UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
January 15, 1998
Date of Report (Date of earliest event reported)
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Nabisco Holdings Corp.
(Exact Name of Registrant as Specified in its Charter)
<TABLE>
<CAPTION>
<S> <C> <C>
DELAWARE 1-13556 13-3077142
(Jurisdiction of Incorporation or (Commission file number) (I.R.S. Employer Identification
Organization) No.)
</TABLE>
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Nabisco, Inc.
(Exact Name of Registrant as Specified in its Charter)
<TABLE>
<CAPTION>
<S> <C> <C>
NEW JERSEY 1-1021 13-1841519
(Jurisdiction of Incorporation or (Commission file number) (I.R.S. Employer Identification
Organization) No.)
</TABLE>
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7 Campus Drive
Parsippany, New Jersey 07054
(973) 682-5000
(Address, including zip code, and telephone number, including
area code, of Registrants' principal executive offices)
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Item 7. Financial Statements and Exhibits.
On January 15, 1998, Nabisco, Inc. agreed to sell an aggregate of
$1,000,000,000 principal amount of notes. The exhibits filed herewith relate
to the issuance and sale of such notes.
Exhibits
(1) Form of Third Supplemental Indenture between the Company and
Citibank, N.A., as trustee, supplemental to the Indenture dated as of
June 5, 1995 between the Company and Citibank, N.A., as trustee.
(2) Form of Opinion of Skadden, Arps, Slate, Meagher & Flom, special tax
counsel to the Company.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, hereunto duly authorized.
NABISCO, INC.
(Registrant)
By: /s/ James A. Kirkman III
------------------------------------
James A. Kirkman III
Executive Vice President, General
Counsel and Secretary
Date: January 22, 1998
EXHIBIT 1
NABISCO, INC.
and
CITIBANK, N.A.
as Trustee
--------------------
THIRD SUPPLEMENTAL INDENTURE
Dated as of January 22, 1998
(Supplemental to Indenture dated as of June 5, 1995)
--------------------
TABLE OF CONTENTS
Page
SECTION 1. Defined Terms....................................................1
SECTION 2. The Notes........................................................2
SECTION 3. Call Option......................................................3
SECTION 4. Put Option.......................................................5
SECTION 5. Coupon Reset Process.............................................5
SECTION 6. Amendment to Original Indenture..................................9
SECTION 7. Ambit of Supplemental Indenture................................10
SECTION 8. Ratification of Indenture.......................................10
SECTION 9. The Trustee.....................................................10
SECTION 10. Incorporation of Terms of Notes................................10
SECTION 11. Counterparts...................................................10
SECTION 12. Governing Law..................................................10
EXHIBITS
A - FORM OF 6% NOTE
B - FORM OF 6 1/8% NOTE
C - FORM OF 6 3/8% NOTE
THIRD SUPPLEMENTAL INDENTURE dated as of January 22, 1998
between Nabisco, Inc., a New Jersey corporation, and Citibank, N.A., a
national association, as Trustee;
WHEREAS, the Company has executed and delivered an Indenture
dated as of June 5, 1995 (the "Original Indenture") between the Company and
the Trustee providing for the issue from time to time of its debentures, notes
or other evidences of indebtedness in one or more series (the "Securities");
WHEREAS, the Company has executed and delivered a First
Supplemental Indenture dated as of June 5, 1995 and a Second Supplemental
Indenture dated as of August 26, 1997, in each case between the Company and
the Trustee;
WHEREAS, Sections 9.1(5) and 9.1(7) of the Original Indenture
provide that the Original Indenture may be amended without the consent of the
holders of the Securities in order to establish the form or forms or terms of
Securities of any series or of the coupons appertaining to such Securities as
permitted by Section 2.3 of the Original Indenture or to make any change that
does not materially and adversely affect the rights of any Holder;
WHEREAS, all conditions and requirements necessary to make this
Third Supplemental Indenture a valid and binding instrument in accordance with
its terms and the terms of the Original Indenture have been satisfied;
NOW, THEREFORE, this Third Supplemental Indenture
W I T N E S S E T H:
That in consideration of the premises and of the mutual
covenants herein contained, and in order to set forth the terms of the
following Securities, the Company and the Trustee hereby agree as follows:
SECTION 1. Defined Terms.
(a) For all purposes of this Third Supplemental Indenture,
except as otherwise expressly provided or unless the context otherwise
requires, all capitalized terms used and not defined herein that are defined
in the Original Indenture shall have the meanings assigned to them in the
Original Indenture. The Original Indenture, as supplemented from time to
time, including by this Third Supplemental Indenture, is hereafter referred to
as the "Indenture".
(b) The following terms are defined in the following sections
hereof:
6% Notes, 6 1/8% Notes and 6 3/8% Notes 2(a)
Bid 5(b)(ii)
Bid Date 5(b)(ii)
Business Day 3(a)
Calculation Agent 5(a)
Call Option 3(a)
Call Price 3(a)
Callholder 3(a)
Coupon Reset Date 2(b)
Coupon Reset Rate 5(b)
Dealer 5(b)(ii)
Dealer List 5(b)(i)
DTC 2(b)
Indenture 1(a)
Interest Payment Date 2(b)
Nabisco Call Option 3(c)(iii)
Notes 2(a)
Notes Premium 5(b)(iii)
Original Indenture Preamble
Purchase Price 5(b)(iii)
Put Option 4
Put Price 4
Reasonable Cause 5(f)
Securities Preamble
Selected Bid 5(b)(iv)
Strike Rate 5(b)(iii)
Treasury Rate 5(b)(iii)
Yield to Maturity 5(b)(ii)
SECTION 2. The Notes.
(a) Establishment of Three Series of Notes. Pursuant to
Sections 2.1 and 2.3 of the Original Indenture, the Company shall issue three
series of Securities under the Original Indenture, with the terms set forth in
Sections 2 through 5 hereof, designated the 6% Notes due February 15, 2011,
Putable/Callable February 15, 2001 (the "6% Notes"), the 6 1/8% Notes due
February 1, 2033, Putable/Callable February 1, 2003 (the "6 1/8% Notes") and
the 6 3/8% Notes due February 1, 2035, Putable/Callable February 1, 2005 (the
"6 3/8 Notes"), respectively (the 6% Notes, the 6 1/8% Notes and the 6 3/8%
Notes are each referred to herein as a "series of Notes" and are collectively
referred to as the "Notes"). The Notes shall be substantially in the forms set
forth in Exhibits A, B and C hereto.
(b) Certain Terms of the Notes. The Notes will be maintained
exclusively in global form through the facilities of The Depository Trust
Company, or successors or assigns thereof ("DTC") except in the limited
circumstances described in Section 2.7 of the Original Indenture, and
beneficial interests therein may be acquired, or subsequently transferred,
only in denominations of $1,000 or integral multiples thereof. The Notes
shall also have the following terms:
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Terms 6% Notes 6 1/8% Notes 6 3/8% Notes
- ----------------------------------- ----------------------- ---------------------- ----------------------
Aggregate principal amount $400,000,000 $300,000,000 $300,000,000
Final Maturity Date February 15, 2011 February 1, 2033 February 1, 2035
Interest will be paid by the Each February 15 and Each February 1 and Each February 1 and
Company on the following August 15, commencing August 1, commencing August 1, commencing
dates (each, an "Interest August 15, 1998 August 1, 1998 August 1, 1998
Payment Date")
Interest will be paid to Each January 31 and Each January 17 and Each January 17 and
holders of record on the July 31, commencing July 17, commencing July 17, commencing
following dates July 31, 1998 July 17, 1998 July 17, 1998
Coupon Reset Date February 15, 2001 February 1, 2003 February 1, 2005
</TABLE>
On the "Coupon Reset Date" applicable to each series of Notes, such Notes will
either be (i) purchased in whole but not in part by the applicable Callholder
pursuant to the applicable Call Option and the interest rate of such Notes
shall be reset pursuant to the procedures set forth in Section 5 hereof, or
(ii) purchased in whole but not in part by the Company after the exercise by
the Trustee of the applicable Put Option.
If DTC is not the holder of the applicable Notes on the
applicable Coupon Reset Date, payment and delivery shall be made through the
facilities of its successor or assign, if any. If the Notes are issued under
the circumstances described in Section 2.7 of the Indenture, payment shall be
made at the Corporate Office of the Trustee against surrender of the
applicable Notes.
SECTION 3. Call Option.
(a) Call Option. The Company (or its successor or assign) has
the right to purchase each of the 6% Notes, the 6 1/8% Notes and the 6 3/8%
Notes, in whole but not in part (with respect to each series of Notes, a "Call
Option"), at a price equal to 100% of the principal amount of such series of
Notes (for each series of Notes, a "Call Price"), on the corresponding Coupon
Reset Date. The Company, as holder of a Call Option in respect of each series
of Notes, or any person to which such Call Option is assigned in accordance
with to subsection 3(e) hereof, is referred to herein as the "Callholder" in
respect of the series of Notes to which such Call Option corresponds.
If the applicable Callholder exercises its rights under the
applicable Call Option for a series of Notes in accordance with Section 3(b)
hereof, then
(i) not later than 2:00 p.m., New York City time on the Business Day
prior to the applicable Coupon Reset Date, the Callholder shall deliver
the applicable Call Price in immediately available funds to the Trustee
for payment thereof on the Coupon Reset Date and
(ii) the holders of the applicable series of Notes will be required
to deliver such Notes to the applicable Callholder against payment
therefor on the applicable Coupon Reset Date through the facilities
of DTC.
No holder of the Notes or any interest therein shall have any right or claim
against the applicable Callholder as a result of the applicable Callholder not
purchasing the Notes. As used herein, "Business Day" means any day other than
a Saturday or Sunday or a day on which banking institutions in The City of New
York are authorized or obligated by law, executive order or governmental
decree to close.
(b) Notice. With respect to any series of Notes and the Call
Option related thereto, the applicable Callholder must deliver irrevocable,
written notice (the "Call Notice") to the Trustee of its exercise of such Call
Option prior to 4:00 p.m., New York City time, on the day that is fifteen (15)
calendar days prior to the applicable Coupon Reset Date. Such Call Notice
shall contain the requisite delivery details, including the identification of
such Callholder's DTC account. The Trustee shall send a copy of the Call
Notice to the holders of the relevant series of Notes no later than the
immediately succeeding Business Day.
(c) Termination of Call Option. Except as otherwise specified
in clause (i) of this subsection (c), a Call Option will automatically and
immediately terminate, no payment will be due hereunder to or from the
applicable Callholder, and the Coupon Reset Process will terminate, if any of
the following occurs:
(i) at any time prior to the sale of the Notes on the applicable Bid
Date, an Event of Default has occurred and is continuing under Sections
6.1(a), (b) or (c) of the Indenture (in which event, termination is at
the applicable Callholder's option) or under Sections 6.1(d) or (e) of
the Indenture (in which event, termination is automatic);
(ii) the applicable Callholder fails to deliver the applicable Call
Notice to the Trustee prior to 4:00 p.m., New York City time, on the
fifteenth calendar day prior to the applicable Coupon Reset Date;
(iii) if such Call Option has been assigned by the Company to a third
party, the Company reacquires all rights under such Call Option pursuant
to its rights set forth in the relevant option agreement (each a
"Nabisco Call Option") dated as of January 22, 1998 with (x) Morgan
Stanley & Co. Incorporated (in the case of the 6% Notes) or (y) Union
Bank of Switzerland, London branch (in the case of each of the 6 1/8%
Notes and the 6 3/8% Notes);
(iv) on the applicable Bid Date, the applicable Treasury Rate is
greater than the applicable Strike Rate;
(v) on the applicable Bid Date, less than two Dealers submit timely
Bids substantially as provided in Section 5(b) hereof; or
(vi) the applicable Callholder fails to pay the applicable Call Price
by 2:00 p.m., New York City time, on the Business Day prior to the
applicable Coupon Reset Date.
(d) Trustee Notification. The Company and, if different, the
applicable Callholder will promptly notify the Trustee in writing of the
termination of any Call Option. The Trustee will promptly thereafter notify
the holders of the applicable series of Notes that the Trustee, on behalf of
the holders, is required to exercise the applicable Put Option on the
applicable Coupon Reset Date.
(e) Successors and Assigns. A Callholder may at any time
assign its rights and obligations under its Call Option; provided that (i)
such rights and obligations are assigned in whole and not in part and (ii)
such assigning Callholder provides the Trustee and the Company with notice of
such assignment contemporaneously with such assignment. Upon receipt of
notice of assignment, the Trustee shall treat the assignee as a Callholder for
all purposes hereunder. A Callholder may assign its rights under its Call
Option without notice to, or consent of, the holders of the Notes to which
such Call Option corresponds.
SECTION 4. Put Option.
By its purchase of a Note, each holder irrevocably agrees that,
if the applicable Call Option terminates as set forth in Section 3(c) hereof,
the Trustee will be obligated to exercise on behalf of the holders of such
series of Notes the right (a "Put Option") to require the Company to purchase
such series of Notes, in whole but not in part, on the applicable Coupon Reset
Date at a price equal to 100% of the aggregate principal amount thereof (for
each series of Notes, a "Put Price").
If the Trustee exercises the Put Option then the Company shall
deliver the applicable Put Price in immediately available funds to the Trustee
by no later than 12:00 noon, New York City time, on the applicable Coupon
Reset Date and the holders of the Notes will be required to deliver the Notes
to the Company against payment therefor on the applicable Coupon Reset Date
through the facilities of DTC. No holder of any series of Notes or any
interest therein has the right to consent or object to the Trustee's exercise
of a Put Option. The provisions of this Section may not be amended or waived
as to any series of Notes without the consent of the Company and all of the
holders of the series of Notes affected thereby. On or before the exercise
of a Put Option, the Trustee shall notify the holders of the corresponding
series of Notes that it is exercising the Put Option.
SECTION 5. Coupon Reset Process.
(a) Appointment of Calculation Agent. The Company hereby
appoints Morgan Stanley & Co. Incorporated as the calculation agent with
respect to the 6% Notes, and UBS Securities LLC as the calculation agent with
respect to the 6 1/8% Notes and the 6 3/8% Notes (each entity acting in such
capacity with respect to a series of Notes, a "Calculation Agent").
(b) Coupon Reset Process. If a Callholder timely exercises
its Call Option with respect to a series of Notes, then the Company and the
applicable Calculation Agent shall complete the following steps in order to
determine the interest rate ("Coupon Reset Rate") to be paid on such Notes
from and including the applicable Coupon Reset Date through but excluding the
corresponding Final Maturity Date; provided that the Coupon Reset Process
shall be discontinued if, at any time prior to and including the Bid Date, the
Call Option terminates in accordance with Section 3(c) hereof. The Company
and the applicable Calculation Agent shall use reasonable efforts to cause the
actions contemplated below to be completed in as timely a manner as possible.
(i) With respect to each series of Notes subject to the Coupon Reset
Process, the Company shall provide the applicable Calculation Agent with
a list (a "Dealer List"), no later than seven Business Days prior to the
applicable Coupon Reset Date, containing the names and addresses of five
dealers (with respect to the 6% Notes, one of which shall be Morgan
Stanley & Co. Incorporated, and with respect to the 6 1/8% Notes and the
6 3/8% Notes, one of which shall be UBS Securities LLC) from which it
desires the applicable Calculation Agent to obtain the Bids for the
purchase of such Notes.
(ii) With respect to each series of Notes subject to the Coupon Reset
Process, within one Business Day following receipt by the applicable
Calculation Agent of the Dealer List, the applicable Calculation Agent
shall provide to each dealer ("Dealer") on the Dealer List (a) a copy of
the Prospectus Supplement and accompanying Prospectus relating to such
series of Notes, (b) a copy of the form of the 6% Notes, the 6 1/8% Notes
or the 6 3/8% Notes, as the case may be, and (c) a written request that
each such dealer submit a Bid to the applicable Calculation Agent at
12:00 noon, New York City time, on the third Business Day prior to the
applicable Coupon Reset Date (the "Bid Date"). The time on the
applicable Bid Date upon which Bids will be requested may be changed by
the applicable Calculation Agent to as late as 4:00 p.m. "Bid" shall
mean an irrevocable written offer given by a Dealer for the purchase
settling on the Coupon Reset Date, and shall be quoted by such Dealer as
a stated yield to maturity on the Notes ("Yield to Maturity"). Each
Dealer shall be provided with (a) the name of the Company, (b) an
estimate of the Purchase Price of the series of Notes (which shall be
stated as a US Dollar amount and be calculated by the applicable
Calculation Agent in accordance with clause (iii) below), (c) the
principal amount and maturity of the series of Notes and (d) the method
by which interest will be calculated on the series of Notes.
(iii) With respect to each series of Notes subject to the Coupon Reset
Process: the purchase price to be paid by any Dealer for any series of
Notes (the "Purchase Price") shall be equal to (x) the aggregate
principal amount of such series of Notes plus (y) a premium (a "Notes
Premium") which shall be equal to the excess, if any:
(1) with respect to the 6% Notes, (A) the discounted present
value to the applicable Coupon Reset Date of a bond with a
maturity of February 15, 2011 which has an interest rate equal
to the applicable Strike Rate, semi-annual interest payments on
each February 15 and August 15, commencing August 15, 2001, on
a principal amount of $400,000,000, and assuming a discount
rate equal to the applicable Treasury Rate over (B)
$400,000,000;
(2) with respect to the 6 1/8% Notes, (A) the discounted
present value to the applicable Coupon Reset Date of a bond
with a maturity of February 1, 2033 which has an interest rate
equal to the applicable Strike Rate, semi-annual interest
payments on each February 1 and August 1, commencing August 1,
2003, on a principal amount of $300,000,000, and assuming a
discount rate equal to the applicable Treasury Rate over (B)
$300,000,000; and
(3) with respect to the 6 3/8% Notes, (A) the discounted
present value to the applicable Coupon Reset Date of a bond
with a maturity of February 1, 2035, which has an interest rate
equal to the applicable Strike Rate, semi-annual interest
payments on each February 1 and August 1, commencing February
1, 2005, on a principal amount of $300,000,000, and assuming a
discount rate equal to the applicable Treasury Rate over (B)
$300,000,000.
With respect to the 6% Notes, "Strike Rate" means 5.75% and
"Treasury Rate" means the per annum rate equal to the offer side
yield to maturity of the current on-the-run ten-year United States
Treasury Security per Telerate page 500 at 11:00 a.m., New York City
time on the applicable Bid Date (or such other date or time that may
be agreed upon by the Company and the applicable Calculation Agent)
or, if such rate does not appear on Telerate page 500 at such time,
the rates on GovPx End-of-Day Pricing at 3:00 p.m. on the applicable
Bid Date. With respect to the 6 1/8% Notes and the 6 3/8% Notes,
"Strike Rate" means 6.068% and "Treasury Rate" means the per annum
rate equal to the mid point of the bid and offer side yield to
maturity of the current on-the-run thirty-year United States Treasury
Security per Telerate page 500 at 11:00 a.m., New York City time on
the applicable Bid Date (or such other date or time that may be
agreed upon by the Company and the applicable Calculation Agent) or,
if such rate does not appear on Telerate page 500 at such time, the
rates on GovPx End-of-Day Pricing at 3:00 p.m. on the applicable Bid
Date.
(iv) With respect to each series of Notes subject to the Coupon
Reset Process, following receipt of the Bids, the applicable
Calculation Agent shall immediately notify the Company, setting forth
(a) the names of each of the Dealers from whom such Calculation Agent
received Bids, (b) the Bid submitted by each such Dealer and (c) the
Purchase Price as determined pursuant to paragraph (iii) hereof.
Unless the applicable Call Option has terminated in accordance with
Section 3(c) hereof, the applicable Calculation Agent shall
thereafter select from the Bids received the Bid with the lowest
Yield to Maturity (the "Selected Bid") and set the Coupon Reset Rate
for such Notes equal to the interest rate which would amortize the
Notes Premium fully over the term of such Notes at the Yield to
Maturity indicated by the Selected Bid, provided, however, that if
such Calculation Agent has not received a timely Bid from a Dealer,
the Selected Bid shall be the lowest of all Bids received by such
time and provided, further that if any two or more of the lowest Bids
submitted are equivalent, the Company shall in its sole discretion
select any of such equivalent Bids (and such selected Bid shall be
the Selected Bid).
(v) With respect to each series of the Notes subject to the Coupon
Reset Process, immediately after calculating the applicable Coupon Reset
Rate, the applicable Calculation Agent shall provide written notice to
the Company and the Trustee, setting forth such Coupon Reset Rate.
(vi) With respect to any series of Notes, the Callholder shall sell
such Notes to the Dealer that made the Selected Bid at the applicable
Purchase Price, such sale to be settled on the applicable Coupon Reset
Date in immediately available funds.
(c) Rights and Liabilities of Calculation Agent. The
applicable Calculation Agent shall incur no liability for, or in respect of,
any action taken, omitted to be taken or suffered by it in such capacity in
reliance upon any certificate, affidavit, instruction, notice, request,
direction, order, statement or other paper, document or communication
reasonably believed by it to be genuine. Any order, certificate, affidavit,
instruction, notice, request, direction, statement or other communication from
the Company made or given by it and sent, delivered or directed to the
applicable Calculation Agent under, pursuant to, or as permitted by, any
provision of this Indenture shall be sufficient for purposes of this Indenture
if such communication is in writing and signed by any officer or
attorney-in-fact of the Company. The applicable Calculation Agent may consult
with counsel satisfactory to it and the advice of such counsel shall
constitute full and complete authorization and protection of such Calculation
Agent with respect to any action taken, omitted to be taken or suffered by it
hereunder in good faith and in accordance with and in reliance upon the advice
of such counsel.
(d) Right of Calculation Agent to Own Notes, etc. The
applicable Calculation Agent and its officers, employees and shareholders, may
become owners of, or acquire any interests in, any series of Notes, with the
same rights as if such Calculation Agent were not the Calculation Agent
hereunder. The applicable Calculation Agent may engage in, or have an
interest in, any financial or other transaction with the Company or any of its
affiliates as if such Calculation Agent were not the Calculation Agent
hereunder.
(e) Duties of Calculation Agent. In acting in connection with
any series of Notes, the applicable Calculation Agent shall be obligated only
to perform such duties as are specifically set forth herein and no other
duties or obligations on the part of such Calculation Agent, in its capacity
as such, shall be implied by the Indenture. In acting under the Indenture,
the applicable Calculation Agent (in its capacity as such) assumes no
obligation towards, or any relationship of agency or trust for or with, the
holders of any series Notes.
(f) Termination, Resignation or Removal of Calculation Agent.
With respect to any series of Notes, the Company may at any time appoint a new
Calculation Agent if Reasonable Cause exists at such time by giving written
notice to the existing Calculation Agent and specifying the date when the
termination shall become effective. "Reasonable Cause" shall mean the
failure or inability of such Calculation Agent to perform any obligations it
may have hereunder for any reason. If a new Calculation Agent is appointed
pursuant to this subsection, the Company shall promptly provide the Trustee
with notice thereof.
(g) Appointment of Successor Calculation Agent. Any successor
Calculation Agent appointed by the Company or by a court pursuant to the
provisions of subsection 5(f) shall execute and deliver to the initial
Calculation Agent and to the Company an instrument accepting such appointment
and thereupon such successor Calculation Agent shall, without any further act
or instrument, become vested with all the rights, immunities, duties and
obligations of the initial Calculation Agent, with like effect as if
originally named as initial Calculation Agent hereunder, and the initial
Calculation Agent shall thereupon be obligated to deliver, and such successor
Calculation Agent shall be entitled to receive, copies of any available
records maintained by the initial Calculation Agent in connection with the
performance of its obligations hereunder. The Company shall notify the
Trustee in writing upon any such appointment.
(h) Indemnification of Calculation Agent. The Company shall
indemnify and hold harmless each Calculation Agent and any successor thereof,
and its officers and employees, from and against all actions, claims, damages,
liabilities, losses and reasonable expenses (including reasonable legal fees
and reasonable expenses) relating to or arising out of actions or omissions
of the Calculation Agent hereunder, except actions, claims, damages,
liabilities, losses and expenses caused by the bad faith, gross negligence or
wilful misconduct of such Calculation Agent or its officers or employees.
This subsection shall survive the termination of the Indenture and the payment
in full of all obligations under the Notes, whether by redemption, repayment or
otherwise.
(i) Merger, Consolidation or Sale of Business by Calculation
Agent. Any entity into which the applicable Calculation Agent may be merged,
converted or consolidated, or any entity resulting from any merger, conversion
or consolidation to which such Calculation Agent may be a party, or any to
which such Calculation Agent may sell or otherwise transfer all or
substantially all of its business, shall, to the extent permitted by
applicable law, automatically succeed such Calculation Agent.
SECTION 6. Amendment to Original Indenture. That portion of
the second paragraph of Section 2.3 of the Original Indenture which
immediately precedes clauses (1) - (19) thereof is hereby amended to read in
full as follows:
"The Securities may be issued in one or more series and each such
series shall rank equally and pari passu with all other unsecured and
unsubordinated debt of the Company. There shall be established in or
pursuant to Board Resolutions (and to the extent established pursuant
to, rather than set forth in a Board Resolution, in an Officers'
Certificate detailing such establishment) or established in one or more
indentures supplemental hereto, prior to the initial issuance of
Securities of any series, subject to the last sentence of this Section
2.3,"
SECTION 7. Ambit of Supplemental Indenture. Nothing in this
Third Supplemental Indenture, expressed or implied, is intended or shall be
construed to confer upon or give to any person or corporation, other than the
parties hereto and the holders of the Securities, any right, remedy or claim
under or by reason of this Third Supplemental Indenture or any covenant,
stipulation, promise or agreement contained herein; all the covenants,
stipulations, promises and agreements contained herein are for the sole and
exclusive benefit of the parties hereto and their successors, and the holders
from time to time of the Securities.
SECTION 8. Ratification of Indenture. This Third Supplemental
Indenture shall form a part of the Original Indenture for all purposes and
every holder of Securities heretofore or hereafter authenticated and delivered
under the Original Indenture shall be bound hereby. The Original Indenture is
hereby in all respects ratified and confirmed.
SECTION 9. The Trustee. The Trustee, for itself and its
successor or successors, accepts the trust of the Indenture and agrees to
perform the same, but only upon the terms and conditions set forth in the
Indenture, including the terms and provisions defining and limiting the
liabilities and responsibilities of the Trustee, which terms and provisions
shall in like manner define and limit its liabilities and responsibilities in
the performance of the trust created by the Indenture, and, without limiting
the generality of the foregoing, the recitals contained herein 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 Third Supplemental Indenture other than as to
the validity of its execution and delivery by the Trustee.
SECTION 10. Incorporation of Terms of Notes. The terms and
provisions contained in the forms of Notes attached as Exhibits A, B and C
hereto shall constitute, and are hereby expressly made, a part of the
Indenture and, to the extent applicable, the Company and the Trustee, by their
execution and delivery of the Indenture, expressly agree to such terms and
provisions and to be bound thereby.
SECTION 11. Counterparts. This Third Supplemental Indenture
may be executed in any number of counterparts, each of which shall be an
original; but such counterparts shall together constitute but one and the same
instrument.
SECTION 12. Governing Law. The laws of the State of New York
govern the Indenture and the Securities.
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed, all as of the date first written
above.
NABISCO, INC.
as the Company
By: ______________________________________
Name: Francis X. Suozzi
Title: Senior Vice President
and Treasurer
By: ______________________________________
Name: James A. Kirkman, III
Title: Executive Vice President,
General Counsel and Secretary
CITIBANK, N.A.
as Trustee
By: ______________________________________
Name: Arthur Aslanian
Title: Vice President
Attest:
______________________________________
Name:
Title:
STATE OF NEW JERSEY )
)
COUNTY OF MORRIS )
BEFORE ME, the undersigned authority, on this day of
January, 1998, personally appeared Francis X. Suozzi, Senior Vice President
and Treasurer of Nabisco, Inc., a New Jersey corporation, known to me (or
proved to me by introduction upon the oath of a person known to me) to be the
person and officer whose name is subscribed to the foregoing instrument, and
acknowledged to me that he/she executed the same as the act of such
corporation for the purposes and consideration herein expressed and in the
capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS DAY OF JANUARY, 1998.
______________________________________
NOTARY PUBLIC, STATE OF NEW JERSEY
Print Name:
Commission Expires:
STATE OF NEW JERSEY )
)
COUNTY OF MORRIS )
BEFORE ME, the undersigned authority, on this day of
January, 1998, personally appeared James A. Kirkman III, Executive Vice
President, General Counsel and Secretary of Nabisco, Inc., a New Jersey
corporation, known to me (or proved to me by introduction upon the oath of a
person known to me) to be the person and officer whose name is subscribed to
the foregoing instrument, and acknowledged to me that he/she executed the same
as the act of such corporation for the purposes and consideration herein
expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS DAY OF JANUARY, 1998.
______________________________________
NOTARY PUBLIC, STATE OF NEW JERSEY
Print Name:
Commission Expires:
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this day of January,
1998, personally appeared Arthur W. Aslanian, Vice President of Citibank,
N.A., a national association, known to me (or proved to me by introduction
upon the oath of a person known to me) to be the person and officer whose name
is subscribed to the foregoing instrument, and acknowledged to me that he/she
executed the same as the act of such trust for the purposes and consideration
herein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS DAY OF JANUARY, 1998.
______________________________________
NOTARY PUBLIC, STATE OF NEW YORK
Print Name:
Commission Expires:
EXHIBIT A
[FORM OF 6% NOTE]
NOTE
CUSIP No.: 629527 BZ4
No. __ $_____________
Unless this certificate is presented by an authorized representative of The
Depository Trust Company ("DTC") to the issuer or its agent for registration
of transfer, exchange or payment, and any certificate issued is registered in
the name of Cede & Co. or in such other name as is requested by an authorized
representative of DTC and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC, ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
NABISCO, INC.
6% Note Due February 15, 2011, Putable/Callable February 15, 2001
NABISCO, INC., a New Jersey corporation (the "Company", which
term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co., or
registered assigns, at the office or agency of the Company in New York, New
York, the principal sum of _________________________ U.S. dollars on February
15, 2011, and to pay interest in U.S. dollars at the rate determined as set
forth on the reverse hereof, semi-annually on February 15 and August 15 of
each year (each an "Interest Payment Date"), commencing August 15, 1998, on
said principal sum at said office or agency. Payment of interest may be made
at the option of the Company by check mailed to the address of the person
entitled thereto as such address shall appear on the Security Register or by
wire transfer as provided in the Indenture. The interest so payable on any
Interest Payment Date will, subject to certain exceptions provided in the
Indenture, be paid to the person in whose name this Note is registered at the
close of business on the January 31 or July 31, as the case may be, next
preceding such Interest Payment Date, whether or not such day is a Business
Day (as defined herein).
Reference is made to the further provisions of this Note set
forth on the reverse hereof, including those describing the Call Option, the
Put Option and the Coupon Reset Process. Such further provisions shall for
all purposes have the same effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been
manually signed by the Trustee under the Indenture referred to on the reverse
hereof.
IN WITNESS WHEREOF, NABISCO, INC. has caused this instrument to
be signed manually or by facsimile by its duly authorized officers and has
caused a facsimile of its corporate seal to be affixed hereunto or imprinted
hereon.
Dated:
NABISCO, INC.
By:__________________________
By:__________________________
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: CITIBANK, N.A.,
as Trustee
By________________________________
Authorized Signatory
[FORM OF REVERSE OF NOTE]
NABISCO, INC.
6% Note Due February 15, 2011, Putable/Callable February 15, 2001
This Note is one of a duly authorized issue of debentures,
notes, bonds or other evidences of indebtedness of the Company (hereinafter
called the "Securities") of the series hereinafter specified, all issued or to
be issued under and pursuant to an indenture dated as of June 5, 1995, (as
supplemented from time to time, the "Indenture"), duly executed and delivered
by the Company to Citibank, N.A., as Trustee (herein called the "Trustee").
Reference is hereby made to such Indenture for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the Holders of the Securities. The Securities may be
issued in one or more series, which different series may be issued in various
aggregate principal amounts, may mature at different times, may bear interest
(if any) at different rates, may be subject to different redemption provisions
(if any), may be subject to different sinking, purchase or analogous funds (if
any) and may otherwise vary as in the Indenture provided. This Note is one of
a series designated as the "6% Notes Due February 15, 2011, Putable/Callable
February 15, 2001", limited in aggregate principal amount to $400,000,000.
Subject to the Call Option and the Put Option described below, the Notes are
not redeemable prior to maturity. The terms of the Notes include those stated
in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act as in effect from time to time. The Notes are subject to
all such terms and holders are referred to the Indenture and the Trust
Indenture Act for a statement of those terms. Capitalized terms used but not
defined herein shall have the respective meanings assigned in the Indenture.
Interest Payments
The Notes will bear interest, payable on each Interest Payment Date to
holders of record on the fifteenth calendar day immediately preceding such
Interest Payment Date, at 6% per annum until February 15, 2001 (the "Coupon
Reset Date"), whereupon (x) if all of the Notes are purchased on such date by
the Callholder pursuant to its Call Option, the Notes shall bear interest from
and including the Coupon Reset Date to but excluding February 15, 2011 (the
"Final Maturity Date") at the Coupon Reset Rate determined in accordance with
the Coupon Reset Process described below, or (y) the Notes shall be redeemed
by the Company pursuant to the exercise of the Put Option by the Trustee on
behalf of the holders of the Notes.
Call Option; Put Option
The Callholder may exercise a call of the Notes (the "Call
Option") by notifying the Trustee by 4:00 p.m. on January 31, 2001 of its
intention to purchase all, but not less than all, of the Notes at par on the
Coupon Reset Date. If the Call Option terminates in accordance with the terms
of the Indenture, then the Trustee is obliged, without any further action by
any holder of Notes or any owner of any beneficial interest therein, to
exercise on behalf of such holders their right (the "Put Option") to require
the Company to repurchase the Notes at par on the Coupon Reset Date.
Coupon Reset Process
Morgan Stanley & Co. Incorporated (or its successors or
assigns) will be the Calculation Agent. If the Callholder timely exercises
its Call Option and the Call Option does not otherwise terminate in accordance
with the terms of the Indenture, then the Company and the Calculation Agent
shall complete the following steps (the "Coupon Reset Process") in order to
determine the interest rate ("Coupon Reset Rate") to be paid on the Notes from
and including the Coupon Reset Date to but excluding the Final Maturity Date:
(i) The Company shall provide the Calculation Agent with a list (a
"Dealer List"), no later than seven Business Days prior to the Coupon
Reset Date, containing the names and addresses of five dealers (one of
which shall be Morgan Stanley & Co. Incorporated) from which it desires
the Calculation Agent to obtain the Bids for the purchase of the Notes.
(ii) Within one Business Day following receipt by the Calculation
Agent of the Dealer List, the Calculation Agent shall provide to each
dealer ("Dealer") on the Dealer List (a) a copy of the Prospectus
Supplement and accompanying Prospectus relating to the Notes, (b) a
copy of the form of the Notes and (c) a written request that each
such dealer submit a Bid to the Calculation Agent by 12:00 noon, New
York City time, on the third Business Day prior to the Coupon Reset
Date (the "Bid Date"). The time on the Bid Date upon which Bids will
be requested may be changed by the Calculation Agent to as late as
4:00 p.m.. As used herein, "Business Day" means any day other than a
Saturday or Sunday or a day on which banking institutions in The City
of New York are authorized or obligated by law, executive order or
governmental decree to close. "Bid" means an irrevocable written
offer given by a Dealer for the purchase settling on the Coupon Reset
Date, and shall be quoted by such Dealer as a stated yield to
maturity on the Notes ("Yield to Maturity"). Each Dealer shall be
provided with (a) the name of the Company, (b) an estimate of the
Purchase Price of the Notes (which shall be stated as a U.S. Dollar
amount and be calculated by the Calculation Agent in accordance with
clause (iii) below), (c) the principal amount and maturity of the
Notes and (d) the method by which interest will be calculated on the
Notes.
(iii) The purchase price to be paid by any Dealer for the Notes (the
"Purchase Price") shall be equal to (x) the principal amount of the
Notes plus (y) a premium (a "Notes Premium") which shall be equal to the
excess, if any of (A) the discounted present value to the Coupon Reset
Date of a bond with a maturity of February 15, 2011 which has an
interest rate equal to 5.75%, semi-annual interest payments on each
February 15 and August 15, commencing August 15, 2001, on a principal
amount of $400,000,000, and assuming a discount rate equal to the
Treasury Rate over (B) $400,000,000. "Treasury Rate" means the per
annum rate equal to the offer side yield to maturity of the current
on-the-run ten-year United States Treasury Security per Telerate page
500 at 11:00 a.m., New York City time on the Bid Date (or such other date
or time that may be agreed upon by the Company and the Calculation
Agent) or, if such rate does not appear on Telerate page 500 at such
time, the rates on GovPx End-of-Day Pricing at 3:00 p.m. on the Bid
Date.
(iv) Following receipt of the Bids, the Calculation Agent shall
immediately notify the Company, setting forth (a) the names of each of
the Dealers from whom the Calculation Agent received Bids, (b) the Bid
submitted by each such Dealer and (c) the Purchase Price as determined
pursuant to clause (iii) hereof. Unless the Call Option has terminated,
the Calculation Agent shall thereafter select from the Bids received the
Bid with the lowest Yield to Maturity (the "Selected Bid") and set the
Coupon Reset Rate equal to the interest rate which would amortize the
Notes Premium fully over the term of the Notes at the Yield to Maturity
indicated by the Selected Bid, provided, however, that if the
Calculation Agent has not received a timely Bid from a Dealer, the
Selected Bid shall be the lowest of all Bids received by such time and
provided, further that if any two or more of the lowest Bids submitted
are equivalent, the Company shall in its sole discretion select any of
such equivalent Bids (and such selected Bid shall be the Selected Bid).
Events of Default
In case an Event of Default with respect to the Notes shall have
occurred and be continuing, the principal hereof and the interest accrued
hereon, if any, may be declared, and upon such declaration shall become, due
and payable in the manner, with the effect and subject to, the conditions
provided in the Indenture.
Amendments to Indenture; Waivers of Defaults
The Indenture contains provisions which provide that, without
prior notice to any Holders, the Company and the Trustee may amend the
Indenture and the Securities of any series with the written consent of the
holders of a majority in principal amount of the outstanding Securities of all
series affected by such supplemental indenture (all such series voting as one
class), and the holders of a majority in principal amount of the outstanding
Securities of all series affected thereby (all such series voting as one
class) by written notice to the Trustee may waive future compliance by the
Company with any provision of the Indenture or the Securities of such series;
provided that, without the consent of each Holder of the Securities of each
series affected thereby, an amendment or waiver, including a waiver of past
defaults, may not:
(i) extend the stated maturity of the principal of, or any sinking
fund obligation or any installment of interest on, such Holder's
Security, or reduce the principal amount thereof or the rate of
interest thereon (including any amount in respect of original issue
discount), or any premium payable with respect thereto, or adversely
affect the rights of such holder under any mandatory redemption or
repurchase provision or any right of redemption or repurchase at the
option of such holder, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon
an acceleration of the maturity or the amount thereof provable in
bankruptcy, or change any place of payment where, or the currency in
which, any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of
any such payment on or after the due date therefor;
(ii) reduce the percentage in principal amount of outstanding
Securities of the relevant series the consent of whose holders is
required for any such supplemental indenture, for any waiver of
compliance with certain provisions of the Indenture or certain Defaults
and their consequences provided for in the Indenture;
(iii) waive a Default in the payment of principal of or interest on
any Security of such holder; or
(iv) modify any of the provisions of the Indenture governing
supplemental indentures with the consent of Securityholders except to
increase any such percentage or to provide that certain other provisions
of the Indenture cannot be modified or waived without the consent of the
holder of each outstanding Security affected thereby.
It is also provided in the Indenture that, subject to certain
conditions, the holders of at least a majority in principal amount of the
outstanding Securities of all series affected (voting as a single class), by
notice to the Trustee, may waive an existing Default or Event of Default with
respect to the Securities of such series and its consequences, except a
Default in the payment of principal of or interest on any Security or in
respect of a covenant or provision of the Indenture which cannot be modified
or amended without the consent of the holder of each outstanding Security
affected. Upon any such waiver, such Default shall cease to exist, and any
Event of Default with respect to the Securities of such series arising
therefrom shall be deemed to have been cured, for every purpose of the
Indenture; but no such waiver shall extend to any subsequent or other Default
or Event of Default or impair any right consequent thereto.
The Indenture provides that a series of Securities may include
one or more tranches (each a "tranche") of Securities, including Securities
issued in a periodic offering. The Securities of different tranches may have
one or more different terms, including authentication dates and public
offering prices, but all the Securities within each such tranche shall have
identical terms, including authentication date and public offering price.
Notwithstanding any other provision of the Indenture, subject to certain
exceptions, with respect to sections of the Indenture concerning the
execution, authentication and terms of the Securities, redemption of the
Securities, Events of Default of the Securities, defeasance of the Securities
and amendment of the Indenture, if any series of Securities includes more than
one tranche, all provisions of such sections applicable to any series of
Securities shall be deemed equally applicable to each tranche of any series of
Securities in the same manner as though originally designated a series unless
otherwise provided with respect to such series or tranche pursuant to a board
resolution or a supplemental indenture establishing such series or tranche.
Obligations Unconditional
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and any premium
and interest on this Note in the manner, at the place, at the respective
times, at the rate and in the coin or currency herein prescribed.
Form of Security
The Notes are issuable initially in the form of a definitive
Registered Security without coupons in denominations of $1,000 and any
multiple of $1,000 at the office or agency of the Company in the Borough of
Manhattan, The City of New York, and in the manner and subject to the
limitations provided in the Indenture, but without the payment of any service
charge, Notes may be exchanged for a like aggregate principal amount of Notes
of other authorized denominations.
Holders
The Company, the Trustee and any agent of the Company or the
Trustee may deem and treat the registered holder hereof as the absolute owner
of this Note (whether or not this Note shall be overdue and notwithstanding
any notation of ownership or other writing hereon), for the purpose of
receiving payment of, or on account of, the principal hereof and, subject to
the provisions hereof, interest hereon, and for all other purposes, and
neither the Company nor the Trustee nor any agent of the Company or the
Trustee shall be affected by any notice to the contrary.
Limited Recourse
No recourse under or upon any obligation, covenant or agreement
of the Company in the Indenture or any indenture supplemental thereto or in
any Note, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, stockholder, officer or director, as such, past,
present, or future, of the Company or of any successor corporation, either
directly or through the Company or any successor corporation, under any rule
of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance hereof and as
part of the consideration for the issue hereof.
This Note shall be governed by and construed in accordance with
the laws of the State of New York.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
---------------------------------
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
- ------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
- ------------------------------------------------------------------------------
appointing such person attorney to transfer such Note on the books of the
- ------------------------------------------------------------------------------
Issuer, with full power of substitution in the premises.
Dated: ___________________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular without
alteration or enlargement or any change whatsoever.
EXHIBIT B
[FORM OF 6 1/8% NOTE]
NOTE
CUSIP No.: 629527 CA8
No. __ $____________
Unless this certificate is presented by an authorized representative of The
Depository Trust Company ("DTC") to the issuer or its agent for registration
of transfer, exchange or payment, and any certificate issued is registered in
the name of Cede & Co. or in such other name as is requested by an authorized
representative of DTC and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC, ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
NABISCO, INC.
6 1/8% Note Due February 1, 2033, Putable/Callable February 1, 2003
NABISCO, INC., a New Jersey corporation (the "Company", which
term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co., or
registered assigns, at the office or agency of the Company in New York, New
York, the principal sum of ___________________________ U.S. dollars on
February 1, 2033, and to pay interest in U.S. dollars at the rate determined
as set forth on the reverse hereof, semi-annually on February 1 and August 1
of each year (each an "Interest Payment Date"), commencing August 1, 1998, on
said principal sum at said office or agency. Payment of interest may be made
at the option of the Company by check mailed to the address of the person
entitled thereto as such address shall appear on the Security Register or by
wire transfer as provided in the Indenture. The interest so payable on any
Interest Payment Date will, subject to certain exceptions provided in the
Indenture, be paid to the person in whose name this Note is registered at the
close of business on the January 17 or July 17, as the case may be, next
preceding such Interest Payment Date, whether or not such day is a Business
Day (as defined herein).
Reference is made to the further provisions of this Note set
forth on the reverse hereof, including those describing the Call Option, the
Put Option and the Coupon Reset Process. Such further provisions shall for
all purposes have the same effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been
manually signed by the Trustee under the Indenture referred to on the reverse
hereof.
IN WITNESS WHEREOF, NABISCO, INC. has caused this instrument to
be signed manually or by facsimile by its duly authorized officers and has
caused a facsimile of its corporate seal to be affixed hereunto or imprinted
hereon.
Dated:
NABISCO, INC.
By:__________________________
By:__________________________
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: CITIBANK, N.A.,
as Trustee
By________________________________
Authorized Signatory
[FORM OF REVERSE OF NOTE]
NABISCO, INC.
6 1/8% Note Due February 1, 2033, Putable/Callable February 1, 2003
This Note is one of a duly authorized issue of debentures,
notes, bonds or other evidences of indebtedness of the Company (hereinafter
called the "Securities") of the series hereinafter specified, all issued or to
be issued under and pursuant to an indenture dated as of June 5, 1995, (as
supplemented from time to time, the "Indenture"), duly executed and delivered
by the Company to Citibank, N.A., as Trustee (herein called the "Trustee").
Reference is hereby made to such Indenture for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the Holders of the Securities. The Securities may be
issued in one or more series, which different series may be issued in various
aggregate principal amounts, may mature at different times, may bear interest
(if any) at different rates, may be subject to different redemption provisions
(if any), may be subject to different sinking, purchase or analogous funds (if
any) and may otherwise vary as in the Indenture provided. This Note is one of
a series designated as the "6 1/8% Notes Due February 1, 2033,
Putable/Callable February 1, 2003", limited in aggregate principal amount to
$300,000,000. Subject to the Call Option and the Put Option described below,
the Notes are not redeemable prior to maturity. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act as in effect from time to time. The
Notes are subject to all such terms and holders are referred to the Indenture
and the Trust Indenture Act for a statement of those terms. Capitalized terms
used but not defined herein shall have the respective meanings assigned in the
Indenture.
Interest Payments
The Notes will bear interest, payable on each Interest Payment Date to
holders of record on the fifteenth calendar day immediately preceding such
Interest Payment Date, at 6 1/8% per annum until February 1, 2003 (the "Coupon
Reset Date"), whereupon (x) if all of the Notes are purchased on such date by
the Callholder pursuant to its Call Option, the Notes shall bear interest from
and including the Coupon Reset Date to but excluding February 1, 2033 (the
"Final Maturity Date") at the Coupon Reset Rate determined in accordance with
the Coupon Reset Process described below, or (y) the Notes shall be redeemed
by the Company pursuant to the exercise of the Put Option by the Trustee on
behalf of the holders of the Notes.
Call Option; Put Option
The Callholder may exercise a call of the Notes (the "Call
Option") by notifying the Trustee by 4:00 p.m. on January 17, 2003 of its
intention to purchase all, but not less than all, of the Notes at par on the
Coupon Reset Date. If the Call Option terminates in accordance with the terms
of the Indenture, then the Trustee is obliged, without any further action by
any holder of Notes or any owner of any beneficial interest therein, to
exercise on behalf of such holders their right (the "Put Option") to require
the Company to repurchase the Notes at par on the Coupon Reset Date.
Coupon Reset Process
UBS Securities LLC (or its successors or assigns) will be the
Calculation Agent. If the Callholder timely exercises its Call Option and the
Call Option does not otherwise terminate in accordance with the terms of the
Indenture, then the Company and the Calculation Agent shall complete the
following steps (the "Coupon Reset Process") in order to determine the interest
rate ("Coupon Reset Rate") to be paid on the Notes from and including the
Coupon Reset Date to but excluding the Final Maturity Date:
(i) The Company shall provide the Calculation Agent with a list (a
"Dealer List"), no later than seven Business Days prior to the Coupon
Reset Date, containing the names and addresses of five dealers (one of
which shall be UBS Securities LLC) from which it desires the Calculation
Agent to obtain the Bids for the purchase of the Notes.
(ii) Within one Business Day following receipt by the Calculation
Agent of the Dealer List, the Calculation Agent shall provide to each
dealer ("Dealer") on the Dealer List (a) a copy of the Prospectus
Supplement and accompanying Prospectus relating to the Notes, (b) a
copy of the form of the Notes and (c) a written request that each
such dealer submit a Bid to the Calculation Agent by 12:00 noon, New
York City time, on the third Business Day prior to the Coupon Reset
Date (the "Bid Date"). The time on the Bid Date upon which Bids will
be requested may be changed by the Calculation Agent to as late as
4:00 p.m.. As used herein, "Business Day" means any day other than a
Saturday or Sunday or a day on which banking institutions in The City
of New York are authorized or obligated by law, executive order or
governmental decree to close. "Bid" means an irrevocable written
offer given by a Dealer for the purchase settling on the Coupon Reset
Date, and shall be quoted by such Dealer as a stated yield to
maturity on the Notes ("Yield to Maturity"). Each Dealer shall be
provided with (a) the name of the Company, (b) an estimate of the
Purchase Price of the Notes (which shall be stated as a U.S. Dollar
amount and be calculated by the Calculation Agent in accordance with
clause (iii) below), (c) the principal amount and maturity of the
Notes and (d) the method by which interest will be calculated on the
Notes.
(iii) The purchase price to be paid by any Dealer for the Notes (the
"Purchase Price") shall be equal to (x) the principal amount of the
Notes plus (y) a premium (a "Notes Premium") which shall be equal to the
excess, if any of (A) the discounted present value to the Coupon Reset
Date of a bond with a maturity of February 1, 2033 which has an interest
rate equal to 6.068%, semi-annual interest payments on each February 1
and August 1, commencing August 1, 2003, on a principal amount of
$300,000,000, and assuming a discount rate equal to the Treasury Rate
over (B) $300,000,000. "Treasury Rate" means the per annum rate equal
to the midpoint of the bid and offer side yield to maturity of the
current on-the-run thirty-year United States Treasury Security per
Telerate page 500 at 11:00 a.m., New York City time on the Bid Date (or
such other date or time that may be agreed upon by the Company and the
Calculation Agent) or, if such rate does not appear on Telerate page 500
at such time, the rates on GovPx End-of-Day Pricing at 3:00 p.m. on the
Bid Date.
(iv) Following receipt of the Bids, the Calculation Agent shall
immediately notify the Company, setting forth (a) the names of each of
the Dealers from whom the Calculation Agent received Bids, (b) the Bid
submitted by each such Dealer and (c) the Purchase Price as determined
pursuant to clause (iii) hereof. Unless the Call Option has terminated,
the Calculation Agent shall thereafter select from the Bids received the
Bid with the lowest Yield to Maturity (the "Selected Bid") and set the
Coupon Reset Rate equal to the interest rate which would amortize the
Notes Premium fully over the term of the Notes at the Yield to Maturity
indicated by the Selected Bid, provided, however, that if the
Calculation Agent has not received a timely Bid from a Dealer, the
Selected Bid shall be the lowest of all Bids received by such time and
provided, further that if any two or more of the lowest Bids submitted
are equivalent, the Company shall in its sole discretion select any of
such equivalent Bids (and such selected Bid shall be the Selected Bid).
Events of Default
In case an Event of Default with respect to the Notes shall have
occurred and be continuing, the principal hereof and the interest accrued
hereon, if any, may be declared, and upon such declaration shall become, due
and payable in the manner, with the effect and subject to, the conditions
provided in the Indenture.
Amendments to Indenture; Waivers of Defaults
The Indenture contains provisions which provide that, without
prior notice to any Holders, the Company and the Trustee may amend the
Indenture and the Securities of any series with the written consent of the
holders of a majority in principal amount of the outstanding Securities of all
series affected by such supplemental indenture (all such series voting as one
class), and the holders of a majority in principal amount of the outstanding
Securities of all series affected thereby (all such series voting as one
class) by written notice to the Trustee may waive future compliance by the
Company with any provision of the Indenture or the Securities of such series;
provided that, without the consent of each Holder of the Securities of each
series affected thereby, an amendment or waiver, including a waiver of past
defaults, may not:
(i) extend the stated maturity of the principal of, or any sinking
fund obligation or any installment of interest on, such Holder's
Security, or reduce the principal amount thereof or the rate of
interest thereon (including any amount in respect of original issue
discount), or any premium payable with respect thereto, or adversely
affect the rights of such holder under any mandatory redemption or
repurchase provision or any right of redemption or repurchase at the
option of such holder, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon
an acceleration of the maturity or the amount thereof provable in
bankruptcy, or change any place of payment where, or the currency in
which, any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of
any such payment on or after the due date therefor;
(ii) reduce the percentage in principal amount of outstanding
Securities of the relevant series the consent of whose holders is
required for any such supplemental indenture, for any waiver of
compliance with certain provisions of the Indenture or certain Defaults
and their consequences provided for in the Indenture;
(iii) waive a Default in the payment of principal of or interest on
any Security of such holder; or
(iv) modify any of the provisions of the Indenture governing
supplemental indentures with the consent of Securityholders except to
increase any such percentage or to provide that certain other provisions
of the Indenture cannot be modified or waived without the consent of the
holder of each outstanding Security affected thereby.
It is also provided in the Indenture that, subject to certain
conditions, the holders of at least a majority in principal amount of the
outstanding Securities of all series affected (voting as a single class), by
notice to the Trustee, may waive an existing Default or Event of Default with
respect to the Securities of such series and its consequences, except a
Default in the payment of principal of or interest on any Security or in
respect of a covenant or provision of the Indenture which cannot be modified
or amended without the consent of the holder of each outstanding Security
affected. Upon any such waiver, such Default shall cease to exist, and any
Event of Default with respect to the Securities of such series arising
therefrom shall be deemed to have been cured, for every purpose of the
Indenture; but no such waiver shall extend to any subsequent or other Default
or Event of Default or impair any right consequent thereto.
The Indenture provides that a series of Securities may include
one or more tranches (each a "tranche") of Securities, including Securities
issued in a periodic offering. The Securities of different tranches may have
one or more different terms, including authentication dates and public
offering prices, but all the Securities within each such tranche shall have
identical terms, including authentication date and public offering price.
Notwithstanding any other provision of the Indenture, subject to certain
exceptions, with respect to sections of the Indenture concerning the
execution, authentication and terms of the Securities, redemption of the
Securities, Events of Default of the Securities, defeasance of the Securities
and amendment of the Indenture, if any series of Securities includes more than
one tranche, all provisions of such sections applicable to any series of
Securities shall be deemed equally applicable to each tranche of any series of
Securities in the same manner as though originally designated a series unless
otherwise provided with respect to such series or tranche pursuant to a board
resolution or a supplemental indenture establishing such series or tranche.
Obligations Unconditional
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and any premium
and interest on this Note in the manner, at the place, at the respective
times, at the rate and in the coin or currency herein prescribed.
Form of Security
The Notes are issuable initially in the form of a definitive
Registered Security without coupons in denominations of $1,000 and any
multiple of $1,000 at the office or agency of the Company in the Borough of
Manhattan, The City of New York, and in the manner and subject to the
limitations provided in the Indenture, but without the payment of any service
charge, Notes may be exchanged for a like aggregate principal amount of Notes
of other authorized denominations.
Holders
The Company, the Trustee and any agent of the Company or the
Trustee may deem and treat the registered holder hereof as the absolute owner
of this Note (whether or not this Note shall be overdue and notwithstanding
any notation of ownership or other writing hereon), for the purpose of
receiving payment of, or on account of, the principal hereof and, subject to
the provisions hereof, interest hereon, and for all other purposes, and
neither the Company nor the Trustee nor any agent of the Company or the
Trustee shall be affected by any notice to the contrary.
Limited Recourse
No recourse under or upon any obligation, covenant or agreement
of the Company in the Indenture or any indenture supplemental thereto or in
any Note, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, stockholder, officer or director, as such, past,
present, or future, of the Company or of any successor corporation, either
directly or through the Company or any successor corporation, under any rule
of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance hereof and as
part of the consideration for the issue hereof.
This Note shall be governed by and construed in accordance with
the laws of the State of New York.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
-------------------------------
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
- ------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
- ------------------------------------------------------------------------------
appointing such person attorney to transfer such Note on the books of the
- ------------------------------------------------------------------------------
Issuer, with full power of substitution in the premises.
Dated: _____________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular without
alteration or enlargement or any change whatsoever.
EXHIBIT C
[FORM OF 6 3/8% NOTE]
NOTE
CUSIP No.: 629527 CB6
No. __ $______________
Unless this certificate is presented by an authorized representative of The
Depository Trust Company ("DTC") to the issuer or its agent for registration
of transfer, exchange or payment, and any certificate issued is registered in
the name of Cede & Co. or in such other name as is requested by an authorized
representative of DTC and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC, ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
NABISCO, INC.
6 3/8% Note Due February 1, 2035, Putable/Callable February 1, 2005
NABISCO, INC., a New Jersey corporation (the "Company", which
term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co., or
registered assigns, at the office or agency of the Company in New York, New
York, the principal sum of ______________________ U.S. dollars on February 1,
2035, and to pay interest in U.S. dollars at the rate determined as set forth
on the reverse hereof, semi-annually on February 1 and August 1 of each year
(each an "Interest Payment Date"), commencing August 1, 1998, on said
principal sum at said office or agency. Payment of interest may be made at
the option of the Company by check mailed to the address of the person
entitled thereto as such address shall appear on the Security Register or by
wire transfer as provided in the Indenture. The interest so payable on any
Interest Payment Date will, subject to certain exceptions provided in the
Indenture, be paid to the person in whose name this Note is registered at the
close of business on the January 17 or July 17, as the case may be, next
preceding such Interest Payment Date, whether or not such day is a Business
Day (as defined herein).
Reference is made to the further provisions of this Note set
forth on the reverse hereof, including those describing the Call Option, the
Put Option and the Coupon Reset Process. Such further provisions shall for
all purposes have the same effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been
manually signed by the Trustee under the Indenture referred to on the reverse
hereof.
IN WITNESS WHEREOF, NABISCO, INC. has caused this instrument to
be signed manually or by facsimile by its duly authorized officers and has
caused a facsimile of its corporate seal to be affixed hereunto or imprinted
hereon.
Dated:
NABISCO, INC.
By:__________________________
By:__________________________
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: CITIBANK, N.A.,
as Trustee
By________________________________
Authorized Signatory
[FORM OF REVERSE OF NOTE]
NABISCO, INC.
6 3/8% Note Due February 1, 2035, Putable/Callable February 1, 2005
This Note is one of a duly authorized issue of debentures,
notes, bonds or other evidences of indebtedness of the Company (hereinafter
called the "Securities") of the series hereinafter specified, all issued or to
be issued under and pursuant to an indenture dated as of June 5, 1995, (as
supplemented from time to time, the "Indenture"), duly executed and delivered
by the Company to Citibank, N.A., as Trustee (herein called the "Trustee").
Reference is hereby made to such Indenture for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the Holders of the Securities. The Securities may be
issued in one or more series, which different series may be issued in various
aggregate principal amounts, may mature at different times, may bear interest
(if any) at different rates, may be subject to different redemption provisions
(if any), may be subject to different sinking, purchase or analogous funds (if
any) and may otherwise vary as in the Indenture provided. This Note is one of
a series designated as the "6 3/8% Notes Due February 1, 2035,
Putable/Callable February 1, 2005", limited in aggregate principal amount to
$300,000,000. Subject to the Call Option and the Put Option described below,
the Notes are not redeemable prior to maturity. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act as in effect from time to time. The
Notes are subject to all such terms and holders are referred to the Indenture
and the Trust Indenture Act for a statement of those terms. Capitalized terms
used but not defined herein shall have the respective meanings assigned in the
Indenture.
Interest Payments
The Notes will bear interest, payable on each Interest Payment Date to
holders of record on the fifteenth calendar day immediately preceding such
Interest Payment Date, at 6 3/8% per annum until February 1, 2005 (the "Coupon
Reset Date"), whereupon (x) if all of the Notes are purchased on such date by
the Callholder pursuant to its Call Option, the Notes shall bear interest from
and including the Coupon Reset Date to but excluding February 1, 2035 (the
"Final Maturity Date") at the Coupon Reset Rate determined in accordance with
the Coupon Reset Process described below, or (y) the Notes shall be redeemed
by the Company pursuant to the exercise of the Put Option by the Trustee on
behalf of the holders of the Notes.
Call Option; Put Option
The Callholder may exercise a call of the Notes (the "Call
Option") by notifying the Trustee by 4:00 p.m. on January 17, 2005 of its
intention to purchase all, but not less than all, of the Notes at par on the
Coupon Reset Date. If the Call Option terminates in accordance with the terms
of the Indenture, then the Trustee is obliged, without any further action by
any holder of Notes or any owner of any beneficial interest therein, to
exercise on behalf of such holders their right (the "Put Option") to require
the Company to repurchase the Notes at par on the Coupon Reset Date.
Coupon Reset Process
UBS Securities LLC (or its successors or assigns) will be the
Calculation Agent. If the Callholder timely exercises its Call Option and the
Call Option does not otherwise terminate in accordance with the terms of the
Indenture, then the Company and the Calculation Agent shall complete the
following steps (the "Coupon Reset Process") in order to determine the interest
rate ("Coupon Reset Rate") to be paid on the Notes from and including the
Coupon Reset Date to but excluding the Final Maturity Date:
(i) The Company shall provide the Calculation Agent with a list (a
"Dealer List"), no later than seven Business Days prior to the Coupon
Reset Date, containing the names and addresses of five dealers (one of
which shall be UBS Securities LLC) from which it desires the Calculation
Agent to obtain the Bids for the purchase of the Notes.
(ii) Within one Business Day following receipt by the Calculation
Agent of the Dealer List, the Calculation Agent shall provide to each
dealer ("Dealer") on the Dealer List (a) a copy of the Prospectus
Supplement and accompanying Prospectus relating to the Notes, (b) a
copy of the form of the Notes and (c) a written request that each
such dealer submit a Bid to the Calculation Agent by 12:00 noon, New
York City time, on the third Business Day prior to the Coupon Reset
Date (the "Bid Date"). The time on the Bid Date upon which Bids will
be requested may be changed by the Calculation Agent to as late as
4:00 p.m.. As used herein, "Business Day" means any day other than a
Saturday or Sunday or a day on which banking institutions in The City
of New York are authorized or obligated by law, executive order or
governmental decree to close. "Bid" means an irrevocable written
offer given by a Dealer for the purchase settling on the Coupon Reset
Date, and shall be quoted by such Dealer as a stated yield to
maturity on the Notes ("Yield to Maturity"). Each Dealer shall be
provided with (a) the name of the Company, (b) an estimate of the
Purchase Price of the Notes (which shall be stated as a U.S. Dollar
amount and be calculated by the Calculation Agent in accordance with
clause (iii) below), (c) the principal amount and maturity of the
Notes and (d) the method by which interest will be calculated on the
Notes.
(iii) The purchase price to be paid by any Dealer for the Notes (the
"Purchase Price") shall be equal to (x) the principal amount of the
Notes plus (y) a premium (a "Notes Premium") which shall be equal to the
excess, if any of (A) the discounted present value to the Coupon Reset
Date of a bond with a maturity of February 1, 2035 which has an interest
rate equal to 6.068%, semi-annual interest payments on each February 1
and August 1, commencing August 1, 2005, on a principal amount of
$300,000,000, and assuming a discount rate equal to the Treasury Rate
over (B) $300,000,000. "Treasury Rate" means the per annum rate equal
to the midpoint of the bid and offer side yield to maturity of the
current on-the-run thirty-year United States Treasury Security per
Telerate page 500 at 11:00 a.m., New York City time on the Bid Date (or
such other date or time that may be agreed upon by the Company and the
Calculation Agent) or, if such rate does not appear on Telerate page 500
at such time, the rates on GovPx End-of-Day Pricing at 3:00 p.m. on the
Bid Date.
(iv) Following receipt of the Bids, the Calculation Agent shall
immediately notify the Company, setting forth (a) the names of each of
the Dealers from whom the Calculation Agent received Bids, (b) the Bid
submitted by each such Dealer and (c) the Purchase Price as determined
pursuant to clause (iii) hereof. Unless the Call Option has terminated,
the Calculation Agent shall thereafter select from the Bids received the
Bid with the lowest Yield to Maturity (the "Selected Bid") and set the
Coupon Reset Rate equal to the interest rate which would amortize the
Notes Premium fully over the term of the Notes at the Yield to Maturity
indicated by the Selected Bid, provided, however, that if the
Calculation Agent has not received a timely Bid from a Dealer, the
Selected Bid shall be the lowest of all Bids received by such time and
provided, further that if any two or more of the lowest Bids submitted
are equivalent, the Company shall in its sole discretion select any of
such equivalent Bids (and such selected Bid shall be the Selected Bid).
Events of Default
In case an Event of Default with respect to the Notes shall have
occurred and be continuing, the principal hereof and the interest accrued
hereon, if any, may be declared, and upon such declaration shall become, due
and payable in the manner, with the effect and subject to, the conditions
provided in the Indenture.
Amendments to Indenture; Waivers of Defaults
The Indenture contains provisions which provide that, without
prior notice to any Holders, the Company and the Trustee may amend the
Indenture and the Securities of any series with the written consent of the
holders of a majority in principal amount of the outstanding Securities of all
series affected by such supplemental indenture (all such series voting as one
class), and the holders of a majority in principal amount of the outstanding
Securities of all series affected thereby (all such series voting as one
class) by written notice to the Trustee may waive future compliance by the
Company with any provision of the Indenture or the Securities of such series;
provided that, without the consent of each Holder of the Securities of each
series affected thereby, an amendment or waiver, including a waiver of past
defaults, may not:
(i) extend the stated maturity of the principal of, or any sinking
fund obligation or any installment of interest on, such Holder's
Security, or reduce the principal amount thereof or the rate of
interest thereon (including any amount in respect of original issue
discount), or any premium payable with respect thereto, or adversely
affect the rights of such holder under any mandatory redemption or
repurchase provision or any right of redemption or repurchase at the
option of such holder, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon
an acceleration of the maturity or the amount thereof provable in
bankruptcy, or change any place of payment where, or the currency in
which, any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of
any such payment on or after the due date therefor;
(ii) reduce the percentage in principal amount of outstanding
Securities of the relevant series the consent of whose holders is
required for any such supplemental indenture, for any waiver of
compliance with certain provisions of the Indenture or certain Defaults
and their consequences provided for in the Indenture;
(iii) waive a Default in the payment of principal of or interest on
any Security of such holder; or
(iv) modify any of the provisions of the Indenture governing
supplemental indentures with the consent of Securityholders except to
increase any such percentage or to provide that certain other provisions
of the Indenture cannot be modified or waived without the consent of the
holder of each outstanding Security affected thereby.
It is also provided in the Indenture that, subject to certain
conditions, the holders of at least a majority in principal amount of the
outstanding Securities of all series affected (voting as a single class), by
notice to the Trustee, may waive an existing Default or Event of Default with
respect to the Securities of such series and its consequences, except a
Default in the payment of principal of or interest on any Security or in
respect of a covenant or provision of the Indenture which cannot be modified
or amended without the consent of the holder of each outstanding Security
affected. Upon any such waiver, such Default shall cease to exist, and any
Event of Default with respect to the Securities of such series arising
therefrom shall be deemed to have been cured, for every purpose of the
Indenture; but no such waiver shall extend to any subsequent or other Default
or Event of Default or impair any right consequent thereto.
The Indenture provides that a series of Securities may include
one or more tranches (each a "tranche") of Securities, including Securities
issued in a periodic offering. The Securities of different tranches may have
one or more different terms, including authentication dates and public
offering prices, but all the Securities within each such tranche shall have
identical terms, including authentication date and public offering price.
Notwithstanding any other provision of the Indenture, subject to certain
exceptions, with respect to sections of the Indenture concerning the
execution, authentication and terms of the Securities, redemption of the
Securities, Events of Default of the Securities, defeasance of the Securities
and amendment of the Indenture, if any series of Securities includes more than
one tranche, all provisions of such sections applicable to any series of
Securities shall be deemed equally applicable to each tranche of any series of
Securities in the same manner as though originally designated a series unless
otherwise provided with respect to such series or tranche pursuant to a board
resolution or a supplemental indenture establishing such series or tranche.
Obligations Unconditional
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and any premium
and interest on this Note in the manner, at the place, at the respective
times, at the rate and in the coin or currency herein prescribed.
Form of Security
The Notes are issuable initially in the form of a definitive
Registered Security without coupons in denominations of $1,000 and any
multiple of $1,000 at the office or agency of the Company in the Borough of
Manhattan, The City of New York, and in the manner and subject to the
limitations provided in the Indenture, but without the payment of any service
charge, Notes may be exchanged for a like aggregate principal amount of Notes
of other authorized denominations.
Holders
The Company, the Trustee and any agent of the Company or the
Trustee may deem and treat the registered holder hereof as the absolute owner
of this Note (whether or not this Note shall be overdue and notwithstanding
any notation of ownership or other writing hereon), for the purpose of
receiving payment of, or on account of, the principal hereof and, subject to
the provisions hereof, interest hereon, and for all other purposes, and
neither the Company nor the Trustee nor any agent of the Company or the
Trustee shall be affected by any notice to the contrary.
Limited Recourse
No recourse under or upon any obligation, covenant or agreement
of the Company in the Indenture or any indenture supplemental thereto or in
any Note, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, stockholder, officer or director, as such, past,
present, or future, of the Company or of any successor corporation, either
directly or through the Company or any successor corporation, under any rule
of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance hereof and as
part of the consideration for the issue hereof.
This Note shall be governed by and construed in accordance with
the laws of the State of New York.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
---------------------------------
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
- ------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
- ------------------------------------------------------------------------------
appointing such person attorney to transfer such Note on the books of the
- ------------------------------------------------------------------------------
Issuer, with full power of substitution in the premises.
Dated: ------------------------------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular without
alteration or enlargement or any change whatsoever.
EXHIBIT 2
January 22, 1998
Nabisco, Inc.
7 Campus Drive
Parsipanny, New Jersey 07054
UBS Securities LLC,
as Representative of the Several Underwriters
299 Park Avenue
New York, New York 10171-0026
Morgan Stanley & Co. Incorporated,
as Representative of the Several Underwriters
1585 Broadway
New York, New York 10037
Re: Nabisco, Inc.
$400,000,000 6% Notes due February 15, 2011,
Putable/Callable February 15, 2001
$300,000,000 6 1/8% Notes due February 1, 2033,
Putable/Callable February 1, 2003
$300,000,000 6 3/8% Notes due February 1, 2035,
Putable/Callable February 1, 2005
Ladies and Gentlemen:
We have acted as special tax counsel for Nabisco, Inc., a New Jersey
corporation (the "Company"), in connection with the 6% Notes Underwriting
Agreement, the 6 1/8% Notes Underwriting Agreement and the 6 3/8% Notes
Underwriting Agreement (collectively, the "Underwriting Agreements"), each
dated as of January 15, 1998, among UBS Securities LLC ("UBS") and Morgan
Stanley & Co. Incorporated ("Morgan Stanley"), acting severally on behalf of
themselves and the underwriters named in the Underwriting Agreements (the
"Underwriters"), and the Company, relating to (i) the issuance and sale of
$400,000,000 in aggregate principal amount of 6% Notes due February 15, 2011,
Putable/Callable February 15, 2001 (the "6% Notes"), $300,000,000 in aggregate
principal amount of 6 1/8% Notes due February 1, 2033, Putable/Callable
February 1, 2003 (the "6 1/8% Notes") and $300,000,000 in aggregate principal
amount of 6 3/8% Notes due February 1, 2035, Putable/Callable February 1,
2005 (the "6 3/8% Notes", and together with the 6% Notes and the 6 3/8% Notes,
the "Notes") and (ii) the assignment of the 6 1/8% Notes Call Option and the 6
3/8% Notes Call Option by the Company to Union Bank of Switzerland, London
branch ("UBS London") and (iii) the assignment of the 6% Notes Call Option by
the Company to Morgan Stanley. The Notes are to be issued under the
Indenture, dated as of June 5, 1995, between the Company and Citibank, N.A.,
as trustee (the "Indenture Trustee"), as supplemented by the Third
Supplemental Indenture, dated as of January 22, 1998, between the Company
and the Indenture Trustee (together, the "Indenture").
In connection with the issuance of the Notes, the Company and UBS
London, have also entered into the Company Call Option, dated as of January 22,
1998, pertaining to the 6 1/8% Notes and the Company Call Option, dated as of
January 22, 1998, pertaining to the 6 3/8% Notes and the Company and Morgan
Stanley have entered into the Company Call Option, dated as of January 22,
1998, pertaining to the 6% Notes (collectively, the "Company Call Options"),
pursuant to which the Company, UBS London and Morgan Stanley have certain
rights in respect of the Notes under the terms and conditions set forth in the
applicable Company Call Option.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the Registration
Statement on Form S-3 (No 33-99322), as amended (the "Registration Statement"),
(i) the prospectus, dated December 20, 1995, (ii) the preliminary prospectus
supplement, dated January 13, 1998 and (iii) the final prospectus supplement,
dated January 15, 1998, each relating to the sale of the Notes by the Company
(collectively, the "Prospectus"); the Underwriting Agreements; the Company
Call Options; (i) the Calculation Agency Agreement relating to the 6 1/8%
Notes and the 6 3/8% Notes, dated as of January 22, 1998, between the
Company and UBS (the "UBS Calculation Agency Agreement") and (ii) the
Calculation Agency Agreement relating to the 6% Notes, dated as of January
22, 1998, between the Company and Morgan Stanley (the "Morgan Stanley
Calculation Agency Agreement" and, together with the UBS Calculation Agency
Agreement, the "Calculation Agency Agreements"); the Indenture; the Notes;
the Company's Restated Certificate of Incorporation, dated as of May 13,
1994; the Company's Board Resolutions, dated October 6, 1995 and November
19, 1997, relating to the Registration Statement and the offering of the
Notes; the Officer's Certificate of the Company, dated January 22, 1998,
delivered to the Indenture Trustee pursuant to Section 2.2 of the
Indenture; and the Officer's Certificate of the Company, dated January 22,
1998, delivered to the Indenture Trustee pursuant to Section 10.3 of the
Indenture. We have also examined originals or copies, certified or
otherwise identified to our satisfaction, of such records of the Company
and such agreements, certificates of public officials, certificates of
officers and other representatives of the Company and others, and such
other documents, certificates and records as we have deemed necessary or
appropriate as a basis for the opinions set forth herein. As used herein,
the term "Company Documents" shall refer collectively to the Indenture,
the Underwriting Agreements, the Notes, the Company Call Options and the
Calculation Agency Agreements.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. In making our
examination of documents executed by parties other than the Company, we
have assumed that such parties had the power, corporate or other, to enter
into and perform all obligations thereunder and have also assumed the due
authorization by all requisite action, corporate or other, and execution
and delivery by such parties of such documents and the validity and binding
effect thereof. We have further assumed that neither the execution and
delivery by the Company of the Company Documents to which it is a party,
nor the performance by the Company of its obligations thereunder,
contravenes or conflicts with (i) any law, rule or regulation binding upon
it, (ii) any agreement or instrument (other than the Company Documents) to
which it is a party or by which its properties or assets are bound or (iii)
any judicial or administrative judgment, injunction, order or decree that
is binding upon it or its properties or assets. As to any facts material
to the opinions expressed herein which we did not independently establish
or verify, we have relied upon oral or written statements and
representations of officers and other representatives of the Company and
others, and our opinions rendered herein with respect to such matters are
subject to the assumptions, exceptions and qualifications noted therein.
In rendering our opinion, we have also considered and relied upon the
Internal Revenue Code of 1986, as amended (the "Code"), administrative
rulings, judicial decisions, regulations, and such other authorities
(including Treasury regulations) as we have deemed appropriate. The
statutory provisions, regulations, interpretations and other authorities
upon which our opinion is based are subject to change, and such changes
could apply retroactively. In addition, there can be no assurance that
positions contrary to those stated in our opinion will not be taken by the
Internal Revenue Service.
Based upon and subject to the limitations, qualifications, exceptions
and assumptions set forth herein, we are of the opinion that the statements in
the Prospectus under the heading "Certain Federal Income Tax Considerations",
to the extent that they constitute matters of law or legal conclusions with
respect thereto, have been prepared by us and are correct in all material
respects.
We consent to the filing of this opinion as an exhibit to the
Registration Statement.
Except for the opinions expressed above, we express no opinion as to
any other tax consequences of the transaction to any party under federal,
state, local, or foreign laws. This opinion addresses the legal consequences
of only the facts existing or assumed as of the date hereof. Further, this
opinion is being furnished to you solely for your benefit and is not to be
used, circulated, quoted, or otherwise referred to for any purpose without
our prior written consent in each instance, except that you may refer to
this opinion in connection with the Prospectus under the heading "Certain
Federal Income Tax Considerations." We disclaim any obligation to update
this opinion letter for events occurring or coming to our attention after
the date hereof.
Very truly yours,
Skadden, Arps, Slate, Meagher & Flom LLP
