafter called the "Company") having its principal
office at 600 Grant Street, Pittsburgh, Pennsylvania 15219, to The First
National Bank of Chicago, a national banking association existing under the laws
of the United States of America (hereinafter called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (hereinafter called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of a
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them
in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles in the United States, and, except as otherwise herein
expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting
<PAGE> 11
2
principles which are generally accepted in the United States at the
date or time of such computation; and
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authorized Newspaper" means a newspaper, in the English language or in an
official language of the country of publication, customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Authorized Officer", when used with respect to the Company, means the
Chairman of the Board, the Vice Chairman of the Board, the President and Chief
Executive Officer, the chief financial officer, the chief legal officer, the
Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the
Secretary or an Assistant Secretary of the Company.
"Bearer Security" means any Security substantially in the form for Bearer
Securities set forth in Exhibit B or established pursuant to Section 201 which
is payable to bearer.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the
<PAGE> 12
3
Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or any other
particular location referred to in the Indenture or in the Securities, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment or other location are authorized
or obligated by law or executive order to close, unless otherwise specified for
a particular series of Securities.
"Capital Stock", as applied to the stock of any corporation, means the
capital stock of every class whether now or hereafter authorized, regardless of
whether such capital stock shall be limited to a fixed sum or percentage with
respect to the rights of the holders thereof to participate in dividends and in
the distribution of assets upon the voluntary or involuntary liquidation,
dissolution or winding up of such corporation.
"CEDEL S.A." means Centrale de Livraison de Valeurs Mobilieres S.A.
"Commission" means the Securities and Exchange commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" and "Company Order" mean, respectively, a written request
or order signed in the name of the Company by two Authorized Officers of the
Company, and delivered to the Trustee.
"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.
"Corporate Trust Office" means the principal corporate trust office of the
Trustee at which, at any particular time, its corporate trust business shall be
administered, which office at the date hereof is located at One First National
Plaza, Suite 0126, Chicago, Illinois 60670-0126, Attention: Corporate Trust
Services Division, except that for purposes of Section 1002, such term shall
mean the office or
<PAGE> 13
4
agency of the Trustee in the Borough of Manhattan, the City of New York, which
office at the date hereof is located at 14 Wall Street, Eighth Floor, New York,
New York 10005.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Default Interest" has the meaning specified in Section 307.
"Dollar or $" means a dollar or other equivalent unit in such coin or
currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"DTC" means The Depository Trust Company or a nominee thereof or successor
thereto.
"Euro-clear" means the operator of the Euro-clear System.
"Event of Default" has the meaning specified in Section 501.
"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).
"Holder" means in the case of a Registered Security the Person in whose
name the Security is registered in the Security Register and in the case of a
Bearer Security or any related coupon the bearer thereof.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of a particular series of Securities established as
contemplated by Section 301.
"Interest", when used with respect to an original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
<PAGE> 14
5
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended
to the date hereof and from time to time hereafter, and any successor statute.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by two Authorized
Officers of the Company and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel to the Company or may be other counsel satisfactory to
the Trustee.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Stated Maturity thereof pursuant to
Section 502.
"Outstanding", when used with respect to Securities of all Series or
Securities of any series means, as of the date of determination, all such
Securities theretofore authenticated and delivered under this Indenture, except:
(i) Such Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Such Securities or portions thereof for whose payment or
redemption (a) money in the necessary amount has been theretofore deposited
in trust with the Trustee or any Paying Agent (other than the Company) or
set aside and segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Securities and any coupons
appertaining thereto or (b) U.S. Government Obligations as contemplated by
Section 403 in the necessary amount have been theretofore deposited in
satisfaction of the requirements of Section 403 with the Trustee (or
another trustee satisfying the requirements of Section 609) in trust for
the Holders of such Securities and any coupons thereto appertaining in
accordance with Section 402; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
and
(iii) such Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture other than any such
Securities in respect of which there shall have been presented to the
Trustee proof
<PAGE> 15
6
satisfactory to it that such Securities are held by a bona fide Purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of such Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of such Securities, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Stated
Maturity thereof pursuant to Section 502, (ii) the principal amount of
Securities denominated in more than one currency (including composite
currencies) shall be the Dollar equivalent (determined, unless otherwise
provided as contemplated by Section 301, on the basis of the spot rate of
exchange, on the date of such determination, for any currency other than Dollars
as determined by the Company or by an authorized exchange rate agent and
evidenced to the Trustee by an Officers' Certificate) of the principal amount
(or, in the case of an Original Issue Discount Security, the Dollar equivalent
on the date of such determination of the amount determined as provided in (i)
above) of such Securities, and (ii) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, or upon
any such determination as to the presence of a quorum only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or such other
obligor. For purposes of clause (ii) above, an exchange rate agent may be
authorized in advance or from time to time by the Company, and may be the
Trustee. Any such determination by the Company or by any such exchange rate
agent shall be conclusive and binding on all Holders of Securities and related
coupons, if any, and the Trustee, and neither the Company nor such exchange rate
agent shall be liable therefor in the absence of bad faith.
"Paying Agent" means any Person (including the Company) authorized by the
Company to pay the principal of (and premium, if any) or interest, if any, on
any securities on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to any series of Securities or
any coupons, means the place or places where, subject to the provisions of
<PAGE> 16
7
Section 1002, the principal of (and premium, if any) and interest, if any, on
the Securities of that series are payable as specified as contemplated by
Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or the Security to which the
mutilated, destroyed, lost or stolen coupon appertains, as the case may be,
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security or the Security to which the mutilated, destroyed, lost or
stolen coupon appertains, as the case may be.
"Principal Property" means any manufacturing or processing plant or
warehouse owned at the date hereof or hereafter acquired by the Company or any
Restricted Subsidiary of the Company which is located within the United States
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.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture
(including any premium with respect thereto).
"Registered Security" means any Security substantially in the form for
Registered Securities set forth in Exhibit A or established pursuant to
Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Registered Securities of any series means the date specified for that
purpose as contemplated by Section 301.
<PAGE> 17
8
"Responsible Officer", when used with respect to the Trustee, means any
officer within the Corporate Trust Services Division (or any successor group of
the Trustee) including any vice president, assistant vice president, any trust
officer, any assistant secretary or any other officer or assistant officer of
the Trustee customarily performing functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred at the Trustee's principal Corporate Trust
Office because of his knowledge of and familiarity with the particular subject.
"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.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any series means a date fixed by the Trustee pursuant
to Section 307.
"Stated Maturity", when used with respect to any security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"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 one or more other Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended and
as in force at the date as of which this instrument was executed, except as
provided in Section 905.
<PAGE> 18
9
"United States" means the United States of America (including the States
and the District of Columbia), its territories and possessions and other areas
subject to its jurisdiction.
"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" means securities which are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such obligation evidenced by such depository receipt or a
specific payment of interest on or principal of any such obligation held by such
custodian for the account of the holder of a depository receipt; provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the obligation set forth in
(i) or (ii) above or the specific payment of interest on or principal of such
obligation evidenced by such depository receipt.
"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).
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
<PAGE> 19
10
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than certificates
provided pursuant to Subsection 704(4)) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such condition or covenant
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or Opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous.
Any such certificate or opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an Authorized Officer or Authorized Officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
<PAGE> 20
11
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing. If
Securities of a series are issuable as Bearer Securities, any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders of such series may,
alternatively, he embodied in and evidenced by the record of Holders of
Securities of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions of Article
Thirteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record, or both, are delivered to the Trustee
and, where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent or
proxy, or of the holding by any Person of a Security, shall be sufficient for
any purpose of this Indenture and (subject to Section 601) conclusive in favor
of the Trustee and the Company and any agent of the Company, if made in the
manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 1306.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of any notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
an officer of a corporation or association or a member of a partnership, or an
official of a public or governmental body, on behalf of such corporation,
association, partnership or public or governmental body or by a fiduciary, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which shall be satisfactory to the Trustee.
<PAGE> 21
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(c) The principal amount and serial numbers of Registered Securities held
by any Person, and the date of holding the same, shall be proved by the Security
Register.
(d) The principal amount and serial numbers of Bearer Securities held by
any Person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed, by any trust company, bank,
banker or other depositary, as depositary, wherever situated, if such
certificate shall be satisfactory to the Trustee, showing that at the date
therein mentioned such Person had on deposit with such depositary, or exhibited
to it, the Bearer Securities therein described; or such facts may be proved by
the certificate or affidavit of the Person holding such Bearer Securities, if
such certificate or affidavit shall be satisfactory to the Trustee. The Trustee
and the Company may assume that such ownership of any Bearer Security continues
until (1) another certificate or affidavit bearing a later date issued in
respect of the same Bearer Security is produced, or (2) such Bearer Security is
produced to the Trustee by some other Person, or (3) such Bearer Security is
surrendered in exchange for a Registered Security, or (4) such Bearer Security
is no longer Outstanding. The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may also be
proved in any other manner which shall be satisfactory to the Trustee.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, which, as of the date
of this Indenture, is: one First National Plaza, Suite 0126, Chicago,
Illinois 60610-0126, Attention: Corporate Trust Services Division; or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this
<PAGE> 22
13
instrument, to the attention of the Corporate Secretary or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of any event,
(1) such notice shall be sufficiently given to Holders of Registered
Securities if in writing and mailed, first-class postage prepaid, to each
Holder of a Registered Security affected by such event, at his address as
it appears in the Security Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such
notice;
(2) such notice shall be sufficiently given to Holders of Bearer
Securities if published in an Authorized Newspaper in the City of New York
and in such other city or cities as may be specified in such Securities on
a Business Day at least once, the first such publication to be not earlier
than the earliest date, and not later than the latest date, prescribed for
the giving of such notice.
If, by reason of the suspension of regular mail service, it shall be
impracticable to mail notice of any event to Holders of Registered Securities
when such notice is required to be given pursuant to any provision of this
Indenture, then such manner of giving such notice as shall be acceptable to the
Trustee shall constitute sufficient giving of such notice. In any case where
notice to Holders of Registered Securities is given by mail, neither the failure
to mail such notice, nor any defect in any notice so mailed, to any particular
Holder of a Registered Security shall affect the sufficiency of such notice with
respect to other Holders of Registered Securities or the sufficiency of any
notice with respect to Holders of Bearer Securities given as provided herein.
If by reason of the suspension of publication of any Authorized Newspaper
or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
in a manner satisfactory to the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice to Holders
of Registered Securities given as provided herein.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
<PAGE> 23
14
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent, waiver, Act
of Holders or other document required or permitted under this Indenture shall be
in the English language, except that any published notice may be in an official
language of the country of publication.
SECTION 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any obligation
or requirement included or deemed included herein by operation of the Trust
Indenture Act, such obligation or requirement of the Trust Indenture Act shall
control.
SECTION 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 111. Separability Clause.
In case any provision in this Indenture or the Securities or coupons shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
<PAGE> 24
15
SECTION 112. Benefits of Indenture.
Nothing in this Indenture or the Securities or coupons, expressed or
implied, shall give to any Person, other than the parties hereto, their
successors hereunder and the Holders of Securities or coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 113. Governing Law.
This Indenture and the Securities and any coupons shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to the conflicts of laws provisions thereof.
SECTION 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity or Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities or coupons other than a provision in the Securities of any series
which specifically states that such provision shall apply in lieu of this
Section) payment of principal (and premium, if any) or interest, if any, need
not be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity or Maturity, provided that no interest shall accrue on the amount so
payable for the period from and after such Interest Payment Date, Redemption
Date, Stated Maturity or Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons, if any, shall be in
substantially the form set forth in Exhibit A and Exhibit B to this Indenture,
respectively, or in such other form (including temporary or permanent global
form) as shall be established in one or more indentures supplemental hereto or
approved from time to time by or pursuant to a Board Resolution in accordance
with Section 301, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have such letters, numbers or
<PAGE> 25
16
other marks of identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities
and coupons, if any, as evidenced by their execution of the Securities and
coupons, if any. If the forms of Securities and coupons, if any, of any series
(or the form of any such temporary or permanent global Security) are established
by action taken pursuant to a Board Resolution, a copy of an appropriate record
of such action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 303 for the authentication and delivery of
such securities or coupons (or any such temporary or permanent global Security).
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, the Securities of each series shall be issuable in
registered form without coupons. If so provided as contemplated by Section 301,
the Securities of a series also shall be issuable in bearer form, with interest
coupons, if any, attached.
The definitive Securities and coupons, if any, shall be
printed, lithographed or engraved or produced by any combination of these
methods on steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the Securities may be
listed, all as determined by the officers executing such Securities and coupons,
if any, as evidenced by their execution of such Securities and coupons, if any.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially the
following form:
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
<PAGE> 26
17
SECTION 203. Securities in Global Form.
If Securities of a series are issuable in global form, as specified as
contemplated by Section 301, then, notwithstanding clause (8) of Section 301 and
the provisions of Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Security in global form to reflect the amount,
or any decrease in the amount, of Outstanding Securities represented thereby
shall be made by the Trustee in such manner and upon instructions given by such
Person or Persons as shall be specified therein or in the Company Order to be
delivered to the Trustee pursuant to Section 303 or Section 304. Subject to the
provisions of Section 303 and, if applicable, Section 304, the Trustee shall
deliver and redeliver any Security in permanent global form in the manner and
upon instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 or 304 has
been, or simultaneously is, delivered, any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Sections 201 and 307, unless otherwise
specified as contemplated by Section 301, payment of principal of (and premium,
if any) and interest, if any, on any Security in permanent global form shall be
made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in the
preceding paragraph, the Company, the Trustee and any agent of the Company and
the Trustee shall treat a Person as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security as shall be
specified in a written statement of the Holder of such permanent global Security
or, in the case of a permanent global Security in bearer form, of Euro-clear or
CEDEL S.A., which is produced to the Trustee by such Person.
<PAGE> 27
18
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and, subject to Section 303,
set forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any Series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Sections 304, 305, 306, 906 or 1107);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates (which may be fixed or floating) at which the
Securities of the series shall bear interest, if any, the date or dates
from which such interest shall accrue, the Interest Payment Dates on which
such interest shall be payable and the Regular Record Date for the interest
payable on Registered Securities on any Interest Payment Date or the
formula or method by which such rate or rates, or date or dates may be
determined;
(5) the place or places where, subject to the provisions of Section
1002, the principal of (and premium, if any) and interest, if any, on
Securities of the series shall be payable, any Registered Securities of the
series may be surrendered for registration of transfer, Securities of the
series may be surrendered for exchange and notices and demands to or upon
the Company in respect of the Securities of the series and this Indenture
may be served;
(6) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
<PAGE> 28
19
(7) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(8) the denominations in which any Registered Securities of the series
shall be issuable, if other than denominations of $1,000 and any integral
multiple thereof, and the denomination or denominations in which any Bearer
Securities of the series shall be issuable, if other than the denomination
of $5,000;
(9) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Stated Maturity thereof pursuant to
Section 502;
(10) any paying agents, transfer agents, registrars or any other
agents with respect to the Securities of the series;
(11) the currency or currencies, including composite currencies, in
which payment of the principal of (and premium, if any) and interest, if
any, on such Securities shall be payable if other than the currency of the
United States;
(12) if the principal of (and premium, if any), or interest, if any,
on such Securities are to be payable, at the election of the Company or any
Holder thereof, in a coin or currency or currencies, including composite
currencies, other than that or those in which such Securities are stated to
be payable, the coin or currency or currencies, including composite
currencies, in which payment of the principal of (and premium, if any), or
interest, if any, on Securities of such series as to which such election is
made shall be payable, and the period or periods within which, and the
terms and conditions upon which, such election may be made;
(13) if such Securities are to be denominated in more than one
currency, including composite currencies, the basis of determining the
equivalent price in the currency of the United States (if other than as set
forth in the definition of Outstanding) for purposes of determining the
voting rights of Holders of such Securities under this Indenture;
(14) if the amount of payments of principal of (and premium, if any),
or portions thereof, or interest, if any, on such Securities may be
determined
<PAGE> 29
20
with reference to an index, formula or other method, the manner in which
such amounts shall be determined;
(15) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities or both, whether any Securities of the series
are to be issuable initially in temporary global form and whether any
Securities of the series are to be issuable in permanent global form and,
if so, whether beneficial owners of interests in any such permanent global
Security may exchange such interests for Securities of such series and of
like tenor of any authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in the manner
provided in Section 305;
(16) the applicability of Section 403 of this Indenture to the
Securities of such series; and
(17) any other terms of or provisions applicable to the series (which
terms and provisions shall not be inconsistent with the provisions of this
Indenture).
All Securities of any one series and any coupons appertaining thereto shall
be substantially identical except, in the case of Registered Securities, as to
denomination and except in the case of any series of Securities, as may
otherwise be provided in or pursuant to such Board Resolution referred to above
and (subject to Section 303) set forth in such Officers' Certificate or in any
such indenture supplemental hereto. All Securities of one series need not be
issued at the same time and, unless otherwise provided, a series may be reopened
for issuances of additional Securities of such series. Securities may differ
between series in respect of any matters.
If any of the terms of the Securities of any series are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the Securities of such series.
SECTION 302. Denominations.
Unless otherwise provided as contemplated by Section 301 with respect to
the Securities of any series, any Registered Securities of such series shall be
issuable in denominations of $1,000 and any integral multiple thereof and any
Bearer Securities of such series shall be issuable in the denomination of
$5,000.
<PAGE> 30
21
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, President and Chief Executive Officer, any Senior Vice President,
any Vice President or the Treasurer, under its corporate seal reproduced thereon
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities may be manual or facsimile. Coupons
shall bear the facsimile signature of the Treasurer or any Assistant Treasurer
of the Company.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series, together with any
coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however, that,
in connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided, further,
that a Bearer Security may be delivered in connection with its original issuance
only if the Person entitled to receive such Bearer Security shall have furnished
a certificate in the form set forth in Exhibit C-1 to this Indenture, dated no
earlier than 15 days prior to the earlier of the date on which such Bearer
Security is delivered and the date on which any temporary global Security first
becomes exchangeable for such Bearer Security in accordance with the terms of
such temporary global Security and this Indenture. If any Security shall be
represented by a permanent global Bearer Security, then, for purposes of this
Section and Section 304, the notation of a beneficial owner's interest therein
upon original issuance of such Security or upon exchange of a portion of a
temporary global Security shall be deemed to be delivery in connection with its
original issuance of such beneficial owner's interest in such permanent global
Security. Except as permitted by Section 306, the Trustee shall not authenticate
and deliver any Bearer Security unless all appurtenant coupons for interest then
matured have been detached and cancelled.
If the forms or terms of the Securities of the series and any related
coupons have been established in or pursuant to one or more Board Resolutions as
permitted by Sections 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon, an Opinion of Counsel
stating,
<PAGE> 31
22
(a) if the forms of such Securities and any coupons have been
established by or pursuant to a Board Resolution as permitted by Section
201, that such forms have been established in conformity with the
provisions of this Indenture;
(b) if the terms of such Securities and any coupons have been
established by or pursuant to a Board Resolution as permitted by Section
301, that such terms have been established in conformity with the
provisions of this Indenture; and
(c) that such Securities, together with any coupons appertaining
thereto, when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally binding obligations
of the Company, enforceable in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles.
If such forms or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or will otherwise affect the
Trustee in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
A Company Order delivered in the circumstances set forth in the preceding
paragraph may provide that Securities which are the subject thereof will be
authenticated and delivered by the Trustee on original issue from time to time
upon the telephonic or written order of persons designated in such Company Order
(telephonic instructions to be promptly confirmed in writing by such persons)
and that such persons are authorized to determine, consistent with the Officers'
Certificate referred to in Section 301 or any applicable supplemental indenture,
such terms and conditions of said Securities as are specified in such Company
Order, provided the foregoing procedure is acceptable to the Trustee.
<PAGE> 32
23
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security of a series shall be dated as of the date of the initial
issuance of Securities of such series.
No Security or any related coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on
such Security, or the Security to which such coupon appertains, a certificate of
authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and that such Security and any related
coupon are entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued, in
registered form or, if authorized, in bearer form with one or more coupons or
without coupons, and with such appropriate insertions, omissions, substitutions
and other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities. In the case of Bearer
Securities of any series, such temporary Securities may be in global form,
representing all of the Outstanding Bearer Securities of such series. A
temporary Bearer Security shall be delivered only in compliance with the
conditions set forth in Section 303.
Except in the case of temporary Securities in global form (which shall be
exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause definitive
securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company maintained pursuant to Section 1002 in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series (accompanied by any unmatured coupons
appertaining thereto) the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like aggregate principal amount
of definitive Securities of the same series and of like tenor of authorized
denominations; provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and provided,
further, that a definitive Bearer Security shall be delivered in exchange for a
temporary Bearer Security only in compliance with the conditions set forth in
<PAGE> 33
24
Section 303. Until so exchanged the temporary Securities of any series
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
If temporary Securities of any series are issued in global form, any such
temporary global Security shall, unless otherwise provided therein, be delivered
to the London office of a depositary or common depositary (the "Common
Depositary"), for the benefit of Euro-clear and CEDEL S.A., for credit to the
respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary
global Security of a series (the "Exchange Date"), the Company shall deliver to
the Trustee definitive Securities of such series in aggregate principal amount
equal to the principal amount of such temporary global Security, executed by the
Company. On or after the Exchange Date, such temporary global Security shall be
surrendered by the Common Depositary to the Trustee, as the Company's agent for
such purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities of such series without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such temporary global
Security, a like aggregate principal amount of definitive Securities of the same
series of authorized denominations and of like tenor as the portion of such
temporary global Security to be exchanged; provided, however, that, unless
otherwise specified in such temporary global Security, upon such presentation by
the Common Depositary, such temporary global Security is accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by
Euro-clear as to the portion of such temporary global Security held for its
account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL S.A. as to the portion of such temporary
global Security held for its account then to be exchanged, each in the form set
forth in Exhibit C-2 to this Indenture. To the extent required by applicable
United States Treasury regulations, in the case of a Bearer Security, the
Exchange Date shall not be later than the expiration of a reasonable period
after the expiration of the 40-day period beginning on the date of issuance of
the temporary global security to be exchanged. The definitive Securities to be
delivered in exchange for any such temporary global Security shall be in bearer
form, registered form, permanent global bearer form or permanent global
registered form, or any combination thereof, as specified as contemplated by
Section 301, and, if any combination thereof is so specified, as requested by
the beneficial owner thereof; provided, however that definitive Bearer
Securities shall be delivered in exchange for a portion of a temporary global
Security only in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the interest
of a beneficial owner of Securities of a series in a temporary global Security
shall be exchanged for definitive Securities of the same series and of like
tenor
<PAGE> 34
25
following the Exchange Date when the account holder instructs Euro-clear or
CEDEL S.A., as the case may be, to request such exchange on his behalf and
delivers to Euro-clear or CEDEL S.A., as the case may be, a certificate in the
form set forth in Exhibit C-1 to this Indenture, dated no earlier than 15 days
prior to the Exchange Date, copies of which certificate shall be available from
the offices of Euro-clear and CEDEL S.A., the Trustee and each Paying Agent.
Unless otherwise specified in such temporary global Security, any such exchange
shall be made free of charge to the beneficial owners of such temporary global
Security, except that a Person receiving definitive Securities must bear the
cost of insurance, postage, transportation and the like in the event that such
Person does not take delivery of such definitive Securities in person at the
offices of Euro-clear or CEDEL S.A. Definitive Securities in bearer form to be
delivered in exchange for any portion of a temporary global Security shall be
delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 301, interest payable on a temporary global Security
on an Interest Payment Date for Securities of such series occurring prior to the
applicable Exchange Date shall be payable to Euro-clear and CEDEL S.A. on such
Interest Payment Date upon delivery by Euro-clear and CEDEL S.A. to the Trustee
of a certificate or certificates in the form set forth in Exhibit C-3 to this
Indenture, for credit without further interest on or after such Interest Payment
Date to the respective accounts of the Persons who are the beneficial owners of
such temporary global Security on such Interest Payment Date and who have each
delivered to Euro-clear or CEDEL S.A., as the case may be, a certificate in the
form set forth in Exhibit C-4 to this Indenture. Any interest so received by
Euro-clear and CEDEL S.A. and not paid as herein provided shall be returned to
the Trustee immediately prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Company in accordance with Section
1003.
SECTION 305. Registration, Registration of
Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency to be maintained by the Company in accordance with Section 1002
being herein sometimes collectively referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Registered Securities and of transfers of
Registered Securities. The Trustee is hereby appointed "Security Registrar" for
the purpose of registering Registered Securities and transfers of Registered
Securities as herein provided.
<PAGE> 35
26
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency maintained pursuant to Section 1002 for such
purpose in a Place of Payment for that series, the Company shall execute, and
the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Registered Securities of the same
series, of any authorized denominations and of a like aggregate principal amount
and tenor.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Securities to be exchanged at such office or agency. Bearer Securities
may not be issued in exchange for Registered Securities.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured or
matured coupon or coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
in an amount equal to the face amount of such missing coupon or coupons, or the
surrender of such missing coupon or coupons may be waived by the Company or
jointly by the Company and the Trustee if there is furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive the amount of such
payment; provided, however, that, except as otherwise provided in Section 1002,
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in exchange for a Registered
Security of the same series and like tenor after the close of business at such
office or agency on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or (ii)
any Special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
<PAGE> 36
27
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the beneficial owners of interests in a
permanent global Security are entitled to exchange such interests for Securities
of such series and of like tenor and principal amount of another authorized form
and denomination, as specified as contemplated by Section 301, then without
unnecessary delay but in any event not later than the earliest date on which
such interests may be so exchanged, the Company shall deliver to the Trustee
definitive Securities of that series in aggregate principal amount equal to the
principal amount of such permanent global Security, executed by the Company. On
or after the earliest date on which such interests may be so exchanged, such
permanent global Security shall be surrendered by the Common Depositary or such
other depositary as shall be specified in the Company Order with respect thereto
to the Trustee as the Company's agent for such purpose, to be exchanged, in
whole or from time to time in part, for definitive Securities of the same series
without charge and the Trustee shall authenticate and deliver, in exchange for
each for each portion of such permanent global Security, a like aggregate
principal amount of definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such permanent global Security
to be exchanged which, unless the Securities of the series are not issuable both
as Bearer Securities and as Registered Securities, as specified as contemplated
by Section 301, shall be in the form of Bearer Securities or Registered
Securities, or any combination thereof, as shall be specified by the beneficial
owner thereof; provided, however, that no such exchanges may occur during a
period beginning at the opening of business 15 days before any selection of
Securities of that series to be redeemed and ending on the relevant Redemption
Date; and provided, further, that no Bearer Security delivered in exchange for a
portion of a permanent global Security (or, if specified as contemplated by
Section 301, in exchange for Registered Securities) shall be mailed or otherwise
delivered to any location in the United States. Promptly following any such
exchange in part and any endorsement thereon to reflect the amount represented
by such exchange, such permanent global Security shall be returned by the
Trustee to the Common Depositary or such other depositary or Common Depositary
referred to above in accordance with the instructions of the Company referred to
above. If a Registered Security is issued in exchange for any portion of a
permanent global Security after the close of business at the office or agency
where such exchange occurs on (i) any Regular Record Date and before the opening
of business at such office or agency on the relevant Interest Payment Date, or
(ii) any special Record Date and before the opening of business at such office
or agency on the related proposed date for payment of Defaulted Interest,
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of such Registered Security, but will be payable on such Interest
Payment Date or proposed date for
<PAGE> 37
28
payment, as the case may be, only to the Person to whom interest in respect of
such portion of such permanent global Security is payable in accordance with the
provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee or
any transfer agent) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company, the Trustee and the Security
Registrar or any transfer agent duly executed, by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Sections 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before any selection of Securities of that series to be
redeemed and ending at the close of business on (A) if Securities of the series
are issuable only as Registered Securities, the day of the mailing of the
relevant notice of redemption and (B) if Securities of the series are issuable
as Bearer Securities, the day of the first publication of the relevant notice of
redemption or, if Securities of the series are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption, (ii) to register the transfer of or exchange any Registered Security
so selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part, or (iii) to exchange any Bearer Security so
selected for redemption except that such a Bearer Security may be exchanged for
a Registered Security of that series and like tenor, provided that such
Registered Security shall be simultaneously surrendered for redemption.
Notwithstanding anything in this Indenture or in the terms of a Security to
the contrary, the exchange of Bearer Securities for Registered Securities will
be subject to satisfaction of the provisions of the United States tax laws in
effect at the time of the exchange. Neither the Company nor the Trustee nor any
agent of the Company or the Trustee shall be required to exchange any Bearer
Security for a Registered Security if (i) as a result thereof and in the
Company's judgment, the Company would incur adverse consequences under then
applicable United States Federal income tax laws and (ii) in the case of the
Trustee or any agent of the
<PAGE> 38
29
Company or the Trustee, the Company shall have delivered to such Person an
Officers' Certificate and an Opinion of Counsel as to the matters set forth in
clause (i) above.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon
appertaining thereto is surrendered to the Trustee, the Company shall execute,
and the Trustee shall authenticate and deliver in exchange therefor, a new
Security of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to the surrendered Security.
If there shall have been delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or coupon, and (ii) such security or indemnity as may be required by them to
save each of them harmless, then, in the absence of notice to the Company or the
Trustee that such Security or coupon has been acquired by a bona fide purchaser,
the Company shall execute and upon its request the Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen Security or in
exchange for the Security to which a destroyed, lost or stolen coupon appertains
(with all appurtenant coupons not destroyed, lost or stolen), a new Security of
the same series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or coupon
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security or coupon; provided,
however, that principal of (and premium, if any) and interest, if any, on Bearer
Securities shall, except as otherwise provided in Section 1002, be payable only
at an office or agency located outside the United States; and provided, further,
that, unless otherwise specified as contemplated by Section 301 with respect to
any series of Securities, interest on Bearer Securities (but not any additional
amounts payable as provided in Section 1008), shall be payable only upon
presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
<PAGE> 39
30
Every new Security of any series with its coupons, if any, issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security, or in
exchange for a Security to which a destroyed, lost or stolen coupon appertains,
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its coupons, if any,
or the destroyed, lost or stolen coupon shall be at any time enforceable by
anyone, and any such new Security and coupons, if any, shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Securities of that series and their coupons, if any, duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise specified as contemplated by Section 301 with respect to
any series of Securities, interest on any Registered Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Unless otherwise specified as contemplated by Section 301 with respect to
any series of securities, any interest due on Bearer Securities on or before
Maturity shall be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby as they
severally mature.
Any interest on any Registered Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Registered Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for
<PAGE> 40
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such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as provided in this clause. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor (i)
to be mailed, first-class postage prepaid, to each Holder of Registered
Securities of such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date, and (ii)
with respect to Bearer Securities of such series, to be published as
provided for in Section 106. The Trustee may, in addition, in its
discretion, in the name and at the expense of the Company, cause a similar
notice to be published at least once in a newspaper published in the
English language customarily published on each Business Day and of general
circulation in the Borough of Manhattan, the City of New York, New York,
but such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the Persons
in whose names the Registered Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice is given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
<PAGE> 41
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SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Sections 305 and 307)
interest, if any, on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the absolute owner of such Bearer Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Bearer Security or coupon be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and such Securities and coupons shall be promptly cancelled by
the Trustee. The Company may at any time deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities and coupons held by the Trustee shall be destroyed by the Trustee
unless other instructions are furnished to the Trustee by a Company Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for the
Securities of any series, interest, if any, on the Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day months.
<PAGE> 42
33
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
with respect to any series of Securities (except as to any surviving rights of
registration of transfer or exchange of Securities of such series herein
expressly provided for or in the form of Security for such series and any right
to receive additional amounts, as provided in Section 1008), and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to such series, when
(1) either
(A) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than (i)
coupons appertaining to Bearer Securities surrendered for exchange for
Registered Securities and maturing after such exchange, whose surrender is
not required or has been waived as provided in Section 305, (ii) Securities
of such series and coupons appertaining thereto which have been destroyed,
lost or stolen and which have been replaced or paid as provided in Section
306, (iii) coupons appertaining to Securities of such series called for
redemption and maturing after the relevant Redemption Date, whose surrender
has been waived as provided in Section 1106 and (iv) Securities of such
series and coupons appertaining thereto for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust,
as provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all such Securities of such series and, in the case of (i) or (ii)
below, any coupons appertaining thereto not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in
<PAGE> 43
34
trust for the purpose an amount sufficient to pay and discharge the entire
indebtedness on such Securities and coupons not theretofore delivered to the
Trustee for cancellation, for principal (and premium, if any) and interest, if
any, to the date of such deposit (in the case of Securities which have become
due and payable), or to the Stated Maturity or the Redemption Date, as the case
may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to such series; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that, with respect to such series, all
conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to such series, the obligations of the Company to the Trustee with
respect to such series under Section 607, and, if money shall have been
deposited with the Trustee pursuant to subclause (B) of clause (1) of this
Section, the obligations of the Trustee under Section 402 and the last paragraph
of Section 1003, shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401, all money and U.S.
Government Obligations deposited with the Trustee (or a successor trustee
satisfying the requirements of Section 609) pursuant to Section 403 and all
money received by the Trustee in respect of U.S. Government Obligations
deposited with the Trustee pursuant to Section 403 shall be held in trust and
shall be applied by it, in accordance with the provisions of the series of
Securities and this Indenture, to the payment, either directly or through any
Paying Agent as the Trustee may determine, to the Persons entitled thereto, of
all sums due and to become due thereon in respect of the principal of (and
premium, if any) and interest, if any, on the Securities for which payment of
such money has been deposited with the Trustee or to make mandatory sinking fund
payments or analogous payments as contemplated by Section 403.
SECTION 403. Discharge and Defeasance of
Securities of any Series.
If this Section 403 is specified, as contemplated by Section 301, to be
applicable to the Securities of any series, then, notwithstanding the provisions
of Section 401, the Company shall be deemed to have paid and discharged the
entire indebtedness on all the Outstanding Securities of any such series on the
91st day after
<PAGE> 44
35
the date of the deposit referred to in subparagraph (d) hereof, and the
provisions of this Indenture, as it relates to such Outstanding Securities,
shall no longer be in effect (and the Trustee, at the expense of the Company,
shall, upon Company Request execute proper instruments acknowledging the same),
except as to:
(a) the rights of Holders of Securities of such series to receive,
from the trust funds described in subparagraph (d) hereof, (i) payment of
the principal of (and premium, if any) and each installment of principal of
(and premium, if any) or interest, if any, on the Outstanding Securities of
such series on the Stated Maturity of such principal or installment of
principal or interest and (ii) any mandatory sinking fund payments or
analogous payments applicable to the Securities of such series on the day
on which such payments are due and payable in accordance with the terms of
this Indenture and such Securities; and
(b) the rights, powers, trusts, duties and immunities of the Trustee
hereunder with respect to such series, including those set forth in Section
607; and
(c) either (1) if this Section 403(c)(1) is specified, as contemplated
by Section 301, to be applicable to the Securities of any series, the
Company's obligations with respect to the Securities of such series under
Sections 304, 305, 306, 1002 and 1003; or, alternatively, (2) if this
Section 403(c)(2) is specified, as contemplated by Section 301, to be
applicable to the Securities of any series, the Company's obligations with
respect to such Securities under Sections 304, 305, 306, 1001, 1002 and
1003;
provided that, the following conditions shall have been satisfied:
(d) the Company shall have irrevocably deposited or caused to be
deposited (in accordance with Section 402) with the Trustee (or another
trustee satisfying the requirements of Section 609) as trust funds in trust
specifically pledged as security for, and dedicated solely to, the benefit
of the Holders of the Securities of that series, with reference to this
Section 403 (i) money in an amount, or (ii) U.S. Government Obligations
which through the payment of interest and principal in respect thereof in
accordance with their terms will provide not later than one Business Day
before the due date of any payment referred to in clause (A) or (B) of this
subparagraph (d) money in an amount, or (iii) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge (A) the principal of (and
premium, if any) and each installment of principal of (and premium, if any)
and interest, if any, on the Outstanding Securities of such series on the
Stated Maturity of such principal or installment of principal or interest
or on the applicable Redemption Date and (B) any mandatory
<PAGE> 45
36
sinking fund payments or analogous payments applicable to the Securities of
such series on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such Securities;
(e) such deposit shall not cause the Trustee with respect to the
Securities of such series to have a conflicting interest as defined in
Section 608 or for purposes of the Trust Indenture Act with respect to the
Securities of any series;
(f) such deposit will not result in a breach or violation of, or
constitute a default under, any applicable laws, this Indenture or any
other agreement or instrument to which the Company is a party or by which
it is bound;
(g) if this Section 403(g) is specified, as contemplated by
Section 301, to be applicable to the Securities of any series, such
provision would not cause any Outstanding Securities of such series then
listed on the New York Stock Exchange or other nationally recognized
securities exchange to be de-listed as a result thereof;
(h) no Event of Default or event which with the giving of notice or
lapse of time or both would become an Event of Default with respect to the
Securities of that series shall have occurred and be continuing on the date
of such deposit or at any time during the period ending on the 91st day
after such date;
(i) the Company has delivered to the Trustee an Opinion of Counsel to
the effect that, based upon applicable Federal income tax law or a ruling
published by the Internal Revenue Service (which opinion, for the purposes
contemplated by Section 403(c)(1), must be based on a change in applicable
Federal income tax law after the date of this Indenture or a ruling
published by the Internal Revenue Service after the date of this
Indenture), the Holders of the Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to Federal income tax
on the same amount and in the same manner and at the same times, as would
have been the case if such deposit, defeasance and discharge had not
occurred; and
(j) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
relating to the defeasance contemplated by this Section have been complied
with.
<PAGE> 46
37
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any installment of interest upon any
Security of that series when it becomes due and payable, and continuance of
such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(4) default in the performance or breach of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of a particular series of Securities other
than that series) and continuance of such default or breach for a period of
90 days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at least 25% in principal amount of the Outstanding Securities of that
series a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
in respect of the Company under any applicable bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect, or (B) a
decree or order appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Company or for any
substantial part of its property, or ordering the winding-up or liquidation
of its affairs and such decree or order shall remain unstayed and in effect
for a period of 60 consecutive days; or
<PAGE> 47
38
(6) the commencement by the Company of a voluntary case under any
applicable bankruptcy, insolvency, reorganization or other similar law now
or hereafter in effect, or the consent by it to the entry of an order for
relief in an involuntary case in respect of it under any such law, or the
consent by it to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or similar
official) of the Company or for any substantial part of its property, or
the making by it of any general assignment for the benefit of creditors; or
(7) any other Event of Default provided with respect to Securities of
that series.
SECTION 502. Acceleration of Maturity;
Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms
thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest on all Securities of
that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and interest, if any, thereon at the rate or rates
prescribed therefor in such Securities,
<PAGE> 48
39
(C) to the extent that payment of such interest is lawful,
interest upon any overdue installments of interest at the rate or
rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the nonpayment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and
Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of interest on
any Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at its Maturity,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities and coupons, the whole amount then due and payable on
such Securities and coupons for principal (and premium, if any) and interest, if
any, and, to the extent that payment of such interest shall be legally
enforceable, interest on the overdue principal (and premium, if any) and on any
overdue installments of interest, at the rate or rates prescribed therefor in
such Securities and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the
<PAGE> 49
40
Company or any other obligor upon such Securities and called the moneys adjudged
or decreed to be payable in the manner provided by law out of the property of
the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series and any
related coupons by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or the
creditors of the Company or such other obligor, the Trustee (irrespective of
whether the principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company for the payment of overdue principal
or interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest, if any, owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and of the Holders of Securities
and coupons allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, custodian, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities and coupons to make such payments to the Trustee and,
in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Securities and coupons, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
<PAGE> 50
41
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons.
All rights of action and claims under this Indenture or the Securities or
coupons may be prosecuted and enforced by the Trustee without the possession of
any of the Securities or coupons or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities and coupons in respect
of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, if any, upon presentation of the Securities or coupons or
both and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under
Section 607;
Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest, if any, on the Securities
and coupons in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities and coupons for
principal (and premium, if any) and interest, if any, respectively; and
Third: The balance, if any, to the Person or Persons determined to be
entitled thereto.
<PAGE> 51
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SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related coupons shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
outstanding securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of the Holders of
Securities of such series shall have any right in any manner whatever by virtue
of, or by availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other such Holders of, or to obtain or to seek to
obtain priority or preference over any other such Holders or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all such Holders.
SECTION 508. Unconditional Rights of Holders to
Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or coupon shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Sections 305 and 307) interest, if any, on such Security or payment of such
coupon on the Stated Maturity or Maturities expressed in such Security or coupon
(or, in the case of redemption, on the Redemption Date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
<PAGE> 52
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SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of any Security or coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and the Holders of such Securities and coupons
shall, subject to any determination in such proceeding, be restored severally
and respectively to their former positions hereunder, and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities or coupons in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of Securities or coupons is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article
or by law to the Trustee or to the Holders of Securities or coupons may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders of Securities or coupons, as the case may be.
SECTION 512. Control by Holders.
(a) The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any
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44
trust or power conferred on the Trustee, with respect to the Securities of such
series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
(b) The Company may set a record date for purposes of determining the
identity of Holders entitled to vote or consent to any action by vote or consent
authorized or permitted by this Section 512 and Section 513. Such record date
shall be the later of (1) 30 days prior to the first solicitation of such
consent or (2) the date of the most recent list of Holders furnished to the
Trustee pursuant to Section 701 prior to such solicitation.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series and any related coupons waive any past default
hereunder with respect to the Securities of such series and its consequences,
except a default
(1) in the payment of the principal of (or premium, if any) or
interest, if any, on any Securities of such series, or
(2) with respect to a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security or
coupon by his acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess
<PAGE> 54
45
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard for the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the Outstanding Securities of any series, or to
any suit instituted by any Holder of any Security or coupon for the enforcement
of the payment of the principal of (or premium, if any) or interest, if any, on
any Security or the payment of any coupon on or after the Stated Maturity or
Maturities expressed in such security or coupon (or, in the case of redemption,
on or after the Redemption Date).
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with respect to
the Securities of any series,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture with respect to such
series, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provisions
hereof are
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46
specifically required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they conform
to the requirements of this Indenture.
(b) In case an Event of Default has occurred with respect to Securities of
any series and is continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture with respect to such series of Securities,
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.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series, determined as provided in Section
512, relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to the
Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
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SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect
to the Securities of any series, the Trustee shall transmit in the manner and to
the extent provided in section 703(c), notice of such default hereunder known to
the Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of (or premium, if any) or interest, if any, on any Security of such series or
in the payment of any sinking fund installment with respect to Securities of
such series, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interest of the Holders of
Securities of such series, and provided, further, that in the case of any
default of the character specified in Section 501(4) with respect to Securities
of such series, no such notice to Holders shall be given until at least 60 days
after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order or as
otherwise expressly provided herein and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically presented) may, in the absence of bad faith
on its part, rely upon an Officers' Certificate and such Oficers'
Certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted by it under the provisions of this Indenture upon the
faith thereof;
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(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders of
Securities of any series or related coupons 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
or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see
fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
SECTION 604. Not Responsible for Recitals
or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Securities or the coupons. The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.
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SECTION 605. May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar or any other agent of
the Company, in its individual or any other capacity, may become the owner or
pledgee of Securities or coupons and, subject to Sections 608 and 613, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
The obligations of the Company under this Section shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharges of this Indenture. Such additional indebtedness shall be a senior
claim to that of the Securities upon all property and funds held or collected by
the Trustee as such, except
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funds held in trust for the benefit of the Holders of particular Securities, and
the Securities are hereby subordinated to such senior claim. If the Trustee
incurs expenses after the occurrence of a default specified in Section 501(5) or
501(6), such expenses are intended to constitute expenses of administration
under any bankruptcy law.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by and subject to
the provisions of, the Trust Indenture Act.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States or
of any State or the District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$50,000,000, subject to supervision or examination by Federal, State or District
of Columbia authority and having its Corporate Trust Office in the City of
Chicago, Illinois or the Borough of Manhattan, the City of New York, New York.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article. Neither the Company nor any
Affiliate of the Company may serve as Trustee.
SECTION 610. Resignation and Removal;
Appointment of a Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not
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have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months; or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder; or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (i) the Company by Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
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with the applicable requirements of Section 611, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders of Securities of that series and accepted appointment in the manner
required by Section 611, any Holder of a Security who has been a bona fide
Holder of a Security of such series for at least six months, subject to Section
514, may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series in the manner
provided in Section 106. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Corporate Trust Office.
(g) Except in the case of a default in the payment of the principal of or
interest on any Security or in the payment of any sinking or purchase fund
installment, the Trustee shall not be required to resign as provided by this
Section if such Trustee shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing thereon, that
(1) the default under the Indenture may be cured or waived during a
reasonable period and under the procedures described in such application,
and
(2) a stay of the Trustee's duty to resign will not be inconsistent
with the interest of Holders. The filing of an application shall
automatically stay the performance of the duty to resign until the
Commission orders otherwise.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of the charges due it pursuant to Section 607, execute and deliver an instrument
transferring to such successor Trustee all the rights,
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powers and trusts of the retiring Trustee, and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder. Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
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SECTION 612. Merger, Conversion, Consolidation
or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of
Claims Against Company.
The Trustee shall comply with the provisions of Section 311 of the Trust
Indenture Act.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and
Addresses of Holders of Registered Securities.
The Company shall furnish or cause to be furnished to the Trustee with
respect to the Registered Securities of each series:
(a) semi-annually, not more than 15 days after each Regular
Record Date, or in the case of any series of Securities on which
semi-annual interest is not payable, not more than 15 days after such
semi-annual dates as may be specified by the Trustee, a list, in such
form as the Trustee may reasonably require, of the names and addresses
of the Holders of such Registered Securities as of such Regular Record
Date or such semi-annual date, as the case may be, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar
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form and content as of a date not more than 15 days prior to the time such
list is furnished,
provided, however, that so long as the Trustee is the Security Registrar, no
such list need be furnished.
SECTION 702. Preservation of Information;
Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Registered Securities (i)
contained in the most recent list furnished to the Trustee as provided in
Section 701, (ii) received by the Trustee in its capacity as Security Registrar
(or Paying Agent, if so acting) and (iii) filed with it during the two preceding
years pursuant to Section 703(c)(2). The Trustee may destroy any list furnished
to it as provided in Section 701 upon receipt of a new list so furnished.
(b) If three or more Holders of Securities of any series (hereinafter
referred to as "applicants") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a Security for a
period of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
of Securities of such series with respect to their rights under this Indenture
or under the Securities of such series and is accompanied by a copy of the form
of proxy or other communication which such applicants propose to transmit, then
the Trustee shall, within five business days after the receipt of such
application, at its election, either
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of Holders of
Registered Securities of such series whose names and addresses appear in
the information preserved at the time by the Trustee in accordance with
Section 702(a), and as to the approximate cost of mailing to such Holders
of Registered Securities of such series the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of Registered Securities of such series whose name and
address appears in the information preserved at the time by the Trustee in
accordance with Section 702(a), a copy of the form of proxy or other
communication which is
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specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interest of the Holders of Registered Securities of such
series or would be in violation of applicable law. Such written statement shall
specify the basis of such opinion. If the Commission, after opportunity for a
hearing upon the objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if, after the entry
of an order sustaining one or more of such objections the Commission shall find,
after notice and opportunity for hearing, that all the objections so sustained
have been met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Holders of Registered Securities of such
series with reasonable promptness after the entry of such order and the renewal
of such tender; otherwise the Trustee shall be relieved of any obligation or
duty to such applicants respecting their application.
(c) Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee, nor any agent of the Company or the Trustee shall be held accountable
by reason of the disclosure of any such information as to the names and
addresses of the Holders of Registered Securities in accordance with Section
702(b), regardless of the source from which such information was derived, and
that the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 702(b).
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year, commencing with the May 15
following the first issuance of Securities hereunder, the Trustee shall transmit
by mail to all Holders a brief report dated as of such May 15 with respect to
any of the following events which may have occurred within the previous 12
months (but if no such event has occurred within such period no report need be
transmitted):
(1) any change to its eligibility under Section 609 and its
qualifications under Section 608;
(2) the creation of or any material change to a relationship specified
in Section 310(b) of the Trust Indenture Act;
(3) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such), which remain unpaid on the
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date of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities, on any property or
funds held or collected by it as Trustee, except that the Trustee shall not
be required (but may elect) to report such advances if such advances so
remaining unpaid aggregate not more than 1/2 of 1% of the principal amount
of the Securities Outstanding on the date of such report;
(4) any change to the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or by any other obligor on the
Securities) to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except an indebtedness based upon a creditor
relationship arising in any manner that is the subject of Section
311(b)(2),(3),(4) or (6) of the Trust Indenture Act;
(5) any change to the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(6) any additional issue of Securities which the Trustee has not
previously reported; and
(7) any action taken by the Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Securities, except action in respect of a default,
notice of which has been or is to be withheld by the Trustee in accordance
with Section 602.
(b) The Trustee shall transmit by mail to all Holders, as provided in
subsection (c) of this Section, a brief report with respect to the character and
amount of any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as such) since the date of
the last report transmitted pursuant to subsection (a) of this Section (or if no
such report has yet been so transmitted, since the date of execution of this
instrument) for the reimbursement of which it claims or may claim a lien, or
charge, prior to that of the Securities, on property or funds held or collected
by it as Trustee, and which it has not previously reported pursuant to this
Subsection, except that the Trustee shall not be required (but may elect) to
report such advances if such advances remaining unpaid at any time aggregate 10%
or less of the principal amount of the Securities Outstanding at such time, such
report to be transmitted within 90 days after such time.
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(c) Reports pursuant to this Section shall be transmitted by mail:
(1) to all Holders of Registered Securities, as the names and
addresses of such Holders appear in the Security Register;
(2) to such Holders of Bearer Securities as have, within the two years
preceding such transmission, filed their names and addresses with the
Trustee for that purpose; and
(3) except in the case of reports pursuant to subsection (b) of this
Section, to each Holder of a Security whose name and address is preserved
at the time by the Trustee, as provided in Section 702(a).
(d) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each securities exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any securities are listed on any securities
exchange.
SECTION 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company files the
same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any
of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then
it will file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934, in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents, and reports with respect to compliance
by the Company with the conditions and covenants of this Indenture as may
be required from time to time by such rules and regulations; and
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(3) transmit by mail to all Holders, within 30 days after the filing
thereof with the Trustee, in the manner and to the extent provided in
Section 703(c) with respect to reports pursuant to Section 703(a), such
summaries of any information, documents and reports required to be filed by
the Company pursuant to paragraphs (1) and (2) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission.
(4) furnish to the Trustee, not less often than annually, the
certificate referred to in Section 1005. For purposes of such certificate,
compliance by the Company with respect to the conditions and covenants
under this Indenture shall be determined without regard to any period of
grace or requirement of notice provided under this Indenture.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or
sell, convey, transfer or lease its properties and assets substantially as an
entirety to any Person unless:
(1) the Person formed by such consolidation or into which the Company
is merged or the Person which acquires by sale, conveyance, transfer or
lease the properties and assets of the Company substantially as an entirety
shall be a corporation organized and existing under the laws of the United
States, any state thereof or the District of Columbia;
(2) the Person formed by such consolidation or into which the Company
is merged or the Person which acquires by sale, conveyance, transfer or
lease the properties and assets of the Company substantially as an entirety
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any) and interest, if
any (including all additional amounts, if any, payable pursuant to Section
1008), on all the Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
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(3) immediately after giving effect to such transaction, and treating
any indebtedness which becomes an obligation of the Company or a Subsidiary
as a result of such transaction as having been incurred by the Company or
such Subsidiary at the time of such transaction no Event of Default, and no
event which, after notice or lapse of time, or both, would become an Event
of Default, shall have happened and be continuing; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
sale, conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture
comply with this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with.
SECTION 802. Successor Substituted.
Upon any consolidation or merger by the Company with or into any other
Person, or any sale, conveyance, transfer or lease by the Company of the
properties and assets of the Company substantially as an entirety to any Person
in accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture with
the same effect as if such successor Person had been named as the Company
herein; and thereafter, the Company (which term shall for this purpose mean the
Person named as the "Company" in the first paragraph of this Indenture or any
successor Person which shall theretofore become such in the manner described in
Section 801) shall be discharged from all obligations and covenants under this
Indenture and the Securities and coupons, and may be dissolved and liquidated.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holder of Securities, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
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(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities contained; or
(2) to add to the covenants of the Company, for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal (or
premium, if any) or interest, if any, on Bearer Securities, to permit
Bearer Securities to be issued for Bearer Securities of other authorized
denominations or to permit the issuance of Securities in uncertificated
form, provided that any such action shall not adversely affect the
interests of the Holders of Securities of any series or any related coupons
in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities and related coupons; or
(7) to establish the form or terms of Securities of any series and
related coupons as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and/or to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 611(b); or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action shall not
adversely affect the interests of the Holders of Securities of any series
or any related coupons in any material respect.
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SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series and any related coupons under this
Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or any interest on, any security, or reduce the principal
amount thereof or any rate of interest thereon or any premium payable upon
the redemption thereof, or change any obligation of the Company to pay
additional amounts pursuant to Section 1008 (except as contemplated by
Section 801(l) and permitted by Section 901(l)), or reduce the amount of
the principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Stated Maturity thereof
pursuant to Section 502, or change the method in which amounts of payments
of principal or any interest thereon are determined, or change any Place of
Payment, or change the coin or currency in which any Security or any
premium or any interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1007, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, provided, however, that this clause shall not be deemed to require
the consent of any Holder of a Security or coupon with respect to changes
in the references to "the Trustee" and concomitant changes in this Section
and Section 1007, or the deletion of this proviso, in accordance with the
requirements of Sections 611(b) and 901(8).
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A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture, and that such supplemental indenture,
when executed and delivered by the Company, will constitute a valid and binding
obligation of the Company in accordance with its terms. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
and of any coupons appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
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SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form acceptable to the Trustee as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest, if any, on the Securities of that series in accordance
with the terms of such series of Securities, any coupons appertaining thereto
and this Indenture. Unless otherwise specified as contemplated by Section 301
with respect to any series of Securities, any interest due on Bearer Securities
on or before Maturity shall be payable only upon presentation and surrender of
the several coupons for such interest installments as are evidenced thereby as
they severally mature.
SECTION 1002. Maintenance of Office or Agency.
If Securities of a series are issuable as or exchangeable for Registered
Securities, the Company will maintain in each Place of Payment for such series
an office or agency where Securities of that series may be presented or
surrendered for payment, where Securities of that series may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company with respect to the Securities of that series and this Indenture may
be served, any one or more of which offices or agencies may be the same for one
or more series of Securities.
If Securities of a series are issuable as Bearer Securities, the Company
will maintain (A) in the Borough of Manhattan, the City of New York, an office
or agency where any Registered Securities of that series may be presented or
surrendered for payment, where any Registered Securities of that series may be
surrendered for
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registration of transfer, where Securities of that series may be surrendered for
exchange, where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served and where Bearer
Securities of that series and related coupons may be presented or surrendered
for payment in the circumstances described in the following paragraph (and not
otherwise), (B) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series which is located outside the United States, an
office or agency where Bearer Securities of that series and related coupons may
be presented and surrendered for payment (including payment of any additional
amounts payable on Securities of that series pursuant to Section 1008);
provided, however, that if the Securities of that series are listed on The
International Stock Exchange of the United Kingdom and the Republic of Ireland
Limited, the Luxembourg Stock Exchange or any other stock exchange located
outside the United States and such securities exchange shall so require, the
Company will maintain a Paying Agent for the Securities of that series in
London, Luxembourg or any other required city located outside the United States,
as the case may be, so long as the Securities of that series are listed on such
exchange, and (C) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series located outside the United States an office or
agency where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served.
The Company will give prompt written notice to the Trustee and prompt
notice to the Holders of Securities of such series, as provided in Section 106,
of the location, and of any change in the location, of any such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency in respect of any series of Securities or shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office of the Trustee,
except that Bearer Securities of that series and the related coupons may be
presented and surrendered for payment (including payment of any additional
amounts payable on Bearer Securities of that series pursuant to Section 1008) at
any Place of Payment for such series located outside the United States and the
Company hereby appoints the Trustee its agent to receive all such presentations,
surrenders, notices and demands.
No payment of principal, premium or interest on Bearer Securities shall be
made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, that, if
the Securities of a series are denominated and payable in Dollars, payment of
principal of and any premium and interest on any Bearer Security (including any
additional amounts payable on Securities of such series pursuant to Section
1008) and payment of any coupon related thereto shall be made at the office of
the Company's Paying Agent in the United States, if (but only if) payment in
Dollars of the full amount of such
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principal, premium, interest or additional amounts, as the case may be, at all
offices or agencies outside the United States maintained for the purpose by the
Company in accordance with this Indenture is illegal or effectively precluded by
exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other offices
or agencies (in or outside any Place of Payment) where the Securities of one or
more series and any related coupons may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency for Securities of any
series and related coupons for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
SECTION 1003. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest, if any, on any of the Securities
of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if any) or
interest, if any, so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, prior to each due date of the principal of (and premium, if
any) or interest, if any, on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest, if any, so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, premium or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company will cause each Paying Agent of any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest, if any, on the Securities of that series in
trust for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons otherwise disposed of as herein provided;
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(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest, if any, on the
Securities of that series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest, if any, on any Security of any series or the payment of any related
coupon and remaining unclaimed for two years after such principal (and premium,
if any) or interest, if any, has become due and payable shall, unless otherwise
required by mandatory provisions of applicable escheat, or abandoned or
unclaimed property law, be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
Security or any coupon appertaining thereto shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in an Authorized Newspaper in each Place of Payment, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will, unless otherwise required by
mandatory provisions of applicable escheat, or abandoned or unclaimed property
law, be repaid to the Company.
SECTION 1004. Restrictions on Secured Debt.
The Company covenants and agrees for the benefit of each series of
Securities, other than any series established by or pursuant to a Board
Resolution or in one or more supplemental indentures hereto which specifically
provides otherwise, that it will not itself, and will not permit any Restricted
Subsidiary to, incur, issue, assume, or guarantee any loans, whether or not
evidenced by negotiable instruments
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or securities, or any notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed (loans, and notes, bonds, debentures or other
similar evidences of indebtedness for money borrowed being hereinafter in this
Section 1004 called "Debt"), secured after the date hereof by pledge of, or
mortgage or lien on, any Principal Property of the Company or any Restricted
Subsidiary or any shares of Capital Stock of or Debt of any Restricted
Subsidiary (mortgages, pledges and liens being hereinafter in this Section 1004
called "Mortgage" or "Mortgages"), without effectively providing that the
Securities, other than Securities of a series not entitled to the benefits of
this covenant (together with, if the Company shall so determine, any other Debt
of the Company or such Restricted Subsidiary then existing or thereafter created
which is not subordinate to the Securities) shall be secured equally and ratably
with (or, at the option of the Company, prior to) such secured Debt, so long as
such secured Debt shall be so secured, unless, after giving effect thereto, the
aggregate amount of all such secured Debt would not exceed 10% of Consolidated
Net Assets; provided, however, that this Section 1004 shall not apply to, and
there shall be excluded from secured Debt in any computation under this Section
1004, Debt secured by:
(1) Mortgages on property of, or on any shares of Capital Stock of or
Debt of, any corporation existing at the time such corporation becomes a
Restricted Subsidiary;
(2) Mortgages in favor of the Company or any Restricted Subsidiary;
(3) Mortgages in favor of any governmental body to secure progress,
advance or other payments pursuant to any contract or provision of any
statute;
(4) Mortgages on property, shares of Capital Stock or Debt existing at
the time of acquisition thereof (including acquisition through merger or
consolidation) or to secure the payment of all or any part of the purchase
price thereof or construction thereon or to secure any Debt incurred prior
to, at the time of, or within 360 days after the later of the acquisition
of such property, shares of Capital Stock or Debt or the completion of
construction for the purpose of financing all or any part of the purchase
price thereof or construction thereon;
(5) Mortgages securing obligations issued by a State, territory or
possession of the United States, any political subdivision of any of the
foregoing, or the District of Columbia, or any instrumentality of any of
the foregoing to finance the acquisition or construction of property, and
on which the interest is not, in the opinion of tax counsel of recognized
standing or in accordance with a ruling issued by the Internal Revenue
Service, includible in gross income of the holder by reason of Section
103(a)(1) of the Internal Revenue Code (or any successor to such provision
or any other similar statute
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of the United States) as in effect at the time of the issuance of such
obligations;
(6) Mechanics', materialmen's, carriers' or other like liens arising
in the ordinary course of business (including construction of facilities)
in respect of obligations which are not due or which are being contested in
good faith;
(7) Any mortgage arising by reason of deposits with, or the giving of
any form of security to, any governmental agency or any body created or
approved by law or governmental regulations, which is required by law or
governmental regulation as a condition to the transaction of any business,
or the exercise of any privilege, franchise or license;
(8) Mortgages for taxes, assessments or governmental charges or levies
not yet delinquent, or mortgages for taxes, assessments or governmental
charges or levies already delinquent but the validity of which is being
contested in good faith;
(9) Mortgages (including judgment liens) arising in connection with
legal proceedings so long as such proceedings are being contested in good
faith and, in the case of judgment liens, execution thereon is stayed;
(10) Mortgages existing at the date of this Indenture; and
(11) Any extension, renewal or replacement (or successive extensions,
renewals or replacements), as a whole or in part, of any mortgage referred
to in the foregoing clauses (1) to (10), inclusive; provided, however, that
such extension, renewal or replacement Mortgage shall be limited to all or
part of the same property, shares of Capital Stock or Debt that secured the
Mortgage extended, renewed or replaced (plus improvements on such
property).
SECTION 1005. Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date of the first issuance of
Securities hereunder, a certificate of the chief executive officer, chief
financial officer or chief accounting officer, stating, as to each signer
thereof, that
(1) a review of the activities of the Company during such year and of
performance under this Indenture has been made under his supervision, and
(2) to the best of his knowledge, based on such review, the Company
has complied with all of its conditions and covenants under this
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Indenture, or if the Company has not so complied, specifying each such
default known to him and the nature and status thereof.
SECTION 1006. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence.
SECTION 1007. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term
provision, covenant or condition set forth in Section 1004, if before the time
for such compliance the Holders of at least a majority in principal amount of
the Outstanding Securities of each series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision, covenant or condition, but no such waiver shall extend to or
affect such term, provision, covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee with respect to any such term,
provision, covenant or condition shall remain in full force and effect.
SECTION 1008. Additional Amounts.
If the Securities of a series provide for the payment of additional
amounts, the Company will pay to the Holder of any Security of such series or
any coupon appertaining thereto additional amounts as provided therein. Whenever
in this Indenture there is mentioned, in any context, the payment of the
principal of or any premium or interest on, or in respect of, any Security of
any series or payment of any related coupon or the net proceeds received on the
sale or exchange of any Security of any series, such mention shall be deemed to
include mention of the payment of additional amounts provided for in this
Section to the extent that, in such context, additional amounts are, were or
would be payable in respect thereof pursuant to the provisions of this Section
and express mention of the payment of additional amounts (if applicable) in any
provisions hereof shall not be construed as excluding additional amounts in
those provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change with respect
to the matters set forth in the
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below-mentioned Officers' Certificate, the Company will furnish the Trustee and
the Company's principal Paying Agent or Paying Agents, if other than the
Trustee, with an Officers' Certificate instructing the Trustee and such Paying
Agent or Paying Agents whether such payment of principal of and any premium or
interest on the Securities of that series shall be made to one or more Holders
of Securities of that series or any related coupons who are United States Aliens
without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of that series. If any such
withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities or coupons and the Company will pay to the Trustee or such
Paying Agent the additional amounts required by this Section. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of This Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for Securities of any series) in
accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution. In case of any redemption at the election of the Company of
less than all the Securities of any series, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities of such series to be redeemed, such notice
to be accompanied by a written statement signed by an Authorized Officer of the
Company stating that no defaults in the payment of interest or Events of Default
with respect to the Securities of that series have occurred (which have not been
waived or cured). In the case of any redemption of Securities (i) prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, or (ii) pursuant to an election of
the Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the
<PAGE> 81
72
Trustee with an Officers' Certificate evidencing compliance with such
restriction or condition.
SECTION 1103. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption by lot or by such other method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series or of portions
of the principal amount of global Securities of such series.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 106
not more than 60 days nor less than (a) 30 days, in the case of Securities in
global form registered in the name of DTC, or (b) 10 days, in the case of other
Securities, prior to the Redemption Date, to the Holders of Securities to be
redeemed.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price and any accrued interest;
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Securities to be redeemed;
<PAGE> 82
73
(4) that on the Redemption Date the Redemption Price, and any accrued
interest thereon, will become due and payable upon each such Security to be
redeemed and that interest thereon shall cease to accrue from and after
said date;
(5) the place or places where such Securities are, together in the
case of Bearer Securities with all coupons appertaining thereto, if any,
maturing after the Redemption Date, to be surrendered for payment of the
Redemption Price and any accrued interest thereon;
(6) if such be the case, that the installment of interest on
Registered Securities whose Stated Maturity is the Redemption Date is
payable to the Persons in whose names such Registered Securities are
registered at the close of business on the Regular Record Date immediately
preceding the Redemption Date; and
(7) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed shall be given by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 1105. Deposit of Redemption Price.
Not later than 12:00 p.m., New York City time, on any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
any accrued interest on, all the Securities which are to be redeemed on that
date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified together with any accrued interest thereon
and from and after such date (unless the Company shall default in the payment of
the Redemption Price and accrued interest), such Securities shall cease to bear
interest and the coupons for such interest appertaining to any Bearer Securities
so to be redeemed, except to the extent provided below, shall be void. Upon
surrender of any such Securities for redemption in accordance with said notice,
such Securities shall be paid by the Company at the Redemption Price, together
with any accrued interest to the Redemption Date; provided, however, that any
installments of interest on Bearer
<PAGE> 83
74
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons for
such interest, and provided, further, that, unless otherwise specified as
contemplated by Section 301, installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Bearer Security which is to be redeemed in whole or in part (as set
forth in Section 1107), surrendered for redemption shall not be accompanied by
all appurtenant coupons maturing after the Redemption Date, such Security may be
paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company or jointly by the Company and the Trustee
if there be furnished to them such security or indemnify as they may require to
save each of them and any Paying Agent harmless. If thereafter, a Holder shall
surrender to the Trustee or any Paying Agent any such missing coupon in respect
of which a deduction shall have been made from the Redemption Price, such Holder
shall be entitled to receive the amount so deducted; provided, however, that
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside of the United
States except as otherwise provided in Section 1002.
If the Company shall default in the payment of the Redemption Price and
accrued interest on any Security called for redemption, the principal (and
premium, if any) of such Security shall, until paid or until payment is provided
for in accordance herewith, bear interest for the Redemption Date at the rate,
if any, prescribed therefor in the Security.
So long as it is known to the Trustee that an Event of Default is
continuing hereunder, the Trustee shall not redeem any Securities of any series
pursuant to this Article (unless all Outstanding Securities of such series are
to be redeemed) or mail or give any notice of redemption of Securities except
that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Company a sum
sufficient for such redemption. Except as aforesaid, any monies theretofore or
thereafter received by the Trustee shall, during the continuance of such Event
of Default, be deemed to have been collected under Article Five and held for the
payment of all such Securities. In case such Event of Default shall have been
waived as provided in Section 513 or the default cured on or before the sixtieth
day preceding the Redemption Date, such monies shall thereafter be applied in
accordance with the provisions of this Article.
<PAGE> 84
75
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at
any Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing) together, in the case of Bearer Securities, with all
coupons appertaining thereto maturing after the Redemption Date, and the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Security or Securities of the same
series and of like tenor, of any authorized denomination as requested by the
Holder, in an aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for the Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of the Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of the Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 1202. Each sinking fund payment made on the Securities of
a series shall be applied to the redemption of the Securities of such series as
provided for by the terms of the Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments With Securities.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto, and
(2) may apply as a credit the Securities of a series which have been redeemed
either at the election of the Company pursuant to the terms of such Securities
or through the
<PAGE> 85
76
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any sinking
fund payment as specified in the Officers' Certificate delivered pursuant to
Section 1203 with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days or such other shorter period as may be acceptable to
the Trustee prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
MEETINGS OF THE HOLDERS OF SECURITIES
SECTION 1301. Purposes for Which Meetings May be Called.
If any Securities of a series are issuable as Bearer Securities, a meeting
of Holders of Securities of such series may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
<PAGE> 86
77
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Securities of
any series issuable as Bearer Securities or as Bearer Securities and Registered
Securities for any purpose specified in Section 1301, to be held at such time
and at such place in the Borough of Manhattan, The City of New York, or in
London as the Trustee shall determine. Notice of every meeting of Holders of
Securities of any series, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided in Section 106, not less than 21 nor more than 180
days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or the
Holders of at least 10% in principal amount of the Outstanding Securities of any
series issuable as Bearer Securities or as Bearer Securities and Registered
Securities shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 1301, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York, or in London for such meeting and
may call such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of which series by
such Holder or Holders. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders of Securities of any series shall be the
Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its
counsel. The Company may set a record date for purposes of determining the
identity of Holders entitled to vote at any meeting of Holders of Securities.
<PAGE> 87
78
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture or the terms of such series expressly provides may be given by the
Holders of not less than a specified percentage of the principal amount of the
Outstanding Securities of a series, the Persons entitled to vote such specified
percentage in principal amount of the Outstanding Securities of such series
shall constitute a quorum. In the absence of a quorum within 30 minutes of the
time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series be dissolved. In any other case
the meeting may be adjourned for a period of not less than 10 days as determined
by the chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may be
further adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 1302(a), except that such notice need be given only once not less than
five days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the Holders of a majority
in principal amount of the Outstanding Securities of that series; provided,
however, that, except as limited by the proviso to Section 902, any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture or the terms of such series
expressly provides may be made, given or taken by the Holders of a specified
percentage in principal amount of the Outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of that
series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
<PAGE> 88
79
SECTION 1305. Determination of Voting Rights; Conduct and
Adjournment of Meeting.
(a) Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1302(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall
be entitled to one vote for each $1,000 principal amount of the Outstanding
Securities of such series held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote, except as
a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant
to Section 1302 at which a quorum is present may be adjourned from time to time
by Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting; and the meeting may be
held as so adjourned without further notice.
<PAGE> 89
80
SECTION 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the Notice of the meeting and
showing that said notice was given as provided in Section 1302 and, if
applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
<PAGE> 90
81
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
H. J. HEINZ COMPANY
By: /s/ David R. Williams
------------------------------------
Name: David R. Williams
Title: Vice President - Finance
and Chief Financial Officer
[Seal]
Attest:
/s/ Benjamin E. Thomas
- ------------------------------------
Name: Benjamin E. Thomas, Jr.
Title: Secretary
The First National Bank of Chicago,
as Trustee
By: /s/ Steven M. Wagner
------------------------------------
Name: Steven M. Wagner
Title: Vice President
[Seal]
Attest:
/s/ Robert J. Chapman
- ------------------------------------
Name: Robert J. Chapman
Title: Trust Officer
<PAGE> 91
82
COMMONWEALTH OF PENNSYLVANIA )
: ss.:
COUNTY OF ALLEGHENY )
On this, the 29th day of July, 1992, before me Kristen M. Valarik, the
undersigned officer, personally appeared David R. Williams, to me known, who,
being by me duly sworn, did depose and say that he resides at Pittsburgh,
Pennsylvania; that he is Vice President-Finance and Chief Financial Officer of
H. J. Heinz Company, one of the corporations described in and which executed the
above Instrument; that one of the seals affixed to the said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation, and that he signed his name thereto by like authority, being
authorized so to do, executed the foregoing instrument for the purposes therein
contained.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed official seal
the day and year in this certificate first written above.
/s/ Kristen M. Valanik
---------------------------
Notary Public
<PAGE> 92
83
STATE OF ILLINOIS )
: ss.:
COUNTY OF COOK )
On this, the 24th day of July, 1992, before me personally came Steven
Wagner, to me known, who, being by me duly sworn, did depose and say that he
resided at Glen Ellyn, Illinois; that he is Vice President of the First National
Bank of Chicago, one of the parties described in and which executed the above
instrument; that he knows the corporate seal of said bank; that one of the seals
affixed to the said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said bank, and that he signed his name
thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed official seal
the day and year in this certificate first written above.
[SEAL]
/s/ Theresa DePalma
---------------------------
Notary Public
<PAGE> 93
EXHIBIT A
[FORM OF REGISTERED SECURITY]*/
[Form of Face]
[If an Original Issue Discount Security, insert any legend required by the
Internal Revenue Code and the Regulations thereunder.]
H.J. HEINZ COMPANY
---------------------------
No. [R-] [U.S. $]
------------------------- -------------------------
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 _______________,
or registered assigns, the principal sum of __________________________________
[United States] Dollars on ________________________ [If the Security is
interest-bearing, insert-, and to pay interest thereon from ______________ ,
______________ or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, [semi-annually in arrears on
________________ and in each year] [annually in arrears on in each year],
commencing ___________________ at the rate of _____________ % per annum, until
the principal hereof is paid or made available for payment [If applicable,
insert-, and (to the extent that the payment of such interest shall be legally
enforceable) at the rate of _____ % per annum on any overdue principal [and
premium, if any] and on any overdue installment of interest). The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be the
_______________________ [or _________________] (whether or not a Business Date)
[, as the case may be,] next preceding such Interest Payment Date. Except as
otherwise provided in the Indenture, any such interest not so punctually paid or
duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more
- --------
*/ To be completed and supplemented to reflect the terms of any series of
Securities.
<PAGE> 94
A-2
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity, and in such case the overdue principal of this Security shall bear
interest at the rate of % per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand. Any
such interest on any overdue principal that is not so paid on demand shall bear
interest at the rate of % per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest has been made or duly
provided for, and such interest shall also be payable on demand.] [Payment of
the principal of [(and premium, if any)] and [If applicable, insert- any such]
interest on this Security will be made at [the offices or agencies of the
Company maintained for that purpose in _____________________ , _________________
in such coin or currency [of the United States of America] as at the time of
payment is legal tender for payment of public and private debt.] [If applicable,
insert-; provided, however, that at the option of the Company payment of
interest may be made by [United States dollar] check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register].]
[If Securities of the series are to be offered to United States Aliens and
if applicable, insert- The Company will pay to the Holder of this Security who
is a United States Alien (as defined below) such additional amounts as may be
necessary in order that [If the Security is interest-bearing, insert- every net
payment of the principal of [(and premium, if any)] and interest on this
Security] [If the Security is not to bear interest prior to Maturity, insert-
(i) the net payment of principal of (and interest on overdue principal, if any,
on) this Security and (ii) the net proceeds from the sale or exchange of this
Security, including, in each case, amounts received in respect of original issue
discount], after deduction or withholding for or on account of any present or
future tax, assessment or other governmental charge imposed by the United States
(as defined below) or any political subdivision or taxing authority thereof or
therein upon or as a result of such payment [If the Security is not to bear
interest prior to Maturity, insert- or as a result of such sale or exchange],
will not be less than the amount provided for in this Security to be then due
and payable [If the Security is not to bear interest prior to Maturity, insert-
or, in the case of a sale or
<PAGE> 95
A-3
exchange, the amount of the net proceeds from the sale or exchange before any
such tax, assessment or other governmental charge); provided, however, that the
foregoing obligation to pay additional amounts will not apply to any one or more
of the following:
(a) any tax, assessment or other governmental charge which would not
have been so imposed but for (i) the existence of any present or former
connection between such Holder (or between a fiduciary, settlor,
beneficiary, member of, or possessor of a power over, or shareholder of
such Holder, if such Holder is an estate, a trust, a partnership or a
corporation) and the United States, including, without limitation, such
Holder (or such fiduciary, settlor, beneficiary, member, possessor or
shareholder being or having been a citizen or resident or treated as a
resident thereof, or being or having been engaged in trade or business or
present therein, or having or having had a permanent establishment therein,
or (ii) such Holder's present or former status as a personal holding
company, a foreign personal holding company, a controlled foreign
corporation for United States tax purposes or a corporation which
accumulates earnings to avoid United States federal income tax;
(b) any tax, assessment or other governmental charge imposed [If the
Security is interest-bearing, insert- on interest received by a Person
holding, actually or constructively, 10% or more of the total combined
voting power of all classes of stock of the Company entitled to vote or by
a foreign organization that is a private foundation or on interest received
by a bank on an extension of credit made pursuant to a loan agreement
entered into in the ordinary course of its trade or business, within the
meaning of sec tion 881(c)(3)(A) of the Internal Revenue Code of 1986, as
amended (the "Code")] [[if the Security is not to bear interest prior to
Maturity insert- by reason of such Holder's past or present status as the
actual or constructive owner of 10% or more of the total combined voting
power of all classes of stock of the Company entitled to vote or by a
foreign organization that is a private foundation or on interest received
by a bank on an extension of credit made pursuant to a loan agreement
entered into the ordinary course of its trade or business, within the
meaning of section 881(c)(3)(A) of the Code];
(c) any tax, assessment or other governmental charge which would not
have been imposed but for the failure to comply with any certification,
identification or other reporting requirements concerning the nationality,
residence, identity or connection with the United States of the Holder or
beneficial owner of this Security, if compliance is required by statute or
by regulation of the United States as a precondition to exemption from such
tax, assessment or other governmental charge;
(d) any estate, inheritance, gift, sales, transfer, personal property
or any similar tax, assessment or governmental charge;
<PAGE> 96
A-4
(e) any tax, assessment or other governmental charge which is payable
otherwise than by deduction or withholding from payments of [if the
Security is interest-bearing, insert- principal of [(and premium, if any)]
or interest on this Security] [If the Security is not to bear interest
prior to Maturity, insert- principal of (or interest on overdue principal,
if any, on) this Security or from payments from the proceeds of a sale or
exchange of this Security]; or
(f) any tax, assessment or other governmental charge which would not
have been so imposed but for the presentation by the Holder of this
Security for payment on a date more than 15 days after the date on which
such payment became due and payable or the date on which payment thereof is
duly provided for, whichever occurs later;
nor will additional amounts be paid with respect to any payment of [if the
Security is interest-bearing, insert- principal of [(and premium, if any)] or
interest on this Security] [if the Security is not to bear interest prior to
Maturity, insert- principal of (or interest on overdue principal, if any, on)
this Security or of the proceeds of any sale or exchange of this Security] to
any United States Alien who is a fiduciary or partnership or other than the sole
beneficial owner of any such payment to the extent that a beneficiary or settlor
with respect to such fiduciary, a member of such a partnership or the beneficial
owner would not have been entitled to the additional amounts had such
beneficiary, settlor, member or beneficial owner been the Holder of this
Security. In the case of net proceeds from the sale or exchange of a Bearer
Security, additional amounts with respect to such net proceeds shall not (a)
exceed additional amounts that would have been payable if the Bearer Security
had been redeemed for its issue price plus accrued original issue discount at
the time of such sale or exchange or (b) be paid in respect of any sale or
exchange occurring after the date fixed for redemption of such Security. Except
as previously provided herein with respect to Bearer Securities, the Company
shall not be required to make any payment with respect to any tax, assessment or
other governmental charge imposed by any government or any political subdivision
or taxing authority thereof or therein and may make such withholdings and
deductions on account of any such change as may be required by applicable law or
regulation. The term "United States Alien" means any Person who, for United
States federal income tax purposes, is a foreign corporation, a non-resident
alien individual, a non-resident alien fiduciary of a foreign estate or trust or
a foreign partnership one or more of the members of which is, for United States
federal income tax purposes, a foreign corporation, a non-resident alien
individual or a non-resident alien fiduciary of a foreign estate or trust, and
the term "United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.]
<PAGE> 97
A-5
Reference is hereby made to the further provisions of this Security set
forth on the reverse side hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, directly or through an Authenticating
Agent, by manual signature of an authorized signatory, this Security shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
-------------------
H.J. HEINZ COMPANY
By
------------------------------
Attest:
- -------------------------
<PAGE> 98
A-6
[Form of Reverse]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of July 15, 1992 (herein called the
"Indenture"), between the Company and The First National Bank of Chicago, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities [If the Securities of the series are issuable as
Bearer Securities, insert- and any coupons appertaining thereto] and of the
terms upon which the Securities are, and are to be, authenticated and delivered.
This Security is one of the series designated on the face hereof[, limited in
aggregate principal amount to [U.S.] [$]____________]. The Securities of this
series are issuable as [Bearer Securities] [, with interest coupons attached,]
in the denomination of [If Securities of the series are issuable as Bearer
Securities, insert- [U.S. $]_______, and] [only] Registered Securities, without
coupons in denominations of [U.S. $]__________, and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth [Bearer Securities and Registered] Securities of this Series are
exchangeable for a like aggregate principal amount of [Registered] Securities of
this series and of like tenor of any authorized denominations, as requested by
the Holder surrendering the same, upon surrender of the Security or Securities
to be exchanged at [any office or agency described below where Registered
Securities of this series may be presented for registration of transfer].
[Bearer Securities may not be issued in exchange for Registered Securities.]
[If applicable, insert- The Securities of this series are subject to
redemption [(l)] [If applicable, insert- on ____________ in any year commencing
with the year _____________ and ending with the year ______________ through
operation of the sinking fund for this series at a Redemption Price equal to
[100% of the principal amount] [or insert formula for determining the amount],
[and] (2) [If applicable, insert- at any time [on or after _________________ ,
19___], as a whole or in part, at the election of the Company, at the following
Redemption Prices (expressed as percentages of the principal amount): If
redeemed [or before _________________ , ___% and if redeemed] during the
12-month period beginning ____________________ of the years indicated,
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
-------------------------------------------------------------
<S> <C> <C> <C> <C>
</TABLE>
<PAGE> 99
A-7
and thereafter at a Redemption Price equal to ____% of the principal amount,]
[If applicable, insert- [and (_______)] under the circumstances described in the
next [two] succeeding paragraph[s] at a Redemption Price equal to [100% of the
principal amount,] [or insert formula for determining the amount]] [If the
Security is interest-bearing, insert-, together in the case of any such
redemption [If applicable, insert-(whether through operation of the sinking fund
or otherwise)] with accrued interest to the Redemption Date; provided, however,
that installments of interest on this Security whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holder of this Security, or
one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture].
[If applicable, insert- The Securities of this series are subject to
redemption (1) on _________________ in any year commencing with the year
_________ and ending with the year ____________ through operation of the sinking
fund for this series at the Redemption Prices for redemption through operation
of the sinking fund (expressed as percentages of the principal amount) set forth
in the table below, and (2) at any time [on or after ______________ , _____], as
a whole or in part, at the election of the Company, at the Redemption Prices for
redemption otherwise than through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below: If redeemed
during the 12-month period beginning of the years indicated,
<TABLE>
<CAPTION>
Redemption Price for
Redemption Price for Redemption-Otherwise
Redemption-Through Than Through
Operation of the Operation of the
Year Sinking Fund Sinking-Fund
- ------------------ -------------------- --------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to _____% of the principal amount,
[If applicable, insert- and (3) under the circumstances described in the next
[two] succeeding paragraph[s] at a Redemption Price equal to [100% of the
principal amount] [or insert formula for determining the amount]] [If the
Security is interest-bearing, insert-, together in the case of any such
redemption (whether through operation of the sinking fund or otherwise) with
accrued interest to the Redemption Date; provided, however, that installments of
interest on this Security whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holder of this Security, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture].]
<PAGE> 100
A-8
[Partial redemption must be made in an amount not less than [U.S. $1,000]
principal amount of Securities.]
[Notwithstanding the foregoing, the Company may not, prior to
______________, redeem any Securities of this series as contemplated by Clause
[(2)] above as a part of, or in anticipation of, any refunding operation by the
application, directly or indirectly, of moneys borrowed having an interest cost
to the Company (calculated in accordance with generally accepted financial
practice) of less than % per annum.]
[If Securities of the series are to be offered to United States Aliens,
insert- The Securities may be redeemed, as a whole but not in part, at the
option of the Company, at a Redemption Price [equal to 100% of their principal
amount] [determined as set forth in the preceding paragraph] [If the Security is
interest-bearing, insert-, together with interest accrued to the date fixed for
redemption,] if (i) as a result of any amendment to, or change in, the laws or
regulations of the United States or any political subdivision or taxing
authority thereof or therein affecting taxation, or any amendment to or change
in an official interpretation or application of such laws or regulations, which
amendment or change ("Tax Law Change") is effective on or after
__________________ , _________, the Company has or will become obligated to pay
additional amounts (as described in the face hereof) [If the Security is
interest-bearing, insert- on the next succeeding Interest Payment Date] [If the
Security is not to bear interest prior to Maturity, insert- at Maturity or upon
the sale or exchange of any Security]; provided that, at the time such notice is
given, such obligation to pay such additional amounts remains in effect, or (ii)
in the written opinion of independent counsel selected by the Company there is a
substantial likelihood that the Company has or will become obligated to pay such
additional amounts as a result of any action taken by any taxing authority or of
any action brought in a court of competent jurisdiction in the United States or
any political subdivision thereof or therein, including any of the actions
described in (i) above, whether or not such action has been taken or brought
with respect to the Company, or as a result of any officially proposed Tax Law
Change, which action or proposed change occurs after .]
[If the Securities of the series are issuable as Bearer Securities and if
applicable, insert- In addition, if the Company determines, based upon a written
opinion of independent counsel selected by the Company, that any payment made
outside the United States by the Company or any of its Paying Agents of the full
amount of principal, [(premium, if any)] or interest, if any, due with respect
to any Bearer Security or coupon would, under any present or future laws or
regulations of the United States, be subject to any certification,
identification or other reporting requirement of any kind, the effect of which
requirement is the disclosure to the Company, any Paying Agent or any
governmental authority of the nationality, residence or identity of a beneficial
owner of such Bearer Security or coupon who is a United States Alien (as defined
on the face hereof (other than such a requirement
<PAGE> 101
A-9
(a) which would not be applicable to a payment made by the Company or any one of
its Paying Agents (i) directly to the beneficial owner or (ii) to any custodian,
nominee or other agent of the beneficial owner, or (b) which can be satisfied by
the custodian, nominee or other agent certifying that the beneficial owner is a
United States Alien, provided in each case referred to in clauses (a)(ii) and
(b) that payment by such custodian, nominee or other agent of such beneficial
owner is not otherwise subject to any such requirement), the Company at its
election will either (x) redeem the Securities, as a whole but not in part, at a
Redemption Price [equal to 100% of their principal amount] [determined as set
forth in the next preceding paragraph,] together with interest accrued to the
date fixed for redemption, or (y) if and so long as any such certification,
identification or other reporting requirement would be fully satisfied by
payment of a backup withholding tax or similar charge, pay to the Holders of
Bearer Securities who are United States Aliens certain additional amounts
specified in the Bearer Securities of this series. The Company will make such
determination and election and notify the Trustee thereof as soon as
practicable, and the Trustee will promptly give notice of such determination in
the manner provided below (the "Determination Notice"), in each case stating the
effective date of such certification, identification or other reporting
requirement, whether the Company will redeem the Securities or will pay to the
Holders of Bearer Securities who are United States Aliens the additional amounts
specified in the Bearer Securities of this series and (if applicable) the last
day by which the redemption of the Securities must take place. If the Company
elects to redeem the Securities, such redemption shall take place on such date,
not later than one year after publication of the Determination Notice, as the
Company elects by notice to the Trustee at least 60 days before such date,
unless shorter notice is acceptable to the Trustee. Notwithstanding the
foregoing, the Company will not so redeem the Securities if the Company, based
upon an opinion of independent counsel selected by the Company subsequently
determines, not less than 10 days prior to the date fixed for redemption, that
subsequent payments would not be subject to any such requirement, in which case
the Company will notify the Trustee, which will promptly give notice of that
determination in the manner provided below, and any earlier redemption notice
will thereupon be revoked and of no further effect. If the Company elects as
provided in clause (y) above to pay such additional amounts to the Holders of
Bearer Securities who are United States Aliens, and as long as the Company is
obligated to pay such additional amounts to such Holders, the Company may
subsequently redeem the Securities, at any time, as a whole but not in part, at
a Redemption Price [equal to 100% of their principal amount] [determined as set
forth in the next preceding paragraph,] together with interest accrued to the
date fixed for redemption, but without reduction for applicable United States
withholding taxes.]
[The sinking fund for this series provides for the redemption on in each
year, beginning with the year ____________ and ending with the year
_____________ of [not less than] [U.S.] $______________ [("mandatory sinking
fund") and not more than [U.S.] $_______________ ] aggregate principal amount of
Securities of this series. [Securities of this series acquired or redeemed by
<PAGE> 102
A-10
the Company otherwise than through [mandatory] sinking fund payments may be
credited against subsequent [mandatory] sinking fund payments otherwise required
to be made in the inverse order in which they become due.]]
[Notice of redemption will be given by mail to Holders of [If the
Securities of the Series are issuable as Bearer Securities, insert- Registered]
Securities, not more than 60 days nor less than (a) 30 days, in the case of
Securities in global form registered in the name of DTC, or (b) 10 days, in the
case of other Securities, prior to the date fixed for redemption, all as
provided in the Indenture.]
In the event of redemption of this Security in part only, a new [If the
Securities of the series are issuable as Bearer Securities, insert- Registered]
Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, [the] [If an Original Issue Discount Security, insert-
an amount of] principal of the Securities of this series may be declared due and
payable in the manner and with the effect provided in the Indenture. [If an
Original Issue Discount Security, insert- Such amount shall be equal to -insert
formula for determining the amount. Upon payment (i) of the amount of principal
so declared due and payable and (ii) of interest on any overdue principal and
overdue interest (in each case to the extent that the payment of such interest
shall be legally enforceable), all of the Company's obligations in respect of
the payment of the principal of and interest, if any, on the Securities of this
series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected [If the Securities of the series are issuable as Bearer Securities and
are interest-bearing, insert- and any related coupons] under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in principal amount of the Securities at the time Outstanding of each
series to be affected. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Securities of each
series at the time Outstanding (with each series voting as a separate class in
certain cases specified in the Indenture, or with all series voting as one
class, in certain other cases specified in the Indenture), on behalf of the
Holders of all Securities of such series [If the Securities of the series are
issuable as Bearer Securities [and are interest-bearing] insert- and any related
coupons], to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notification of such consent or waiver
is made upon this Security.
<PAGE> 103
A-11
As set forth in, and subject to, the provisions of the Indenture, no Holder
of any Security of this series will have any right to institute any proceeding
with respect to the Indenture or for any remedy thereunder, unless such Holder
shall have previously given to the Trustee written notice of a continuing Event
of Default with respect to this series, the Holders of not less than 25% in
principal amount of the Outstanding Securities of this series shall have made
written request, and offered reasonable indemnity, to the Trustee to institute
such proceeding as trustee, and the Trustee shall not have received from the
Holders of a majority in principal amount of the Outstanding Securities of this
series a direction inconsistent with such request and shall have failed to
institute such proceedings within 60 days; provided, however, that such
limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of [(and premium, if any)] or [any]
interest on this Security on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of [(and premium, if any)] and
[any] interest [(including additional amounts, as described on the face hereof)]
on this Security at the times, place[s] and rate, and in the coin or currency,
herein prescribed.
[Title to Bearer Securities shall pass by delivery.] As provided in the
Indenture and subject to certain limitations therein set forth, the transfer of
[this] [Registered] Security is registrable in the Security Register, upon
surrender of [this] [Registered] Security for registration of transfer at the
office or agency of the Company in [any place where the principal of [(and
premium, if any)] and [any] interest on such Security are payable], duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new [If the Securities of the series are issuable as Bearer Securities,
insert- Registered] Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
[If the Securities of the series are not issuable as Bearer Securities
insert- The Securities of this series are issuable only in registered form,
without coupons, in denominations of [$]______ and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.]
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
<PAGE> 104
A-12
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
Notwithstanding anything in the Indenture or in the terms of this Security
to the contrary, the exchange of this Security for a Registered Security will be
subject to satisfaction of the provisions of the United States tax laws in
effect at the time of the exchange. Neither the Company nor the Trustee nor any
agent of the Company or the Trustee shall be required to exchange this Security
for a Registered Security if (i) as a result thereof and in the Company's
judgment, the Company would incur adverse consequences under then applicable
United States Federal income tax laws and (ii) in the case of the Trustee or any
agent of the Company or the Trustee, the Company shall have delivered to such
Person an Officers' Certificate and an Opinion of Counsel as to the matters set
forth in clause (i) above.
The Indenture, [and] the Securities and [If the Securities of the series
are issuable as Bearer Securities, insert- any coupons appertaining thereon]
shall be governed by and construed in accordance with the laws of the State of
New York, without giving effect to the conflicts of laws provisions thereof.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
<PAGE> 105
EXHIBIT B
[FORM OF BEARER SECURITY
AND FORM OF RELATED COUPON]*/
[Form of Face of Security]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE [If an
Original Issue Discount Security, insert any legend recruited by the Internal
Revenue Code and the Regulations thereunder.]
H.J. HEINZ COMPANY
----------------
No. B [U.S. $ ]
-------------------- ------------------
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 bearer upon
presentation and surrender of this Security the principal sum of _____ [United
States dollars] on ________________ . [If the Security is interest-bearing,
insert-, and to pay interest thereon, from the date hereof, [semi-annually in
arrears on ______________ and _____________ in each year] [annually in arrears
on ________________ in each year], commencing __________________ , _____ , at
the rate of ____ % per annum, until the principal hereof is paid or made
available for payment [If applicable, insert-, and (to the extent that the
payment of such interest shall be legally enforceable) at the rate of ____% per
annum on any overdue principal and premium and on any overdue installment of
interest)].
[If the Security is not to bear interest prior to Maturity, insert- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity, and in such case the overdue principal of this Security shall bear
interest at the rate of _____% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of
such default in payment to the date
- --------
*/ To be completed and supplemented to reflect the terms of any series of
Securities.
<PAGE> 106
B-2
payment of such principal has been made or duly provided for. Interest on any
overdue principal shall be payable on demand. Any such interest on any overdue
principal that is not so paid on demand shall bear interest at the rate of ____%
per annum (to the extent that the payment of such interest shall be legally
enforceable), which shall accrue from the date of such demand for payment to the
date payment of such interest has been made or duly provided for, and such
interest shall also be payable on demand.] Such payments [(including premium, if
any)] shall be made, subject to any laws or regulations applicable thereto and
to the right of the Company (limited as provided in the Indenture) to rescind
the designation of any such Paying Agent, at the [main] office of
____________________ in ___________________ , ____________________ in
__________________ , ________________in _________________ , ________________ in
and ______________ in _________________, or at such other offices or agencies
outside the United States (as defined below) as the Company may designate, at
the option of the Holder, by [United States dollar] check drawn on a bank in The
City of New York or by transfer of [United States dollars] to an account
maintained by the payee with a bank located outside the United States. [If the
Security is interest-bearing, insert- Interest on this Security due on or before
Maturity shall be payable only upon presentation and surrender at such an office
or agency of the interest coupons hereto attached as they severally mature.] No
payment of principal[, or] [premium] [or interest] on this Security shall be
made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States [If the Security is
denominated and Payable in United States dollars, insert-; provided, however,
that payment of principal of [(and premium, if any)] and [any] interest on this
Security (including any additional amounts which may be payable as provided
below) shall be made at the office of the Company's Paying Agent in the United
States of America, if (but only if) payment in United States dollars of the full
amount of such principal[, premium] [, interest] or additional amounts, as the
case may be, at all offices or agencies outside the United States maintained for
the purpose by the Company in accordance with the Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions, as
determined by the Company].
The Company will pay to the Holder of this Security [If the Security is
interest-bearing, insert- or any coupon appertaining hereto] who is a United
States Alien (as defined below) such additional amounts as may be necessary in
order that [If the Security is interest-bearing, insert- every net payment of
the principal of [(and premium, if any)] and interest on this Security] [If the
Security is not to bear interest Prior to Maturity, insert- (i) the net payment
of principal of (and interest on overdue principal, if any, on) this Security
and (ii) the net proceeds from the sale or exchange of this Security, including,
in each case, amounts received in respect of original issue discount], after
deduction or withholding for or on account of any present or future tax,
assessment or other governmental charge imposed by the United States or any
political subdivision or taxing authority thereof or therein upon or as a result
of such
<PAGE> 107
B-3
payment [If the Security is not to bear interest prior to Maturity, insert- or
as a result of such sale or exchange], will not be less than the amount provided
for in this Security [If the Security is interest-bearing, insert- or, in the
case of a sale or exchange, the amount of the net proceeds from the sale or
exchange before any such tax, assessment or other governmental charge];
provided, however, that the foregoing obligation to pay additional amounts will
not apply to any one or more of the following:
(a) any tax, assessment or other governmental charge which would not
have been so imposed but for (i) the existence of any present or former
connection between such Holder (or between a fiduciary, settlor,
beneficiary, member of, or possessor of a power over, or shareholder of
such Holder, if such Holder is an estate, a trust, a partnership or a
corporation) and the United States, including, without limitation, such
Holder (or such fiduciary, settlor, beneficiary, member, possessor or
shareholder) being or having been a citizen or resident or treated as a
resident thereof, or being or having been engaged in trade or business or
present therein, or having or having had a permanent establishment therein,
or (ii) such Holder's present or former status as a personal holding
company, a foreign personal holding company, a controlled foreign
corporation for United States tax purposes or a corporation which
accumulates earnings to avoid United States federal income tax;
(b) any tax, assessment or other governmental charge imposed [If the
Security is interest-bearing, insert- on interest received by a Person
holding, actually or constructively, 10% or more of the total combined
voting power of all classes of stock of the Company entitled to vote or by
a foreign organization that is a private foundation or on interest received
by a bank on an extension of credit made pursuant to a loan agreement
entered into in the ordinary course of its trade or business, within the
meaning of section 881(c)(3)(A) of the Internal Revenue Code of 1986, as
amended (the "Code")] [[If the Security is not to bear interest prior to
Maturity, insert- by reason of such Holder's past or present status as the
actual or constructive owner of 10% or more of the total combined voting
power of all classes of stock of the Company entitled to vote or by a
foreign organization that is a private foundation or on interest received
by a bank on an extension of credit made pursuant to a loan agreement
entered into in the ordinary course of its trade or business, within the
meaning of section 881(c)(3)(A) of the Code];
(c) any tax, assessment or other governmental charge which would not
have been imposed but for the failure to comply with any certification,
identification or other reporting requirements concerning the nationality,
residence, identity or connection with the United States of the Holder or
beneficial owner of this Security [If the Security is interest-bearing,
insert- or any coupon appertaining hereto], if compliance is required by
statute or by
<PAGE> 108
B-4
regulation of the United States as a precondition to exemption from such
tax, assessment or other governmental charge;
(d) any estate, inheritance, gift, sales, transfer, personal property
or any similar tax, assessment or governmental charge;
(e) any tax, assessment or other governmental charge which is payable
otherwise than by deduction or withholding from payments of [If the
Security is interest-bearing, insert- principal of [(and premium, if any)]
or interest on this Security.] [If the Security is not to bear interest
prior to Maturity, insert- principal of (or interest on overdue principal,
if any, on) this Security or from payments from the proceeds of a sale or
exchange of this Security]; or
(f) any tax, assessment or other governmental charge which would not
have been so imposed but for the presentation by the Holder of this
Security [If Security is interest-bearing, insert- or any coupon
appertaining hereto] for payment on a date more than 15 days after the date
on which such payment became due and payable or the date on which payment
thereof is duly provided for, whichever occurs later;
nor will additional amounts be paid with respect to any payment of [If the
Security is interest-bearing, insert- principal of [(and premium, if any)] or
interest on this Security] [If the Security is not to bear interest prior to
Maturity, insert- principal of (or interest on overdue principal, if any, on)
this Security or of the proceeds of any sale or exchange of this Security] to
any United States Alien who is a fiduciary or partnership or other than the sole
beneficial owner of any such payment to the extent that a beneficiary or settlor
with respect to such fiduciary, a member of such a partnership or the beneficial
owner would not have been entitled to the additional amounts had such
beneficiary, settlor, member or beneficial owner been the Holder of this
Security [If the Security is interest-bearing, insert- or any coupon
appertaining hereto]. In the case of net proceeds from the sale or exchange of a
Bearer Security, additional amounts with respect to such net proceeds shall not
(a) exceed additional amounts that would have been payable if the Bearer
Security had been redeemed for its issue price plus accrued original issue
discount at the time of such sale or exchange or (b) be paid in respect of any
sale or exchange occurring after the date fixed for redemption of such Security.
Except as previously provided herein with respect to Bearer Securities, the
Company shall not be required to make any payment with respect to any tax,
assessment or other governmental charge imposed by any government or any
political subdivision or taxing authority thereof or therein and may make such
withholdings and deductions on account of any such change as may be required by
applicable law or regulation. The term "United States Alien" means any Person
who, for United States federal income tax purposes, is a foreign corporation, a
non-resident alien individual, a non-resident alien fiduciary of a foreign
estate or trust, or a foreign partnership one or more of the members of which
is, for United
<PAGE> 109
B-5
States federal income tax purposes, a foreign corporation, a non-resident alien
individual or a non-resident alien fiduciary of a foreign estate or trust, and
the term "United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
[Notwithstanding the foregoing, if and so long as a certification,
identification or other reporting requirement referred to in the [fourth]
[fifth] paragraph on the reverse hereof would be fully satisfied by payment of a
backup withholding tax or similar charge, the Company may elect, by so stating
in the Determination Notice (as defined in such paragraph), to have the
provisions of this paragraph apply in lieu of the provisions of such paragraph.
In such event, the Company will pay as additional amounts such amounts as may be
necessary so that every net payment made following the effective date of such
requirements outside the United States by the Company or any of its Paying
Agents of principal [(and premiums, if any)] [If the Security is
interest-bearing, insert- or interest] due in respect of any Bearer Security [If
the Security is interest-bearing, insert- or any coupon] of which the beneficial
owner is a United States Alien (but without any requirement that the
nationality, residence or identity of such beneficial owner be disclosed to the
Company, any Paying Agent or any governmental authority), after deduction or
withholding for or on account of such backup withholding tax or similar charge
other than a backup withholding tax or similar charge which is (i) the result of
a certification, identification or other reporting requirement described in the
second parenthetical clause of such paragraph, or (ii) imposed as a result of
the fact that the Company or any of its Paying Agents has actual knowledge that
the beneficial owner of such Bearer Security [If the Security is
interest-bearing, insert - or any coupon] is within the category of Persons
described in clause (a) of the [third] paragraph of this security, or (iii)
imposed as a result of presentation of such Bearer Security [If the Security is
interest-bearing, insert- or coupon] for payment more than 15 days after the
date on which such payment becomes due and payable or on which payment thereof
is duly provided for, whichever occurs later, will not be less than the amount
provided for in such Bearer Security [If the Security is interest-bearing,
insert- or coupon] to be then due and payable.]
Reference is made to the further provisions of this Security set forth on
the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, or through an authenticating agent,
by manual signature of an authorized signatory, neither this Security, nor any
coupon
<PAGE> 110
B-6
appertaining hereto, shall be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal and coupons bearing the facsimile signature of
[its Treasurer] [one of its Assistant Treasurers] to be annexed hereto.
Dated as of ______________, _____
H.J. HEINZ COMPANY
By:
------------------------
Attest:
- ------------------------
<PAGE> 111
B-7
[Form of Reverse of Security]
This security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of July 15, 1992 (herein called the
"Indenture"), between the Company and The First National Bank of Chicago, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof [, limited in
aggregate principal amount to [U.S. $] ______ ]. The Securities of this series
are issuable as Bearer Securities, with interest coupons attached, in the
denomination of [U.S. $ ______ [, and as Registered Securities, without coupons,
in denominations of [U.S. $] ______ ] and any integral multiple thereof.] [As
provided in the Indenture and subject to certain limitations therein set forth,
Bearer Securities and Registered Securities of this series are exchangeable for
a like aggregate principal amount of Registered Securities of this series and of
like tenor of any authorized denominations, as requested by the Holder
surrendering the same, upon surrender of the Security or Securities to be
exchanged, with all unmatured coupons and all matured coupons in default thereto
appertaining, at any office or agency described below where Registered
Securities of this series may be presented for registration of transfer,
provided, however, that Bearer Securities surrendered in exchange for Registered
Securities between a Record Date and the relevant Interest Payment Date shall be
surrendered without the coupon relating to such Interest Payment Date. Bearer
Securities may not be issued in exchange for Registered Securities.]
[If applicable, insert- The Securities of this series are subject to
redemption [(l)] [If applicable, insert- on (1) ______ in any year commencing
with the year ______ and ending with the year ______ through operation of the
sinking fund for this series at a Redemption Price equal to [100% of the
principal amount] [or Insert formula for determining the amount], and (2)] [If
applicable, insert- at any time [on or after ______ ], as a whole or in part, at
the election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [or before ______, ______%,
and if redeemed] during the 12-month period beginning of the years indicated,
<PAGE> 112
B-8
<TABLE>
<CAPTION>
Year Redemption Price Year Redemption Year
- ---- ---------------- ---- ---------------
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to ______% of the principal amount,]
[and (______)] (under the circumstances described in the next [two] succeeding
paragraphs at a Redemption Price equal to [100% of the principal amount] [or
insert formula for determining the amount] [If the Security is interest-bearing,
insert-, together in the case of any such redemption [If applicable, insert-
(whether through operation of the sinking fund or otherwise)] with accrued
interest to the Redemption Date; provided, however, that interest installments
on this Security whose Stated Maturity is on or prior to such Redemption Date
will be payable only upon presentation and surrender of coupons for such
interest (at an office or agency located outside the United States, except as
herein provided otherwise)].]
[If applicable, insert- The Securities of this series are subject to
redemption (1) on ______ in any year commencing with the year ______ and ending
with the year ______ through operation of the sinking fund for this series at
the Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2) at any time [on or after ______], as a whole or in part, at the election
of the Company, at the Redemption Prices for redemption otherwise than through
operation of the sinking fund (expressed as percentages of the principal amount)
set forth in the table below: If redeemed during the 12-month period beginning
______ of the years indicated.
<TABLE>
<CAPTION>
Redemption Price for
Redemption Price Redemption Otherwise
for Redemption Than Through
Through Operation Operation
Year of the Sinking Fund of the Sinking Fund
---- ------------------- -------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to ______% of the principal amount,
and (3) under the circumstances described in the next [two] succeeding
paragraphs at a Redemption Price equal to 100% of the principal amount [or
insert formula for determining the amount] [If the Security is interest-bearing,
insert- together in the case of any such redemption (whether through operation
of the sinking fund or otherwise) with accrued interest to the Redemption Date;
provided, however, that
<PAGE> 113
B-9
interest installments on this Security whose Stated Maturity is on or prior to
such Redemption Date will be payable only upon presentation and surrender of
coupons for such interest (at an office or agency located outside the United
States, except as herein provided otherwise)].]
[Partial redemption must be in an amount not less than [U.S. $5,000]
principal amount of Securities.] [Notwithstanding the foregoing, the Company may
not, prior to ______, redeem any Securities of this series as contemplated by
Clause [(2)] above as a part of, or in anticipation of, any refunding operation
by the application, directly or indirectly, of moneys borrowed having an
interest cost to the Company (calculated in accordance with generally accepted
financial practice) of less than ______% per annum.]
[The Securities may be redeemed, as a whole but not in part, at the option
of the Company, at a Redemption Price [equal to 100% of their principal amount]
[determined as set forth in the preceding paragraph] [If the Security is
interest bearing, insert-, together with interest accrued to the date fixed for
redemption,] if (i), as a result of any amendment to, or change in, the laws or
regulations of the United States or any political subdivision or taxing
authority thereof or therein affecting taxation, or any amendment to or change
in an official interpretation or application of such laws or regulations, which
amendment or change ("Tax Law Change") is effective on or after ______, ______,
the Company has or will become obligated to pay additional amounts (as described
on the face hereof) [If the Security is interest-bearing, insert- on the next
succeeding Interest Payment Date] [If the Security is not to bear interest Prior
to Maturity, insert- at Maturity or upon the sale or exchange of any Security]
at the time such notice is given, such obligation to pay such additional amounts
remains in effect or (ii) in the written opinion of independent counsel selected
by the Company there is a substantial likelihood that the Company has or will
become obligated to pay such additional amounts as a result of any action taken
by any taxing authority or of any action brought in a court of competent
jurisdiction in the United States or any political subdivision thereof or
therein, including any of the actions described in (i) above, whether or not
such action has been taken or brought with respect to the Company, or as a
result of any officially proposed Tax Law Change, which action or proposed
change occurs after __________.
[If applicable, insert- In addition, if the Company determines, based upon
a written opinion of independent counsel selected by the Company, that any
payment made outside the United States by the Company or any of its Paying
Agents of the full amount of principal [(, premium, if any)] or interest due
with respect to any Bearer Security or coupon would, under any present or future
laws or regulations of the United States, be subject to any certification,
identification or other reporting requirement of any kind, the effect of which
requirement is the disclosure to the Company, any Paying Agent or any
governmental authority of the nationality, residence or identity of a beneficial
owner of such Bearer Security or coupon who is a
<PAGE> 114
B-10
United States Alien (as defined on the face hereof) (other than such a
requirement (a) which would not be applicable to a payment made by the Company
or any one of its Paying Agents (i) directly to the beneficial owner, or (ii) to
any custodian, nominee or other agent of the beneficial owner, or (b) which can
be satisfied by the custodian, nominee or other agent certifying that the
beneficial owner is a United States Alien, provided in each case referred to in
clauses (a)(ii) and (b) that payment by such custodian, nominee or other agent
of such beneficial owner is not otherwise subject to any such requirement), the
Company at its election will either (x) redeem the Securities, as a whole but
not in part, at a Redemption Price [equal to 100% of their principal amount,]
[determined as set forth in the next preceding paragraph,] together with
interest accrued to the date fixed for redemption, or (y) if and so long as the
conditions of the [third] paragraph on the face of this Security are satisfied,
pay the additional amounts specified in such paragraph. The Company will make
such determination and election and notify the Trustee thereof as soon as
practicable, and the Trustee will promptly give notice of such determination in
the manner provided below (the "Determination Notice"), in each case stating the
effective date of such certification, identification or other reporting
requirement, whether the Company will redeem the securities or will pay the
additional amounts specified in such paragraph and (if applicable) the last day
by which the redemption of the Securities must take place. If the Company elects
to redeem the Securities, such redemption shall take place on such date, not
later than one year after publication of the Determination Notice, as the
Company elects by notice to the Trustee at least 60 days before such date,
unless shorter notice is acceptable to the Trustee. Notwithstanding the
foregoing, the Company will not so redeem the Securities if the Company, based
upon an opinion of independent counsel selected by the Company, subsequently
determines, not less than 10 days prior to the date fixed for redemption, that
subsequent payments would not be subject to any such requirement, in which case
the Company will notify the Trustee, which will promptly give notice of that
determination in the manner provided below, and any earlier redemption notice
will thereupon be revoked and of no further effect. If the Company elects as
provided in clause (y) above to pay such additional amounts, the Company may
subsequently redeem the Securities, at any time, as a whole or in part, at a
Redemption Price [equal to 100% of their principal amount] [determined as set
forth in the next preceding paragraph,] together with interest accrued to the
date fixed for redemption, but without reduction for applicable United States
withholding taxes.]
[If applicable, insert- In addition, if the Company determines, based upon
a written opinion of independent counsel selected by the Company, that any
payment made outside the United States by the Company or any of its Paying
Agents of the full amount due with respect to any Bearer Security would, under
any present or future laws or regulations of the United States, be subject to
any certification, identification or other reporting requirement of any kind,
the effect of which requirement is the disclosure to the Company, any Paying
Agent or any governmental authority of the nationality, residence or identity of
a beneficial owner of such Bearer Security who is a United States Alien (as
defined on the face hereof) (other than such
<PAGE> 115
B-11
a requirement (a) which would not be applicable to a payment made by the Company
or any one of its Paying Agents (i) directly to the beneficial owner or (ii) to
any custodian, nominee or other agent of the beneficial owner, or (b) which can
be satisfied by the custodian, nominee or other agent certifying to the effect
that such beneficial owner is a United States Alien, provided in each case
referred to in clauses (a)(ii) and (b) that payment by such custodian, nominee
or other agent of such beneficial owner is not otherwise subject to any such
requirement), the Company at its election will either (x) permit any Holder of a
Bearer Security to present such Bearer Security for redemption within 90 days of
notice of such redemption, at a Redemption Price determined as set forth in the
next preceding paragraph, or (y) if and so long as the conditions of the [fifth]
paragraph on the face of this Security are satisfied, pay the additional amounts
specified in such paragraph. The Company will make such determination and
election and notify the Trustee thereof as soon as practicable, and the Trustee
will promptly give notice of such determination in the manner provided below
(the "Determination Notice"), in each case stating the effective date of such
certification, identification or other reporting requirement, whether the
Company has elected to permit redemption of the Bearer Securities or to pay the
additional amounts specified in such paragraph and (if applicable) the last day
by which the Company may publish any notice of redemption. If the Company elects
to permit redemption of the Bearer Securities, notice of the redemption will be
given not more than 268 days following the Determination Notice and will specify
the date fixed for redemption. The Bearer securities will be redeemed on the day
97 days after notice of the redemption has been given. Notwithstanding the
foregoing, the Company will not permit redemption of the Bearer Securities if
the Company, based upon an opinion of independent counsel, subsequently
determines, not less than 10 days prior to the date fixed for redemption, that
no payment would be subject to any such requirement, in which case the Company
will promptly notify the Trustee, which will promptly give notice of that
determination in the manner described below, and any earlier redemption notice
will thereupon be revoked and of no further effect.]
[The sinking fund for this series provides for the redemption on
____________________ in each year, beginning with the year ______ and ending
with the year ______, of [not less than] [U.S.] $______ [("mandatory sinking
fund") and not more than [U.S. $______]] aggregate principal amount of
Securities of this series. [Securities of this series acquired or redeemed by
the Company otherwise than through [mandatory] sinking fund payments may be
credited against subsequent [mandatory] sinking fund payments otherwise required
to be made -- in the inverse order in which they become due.]]
[Notice of redemption will be given by publication in an Authorized
Newspaper in The City of New York and, if the Securities of this series are then
listed on [The International Stock Exchange of the United Kingdom and the
Republic of Ireland Limited] [the Luxembourg Stock Exchange] [or] any [other]
stock exchange located outside the United States and such stock exchange shall
so require, in [London] [Luxembourg] [or] in any [other] required city outside
the United States, or,
<PAGE> 116
B-12
if not practicable, elsewhere in Europe, [and by mail to Holders of Registered
Securities] not less than 30 nor more than 60 days prior to the date fixed for
redemption, all as provided in the Indenture.]
If an Event of Default with respect to Securities of this series shall
occur and be continuing, [the] [If an original Issue Discount Security, insert-
an amount of] principal of the Securities of the series may be declared due and
payable in the manner and with the effect provided in the Indenture [the] [If an
original Issue Discount Security, insert- such amount shall be equal to- insert
formula for determining the amount. Upon payment (i) of the amount of principal
so declared due and payable and (ii) of interest on any overdue principal and
overdue interest (in each case to the extent that the payment of such interest
shall be legally enforceable), all of the Company's obligations in respect of
the payment of the principal of and interest, if any, on the Securities of this
series shall terminate.]
The Indenture permits with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected [If the Securities of the series are interest-bearing, insert- and any
related coupons] under the Indenture at any time by the Company and the Trustee
with the consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of each series to be affected. The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time Outstanding (with
each series voting as a separate class in certain cases specified in the
Indenture, or with all series voting as one class, in certain other cases
specified in the Indenture), on behalf of the Holders of all Securities of such
series [If the Securities of the series are interest bearing, insert- and any
related coupons], to waive compliance by the Company with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and any coupon appertaining hereto and of any Security issued in
exchange hereof or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Security.
As set forth in, and subject to, the provisions of the Indenture, no Holder
of any Security of this series [if the Security is interest-bearing, insert- or
any related coupon] will have any right to institute any proceeding with respect
to the Indenture or for any remedy thereunder, unless such Holder shall have
previously given to the Trustee written notice of a continuing Event of Default
with respect to this series, the Holders of not less than 25% in principal
amount of the Outstanding Securities of this series shall have made written
request, and offered reasonable indemnity, to the Trustee to institute such
proceeding as trustee, and the Trustee shall not have received from the Holders
of a majority in principal amount of the Outstanding Securities of this series a
direction inconsistent with such request and shall have failed to institute such
proceeding within 60 days; provided, however, that
<PAGE> 117
B-13
such limitations do not apply to a suit instituted by the Holder hereof [If the
Security is interest-bearing, insert- or any related coupon] for the enforcement
of payment for the principal of [(and premium, if any)] or [any] interest on
this Security [If the Security is interest-bearing, insert- or payment of such
coupon] on or after the respective due dates expressed herein [If the Security
is interest-bearing, insert- or payment of such coupon] on or after the
respective due dates expressed herein [If the Security is interest bearing,
insert- or in such coupon].
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of [(and premium, if any)] and
[any] interest [(including additional amounts, as described on the face hereof)]
on this Security at the times, place[s] and rate, and in the coin or currency,
herein prescribed.
Title to [Bearer] Securities and coupons shall pass by delivery. [As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of Registered Securities is registrable in the Security Register,
upon surrender of a Registered Security for registration of transfer at the
[Corporate Trust Office of the Trustee or such other] office or agency of the
Company in any place where the principal of (premium, if any) and interest, if
any, on such Security are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder thereof or his attorney duly authorized
in writing, and thereupon one or more new [Registered] Securities of this series
and of like tenor, of authorized denominations, and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.]
[No service charge shall be made for any such [registration of transfer or]
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.]
The Company, the Trustee and any agent of the Company or the Trustee may
treat the bearer of a Bearer security of any series [If the Securities of the
series are interest-bearing, insert- and any coupon appertaining thereto] [, and
prior to due presentment of a Registered Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered,] as the owner thereof for
all purposes, whether or not such Security [If the Securities of the series are
interest-bearing, insert- or such coupon] is overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
Notwithstanding anything in the Indenture or in the terms of this Security
to the contrary, the exchange of this Security for a Registered Security will be
subject to satisfaction of the provisions of the United States tax laws in
effect at
<PAGE> 118
B-14
the time of the exchange. Neither the Company nor the Trustee nor any agent of
the Company or the Trustee shall be required to exchange this Security for a
Registered Security if (i) as a result thereof and in the Company's judgment,
the Company would incur adverse consequences under then applicable United States
Federal income tax laws and (ii) in the case of the Trustee or any agent of the
Company or the Trustee, the Company shall have delivered to such Person an
Officers' Certificate and an Opinion of Counsel as to the matters set forth in
clause (i) above.
The Indenture, the Securities and any coupons appertaining thereto shall be
governed by and construed in accordance with the laws of the State of New York
without giving effect to the conflicts of laws provisions thereof. All terms
used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
<PAGE> 119
B-15
[Form of Face of Coupon]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTION 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
[R-]
---------------
H.J. HEINZ COMPANY [U.S. $]
---------------
Due
---------------
--------------------------
Unless the Security to which this coupon appertains shall have been called
for previous redemption and payment thereof duly provided for on the date set
forth hereon, H.J. HEINZ COMPANY (herein called the "Company") will pay to
bearer, upon surrender hereof, the amount shown hereon (together with any
additional amounts in respect thereof which the Company may be required to pay
according to the terms of said Security and the Indenture referred to therein)
[at the initial Paying Agents set out on the reverse hereof or at such other
offices or agencies (which, except as otherwise provided in the Security to
which this coupon appertains, shall be located outside the United States of
America (including the States and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction (the "United
States")) as the Company may designate from time to time,] at the option of the
Holder, by [United States dollar check] drawn on a bank in The City of New York
or by transfer of [United States dollars] to an account maintained by the payee
with a bank located outside the United States, being [one year's] interest then
payable on said Security.
H.J. HEINZ COMPANY
By:
---------------------------
<PAGE> 120
B-16
[Reverse of Coupon]*
-----------------------------
-----------------------------
-----------------------------
-----------------------------
-----------------------------
- ----------
* Insert names and addresses of Initial Paying Agents located outside the
United States.
<PAGE> 121
EXHIBIT C-1
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
Whenever any provision of this Indenture or the forms of Security
contemplates that certification be given by a Person entitled to receive a
Bearer Security, such certification shall be provided substantially in the form
of the following certificate, with only such changes as shall be approved by the
Company:]
CERTIFICATE
-----------------
[Insert title or sufficient description of Securities to be delivered]
[This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or other entities created or organized in or
under the laws of the United States or any political subdivision thereof, or any
estate or trust the income of which is subject to United States federal income
taxation regardless of its source ("United States person(s)"), (ii) are owned by
United States person(s) that are (a) foreign branches of United States financial
institutions (financial institutions as defined in United States Treasury
Regulations section 1.165-12(c)(1)(v), are herein referred to as "financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (a) or (b),
each such United States financial institution hereby agrees, on its own behalf
or through its agent, that you may advise H.J. Heinz Company or its agent that
such financial institution will comply with the requirements of section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) are owned by United States or
foreign financial institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations section
1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United States or
foreign financial institution described in clause (iii) above (whether or not
also described in clause (i) or (ii)), this is to further certify that such
financial institution has not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
<PAGE> 122
C-1-2
We undertake to advise you promptly by tested telex if the above statement
as to beneficial ownership is not correct on the date of delivery of the
above-captioned Securities in bearer form as to all of such Securities.
If the undersigned is a dealer, the undersigned agrees to obtain a similar
certificate from each person entitled to delivery of any of the above-captioned
Securities in bearer form purchased from it; provided, however, that, if the
undersigned has actual knowledge (as defined in applicable Internal Revenue
Service regulations) that the information contained in such a certificate is
false, the undersigned will not deliver a Security in temporary or definitive
bearer form to a person who signed such certificate notwithstanding the delivery
of such certificate to the undersigned.
This certificate excepts and does not relate to $_______of such interest in
the above-captioned Securities in respect of which we are not able to certify
and as to which we understand an exchange for and delivery of definitive
Securities (or, if relevant, collection of any payment) cannot be made until we
do so certify.
We understand that this certificate may be required in connection with
certain tax laws of the United States. If administrative or legal proceedings
are commenced or threatened in connection with which this certificate is or
would be relevant, we irrevocably authorize you to produce this certificate or a
copy thereof to any interested party in such proceedings.]
Dated: , 19
--------------- -----
[To be dated no earlier
than the 15th day prior
to the Exchange Date or
prior to the date of the
[ ] certificate, if later]
[Name of Person Making Certification]
-------------------------------------
(Authorized Signatory)
Name:
Title:
<PAGE> 123
Exhibit C-2
[FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR
OR CEDEL S.A.
IN CONNECTION WITH THE EXCHANGE OF A PORTION
OF A TEMPORARY GLOBAL SECURITY
Whenever any provision of this Indenture or the forms of Security
contemplates that certification be given by Euro-clear or CEDEL S.A. in
connection with the exchange of a portion of a temporary global Security, such
certification shall be provided substantially in the form of the following
certificate, with only such changes as shall be approved by the Company:]
CERTIFICATE
----------------
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that based solely on written certifications that we have
received in writing, by tested telex or by electronic transmission from each of
the persons appearing in our records as persons entitled to a portion of the
Principal Amount at Maturity set forth below (our "Member Organizations")
substantially in the form attached hereto, as of the date hereof $_________
Principal Amount at Maturity of the above-captioned Securities (i) is owned by
person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or other entities created or organized in or
under the laws of the United States or any political subdivision thereof, or any
estate or trust the income of which is subject to United States Federal income
taxation regardless of its source ("United States person(s)"), (ii) is owned by
United States person(s) that are (a) foreign branches of United States financial
institutions (financial institutions, as defined in U.S. Treasury Regulations
section 1.165-12(c)(1)(v), are herein referred to as "financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
financial institution has agreed on its own behalf or through its agent that we
may advise H.J. Heinz Company or its agent that such financial institution will
comply with the requirements of section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is
owned by United States or foreign financial institution(s) for purposes of
resale during the restricted period (as defined in United States Treasury
Regulations section 1.163-5(c)(2)(i)(D)(7)) and, to the further effect, that
financial institutions described in clause (iii) above (whether or not also
described in clause (i) or (ii)) have certified that they have not acquired the
Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
<PAGE> 124
C-2-2
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any amounts) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any amounts) are no longer true and
cannot be relief upon as of the date hereof.
We understand that this certification is required in connection with
certain tax laws of the United States. If administrative or legal proceedings
are commenced or threatened in connection with which this certificate is or
would be relevant, we irrevocably authorize you to produce this certificate or a
copy thereof to any interested party in such proceedings.
Dated: , 19
------------- -----
[Certification may be dated
no earlier than the Exchange
Date.]
[MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, BRUSSELS OFFICE,
as Operator of the Euro-clear system)
[CEDEL S.A.]
By:
---------------------------------
<PAGE> 125
Exhibit C-3
[FORM OF CERTIFICATE TO BE GIVEN BY
EURO-CLEAR AND CEDEL S.A.
TO OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE
whenever any provision of this Indenture or the forms of Security
contemplates that certification be given by Euro-clear or CEDEL S.A. to obtain
interest prior to an Exchange Date, such certification shall be provided
substantially in the form of the following certificate, with only such changes
as shall be approved by the Company:]
CERTIFICATE
-------------------
[Insert title or sufficient description of Securities]
This is to certify that based solely on written certifications that we have
received in writing, by tested telex or by electronic transmission from each of
the persons appearing in our records as persons entitled to a portion of the
Principal Amount at Maturity set forth below (our "Member Organizations")
substantially in the form attached hereto, as of the date hereof $_________
Principal Amount at Maturity of the above-captioned Securities (i) is owned by
person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or other entities created or organized in or
under the laws of the United States or any political subdivision thereof, or any
estate or trust the income of which is subject to United States Federal income
taxation regardless of its source ("United States person(s)"), (ii) is owned by
United States person(s) that are (a) foreign branches of United States financial
institutions (financial institutions, as defined in U.S. Treasury Regulations
section 1.165-12(c)(1)(v), are herein referred to as "financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
financial institution has agreed, on its own behalf or through its agent, that
we may advise H.J. Heinz Company or its agent that such financial institution
will comply with the requirements of section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) is owned by United States or foreign financial institution(s) for purposes
of resale during the restricted period (as defined in United States Treasury
Regulations section 1.163-5(c)(2)(i)(D)(7)) and, to the further effect, that
financial institutions described in clause (iii) above (whether or not also
described in clause (i) or (ii)) have certified that they have not acquired the
Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include
<PAGE> 126
C-3-2
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We understand that this certification is required in connection with
certain tax laws of the United States. If administrative or legal proceedings
are commenced or threatened in connection with which this certificate is or
would be relevant, we irrevocably authorize you to produce this certificate or a
copy thereof to any interested party in such proceedings.
We undertake that any interest received by us and not paid to a person
described in clauses (i) through (iii) above shall be returned to the Trustee
for the above Securities immediately prior to the expiration of two years after
such Interest Payment Date in order to be repaid by such Trustee to the above
issuer at the end of two years after such Interest Payment Date.
Dated: , 19
---------------- ----
[To be dated on or after the relevant
Interest Payment Date]
[MORGAN GUARANTY TRUST
COMPANY OF NEW YORK,
BRUSSELS OFFICE, as Operator of the
Euro-clear System] [CEDEL S.A.]
By:
-------------------------------
<PAGE> 127
Exhibit C-4
[FORM OF CERTIFICATION BY BENEFICIAL OWNERS TO
OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE
Whenever any provision of this Indenture or the forms of Security
contemplates that certification be given by a Person who beneficially owns any
[Bearer] Security in connection with obtaining any interest prior to an Exchange
Date relating to such Bearer Security, such certification shall be provided
substantially in the form of the following certificate, with only such changes
as shall be approved by the Company:]
CERTIFICATE
----------------
[Insert title or sufficient description of Securities]
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or other entities created or organized in or
under the laws of the United States or any political subdivision thereof, or any
estate or trust the income of which is subject to United States federal income
taxation regardless of its source ("United States person(s)"), (ii) are owned by
United States person(s) that are (a) foreign branches of United States financial
institutions (financial institutions, as defined in United States Treasury
Regulations section 1.165-12(c)(1)(v), are herein referred to as "financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (a) or (b),
each such United States financial institution hereby agrees, on its own behalf
or through its agent, that you may advise H.J. Heinz Company or its agent that
such financial institution will comply with the requirements of section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1936, as
amended, and the regulations thereunder) or (iii) are owned by United States or
foreign financial institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations section
1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United States or
foreign financial institution described in clause (iii) above (whether or not
also described in clause (i) or (ii)), this is to further certify that such
financial institution has not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
As used herein, "United States person" means any citizen or resident of the
United States, any corporation, partnership or other entity created or organized
in or under the laws of the United States and any estate or trust the income of
which is
<PAGE> 128
C-4-2
subject to United States Federal income taxation regardless of its source, and
"United States" means the United States of America (including the States and the
District of Columbia), its territories, its possessions and other areas subject
to its jurisdiction.
This certificate excepts and does not relate to [U.S. $_________] principal
amount of the above-captioned Securities appearing in your books as being held
for our account as to which we were not yet able to certify and as to which we
understand interest cannot be credited unless and until we are able so to
certify.
We understand that this certificate may be required in connection with
certain securities and tax legislation in the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: , 19
--------------- -----
[To be dated on or after the
relevant Interest Payment Date]
[Name of Person Entitled to
Receive Interest]
By:
-----------------------------
(Authorized Signatory)
Name:
Title:
<PAGE> 1
- -------------------------------------------------------------------------------
Exhibit 4(c)
H.J. HEINZ COMPANY
and
[ ]
As Warrant Agent
------------------------------------
WARRANT AGREEMENT
Dated as of _________ __, 199_
------------------------------------
- -------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
Page
ARTICLE I
ISSUANCE OF WARRANTS AND EXECUTION
AND DELIVERY OF WARRANT CERTIFICATES......................................2
SECTION 1.1 Issuance of Warrants.........................................2
SECTION 1.2 Execution and Delivery of Warrant Certificates...............2
SECTION 1.3 Issuance of Warrant Certificates.............................3
ARTICLE II
WARRANT PRICE, DURATION
AND EXERCISE OF WARRANTS..................................................3
SECTION 2.1 Warrant Price................................................3
SECTION 2.2 Duration of Warrants.........................................4
SECTION 2.3 Exercise of Warrants.........................................4
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES........................................5
SECTION 3.1 No Rights as Holders of [ ] Conferred by Warrants or
Warrant Certificates.........................................5
SECTION 3.2 Lost, Stolen, Destroyed or Mutilated Warrant Certificates....5
SECTION 3.3 Holder of Warrant Certificate May Enforce Rights.............6
ARTICLE IV
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES...................................................6
SECTION 4.1 Exchange and Transfer of Warrant Certificates................6
SECTION 4.2 Treatment of Holders of Warrant Certificates.................7
SECTION 4.3 Cancellation of Warrant Certificates.........................7
ARTICLE V
CONCERNING THE WARRANT AGENT..............................................8
SECTION 5.1 Warrant Agent................................................8
SECTION 5.2 Conditions of Warrant Agent's Obligations....................8
SECTION 5.3 Resignation and Appointment of Successor....................10
SECTION 5.4 Payments of Taxes...........................................11
<PAGE> 3
Page
ARTICLE VI
MISCELLANEOUS........................................................11
SECTION 6.1 Amendment...............................................11
SECTION 6.2 Notices and Demands to the Company and Warrant Agent....12
SECTION 6.3 Addresses...............................................12
SECTION 6.4 Applicable Law..........................................12
SECTION 6.5 Delivery of Prospectus..................................12
SECTION 6.6 Obtaining of Governmental Approvals.....................12
SECTION 6.7 Persons Having Rights Under Agreement...................13
SECTION 6.8 Headings................................................13
SECTION 6.9 Counterparts............................................13
SECTION 6.10 Inspection of Agreement.................................13
EXHIBIT A
[FORM OF WARRANT CERTIFICATE].........................................1
ii
<PAGE> 4
WARRANT AGREEMENT
THIS WARRANT AGREEMENT (this "Agreement"), dated as of
_________ ___, 199_ between H.J. Heinz Company, a corporation duly organized and
existing under the laws of the Commonwealth of Pennsylvania (the "Company"), and
[ ], a [ ] duly existing under the laws of [ ], as Warrant Agent (the "Warrant
Agent").
W I T N E S S E T H
WHEREAS, the Company has previously entered into an
Indenture (the "Indenture"), dated as of July 15, 1992, with The First National
Bank of Chicago as trustee (The First National Bank of Chicago and any successor
or successors of such trustee being hereinafter referred to as the "Trustee"),
in connection with the issuance from time to time by the Company of its debt
securities; and
WHEREAS, the Company proposes to issue under the Indenture
$[ ] principal amount of debt securities designated as its [ ] due [ ] (the "[
]") and to provide for the issuance under the Indenture of $[ ] principal amount
of debt securities designated as its [ ] due [ ] (the "[ ]"); and
WHEREAS, the Company proposes to sell the [ ] with warrant
certificates evidencing one or more warrants (the "Warrants" or, individually, a
"Warrant") representing the right to purchase the [ ], such warrant certifi
cates and other warrant certificates issued pursuant to this Agreement being
herein called the "Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company in connection with the issuance, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement wishes to set
forth, among other things, the form and provisions of the Warrant Certificates
and the terms and conditions on which they may be issued, exchanged, exercised
and replaced;
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
<PAGE> 5
ARTICLE I
ISSUANCE OF WARRANTS AND EXECUTION
AND DELIVERY OF WARRANT CERTIFICATES
SECTION 1.1 Issuance of Warrants. Warrants shall be
initially issued in connection with the issuance of the [ ] but shall be
separately transferable. Each Warrant Certificate shall evidence one or more
Warrants. Each Warrant evidenced thereby shall represent the right, subject to
the provisions contained herein and therein, to purchase [ ] [ ] in the
principal amount of $[ ]. Warrant Certificates shall be initially issued in
units with the [ ], and each Warrant Certificate included in such a unit shall
evidence [ ] Warrants for each $[ ] principal amount of [ ] included in such
unit.
SECTION 1.2 Execution and Delivery of Warrant Certificates.
Each Warrant Certificate, whenever issued, shall be in registered form
substantially in the form set forth in Exhibit A hereto, shall be dated and may
have such letters, numbers or other marks of identification or designation and
such legends or endorsements printed, lithographed or engraved thereon as the
officers of the Company executing the same may approve (execution thereof to be
conclusive evidence of such approval) and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation
of any stock exchange on which the Warrant Certificates may be listed, or to
conform to usage. The Warrant Certificates shall be signed on behalf of the
Company by the chairman or vice chairman of its Board of Directors, or the
president or treasurer or any vice president of the Company under its corporate
seal, and the same to be attested by its secretary, or any of its assistant
secretaries. Such signatures may be manual or facsimile signatures of the
present or any future such authorized officers and may be imprinted or otherwise
reproduced on the Warrant Certificates. The seal of the Company may be in the
form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Warrant Certificates.
No Warrant Certificate shall be valid for any purpose until
it has been countersigned by the manual signature of the Warrant Agent. Such
signature by the Warrant Agent upon any Warrant Certificate executed by the
Company shall be conclusive evidence that the Warrant Certificate so
countersigned has been duly delivered hereunder.
In case any officer of the Company who shall have signed any
of the Warrant Certificates either manually or by facsimile signature shall
cease to be such officer before the Warrant Certificates so signed shall have
been countersigned and delivered by the Warrant Agent, such Warrant Certificates
nevertheless may be
2
<PAGE> 6
countersigned and delivered, as though the person who signed such Warrant
Certifi cates had not ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of the Company, although at the date of the execution of this Agreement
any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as
used herein shall mean any person in whose name at the time any Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose (the "Warrant Register").
SECTION 1.3 Issuance of Warrant Certificates. Warrants
relating to the purchase of an aggregate principal amount not exceeding $[ ] of
[ ] (except as provided in Section 3.2) may be executed by the Company and
delivered to the Warrant Agent upon the execution of this Agreement or from time
to time thereafter. The Warrant Agent shall, upon receipt of Warrant
Certificates, duly executed on behalf of the Company, countersign Warrant
Certificates evidencing Warrants representing the right to purchase up to $[ ]
aggregate principal amount of [ ] and shall deliver such Warrant Certificates to
or upon the written order of the Company. Subsequent to such original issuance
of the Warrant Certificates, the Warrant Agent shall countersign a Warrant
Certificate only if the Warrant Certificate is issued in exchange or
substitution for one or more previously countersigned Warrant Certificates, as
hereinafter provided.
ARTICLE II
WARRANT PRICE, DURATION
AND EXERCISE OF WARRANTS
SECTION 2.1 Warrant Price. The exercise price of each
warrant (the "Warrant Price") shall be determined on the following basis: [If
applicable, insert in the following paragraph relevant amounts in applicable
foreign currency, currency unit or composite currency.]
[If applicable, insert -- The Warrant Price is equal to the
principal amount of [ ] purchased, plus accrued interest from the next preceding
interest payment record date in respect of such [ ].]
[If applicable, insert -- On ________ __, ____ the Warrant
Price is $[ ]. During the period from ________ __, ____, through and including
________ __, ____ the Warrant Price will be $[ ] [, plus [accrued amortization
of the original issue discount] [accrued interest] from ________ __, ____]. On
________
3
<PAGE> 7
__, ____ through and including ________ __, ____ the Warrant Price will be $[ ]
[, plus [accrued amortization of the original issue discount] [accrued interest]
from ________ __, ____]. [If applicable, insert -- In each case, the original
issue discount will be amortized at a [ ]% annual rate, computed on a semiannual
basis, using a 360-day year consisting of twelve 30-day months.] [If applicable,
insert -- The original issue discount for each $[ ] principal amount of [ ] is
$[ ].]
SECTION 2.2 Duration of Warrants. Each Warrant evidenced by
a Warrant Certificate may be exercised in whole at any time, as specified
herein, on or after the date thereof and at or before the close of business on
________ __, ____. Each Warrant not exercised at or before the close of business
on ________ __, ____ shall become void, and all rights of the holder under the
Warrant Certificate evidencing such Warrant and under this Agreement shall
cease.
SECTION 2.3 Exercise of Warrants. (a) During the period
specified in Section 2.2, any whole number of Warrants, if the Warrant
Certificate evidencing the same shall have been countersigned by the Warrant
Agent, may be exercised by providing certain information set forth on the
reverse side of the Warrant Certificate and by paying in full, [in lawful money
of the United States of America] [if applicable, insert relevant amounts in
applicable foreign currency, currency unit or composite currency], [in cash or
by certified check, official bank check or bank wire transfer, in each case] [by
bank wire transfer,] in immediately available funds, the Warrant Price for each
Warrant exercised, to the Warrant Agent at its corporate trust office, [ ];
provided that such exercise is subject to receipt by the Warrant Agent of the
Warrant Certificate with the form of election to purchase [ ] set forth on the
reverse side of the Warrant Certificate properly completed and duly executed.
The date on which payment in full of the Warrant Price is received by the
Warrant Agent for any Warrant which is exercised shall, subject to receipt of
the Warrant Certificate as aforesaid, be deemed to be the date on which such
Warrant is exercised. The Warrant Agent shall deposit all funds received by it
in payment of the Warrant Price for any Warrant which is exercised in the
account of the Company maintained with it for such purpose and shall advise the
Company by telephone at the end of each day on which a wire transfer of the
Warrant Price for the exercise of any Warrants is received of the amount so
deposited to its account. The Warrant Agent shall promptly confirm such
telephonic advice to the Company in writing.
(b) The Warrant Agent shall from time to time, as promptly
as practicable, advise the Company and the Trustee of the number of Warrants
exercised in accordance with the terms and conditions of this Agreement and the
Warrant Certificates, the instructions of each holder of the Warrant
Certificates evidencing such Warrants with respect to delivery of the [ ] to
which such holder is enti tled upon such exercise, and delivery of Warrant
Certificates evidencing the balance, if any, of Warrants remaining after such
exercise and such other information as the Company or the Trustee shall
reasonably require.
4
<PAGE> 8
(c) As soon as practicable after the exercise of any Warrant
or Warrants, the Company shall issue, pursuant to the Indenture, to or upon the
written order of the holder of the Warrant Certificate evidencing such Warrant
or Warrants, the [ ] or [ ] in authorized denominations to which such holder is
entitled, in fully registered form, registered in such name or names as may be
directed by such holder, and, if fewer than all of the Warrants evidenced by
such Warrant Certificate were exercised, a new Warrant Certificate for the
number of warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp or
other tax or other governmental charge required to be paid in connection with
the transfer involved in the issue of the [ ]: and in the event that any such
transfer is involved, the Company shall not be required to issue or deliver any
[ ] until such tax or other charge shall have been paid or it has been
established to the Company's satisfaction that no such tax or other charge is
due.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
SECTION 3.1 No Rights as Holders of [ ] Conferred by
Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced
thereby shall entitle the holder thereof to any of the rights of a holder of the
[ ], including, without limitation, the right to receive the payment of
principal or of interest on the [ ] or to enforce any of the covenants of the [
] or the Indenture except as otherwise provided in the Indenture or pursuant
thereto.
SECTION 3.2 Lost, Stolen, Destroyed or Mutilated Warrant
Certificates. Upon receipt by the Company and the Warrant Agent of evidence
reasonably satisfactory to them of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and of indemnity reasonably
satisfactory to them and, in the case of mutilation, upon surrender thereof to
the Warrant Agent for cancellation, then, in the absence of notice to the
Company or the Warrant Agent that such Warrant Certificate has been acquired by
a bona fide purchaser, the Company shall execute, and an authorized officer of
the Warrant Agent shall manually countersign and deliver, in exchange for or in
lieu of the lost, stolen, destroyed or mutilated Warrant Certificate, a new
Warrant Certificate of the same tenor and for a like number of Warrants. Upon
the issuance of any new Warrant Certificate under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Warrant Agent) in connection therewith. Every
substitute Warrant Certificate executed and delivered pursuant to this
5
<PAGE> 9
Section in lieu of any lost, stolen or destroyed Warrant Certificate shall
constitute an additional contractual obligation of the Company whether or not
the lost, stolen or destroyed Warrant Certificate shall be at any time
enforceable by anyone and shall be entitled to the benefits of this Agreement
equally and proportionately with any and all other Warrant Certificates duly
executed and delivered hereunder. The provisions of this Section are exclusive
with respect to the replacement of lost, stolen, destroyed or mutilated Warrant
Certificates and shall preclude (to the extent lawful) all other rights or
remedies with respect to the replacement of lost, stolen, destroyed or mutilated
Warrant Certificates.
SECTION 3.3 Holder of Warrant Certificate May Enforce
Rights. Notwithstanding any of the provisions of this Agreement, any holder of
any Warrant Certificate, without the consent of the Warrant Agent, and Trustee,
the holder of any [ ] or the holder of any other Warrant Certificate, may, in
his own behalf and for his own benefit, enforce, or institute and maintain any
suit, action or proceeding against the Company suitable to enforce, or otherwise
in respect of, his right to exercise the Warrant or Warrants evidenced by his
Warrant Certificate in the manner provided in his Warrant Certificate and in
this Agreement.
ARTICLE IV
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES
SECTION 4.1 Exchange and Transfer of Warrant Certificates.
Upon surrender at the corporate trust office of the Warrant Agent, Warrant
Certificates may be exchanged for other Warrant Certificates in denominations
evidencing Warrants, each Warrant entitling the holder thereof to purchase $[ ]
principal amount of [ ] at the Warrant Price; provided that such other Warrant
Certificates evidence the same aggregate number of Warrants as the Warrant
Certificates so surrendered. The Warrant Agent shall keep, at its corporate
trust office, the Warrant Register in which, subject to such reasonable
regulations as it may prescribe, it shall register Warrant Certificates and
exchanges and transfers of outstanding Warrant Certificates, upon surrender of
the Warrant Certificates to the Warrant Agent at its corporate trust office for
exchange or registration of transfer, properly endorsed or accompanied by
appropriate instruments of registration of transfer and written instructions for
transfer, all in form satisfactory to the Company and the Warrant Agent. No
service charge shall be made for any exchange of Warrant Certificates, but the
Company may require payment of a sum sufficient to cover any stamp or other tax
or other governmental charge that may be imposed in connection with any such
exchange. Whenever any Warrant Certificates are so surrendered for exchange or
registration of transfer, an authorized officer of the Warrant Agent shall
manually countersign and deliver to the person or persons
6
<PAGE> 10
entitled thereto a Warrant Certificate or Warrant Certificates duly authorized
and executed by the Company, as so requested. The Warrant Agent shall not be
required to effect any exchange or registration of transfer that will result in
the issuance of a Warrant Certificate evidencing a fraction of a Warrant or a
number of full Warrants and a fraction of a Warrant. All Warrant Certificates
issued upon any exchange or registration of transfer of Warrant Certificates
shall be the valid obligations of the Company, evidencing the same obligations,
and entitled to the same benefits under this Agreement, as the Warrant
Certificate surrendered for such exchange or registration of transfer.
SECTION 4.2 Treatment of Holders of Warrant Certificates.
Every holder of a Warrant Certificate, by accepting the same, consents and
agrees with the Company, the Warrant Agent and with every subsequent holder of
such Warrant Certificate that until the transfer of the Warrant Certificate is
registered on the Warrant Register, the Company and the Warrant Agent may treat
the registered holder of a Warrant Certificate as the absolute owner thereof for
any purpose and as the person entitled to exercise the rights represented by the
Warrants evidenced thereby, any notice to the contrary notwithstanding.
SECTION 4.3 Cancellation of Warrant Certificates. Any
Warrant Certificate surrendered for exchange, registration of transfer or
exercise of the Warrants evidenced thereby shall, if surrendered to the Company,
be delivered to the Warrant Agent, and all Warrant Certificates surrendered or
so delivered to the Warrant Agent shall be promptly canceled by the Warrant
Agent and shall not be reissued and, except as expressly permitted by this
Agreement, no Warrant Certificate shall be issued hereunder in lieu thereof. The
Warrant Agent shall promptly notify the Company of any Warrant Certificate which
has been canceled and shall deliver to the Company from time to time or
otherwise dispose of cancelled Warrant Certificates in a manner satisfactory to
the Company.
ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.1 Warrant Agent. The Company hereby appoints [ ]
as Warrant Agent of the Company in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein set forth; and
[ ] hereby accepts such appointment. The Warrant Agent shall have the power and
authority granted to and conferred upon it in the Warrant Certificates and
hereby and such further powers and authority to act on behalf of the Company as
the Company may hereinafter grant to and confer upon it. All of the terms and
provisions with respect to such powers and authority contained in the Warrant
Certificates are subject to and governed by the terms and provisions hereof.
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<PAGE> 11
SECTION 5.2 Conditions of Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following, to all of which the Company agrees
and to all of which the rights hereunder of the holders from time to time of the
Warrant Certificates shall be subject:
(a) Performance by the Company. The Company agrees that it
will take any corporate action which may be reasonably necessary in order to
fulfill its obligations under this Agreement and the Warrant Certificates and
that it will not take any action or suffer to exist any condition which would
materially impair its ability to perform its obligations under this Agreement
and the Warrant Certificates.
(b) Compensation and Indemnification. The Company agrees
promptly to pay the Warrant Agent the compensation to be agreed upon with the
Company for all services rendered by the Warrant Agent and to reimburse the
Warrant Agent for reasonable out-of-pocket expenses (including reasonable
counsel fees) incurred by the Warrant Agent in connection with the services
rendered hereunder by the Warrant Agent. The Company also agrees to indemnify
the Warrant Agent for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on the part of the Warrant
Agent (or its agents or counsel), arising out of or in connection with its
acting as such Warrant Agent hereunder, as well as the cost and reasonable
expenses of defending against any claim of liability in the premises.
(c) Agent for the Company. In acting under this Warrant
Agreement and in connection with the Warrant Certificates, the Warrant Agent is
acting solely as agent of the Company and does not assume any obligation or
relation ship of agency or trust for or with any of the owners or holders of the
Warrant Certificates.
(d) Counsel. The Warrant Agent may consult with counsel
reasonably satisfactory to it and the Company, and the reasonable opinion of
such counsel shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by the Warrant Agent hereunder in good
faith and in accordance with the opinion of such counsel.
(e) Documents. The Warrant Agent shall be protected and
shall incur no liability for or in respect of any action taken or thing suffered
by it in reliance in good faith upon any Warrant Certificates, notice,
direction, consent, certificate, affidavit, statement or other paper or document
reasonably believed by it to be genuine and to have been presented and signed by
the proper parties.
(f) Certain Transactions. The Warrant Agent, and its
officers, directors and employees may become the owner of, or acquire any
interest in, any
8
<PAGE> 12
Warrant Certificates, with the same rights that it or they would have if it were
not the Warrant Agent hereunder, and, to the extent permitted by applicable law,
it or they may engage or be interested in any financial or other transaction
with the Company and may act on, or as depositary, trustee or agent for, any
committee or body of holders of [ ] or other obligations of the Company as
freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement
shall be deemed to prevent the Warrant Agent from acting as trustee under the
Indenture.
(g) No Liability for Interest. The Warrant Agent shall not
be under any liability for interest on any monies at any time received by it
pursuant to any of the provisions of this Agreement or, of the Warrant
Certificates, except through a breach of its obligations under this Agreement.
(h) No Liability for Invalidity. The Warrant Agent shall not
incur any liability with respect to the validity of this Agreement or any of the
Warrant Certificates.
(i) No Responsibility for Representations. The Warrant Agent
shall not be responsible for any of the recitals or representations contained
herein or in the Warrant Certificates (except as to the Warrant Agent's
countersignature thereon), all of which are made solely by the Company.
(j) No Implied Obligations. The Warrant Agent shall be
obligated to perform such duties as are herein and in the Warrant Certificates
specifically set forth, and no implied duties or obligations shall be read into
this Agreement or the Warrant Certificates against the Warrant Agent. The
Warrant Agent shall not be under any obligation to take any action hereunder
which may tend to involve it in any material expense or liability, the payment
of which within a reasonable time is not, in its reasonable opinion, assured to
it. The Warrant Agent shall not be accountable or under any duty or
responsibility for the use by the Company of any of the Warrant Certificates
authenticated by the Warrant Agent and delivered by it to the Company pursuant
to this Agreement or for the application by the Company of the proceeds of the
Warrant Certificates. The Warrant Agent shall have no duty or responsibility in
case of default by the Company in the performance of its covenants or agreements
contained in the Warrant Certificates or in the case of the receipt of any
written demand from a holder of a Warrant Certificate with respect to such
default, including, without limiting the generality of the foregoing, any duty
or responsibility to initiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 6.2 hereof, to make any demand upon
the Company.
SECTION 5.3 Resignation and Appointment of Successor. (a)
The Company agrees, for the benefit of the holders from time to time of the
Warrant
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<PAGE> 13
Certificates, that there shall at all times be a Warrant Agent hereunder until
all of the Warrant Certificates are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent
by giving written notice to the Company of such intention on its part,
specifying the date on which its desired resignation shall become effective;
provided that such date shall not be less than three months after the date on
which such notice is given unless the Company agrees to accept less notice. The
Warrant Agent hereunder may be removed at any time by the filing with it of an
instrument in writing signed by or on behalf of the Company and specifying such
removal and the date when it shall become effective. Such resignation or removal
shall take effect upon the appointment by the Company, as hereinafter provided,
of a successor Warrant Agent (which shall be a bank or trust company authorized
under the laws of the jurisdiction of its organization to exercise corporate
trust powers) and the acceptance of such appointment by such successor Warrant
Agent. The obligation of the Company under Section 5.2(a) shall continue to the
extent set forth therein notwithstanding the resignation or removal of the
Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or
shall be removed, or shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent or shall file a petition seeking relief under Title 11 of
the United States Code as now constituted or hereafter amended, or under any
other applicable Federal or state bankruptcy law or similar law or make an
assignment for the benefit of its creditors or consent to the appointment of a
receiver or custodian of all or any substantial part of its property, or shall
admit in writing its inability to pay or meet its debts as they mature, or if a
receiver or custodian of it or of all or any substantial part of its property
shall be appointed, or if an order of any court shall be entered for relief
against it under the provisions of Title 11 of the United States Code as now
constituted or hereafter amended, or under any other applicable Federal or state
bankruptcy or similar law, or if any public officer shall have taken charge or
control of the Warrant Agent or of its property or affairs, for the purpose of
rehabilitation, conservation or liquidation, a successor Warrant Agent,
qualified as aforesaid, shall be appointed by the Company by an instrument in
writing, filed with the successor Warrant Agent. Upon the appointment as
aforesaid of a successor Warrant Agent and acceptance by the latter of such
appointment, the Warrant Agent so superseded shall cease to be a Warrant Agent
hereunder.
(d) Any successor Warrant Agent appointed hereunder, and
thereupon such successor Warrant Agent without any further act, deed or
conveyance, shall become vested with all the authority, rights, powers, trusts,
immunities, duties and obligations of such predecessor with like effect as if
originally named as Warrant Agent hereunder, and such predecessor, upon payment
of its charges and disbursements then unpaid, shall thereupon become obligated
to transfer, deliver and pay over, and such successor Warrant Agent shall be
entitled to receive, all monies,
10
<PAGE> 14
securities and other property on deposit with or held by such predecessor, as
Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder
may be merged or converted or any corporation with which the Warrant Agent may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation to
which the Warrant Agent shall sell or otherwise transfer all or substantially
all of the assets and business of the Warrant Agent, provided that it shall be
qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
SECTION 5.4 Payments of Taxes. The Company will pay all
stamp and other duties, if any, to which, under the laws of the United States of
America, this Agreement or the original issuance of the Warrant Certificates may
be subject.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 Amendment. This Agreement may be amended by the
parties hereto, without the consent of the holder of any Warrant Certificate,
for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective provision contained herein, or in regard to matters
or questions arising under this Agreement as the Company and the Warrant Agent
may deem necessary or desirable, provided such action shall not adversely affect
the interests of the holders of the Warrant Certificates, and provided further
that the Company and the Warrant Agent may amend this Agreement in any manner
prior to the issuance of any Warrants hereunder. With the consent of the holders
of not less than a majority in number of the then outstanding unexercised
Warrants affected, the Company and the Warrant Agent may modify or amend any
other term of this Agreement; provided, however, that no such modification or
amendment may be made without the consent of the holders affected thereby if
such proposed amendment would (i) shorten the period of time during which the
Warrants may be exercised; (ii) otherwise materially and adversely affect the
exercise rights of the holders of the Warrants; or (iii) reduce the number of
outstanding Warrants.
SECTION 6.2 Notices and Demands to the Company and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to the
Company by the holder of a Warrant Certificate pursuant to the provisions of the
Warrant Certificates or otherwise, the Warrant Agent shall promptly forward such
notice or demand to the Company.
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<PAGE> 15
SECTION 6.3 Addresses. Any communications from the Company
to the Warrant Agent with respect to this Agreement shall be addressed to [ ],
Attention: [ ], and any communications from the Warrant Agent to the Company
with respect to this Agreement shall be addressed to H.J. Heinz Company, 600
Grant Street, Pittsburgh, Pennsylvania 15219, Attention: Senior Vice President
General Counsel (or such other address as shall be specified in writing by the
Warrant Agent or by the Company, respectively).
SECTION 6.4 Applicable Law. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions thereof shall be governed by the laws of
the State of New York.
SECTION 6.5 Delivery of Prospectus. To the extent required
by applicable law, the Company will furnish to the Warrant Agent sufficient
copies of a prospectus and, if applicable, a prospectus supplement relating to
the [ ] deliverable upon exercise of Warrant Certificates (the "Prospectus"),
and the Warrant Agent agrees that upon the exercise of any Warrant Certificate
by the holder thereof, the Warrant Agent will deliver to such holder, prior to
or concurrently with the delivery of the [ ] issued upon such exercise, a
Prospectus.
SECTION 6.6 Obtaining of Governmental Approvals. The Company
will from time to time take all action which may be reasonably necessary to
obtain and keep effective any and all permits, consents and approvals of
governmental agencies and authorities and securities acts filings under United
States Federal and state laws, which may be or become requisite in connection
with the issuance, sale, transfer and delivery of the Warrant Certificates, the
exercise of the Warrants, the issuance, sale, transfer and delivery of the [ ]
issued upon exercise of the Warrants or upon the expiration of the period during
which the Warrants are exercisable.
SECTION 6.7 Persons Having Rights Under Agreement. Nothing
in this Agreement expressed or implied and nothing that may be inferred from any
of the provisions hereof is intended or shall be construed, to confer upon, or
to give to, any person or corporation other than the Company, the Warrant Agent
and the holders of the Warrant Certificates any right, remedy or claim under or
by reason of this Agreement or of any covenant, condition, stipulation, promise
or agreement hereof; and all covenants, conditions, stipulations, promises and
agreements contained in this Agreement shall be for the sole and exclusive
benefit of the Company and the Warrant Agent and their successors and of the
holders of the Warrant Certificates.
SECTION 6.8 Headings. The descriptive headings of the
several Articles and Sections of this Agreement are inserted for convenience
only and shall neither control nor affect the meaning or construction of any of
the provisions hereof.
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<PAGE> 16
SECTION 6.9 Counterparts. This Agreement may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original, and such counterparts shall together constitute one and the same
instrument.
SECTION 6.10 Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times at the principal corporate
trust office of the Warrant Agent in [ ], [ ] for inspection by the holder of
any Warrant Certificate. The Warrant Agent may require such holder to submit his
Warrant Certificate for inspection by it.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be signed by one of its duly authorized officers, and its corporate seal to be
affixed hereunto, and the same to be attested by its secretary or one of its
assistant secretaries; and the Warrant Agent has caused this Agreement to be
signed by one of its duly authorized officers, and its corporate seal to be
affixed hereunto, and the same to be attested by one of its secretaries or
assistant secretaries all as of the day and year first above written.
H.J. HEINZ COMPANY
By
-------------------------------
Name:
Title:
Attest:
- -----------------------------------
[ ]
By
-------------------------------
Name:
Title:
Attest:
- -----------------------------------
13
<PAGE> 17
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
EXERCISABLE ONLY IF COUNTERSIGNED
BY THE WARRANT AGENT AS PROVIDED HEREIN
WARRANT CERTIFICATE REPRESENTING
[ ] WARRANTS TO PURCHASE
[ ]
DUE [ ],
AS DESCRIBED HEREIN.
H.J. HEINZ COMPANY
PURCHASE WARRANT
FOR [ ]
DUE [ ]
VOID AFTER THE CLOSE OF BUSINESS
ON ________ __, ____
This certifies that or registered assigns is the registered
owner of the above indicated number of Warrants, each Warrant entitling such
owner to purchase, at any time on or before the close of business on ________
__, ____, $[ ] principal amount of [ ] due ________ __, ____ (the "[ ]"), of
H.J. Heinz Company (the "Company"), issued and to be issued under the Indenture
(as hereinafter defined), at a purchase price (the "Warrant Price") determined
on the following basis: [If applicable, insert in the following paragraph
relevant amounts in applicable foreign currency, currency unit or composite
currency.]
[If applicable, insert -- The Warrant Price is equal to the
principal amount of [ ] purchased, plus accrued interest from the next preceding
interest payment record date in respect of such [ ].]
[If applicable, insert -- On ________ __, ____ the Warrant
Price is $[ ]. During the period from ________ __, ____, through and including
________ __, ____ the Warrant Price will be $[ ] [, plus [accrued amortization
of the original issue discount] [accrued interest] from ________ __, ____]. On
________ __, ____ through and including ________ __, ____ the Warrant Price will
be $[ ] [, plus [accrued amortization of the original issue discount] [accrued
interest] from ________ __, ____]. [If applicable, insert -- In each case, the
original issue discount will be amortized at a [ ]% annual rate, computed on a
A-1
<PAGE> 18
semiannual basis, using a 360-day year consisting of twelve 30-day months.] [If
applicable, insert -- The original issue discount for each $[ ] principal amount
of [ ] is $[ ].]
The owner may exercise the Warrants evidenced hereby by
providing certain information set forth on the back hereof and by paying in
full, [in lawful money of the United States of America] [if applicable, insert
relevant amounts in applicable foreign currency, currency unit or composite
currency], [in cash or by certified check, official bank check or bank wire
transfer, in each case] [by bank wire transfer,] in immediately available funds,
the Warrant Price for each Warrant exercised, to the Warrant Agent (as
hereinafter defined) and by surrendering this Warrant Certificate, with the
purchase form on the back hereof duly executed, at the corporate trust office of
[ ], or its successors as Warrant Agent (the "Warrant Agent"), currently at the
address specified on the reverse hereof, and upon compliance with and subject to
the conditions set forth herein and in the Warrant Agreement (as hereinafter
defined).
This Warrant Certificate may be exercised to purchase [ ] in
registered form upon exercise of this Warrant Certificate. If exercised in part,
this Warrant Certificate may be exercised only to purchase [ ] in registered
form in denominations of [ ] and any integral multiples thereof. Upon any
partial exercise of this Warrant Certificate, there shall be issued to the
holder hereof a new Warrant Certificate in respect of the number of Warrants as
to which this Warrant Certificate was not exercised.
This Warrant Certificate is issued under and in accordance with
the Warrant Agreement, dated as of ________ __, ____ (the "Warrant Agreement"),
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the holder of this Warrant Certificate consents by acceptance hereof.
Copies of the Warrant Agreement are on file at the above-mentioned office of the
Warrant Agent.
The [ ] to be issued and delivered upon the exercise of this
Warrant Certificate will be issued under and in accordance with an Indenture,
dated as of ________ __, ____ (the "Indenture"), between the Company and [ ] as
trustee ([ ] and any successor or successors as such trustee being hereinafter
referred to as the "Trustee"), and will be subject to the terms and provisions
contained in the [ ] and in the Indenture. Copies of the Indenture are on file
at the corporate trust office of the Trustee [in [city, state]].
The Warrant Certificate may be surrendered for registration of
transfer at the corporate trust office of the Warrant Agent by the registered
owner or his assigns, in person or by an attorney duly authorized in writing, in
the manner and subject to the limitations provided in the Warrant Agreement.
A-2
<PAGE> 19
After countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent in [ ], [ ] for
Warrant Certificates representing the same aggregate number of Warrants, in the
manner and subject to the limitations provided in the Warrant Agreement.
This Warrant Certificate shall not entitle the holder hereof to
any of the rights of a holder of the [ ], including, without limitation, the
right to receive payments of principal of and interest, if any, on the [ ] or to
enforce any of the covenants of the [ ] or the Indenture, except as otherwise
provided in the Indenture.
This Warrant Certificate shall for all purposes be governed by,
and construed in accordance with, the laws of the State of New York.
This Warrant Certificate shall not be valid or obligatory for
any purpose until countersigned by the Warrant Agent.
Dated as of ________ __, ____.
IN WITNESS HEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
H.J. HEINZ COMPANY
By:
------------------------------------
Name:
Title:
Attest:
- ------------------------------------
Countersigned:
[ ]
as Warrant Agent
By
----------------------------------
Authorized Signature
A-3
<PAGE> 20
(Instructions for Exercise of Warrants)
To exercise the Warrants represented hereby, the Warrant holder
should pay [in cash or by certified check, official bank check or bank wire
transfer, in each case] [by bank wire transfer,] in immediately available funds,
the Warrant Price in full for Warrants exercised, to [insert name of Warrant
Agent] Corporate Trust Department, [insert address of Warrant Agent], Attn: [ ],
which [payment] [wire transfer] should specify the name of the Warrant holder
and the number of Warrants exercised by such Warrant holder. In addition, the
Warrant holder should complete the information required below and mail this
Warrant Certificate by registered mail to the Warrant Agent at the address set
forth below. This Warrant Certificate, completed and duly executed, must be
received by the Warrant Agent before any [ ] subject hereto will be issued.
A-4
<PAGE> 21
[FORM OF ELECTION TO PURCHASE]
(To be executed upon exercise of Warrants)
The undersigned hereby irrevocably elects to exercise Warrants,
represented by this Warrant Certificate, to purchase $[ ] principal amount of
the [ ] due [ ] (the "[ ]") of H.J. Heinz Company and represents that he has
tendered payment for such [ ] [in cash or by certified check, official bank
check or bank wire transfer, in each case] [by bank wire transfer,] in
immediately available funds, to the order of H.J. Heinz Company, c/o [insert
name and address of Warrant Agent], in the amount of $[ ] in accordance with the
terms hereof. The undersigned requests that said principal amount of [ ] be in
fully registered form, in the authorized denominations, registered in such names
and delivered, all as specified in accordance with the instructions set forth
below.
If said principal amount of [ ] is less than all of the [ ]
purchasable hereunder, the undersigned requests that a new Warrant Certificate
repre senting the remaining balance of the Warrants evidenced hereby be issued
and delivered to the undersigned at the address set forth below unless otherwise
specified in the instructions below.
Dated:
Name:
- ---------------------------------- ----------------------------
(Insert Social Security or (Please Print)
Other Identifying Number of Holder)
Address:
-------------------------
-------------------------
Signature:
-----------------------
This Warrant may be exercised by hand or by mail at the following address:
By Hand at: [ ]
By Mail at: [Instructions as to form and delivery of [ ]
and/or Warrant Certificates -- complete as appropriate.]
Special instructions as to form and delivery of [ ] and, if
applicable, Warrant Certificates evidencing unexercised Warrants:
[ ]: Please issue [ ] in denominations of [ ] registered in the
name of [ ] ([social security] [other identifying] number [ ]), [complete
address], and deliver the same to [name and complete address].
A-5
<PAGE> 22
Warrants: Please issue a new Warrant Certificate registered in
the name of [ ] ([social security] [other identifying] number [ ]), [complete
address], and deliver the same to [name and complete address].
A-6
<PAGE> 23
Assignment
(Form of Assignment To Be Executed If Holder
Desires to Transfer Warrants Evidenced Hereby)
FOR VALUE RECEIVED
----------------------------------------
hereby sells, assigns and transfers unto
- ---------------------------------------------------------------------
(Please print name and address including zip code and specify social security or
other identifying number)
- ---------------------------------------------------------------------
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _________________________ Attorney, to
transfer said Warrant Certificate on the books of the Company with full power of
substitution in the premises.
Dated:
--------------------------------------
Signature
(Signature must conform in all respects to
name of holder as specified on the face of
this Warrant Certificate and must bear a
signature guarantee by a bank, trust
company or member firm of a national
securities exchange.)
Signature Guaranteed
- ------------------------------------
A-7
<PAGE> 1
HEINZ LOGO
WORLD HEADQUARTERS
600 Grant Street
Pittsburgh, Pennsylvania 15219-2857
Lawrence J. McCabe EXHIBIT 5
Senior Vice President,
General Counsel and Secretary
March 16, 1998
H.J. Heinz Company
600 Grant Street
Pittsburgh, Pennsylvania 15219
Registration Statement on Form S-3
Gentlemen:
I am Senior Vice President, General Counsel and Secretary of H.J. Heinz
Company, a Pennsylvania corporation (the "Company"). This opinion is being
furnished to you in connection with the Company's Registration Statement on
Form S-3 (the "Registration Statement") for the registration under
the Securities Act of 1933 as amended (the "Securities Act"), of $750,000,000
aggregate principal amount of debt securities of the Company, (the "Debt
Securities") and warrants to purchase Debt Securities (the "Warrants") to be
offered from time to time pursuant to the Registration Statement.
As counsel for the Company, I have examined and am familiar with originals
or copies, certified or otherwise, identified to my satisfaction, of such
statutes, documents, corporate records, certificates of public officials and
other instruments as I have deemed necessary for the purpose of this opinion,
including the Indenture dated July 15, 1992 between the Company and The First
National Bank of Chicago, as Trustee (the "Indenture"), the Amended and Restated
Articles of Incorporation and By-Laws of the Company and the records of the
proceedings of the shareholders and directors of the Company.
Upon the basis of the foregoing, I am of the opinion that:
(a) The Company has been duly incorporated and is validly existing and in
good standing as a corporation under the laws of the Commonwealth of
Pennsylvania;
(b) When the Registration Statement shall have been declared effective by
order of the Securities and Exchange Commission, the terms of the Debt
Securities and Warrants and of their issue and sale have been duly authorized,
with respect to the Debt Securities, in conformity with the Indenture, and, with
respect to the Warrants, in conformity with the Warrant Agreement, and the Debt
Securities and Warrants shall have been duly executed by the Company and, with
respect to the Debt Securities, authenticated and delivered by the Trustee in
accordance with the Indenture and the Debt Securities and Warrants shall have
been issued and sold as contemplated in the Registration Statement, then the
Debt Securities and Warrants will be legally issued and will constitute valid
and binding obligations of the Company in accordance with their terms, subject
as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, and
other laws of general applicability relating to or affecting creditors' rights
and to general equity principles and shall be entitled to the benefits of the
Indenture and Warrant Agreement, as the case may be, respectively.
I am qualified to practice law in the Commonwealth of Pennsylvania, and I
do not purport to be an expert in the laws of any jurisdiction other than the
Commonwealth of Pennsylvania and the United States of America.
I consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to my name in the Registration Statement.
Very truly yours,
Lawrence J. McCabe
LJM/mll
<PAGE> 1
EXHIBIT 12
H. J. HEINZ COMPANY AND SUBSIDIARIES
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
NINE MONTHS FISCAL YEARS ENDED
ENDED ----------------------------------------------------------------------------
JANUARY 28, 1998 APRIL 30, 1997 MAY 1, 1996 MAY 3, 1995 APRIL 27, 1994 APRIL 28, 1993
---------------- -------------- ----------- ----------- -------------- --------------
(IN THOUSANDS, EXCEPT RATIOS)
<S> <C> <C> <C> <C> <C> <C>
FIXED CHARGES:
Interest Expense*...... $ 192,291 $277,818 $ 279,368 $ 212,123 $ 150,598 $147,113
Capitalized Interest... 1,445 2,688 1,007 414 770 9,369
Interest Component of
Rental Expense...... 22,620 27,382 26,728 24,200 26,638 26,433
---------- -------- ---------- ---------- ---------- --------
Total Fixed
Charges........ $ 216,356 $307,888 $ 307,103 $ 236,737 $ 178,006 $182,915
---------- -------- ---------- ---------- ---------- --------
EARNINGS:
Income Before Income
Taxes and Cumulative
Effect of Accounting
Change+............. $ 967,253 $479,064 $1,023,661 $ 938,007 $ 922,386 $715,781
Add: Interest
Expense*............ 192,291 277,818 279,368 212,123 150,598 147,113
Add: Interest Component
of Rental Expense... 22,620 27,382 26,728 24,200 26,638 26,433
Add: Amortization of
Capitalized
Interest............ 2,672 3,454 3,399 3,465 3,327 2,944
---------- -------- ---------- ---------- ---------- --------
Earnings as Adjusted... $1,184,836 $787,718 $1,333,156 $1,177,795 $1,102,949 $892,271
---------- -------- ---------- ---------- ---------- --------
Ratio of Earnings to
Fixed Charges....... 5.48 2.56 4.34 4.98 6.20 4.88
========== ======== ========== ========== ========== ========
</TABLE>
- ---------
* Interest expense includes amortization of debt expense and any discount or
premium relating to indebtedness.
+ During the fiscal year ended April 28, 1993, the Company adopted the
provisions of Statement of Financial Accounting Standards No. 106, "Employers'
Accounting for Postretirement Benefits Other Than Pensions."
<PAGE> 1
EXHIBIT 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement of
H.J. Heinz Company on Form S-3 (File No. 333- ) of our reports dated June 17,
1997, except for Note 16, as to which the date is June 30, 1997, on our audits
of the consolidated financial statements and financial statement schedules of
H.J. Heinz Company and Subsidiaries as of April 30, 1997 and May 1, 1996 and for
each of the three years in the period ended April 30, 1997, which report is
included in the H.J. Heinz Company Annual Report on Form 10-K for the year ended
April 30, 1997. We also consent to the reference to our firm under the caption
"Experts" in the Registration Statement.
Coopers & Lybrand L.L.P.
Pittsburgh, PA
March 16, 1998
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Anthony J. F. O'Reilly, Paul F. Renne
and Lawrence J. McCabe, and each of them, such person's true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for such person and in his or her name, place and stead, in any and all
capacities, to sign a Registration Statement on Form S-3 and to sign any and
all amendments to said Registration Statement and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as such person might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
This Power of Attorney has been signed below as of the 10th day of
September, 1997 by the following persons in the capacities indicated.
Signature Title
- ---------- ------
/s/ Anthony J. F. O'Reilly Chairman of the Board and
- ------------------------------------ Chief Executive Officer and
Anthony J. F. O'Reilly Director (Principal Executive
Officer)
/s/ Paul F. Renne Executive Vice President and
- ------------------------------------ Chief Financial Officer and
Paul F. Renne Director (Principal Financial
Officer)
/s/ Edward J. McMenamin Vice President and Corporate
- ----------------------------------- Controller (Principal Accounting
Edward J. McMenamin Officer)
/s/ William P. Snyder III Director
- -----------------------------------
William P. Snyder III
/s/ Joseph J. Bogdanovich Director
- -----------------------------------
Joseph J. Bogdanovich
/s/ Herman J. Schmidt Director
- ----------------------------------
Herman J. Schmidt
<PAGE> 2
/s/ Eleanor B. Sheldon Director
- ----------------------------------
Eleanor B. Sheldon
/s/ Richard M. Cyert Director
- ----------------------------------
Richard M. Cyert
/s/ Samuel C. Johnson Director
- ----------------------------------
Samuel C. Johnson
/s/ Donald R. Keough Director
- ----------------------------------
Donald R. Keough
/s/ S. Donald Wiley Director
- ----------------------------------
S. Donald Wiley
/s/ Lawrence J. McCabe Director
- ----------------------------------
Lawrence J. McCabe
/s/ David R. Williams Director
- ----------------------------------
David R. Williams
/s/ Luigi Ribolla Director
- ----------------------------------
Luigi Ribolla
/s/ Nicholas F. Brady Director
- ----------------------------------
Nicholas F. Brady
/s/ William R. Johnson Director
- ----------------------------------
William R. Johnson
/s/ William C. Springer Director
- ----------------------------------
William C. Springer
/s/ Edith E. Holiday Director
- ----------------------------------
Edith E. Holiday
<PAGE> 1
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)___
------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
----------------------------
H.J. HEINZ COMPANY
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER
PENNSYLVANIA 25-0542520
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
600 GRANT STREET
PITTSBURGH, PENNSYLVANIA 15219
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION
AS TO THE TRUSTEE:
(a) Name and address of each examining or supervising
authority to which it is subject.
The Comptroller of Currency, Washington, D.C.,
The Federal Deposit Insurance Corporation,
Washington D.C.
The Board of Governors of the Federal Reserve System,
Washington D.C.
(b) Whether it is authorized to exercise corporate
trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate
of the trustee, describe each such affiliation.
No such affiliation exists with the trustee.
Item 16. LIST OF EXHIBITS. List below all exhibits filed as a part of
this Statement of Eligibility.
1. A copy of the articles of association of the trustee
as now in effect.*
2. A copy of the certificates of authority of the trustee
to commence business*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
2
<PAGE> 3
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended,
the trustee, The Trust National Bank of Chicago, a national banking association
organized and existing under the laws of the United States of America, has duly
caused this Statement of Eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Chicago and State of
Illinois, on the 27th day of February, 1998.
The First National Bank of Chicago,
Trustee
By /s/ Steven M. Wagner
-------------------------------------
Steven M. Wagner
Vice President
*Exhibits 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 of The First National Bank
of Chicago, filed as Exhibit 25.1 to the Registration Statement on Form S-3 of
SunAmerica Inc. filed with the Securities and Exchange Commission on October
25, 1996 (Registration No. 333-14201).
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
February 27, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between H.J. Heinz Company
and The First National Bank of Chicago, the undersigned, in accordance with
Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents
that the reports of examinations of the undersigned, made by Federal or State
authorities authorized to make such examinations, may be furnished by such
authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By: /s/ Steven M. Wagner
------------------------------
Steven M. Wagner
Vice President
4
<PAGE> 5
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date:
09/30/97 ST-BK: 17-1630 FFIEC 031 Page RC-1
Address: One First National Plaza, Ste 0303
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR SEPTEMBER 30, 1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
C400
Dollar Amounts in ------------
Thousands RCFD BIL MIL THOU
----------------- ---- -------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1)........... 0081 4,999,157 1.a.
b. Interest-bearing balances(2)................................... 0071 6,967,103 1.b.
2. Securities
a. Held-to-maturity securities (from Schedule RC-B, column A)...... 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D).... 1773 5,251,713 2.b.
3. Federal funds sold and securities purchased under agreements to
resell.............................................................. 1350 5,561,976 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
(RC-C).............................................................. RCFD 2122 24,171,565 4.a.
b. LESS: Allowance for loan and lease losses....................... RCFD 3123 419,216 4.b.
c. LESS: Allocated transfer risk reserve........................... RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c)........................... 2125 23,752,349 4.d.
5. Trading assets (from Schedule RD-D)................................ 3545 6,238,805 5.
6. Premises and fixed assets (including capitalized leases)........... 2145 717,303 6.
7. Other real estate owned (from Schedule RC-M)....................... 2150 7,187 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M).................................... 2130 77,115 8.
9. Customers' liability to this bank on acceptances outstanding...... 2155 614,921 9.
10. Intangible assets (from Schedule RC-M)............................ 2143 277,105 10.
11. Other assets (from Schedule RC-F)................................. 2160 2,147,141 11.
12. Total assets (sum of items 1 through 11).......................... 2170 56,108,875 12.
</TABLE>
- ------------------------------
(1) Includes cash items in process of collection and unposted debits
(2) Includes time certificates of deposit not held for trading.
5
<PAGE> 6
Legal Title of Bank: The First National Bank of Chicago Call Date:
09/30/97 ST-BK: 17-1630 FFIEC 031 Page RC-2
Address: One First National Plaza, Ste 0303
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR SEPTEMBER 30, 1997
SCHEDULE RC--Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands BIL MIL THOU
----------------- -------------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1)....................................... RCON 2200 21,496,468 13.a
(1) Noninterest bearing(1)........................................ RCON 6631 8,918,843 13.a.1
(2) Interest bearing.............................................. RCON 6636 12,577,625 13.a.2
b. In foreign offices. Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)................................ RCFN 2200 14,164,129 13.b.
(1) Noninterest bearing........................................... RCFN 6631 352,399 13.a.1
(2) Interest bearing.............................................. RCFN 6636 13,811,730 13.b.2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 3,894,469 14.
15. a. Demand notes issued to the U.S. Treasury RCON 2840 68,268 15.a.
b. Trading Liabilities (from Schedule RC-D)....................... RCFD 3548 5,247,232 15.b.
16. Other borrowed money:
a. With a remaining maturity of one year or less................... RCFD 2332 2,608,057 16.a.
b. With a remaining maturity of more than one year through
three years....................................................... A547 379,893 16.b.
c. With a remaining maturity of more than three years............. A548 323,042 16.c.
17. Not applicable
18. Bank's liability on acceptance executed and outstanding........... RCFD 2920 614,921 18.
19. Subordinated notes and debentures (2)............................. RCFD 3200 1,700,000 19.
20. Other liabilities (from Schedule RC-G)............................ RCFD 2930 1,222,121 20.
21. Total liabilities (sum of items 13 through 20).................... RCFD 2948 51,718,600 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus..................... RCFD 3838 0 23.
24. Common stock...................................................... RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock).......... RCFD 3839 2,989,408 25.
26. a. Undivided profits and capital reserves......................... RCFD 3632 1,175,518 26.a.
b. Net Unrealized holding gains (losses) on available-for-sale
securities..................................................... RCFD 8434 26,750 26.b.
27. Cumulative foreign currency translation adjustments............... RCFD 3284 (2,259) 27.
28. Total equity capital (sum of items 23 through 27).................. RCFD 3210 4,390,275 28.
29. Total liabilities and equity capital (sum of items 21 and 28)..... RCFD 3300 56,108,875 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement
below that best describes the most comprehensive level
of auditing work performed for the bank by independent Number
external auditors as of any date during 1996...RCFD 6724 [N/A]
1.= Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank.
2.= Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated
holding company (but not on the bank separately).
3.= Directors' examination of the bank conducted in accordance with
generally accepted auditing standards by a certified public accounting
firm (may be required by state chartering authority)
4.= Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5.= Review of the bank' financial statements by external auditors
6.= Compilation of the bank's financial statements by external auditors
7.= Other audit procedures (excluding tax preparation work)
8.= No external audit work
- --------------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
6
<PAGE> 1
EXHIBIT 99
RESTATEMENT OF CERTAIN EARNINGS PER SHARE DATA
IN ACCORDANCE WITH SFAS NO. 128 "EARNINGS PER SHARE"
The following selected financial data previously provided in Item 6 of the
Company's Annual Report on Form 10-K for the fiscal year ended April 30, 1997
and supplemental information previously provided in Note 13 to the Consolidated
Financial Statements included in the Company's Annual Report to Shareholders for
the fiscal year ended April 30, 1997 are being restated in connection with the
adoption by the Company of SFAS No. 128 "Earnings Per Share."
ITEM 6. SELECTED FINANCIAL DATA.
The following table presents selected consolidated financial data for
the Company and its subsidiaries for each of the five fiscal years 1993 through
1997. All amounts are in thousands except per share data. Prior years per share
amounts have been adjusted to reflect the three-for-two stock split, which was
effective October 3, 1995.
<TABLE>
<CAPTION>
Fiscal year ended
-------------------------------------------------------------------------------
April 30, May 1, May 3, April 27, April 28,
1997 1996 1995 1994 1993
(52 Weeks) (52 Weeks) (53 Weeks) (52 Weeks) (52 Weeks)
---------- --------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Sales ......................................... $9,357,007 $9,112,265 $8,086,794 $7,046,738 $7,103,374
Interest expense .............................. 274,746 277,411 210,585 149,243 146,491
Income before cumulative effect
of accounting change ........................ 301,871 659,319 591,025 602,944 529,943
Net income .................................... 301,871 659,319 591,025 602,944 396,313
Income before cumulative effect of accounting
change per share--diluted ................... 0.81 1.75 1.58 1.56 1.36
Income before cumulative effect of accounting
change per share--basic ..................... 0.82 1.79 1.61 1.59 1.39
Net income per share--diluted ................. 0.81 1.75 1.58 1.56 1.02
Net income per share--basic ................... 0.82 1.79 1.61 1.59 1.04
Short-term debt and current portion of
long-term debt .............................. 1,163,442 1,082,169 1,074,291 439,701 1,604,355
Long-term debt, exclusive of
current portion ............................. 2,283,993 2,281,659 2,326,785 1,727,002 1,009,381
Total assets .................................. 8,437,787 8,623,691 8,247,188 6,381,146 6,821,321
Cash dividends per common share ............... 1.13 1/2 1.03 1/2 0.94 0.86 0.78
</TABLE>
Results recorded in 1997 include a pretax charge for restructuring and
related costs of $647.2 million ($1.09 per diluted share). See Note 4 to the
Consolidated Financial Statements beginning on page 44 of the Company's Annual
Report to Shareholders for the fiscal year ended April 30, 1997. These charges
were partially offset by gains recognized on the sale of the New Zealand ice
cream business, $72.1 million pretax ($0.12 per diluted share) and real estate
in the United Kingdom, $13.2 million pretax ($0.02 per diluted share). See
Notes 3 and 13 to the Consolidated Financial Statements on pages 44 and 57,
respectively, of the Company's Annual Report to Shareholders for the fiscal
year ended April 30, 1997.
Results recorded in 1996 include gains related to the sale of the Weight
Watchers Magazine ($0.02 per diluted share) and the sale of two regional dry pet
food product lines ($0.02 per diluted share) and a charge for restructuring
costs at certain overseas affiliates ($0.01 per diluted share). See Note 13 to
the Consolidated Financial Statements on page 57 of the Company's Annual Report
to Shareholders for the fiscal year ended April 30, 1997.
During 1995, the Company invested approximately $1.2 billion in
acquisitions, the most significant of which was the North American pet food
businesses of the Quaker Oats Company. See Note 2 to the Consolidated Financial
Statements, beginning on page 41 of the Company's Annual Report to Shareholders
for the fiscal year ended April 30, 1997.
Results recorded in 1994 include gains from the sale of the
confectionery business of Heinz Italy and the sale of Heinz U.S.A.'s Near
East specialty rice business.
During 1993, the Company adopted the provisions of SFAS No. 106 and
elected immediate recognition of the accumulated postretirement benefit
obligation for active and retired employees, resulting in an after-tax
cumulative charge of $133.6 million (net of income tax benefit of $85.4
million), or $0.34 per diluted share. In addition, the adoption of SFAS No. 106
increased the Company's pretax postretirement benefit expense by $16.3 million
($0.03 per diluted share) in 1993.
In 1993, restructuring charges of $192.3 million on a pretax basis
($0.30 per diluted share) were reflected in operating income. The major
components of the restructuring plan related to employee severance and
relocation costs ($99.0 million) and facilities consolidation and closure
costs ($73.0 million).
Note: The basic per share amounts for the items noted above are not
significantly different from the diluted per share amounts.
<PAGE> 2
13. QUARTERLY RESULTS (UNAUDITED)
<TABLE>
<CAPTION>
1997
- -----------------------------------------------------------------------------------------------------------------------------------
(Dollars in thousands, except per share data) First Second Third Fourth Total
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Sales $2,208,760 $2,394,058 $2,307,538 $2,446,651 $9,357,007
Gross profit 795,639 847,504 848,289 480,484 2,971,916
Net income (loss) 179,530 177,520 174,387 (229,566) 301,871
Per Share Amounts:
Net income (loss)--diluted $0.48 $0.47 $0.47 $(0.62) $0.81
Net income (loss)--basic 0.49 0.48 0.47 (0.62) 0.82
Dividends 0.26 1/2 0.29 0.29 0.29 1.13 1/2
1996
- -----------------------------------------------------------------------------------------------------------------------------------
(Dollars in thousands, except per share data) First Second Third Fourth Total
- -----------------------------------------------------------------------------------------------------------------------------------
Sales $2,094,293 $2,288,277 $2,193,138 $2,536,557 $9,112,265
Gross profit 774,308 822,931 812,308 927,361 3,336,908
Net income 174,469 158,167 156,484 170,199 659,319
Per Share Amounts:
Net income--diluted $0.46 $0.42 $0.41 $0.45 $1.75
Net income--basic 0.47 0.43 0.42 0.46 1.79
Dividends 0.24 0.26 1/2 0.26 1/2 0.26 1/2 1.03 1/2
</TABLE>
Third-quarter 1997 results include restructuring and related costs
($0.03 per diluted share), partially offset by a gain on the sale of real
estate in the U.K. ($0.02 per diluted share).
Fourth-quarter 1997 results include restructuring and related costs
($1.06 per diluted share). (See Note 4 to the Consolidated Financial
Statements.) These charges were partially offset by a gain on the sale of the
New Zealand ice cream business ($0.12 per diluted share). (See Note 3 to the
Consolidated Financial Statements.)
Fourth-quarter 1996 results include gains related to the sale of the
Weight Watchers Magazine ($0.02 per diluted share) and the sale of two regional
dry pet food product lines ($0.02 per diluted share) and a charge for
restructuring costs at certain overseas affiliates ($0.01 per diluted share).
Fourth-quarter 1996 earnings also benefited from a lower effective tax
rate resulting from the recognition of tax losses overseas and increased
profits from operations in lower tax rate jurisdictions ($0.04 per diluted
share). (See Note 5 to the Consolidated Financial Statements.)
Note: The basic per share amounts for the items noted above are not
significantly different from the diluted per share amounts.
