<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 22, 1999
REGISTRATION NO. 333-66025
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
NABISCO, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C>
NEW JERSEY 13-1841519
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification Number)
</TABLE>
7 CAMPUS DRIVE
PARSIPPANY, NEW JERSEY 07054
(973) 682-5000
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive office)
<TABLE>
<S> <C>
JAMES A. KIRKMAN III, ESQ. COPIES TO:
NABISCO, INC. DAVID W. FERGUSON, ESQ.
7 CAMPUS DRIVE DAVIS POLK & WARDWELL
PARSIPPANY, NEW JERSEY 07054 450 LEXINGTON AVENUE
(973) 682-5000 NEW YORK, NEW YORK 10017
(Name, address, including zip code, (212) 450-4000
and telephone number, including
area code, of agent for service)
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF THE PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC:
From time to time after the effective date of this Registration Statement,
as determined by the Registrant.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of earlier effective
registration statements for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. /X/
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED(1) PER UNIT(2) OFFERING PRICE(2) REGISTRATION FEE
<S> <C> <C> <C> <C>
Debt Securities.................................. $1,000,000,000 100% $1,000,000,000 $278,000(3)
</TABLE>
(1) Or the equivalent in foreign denominated currency or units based on or
relating to currencies. If debt securities are issued at original issue
discount, such higher principal amount as may be sold for an initial public
offering price of $1,000,000,000.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) The filing fee of $278,000 was paid upon the initial filing of this
Registration Statement on October 23, 1998.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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- --------------------------------------------------------------------------------
<PAGE>
SUBJECT TO COMPLETION--DATED JANUARY 22, 1999
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
<PAGE>
Prospectus
[LOGO]
NABISCO, INC.
7 Campus Drive
Parsippany, New Jersey 07054-0311
(973) 682-5000
$1,000,000,000
DEBT SECURITIES
------------------------------------------------
We will provide the specific terms of these securities in supplements to this
prospectus.
You should read this prospectus and the supplements carefully before you invest.
------------------------------------------------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED BY THE SEC OR ANY STATE SECURITIES
COMMISSION, NOR HAVE THESE ORGANIZATIONS DETERMINED THAT THIS PROSPECTUS IS
ACCURATE OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is January , 1999.
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
SEC utilizing a "shelf" registration process. Under this shelf process, we may,
from time to time, sell any combination of the securities described in this
prospectus in one or more offerings up to a total dollar amount of
$1,000,000,000. This prospectus provides you with a general description of the
securities we may offer. Each time we sell securities, we will provide a
prospectus supplement that will contain specific information about the terms of
that offering. The prospectus supplement may also add, update or change
information contained in this prospectus. You should read both this prospectus
and any prospectus supplement together with additional information described
under the heading WHERE YOU CAN FIND MORE INFORMATION.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC's web sit at http://www.sec.gov. You may also read and copy
any document we file at the SEC's public reference rooms in Washington D.C., New
York, New York and Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for
further information on the public reference rooms.
The SEC allows us to "incorporate by reference" the information we file with
them, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is an
important part of this prospectus, and information that we file later with the
SEC will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934
until we sell all of the securities.
- Annual Report on Form 10-K for the year ended December 31, 1997 (filed on
March 10, 1998);
- Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998
(filed on May 8, 1998), June 30, 1998 (filed on August 14, 1998) and
September 30, 1998 (filed on November 12, 1998); and
- Current Report on Form 8-K filed January 15, 1998
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address:
Nabisco, Inc.
Attention: Public Relations Department
7 Campus Drive
Parsippany, New Jersey 07054
Telephone: (973) 662-5000
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of these securities in any state where the offer is not permitted. You
should not assume that the information in this prospectus or any prospectus
supplement is accurate as of any date other than the date on the front of those
documents.
In addition, you may look at our SEC filings at the offices of the New York
Stock Exchange (the "NYSE"), which is located at 20 Broad Street, New York, New
York 10005. Our SEC filings are available at the NYSE because some classes of
our securities are listed and traded on the NYSE. Our parent company, Nabisco
Holdings Corp., which we will refer to as Nabisco Holdings in this document, has
listed its Class A common stock on the NYSE.
2
<PAGE>
THE COMPANY
Nabisco is one of the largest food businesses in the world. Through our
domestic divisions, we manufacture and market cookies, crackers, snack foods,
hard and bite-size candy, gum, nuts, hot cereals, pet snacks, dry-mix dessert
products and other grocery products under established and well-known trademarks,
including Oreo, Chips Ahoy!, Snackwell's, Newtons, Ritz, Premium, Nabisco Honey
Maid Grahams, Triscuit, Air Crisps, Wheat Thins, Life Savers, Planters, A.1.,
Grey Poupon, Milk-Bone and Cream of Wheat.
In Spain and in many of the 17 Latin American countries in which we have
operations, Nabisco International, Inc., one of our subsidiaries, is a leading
producer of biscuits, powdered dessert and drink mixes, baking powder, pasta,
juices, milk products and other grocery items, as well as industrial yeast and
bakery ingredients. Nabisco Ltd, which conducts our Canadian operations, is
Canada's largest cookie and cracker business and one of Canada's leading
producers of canned fruits, canned vegetables, fruit juices and drinks and pet
snacks.
We are a wholly-owned subsidiary of Nabisco Holdings. RJR Nabisco Holdings
Corp., in turn, owns RJR Nabisco, Inc. ("RJRN"), which owns 80.6% of the
economic interest in Nabisco Holdings.
Our principal executive offices are located at 7 Campus Drive, Parsippany,
New Jersey 07054; our telephone number is (973) 682-5000.
RATIO OF EARNINGS TO FIXED CHARGES/DEFICIENCY IN THE COVERAGE OF FIXED CHARGES
BY EARNINGS BEFORE FIXED CHARGES
The ratio of earnings to fixed charges for the nine months ended September
30, 1998 and for each year in the five-year period ended December 31, 1997 were
as follows:
<TABLE>
<CAPTION>
NINE MONTHS FOR THE YEARS ENDED
ENDED DECEMBER 31,
SEPTEMBER 30, -----------------------------------
1998 1997 1996 1995 1994 1993
--------------- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges................ -- 3.0 1.3 2.4 1.8 --
Deficiency in the coverage of fixed charges by
earnings before fixed charges
(in millions of dollars)........................ 99 -- -- -- -- 3
</TABLE>
These computations include us and our subsidiaries. For purposes of these
computations, "earnings" is determined by adding pre-tax income (loss) from
continuing operations and fixed charges and subtracting capitalized interest.
"Fixed charges" is determined by adding interest on indebtedness, capitalized
interest, amortized premiums, discounts and debt issuance costs and the portion
of operating rental expense representing interest.
USE OF PROCEEDS
We will use the net proceeds from the sale of the Debt Securities for
general corporate purposes.
3
<PAGE>
DESCRIPTION OF DEBT SECURITIES
We will issue the Debt Securities under an indenture dated June 5, 1995
between us and our trustee, Citibank, N.A. As of September 30, 1998, we had
approximately $3.1 billion aggregate principal amount of Debt Securities
outstanding under the indenture. We have included the indenture as an exhibit to
the registration statement of which this prospectus forms a part. The following
description of certain provisions of the indenture and the Debt Securities
summarizes their material terms, but it is not complete and is subject to the
detailed provisions of the indenture. Please look at the actual indenture for a
full description of important terms and provisions and other information
regarding the Debt Securities. We have included a glossary of certain terms we
use in this document on pp. 10-12, but you should look at the actual indenture
if you do not fully understand a term or the way we use it in this prospectus.
We sometimes refer below to specific sections of the indenture. When we do
so, we indicate where you can find the relevant section in the indenture by
noting the section number in parentheses. When we do refer to specific sections
contained in the indenture or terms defined in the indenture, including
important terms, which we capitalize here, we use them in this prospectus in the
same way we use them in the indenture and you should refer to the indenture
itself for detailed, specific, legal descriptions. Whenever we offer Debt
Securities, we will issue a prospectus supplement detailing their terms. We
refer to the entire set of Debt Securities that we will actually offer in the
future pursuant to this prospectus and any prospectus supplements we issue in
the future as "Offered Debt Securities." We use "Debt Securities" only to refer
to any securities we are entitled to offer (but may not yet have offered)
pursuant to this prospectus, which allows us to offer up to $1,000,000,000
aggregate principal amount of debt securities. The "Offered Debt Securities"
will therefore be a subset of the "Debt Securities" until we offer the entire
$1,000,000,000 aggregate principal amount.
GENERAL
The indenture allows us to issue Debt Securities in an unlimited amount from
time to time. It does not limit the amount of additional indebtedness that we
may incur and does not contain any provisions that would protect the holders of
the Debt Securities if our credit quality declines due to highly leveraged or
other transactions involving Nabisco. However, the indenture does limit the
amount of additional Funded Debt (defined on p. 11 under "Certain Definitions")
that our Restricted Subsidiaries (defined on p. 11 under "Certain Definitions")
may incur to 10% of Consolidated Net Worth (defined on p. 11 under "Certain
Definitions"). The Debt Securities will rank PARI PASSU with all of our other
unsubordinated indebtedness (which means they will have the same right to be
repaid as all of our other unsubordinated indebtedness).
The indenture provides that Debt Securities may be issued from time to time
in one or more series and may be denominated and payable in foreign currencies
or units based on or relating to foreign currencies. Special United States
federal income tax considerations applicable to any Debt Securities so
denominated will be described in the relevant prospectus supplement.
Please see the relevant prospectus supplement for the following terms of and
information relating to the Offered Debt Securities (to the extent such terms
are applicable to such Offered Debt Securities):
- the specific designation, aggregate principal amount, purchase price and
denomination
- the currency (or units based on or relating to currencies) in which such
Offered Debt Securities are denominated and in which principal of,
premium, if any, and any interest on such Offered Debt Securities will or
may be payable
- any date of maturity
4
<PAGE>
- interest rate or rates (or the method by which such rate or rates will be
determined), if any
- the dates on which any such interest will be payable
- the place or places where the principal of, premium, if any, and any
interest on the Offered Debt Securities will be payable
- any redemption, repayment or sinking fund provisions
- whether the Offered Debt Securities will be issuable in registered form or
bearer form ("bearer debt securities") or both, and, if bearer debt
securities are issuable, any restrictions applicable to the exchange of
one form for another and to the offer, sale and delivery of bearer debt
securities
- any applicable United States federal income tax consequences, including
whether and under what circumstances we will pay additional amounts on
Offered Debt Securities held by a person who is not a U.S. person (as
defined in the applicable prospectus supplement) in respect of any tax,
assessment or governmental charge withheld or deducted and, if so, whether
we will have the option to redeem such Offered Debt Securities rather than
pay such additional amounts, and
- any other specific terms of the Offered Debt Securities, including any
additional events of default or covenants provided for with respect to
such Offered Debt Securities, and any terms which may be required by or be
advisable under applicable laws or regulations.
EXCHANGE, REGISTER AND TRANSFER
The Debt Securities may be presented for exchange, registered and
transferred in the manner, at the places and subject to the restrictions set
forth in the Debt Securities and the relevant prospectus supplement. Subject to
the limitations noted in the indenture, you will not have to pay for such
services, except for any taxes or other governmental charges associated with
such services. You may transfer any Debt Securities in bearer form and the
associated coupons, if any, by delivering them.
INTEREST AND PRINCIPAL
You will earn interest on the Debt Securities at either a fixed rate (a
"fixed rate security") or a floating rate (a "floating rate security"). We will
sell any Debt Securities that bear no interest (or interest at a rate that at
the time of issuance is below the prevailing market rate) at a discount below
their stated principal amount. We will describe in the relevant prospectus
supplement any special United States federal income tax considerations that
apply to any such discounted Debt Securities (or to certain of the Debt
Securities issued at their stated principal amount but treated as having been
issued at a discount for United States federal income tax purposes). We may,
from time to time, issue Debt Securities for which we determine the principal
amount payable on any principal payment date, or the amount of interest payable
on any interest payment date, by referring to one or more currency exchange
rates, commodity prices, equity indices or other factors. If you hold such Debt
Securities, you may receive a principal amount on any principal payment date, or
a payment of interest on any interest payment date, that varies depending upon
the value on such dates of the applicable currency, commodity, equity index or
other factors and is therefore greater than or less than the amount of principal
or interest otherwise payable on such dates. In the applicable prospectus
supplement, we will describe the methods for determining the amount of principal
or interest payable on any date, including the currencies, commodities, equity
indices or other factors which we will use to calculate the amount payable on
such date. We will also describe certain additional tax considerations in the
applicable prospectus supplement.
5
<PAGE>
RANKING
Claims by holders of the Debt Securities, when issued, will:
- have the same right of payment as our senior indebtedness (are "PARI
PASSU")
- have the right to be paid before (will be "senior" to) any of our future
subordinated debt
However, we will pay the claims of holders of the Debt Securities only after
we pay (we will "subordinate" the claims to) any claims of holders of the debt
of our subsidiaries paid out of the assets of such subsidiaries.
Please note further that even if our subsidiaries owe us money for
outstanding intercompany debt, we will not be able to collect such debts to use
to repay you until all of the claims of holders of the secured debt of such
subsidiaries have been honored.
The accompanying prospectus supplement describes the amount of our debt as
of the most recently completed fiscal quarter that is:
- PARI PASSU with the Debt Securities
- secured
- debt to which your Debt Securities are subordinated
You should therefore read the statements in the accompanying prospectus
supplement and treat them as if they were written here.
Under certain circumstances, we may secure the Debt Securities equally and
ratably with other senior indebtedness of Nabisco. See "Certain Covenants of
Nabisco--Restrictions on Liens."
GLOBAL SECURITIES
We may issue registered Debt Securities of a series in the form of one or
more fully registered global Debt Securities (a "registered global security")
that we will deposit with a depositary (or with a nominee of a depositary)
identified in the prospectus supplement relating to such series and registered
in the name of the depositary (or a nominee). In such a case, we will issue one
or more registered global securities. On the face of such registered global
securities, we will write the aggregate principal amount of the series of Debt
Securities that such global registered securities represent. We will not allow
the depositary (or its nominee) to transfer any registered global security
unless and until we exchange it in whole or in part for Debt Securities in
definitive registered form, except that:
- the depositary may transfer the whole registered global security to a
nominee
- the depositary's nominee may transfer the whole registered global security
to the depositary
- the depositary's nominee may transfer the whole registered global security
to another of the depositary's nominees
- the depositary (or its nominee) may transfer the whole registered global
security to its (or its nominee's) successor
The Depository Trust Company, which may be a depositary, currently accepts
only Debt Securities that are denominated in U.S. dollars.
6
<PAGE>
DEPOSITARY ARRANGEMENTS
We will describe the specific terms of the depositary arrangement with
respect to any portion of a series of Debt Securities to be represented by a
registered global security in the prospectus supplement relating to such series.
We anticipate that the following provisions will apply to all depositary
arrangements.
We will limit ownership of beneficial interests in a registered global
security to persons that have accounts with the depositary for such registered
global security ("participants") or persons that may hold interests through
participants. Upon the issuance of a registered global security, the depositary
will credit, on its book-entry registration and transfer system, the
participants' accounts with the respective principal amounts of the Debt
Securities represented by such registered global security that are beneficially
owned by such participants.
Any dealers, underwriters or agents participating in the distribution of
such Debt Securities will designate the accounts to credit. For participants,
the depositary will maintain the only record of their ownership of a beneficial
interest in the registered global security and they will only be able to
transfer such interests through the depositary's records. For people who hold
through a participant, the relevant participant will maintain such records for
beneficial ownership and transfer. The laws of some states may require that
certain purchasers of securities take physical delivery of such securities in
definitive form. Such limits and such laws may impair the ability to own,
transfer or pledge beneficial interests in registered global securities.
So long as the depositary (or its nominee) is the record owner of a
registered global security, such depositary (or its nominee) will be considered
the sole owner or holder of the Debt Securities represented by such registered
global security for all purposes under the indenture. Except as set forth below,
owners of beneficial interests in a registered global security will not be
entitled to have the Debt Securities represented by such registered global
security registered in their names, and will not receive or be entitled to
receive physical delivery of such Debt Securities in definitive form and will
not be considered the owners or holders under the indenture. Accordingly, each
person owning a beneficial interest in a registered global security must rely on
the procedures of the depositary and, if such person is not a participant, on
the procedures of the participant through which such person owns its interest,
to exercise any rights of a holder under the indenture. We understand that under
existing industry practices, if we request any action of holders or if any owner
of a beneficial interest in a registered global security desires to give or take
any action allowed under the indenture, the depositary would authorize the
participants holding the relevant beneficial interests to give or take such
action, and such participants would authorize beneficial owners owning through
such participants to give or take such action or would otherwise act upon the
instruction of beneficial owners holding through them.
INTEREST AND PREMIUM
We will make payments of principal of, premium, if any, and any interest on
Debt Securities represented by a registered global security registered in the
name of a depositary (or its nominee) to the depositary (or its nominee) as the
registered owner of such registered global security. We and our agents will have
no responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in any registered
global security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests, and neither will the trustee
and its agents.
We expect that the depositary for any Debt Securities represented by a
registered global security, upon receipt of any payment of principal, premium,
if any, or any interest in respect of such registered global security, will
immediately credit participants' accounts with payments in amounts proportionate
to their respective beneficial interests in such registered global security as
shown on the depositary's
7
<PAGE>
records. We also expect that payments by participants to owners of beneficial
interests in such registered global security held through such participants will
be governed by standing customer instructions and customary practices, as is now
the case with securities held for the accounts of customers in bearer form or
registered in "street name," and will be the responsibility of such
participants.
WITHDRAWAL OF DEPOSITARY
If the depositary for any Debt Securities represented by a registered global
security notifies us that it is unwilling or unable to continue as depositary or
ceases to be eligible under applicable law, and we do not appoint a successor
depositary within 90 days, we will issue Debt Securities in definitive form in
exchange for the relevant registered global security. In addition, we may at any
time and in our sole discretion determine not to have any of the Debt Securities
of a series represented by one or more registered global securities and, in such
event, we will issue Debt Securities of such series in definitive form in
exchange for all of the registered global security or registered global
securities representing such Debt Securities. Any Debt Securities issued in
definitive form in exchange for a registered global security will be registered
in such name or names that the depositary gives to the trustee. We expect that
such instructions will be based upon directions received by the depositary from
participants with respect to ownership of beneficial interests in such
registered global security.
BEARER GLOBAL SECURITIES
We may also issue the Debt Securities of a series in the form of one or more
bearer global securities (a "bearer global security") that we will deposit with
a common depositary for Euroclear and CEDEL, or with a nominee for such
depositary identified in the prospectus supplement relating to such series. We
will describe the specific terms and procedures, including the specific terms of
the depositary arrangement, with respect to any portion of a series of Debt
Securities to be represented by a bearer global security in the prospectus
supplement relating to such series.
CERTAIN COVENANTS OF NABISCO
The following restrictions apply to each series of Debt Securities unless
the terms of such series of Debt Securities provide otherwise.
RESTRICTIONS ON LIENS
The indenture provides that we and our Restricted Subsidiaries (defined on
p. 11) will not mortgage or pledge as security for any indebtedness any:
- shares of stock of a Restricted Subsidiary
- indebtedness of a Restricted Subsidiary
- other obligations of a Restricted Subsidiary
- Principal Property (defined on p. 11)
The above restrictions apply regardless of whether we (or our Restricted
Subsidiary) own the above items as of the date of the indenture or acquire them
later. However, we and our Restricted Subsidiaries may secure indebtedness with
such mortgages or pledges if the outstanding Debt Securities are equally and
ratably secured by the same collateral.
This covenant does not apply in the case of:
- the creation at the time (or within 120 days) of an acquisition of any
mortgage, pledge or other lien on any assets acquired after the date of
the indenture (including acquisitions by way of
8
<PAGE>
merger or consolidation) that we create to secure the financing of any
part of the purchase price of such assets
- the assumption of any mortgage, pledge or other lien upon any assets
acquired after the date of the indenture existing at the time of such
acquisition
- the acquisition of any assets subject to any mortgage, pledge or other
lien if we do not assume such mortgage, pledge or lien
(SEE SECTION 4.3(A) OF THE INDENTURE)
Every such mortgage, pledge or lien created or assumed by us or a Subsidiary
as part of an acquisition may only attach to the assets acquired together with
fixed improvements thereon.
This covenant also does not apply to:
- any mortgage, pledge or other lien on any assets existing at the date of
the indenture
- any mortgage, pledge or other lien on any assets in favor of us or a
Restricted Subsidiary
- any mortgage, pledge or other lien on any Principal Property to finance
construction or improvements on such Principal Property
- any mortgage, pledge or other lien on any assets incurred to issue
tax-exempt governmental obligations
- any renewal of or substitution for any of the above-listed permitted
mortgages, pledges or other liens
(SEE SECTION 4.3(A) OF THE INDENTURE)
Please note that we (or any Restricted Subsidiary) may create or assume
liens in addition to those just listed and we (or any Restricted Subsidiary) may
renew, extend or replace such liens, provided that at the time of such creation,
assumption, renewal, extension or replacement, (and after giving it effect)
Exempted Debt (defined on p. 11) does not exceed 10% of Consolidated Net Worth
(defined on p. 11). (SEE SECTION 4.3(B) OF THE INDENTURE)
RESTRICTIONS ON SALE AND LEASE-BACK TRANSACTIONS. The indenture provides
that we will not (and will not permit any Restricted Subsidiary to) sell or
transfer, directly or indirectly, except to us or a Restricted Subsidiary, any
Principal Property as an entirety, or any substantial portion thereof, with the
intention of taking back a lease of such property, except a lease for a period
of three years or less after which use of such property will be discontinued.
However, we (or any Restricted Subsidiary) may sell Principal Property and lease
it back for a longer period if:
- we or our Restricted Subsidiary would be entitled, pursuant to the
provisions of Section 4.3(a) of the indenture described above under
"Restrictions on Liens," to create a mortgage on the property to secure
Funded Debt (defined on p. 11) in an amount equal to the Attributable Debt
(defined on p. 10) with respect to such sale and lease-back transaction
without equally and ratably securing the outstanding Debt Securities, or
- we promptly inform the trustee of such transaction, the net proceeds of
the transaction are at least equal to the fair value of the property (as
determined by board resolution of Nabisco) and we apply an amount equal to
the net proceeds of the sale to the retirement, within 120 days after
receipt of such proceeds, of Funded Debt incurred or assumed by us or a
Restricted Subsidiary (including the Debt Securities).
9
<PAGE>
We may, within 75 days of the sale, instead of using such net proceeds for
retirement, deliver to the applicable trustee for cancellation either debentures
or notes evidencing our Funded Debt (including outstanding Debt Securities) or
Funded Debt of a Restricted Subsidiary, and use any remaining net proceeds to
retire Funded Debt. (SEE SECTION 4.4(A) OF THE INDENTURE.)
Regardless of the above restrictions, we (or any Restricted Subsidiary) may
enter into sale and lease-back transactions in addition to those permitted
transactions outlined above without any obligation to retire any outstanding
Debt Securities or other Funded Debt if, when we enter into a sale and
lease-back transaction, Exempted Debt does not exceed 10% of Consolidated Net
Worth. (SEE SECTION 4.4(B) OF THE INDENTURE)
RESTRICTIONS ON FUNDED DEBT OF RESTRICTED SUBSIDIARIES. Under the
indenture, we may not allow a Restricted Subsidiary to create, assume or permit
to exist any Funded Debt other than:
- Funded Debt secured by a mortgage, pledge or lien permitted under the
provisions of Section 4.3(a) of the indenture described above under
"Restrictions on Liens"
- Funded Debt owed to us or another Restricted Subsidiary
- Funded Debt of a corporation existing at the time it becomes a Restricted
Subsidiary
- Funded Debt existing on the date of the indenture
- Funded Debt created to issue tax exempt governmental obligations
- renewals, extensions or replacements of the foregoing
In addition, we may not allow a Restricted Subsidiary to guarantee directly
(or indirectly through any arrangement substantially the equivalent of a
guarantee) any Funded Debt except for:
- guarantees existing on the date of the indenture
- guarantees that a Restricted Subsidiary is obligated to give as of the
date of the indenture
- guarantees of Funded Debt secured by a mortgage, pledge or lien permitted
under the provisions of Section 4.3(a) of the indenture described above
under "Restrictions on Liens"
- renewals, extensions or replacements of the foregoing
(SEE SECTION 4.5(A) OF THE INDENTURE)
However, a Restricted Subsidiary may create, assume or guarantee Funded Debt
in addition to that otherwise permitted, and renew, extend or replace such
Funded Debt, if at the time of such creation, assumption, guarantee, renewal,
extension or replacement, and after giving it effect, Exempted Debt does not
exceed 10% of Consolidated Net Worth. (SEE SECTION 4.5(B) OF THE INDENTURE)
The indenture does not contain provisions which would protect the holders of
the Debt Securities in the event of a decline in our credit quality resulting
from a change of control transaction, a highly leveraged transaction or other
similar transactions involving us.
CERTAIN DEFINITIONS
The term "Attributable Debt" as defined in the indenture means, when used in
connection with a sale and lease-back transaction referred to above under
"Restrictions on Sale and Lease-Back Transactions," on any date on which the
amount of Attributable Debt thereof is to be determined, the product of:
- the net proceeds from such sale and lease-back transaction multiplied by
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- a fraction,
- the numerator of which is the number of full years of the term of the
lease relating to the property involved in such sale and lease-back
transaction (without regard to any options to renew or extend such
term) remaining at the date of the making of such computation
- the denominator of which is the number of full years of the term of
such lease measured from the first day of such term.
The term "Consolidated Net Worth" as defined in the indenture means, at any
date of determination, the consolidated stockholders' equity of Nabisco, as set
forth on the then most recently available consolidated balance sheet of Nabisco
and its consolidated subsidiaries.
The term "Exempted Debt" as defined in the indenture means the sum, without
duplication, of the following items outstanding as of the date Exempted Debt is
being determined:
- indebtedness of us and our Restricted Subsidiaries incurred after the date
of the indenture and secured by liens created or assumed or permitted to
exist pursuant to Section 4.3(b) of the indenture described above under
"Restrictions on Liens"
- Attributable Debt of us and our Restricted Subsidiaries in respect of all
sale and lease-back transactions with regard to any Principal Property
entered into pursuant to Section 4.4(b) of the indenture described above
under "Restrictions on Sale and Lease-Back Transactions"
- Funded Debt of Restricted Subsidiaries created, assumed, guaranteed or
otherwise incurred or permitted to exist pursuant to Section 4.5(b) of the
indenture described above under "Restrictions on Funded Debt of Restricted
Subsidiaries"
The term "Funded Debt" as defined in the indenture means all indebtedness
for money borrowed, including purchase money indebtedness, having a maturity of
more than one year from the date of its creation or having a maturity of less
than one year but by its terms renewable or extendible, at our option, beyond
one year from its creation.
The term "holder" or "securityholder," as defined in the indenture, means
the registered holder of any Debt Security with respect to registered Debt
Securities and the bearer of any unregistered Debt Security or any associated
coupon, as the case may be.
The term "original issue discount security," as defined in the indenture
means any Debt Security that provides for an amount less than its principal
amount to be due and payable upon a declaration of acceleration of its maturity
pursuant to Section 6.2 of the indenture.
The terms "Principal Property" as defined in the indenture means land, land
improvements, buildings and associated factory and laboratory equipment owned or
leased pursuant to a capital lease and used by us or a Restricted Subsidiary
primarily for processing, producing, packaging or storing our products, raw
materials, inventories, or other materials and supplies, located within the
United States of America, and having an acquisition cost plus capitalized
improvements in excess of 2% of Consolidated Net Worth as of the date of such
determination. Principal Property does not include any property financed through
the issuance of tax-exempt government obligations or any property that our
board, by a resolution, determines is not materially important for the
businesses conducted by us or a Restricted Subsidiary, effective from the date
our Board adopts any such resolution.
The term "Restricted Subsidiary" as defined in the indenture means any
subsidiary organized and existing under the laws of the United States that:
- conducts its principal business in the United States
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- owns (or leases pursuant to a capital lease) any Principal Property, and
- in which our investment and the investment of our subsidiaries exceeds 5%
of Consolidated Net Worth as of the date of such determination
Restricted Subsidiary does not include the following, though:
- any subsidiary whose business consists principally of finance, banking,
credit, leasing, insurance, financial services or other similar
operations, or any combination of such operations
- any subsidiary formed or acquired after the date of the indenture to
acquire the business or assets of another person (that does not acquire
all or any substantial part of the business or assets of us or a
Restricted Subsidiary)
Our board may, by resolution, declare any subsidiary a Restricted Subsidiary
as of the date of such resolution. Our board may also rescind any such
declaration, effective the date of the resolution that rescinds the declaration.
The term "subsidiary" as defined in the indenture means, with respect to any
person, corporation, association or other business entity "A," any other person,
corporation, association or other business entity "B" in which "A" owns,
directly or indirectly, more than 50% of the outstanding voting stock.
RESTRICTIONS ON MERGERS AND SALES OF ASSETS
Under the indenture, we may not consolidate with, merge with or into, or
sell, convey, transfer, lease or otherwise dispose of all or substantially all
of our property and assets (as an entirety or substantially as an entirety in
one transaction or a series of related transactions) to any person (other than a
consolidation with or merger with or into a subsidiary or a sale, conveyance,
transfer, lease or other disposition to a subsidiary) or permit any person to
merge with or into us unless:
- we are the surviving person, or
- the person formed by such consolidation, into which we merge or that
acquires or leases our property and assets:
- is a corporation organized and validly existing under the laws of the
United States
- expressly assumes, by a supplemental indenture, executed and delivered
to the trustee, all of our obligations on all of the Debt Securities
- we deliver to the trustee an opinion of counsel stating that such
consolidation, merger or transfer and such supplemental indenture
comply with the indenture and that the supplemental indenture
constitutes a legal, valid, binding and enforceable obligation of such
person subject to customary exceptions
- we deliver to the trustee an officers' certificate and opinion of
counsel to the effect that immediately after giving effect to such
transaction, no default (as defined in the indenture) shall have
occurred and be continuing
(SEE SECTION 5.1 OF THE INDENTURE)
EVENTS OF DEFAULT
The following are Events of Default under the indenture for any Debt
Securities:
- we default in the payment of principal of such Debt Securities when due
and payable (at maturity, upon acceleration, redemption or mandatory
repurchase, including as a sinking fund installment, or otherwise)
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- we default in the payment of interest on such Debt Securities when due and
payable, and such default continues for a period of 30 days
- we default in the performance of or breach any other covenant or agreement
in the indenture with respect to such Debt Securities or in the Debt
Securities themselves and such default or breach continues for a period of
30 consecutive days after written notice to us by the trustee or to us and
the trustee by the holders of 25% or more in aggregate principal amount of
the Debt Securities of all series affected thereby
- an involuntary case or other proceeding is commenced against us or any
Restricted Subsidiary with respect to debts under any bankruptcy,
insolvency or other similar law seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of us or any
substantial part of our property, and such involuntary case or other
proceeding remains undismissed and unstayed for a period of 60 days; or
any order for relief is entered against us or any Restricted Subsidiary
under the federal bankruptcy laws
- we or any Restricted Subsidiary:
- commence a voluntary case under any applicable bankruptcy, insolvency
or other similar law or consent to the entry of an order for relief in
an involuntary case under any such law
- consent to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official of us or any Restricted Subsidiary or for all or substantially
all of our property and assets or of any Restricted Subsidiary
- effect any general assignment for the benefit of creditors
- any other Event of Default established for such series of Debt Securities
occurs. (SEE SECTION 6.1 OF THE INDENTURE)
The indenture provides that if an Event of Default occurs, the trustee or
holders of at least 25% in aggregate principal amount of any affected series of
Debt Securities may declare the entire principal of (minus the discount of
original issue discount securities) and accrued interest on such Debt Securities
immediately due and payable upon written notice to us (unless the entire
principal has already become due and payable, in which case no notice is
necessary).
If an Event of Default occurs due to a voluntary or involuntary bankruptcy
or similar proceeding, as described above, then the entire principal of and
accrued interest on all outstanding Debt Securities will automatically become
due and payable without any notice to us.
Upon certain conditions such declarations may be rescinded and annulled and
past defaults may be waived by the holders of a majority in principal of the
then outstanding Debt Securities of all series that have been accelerated
(voting as a single class). (SEE SECTION 6.2 OF THE INDENTURE)
The indenture contains a provision under which, subject to the duty of the
trustee during a default to act with the required standard of care:
- the trustee may rely upon and will be protected in acting or refraining
from acting based on any documentary evidence of an Event of Default it
obtains that it believes to be genuine and to have been signed or
presented by the proper person or persons and the trustee need not
investigate any fact or matter stated in the document, but the trustee, in
its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit
- before the trustee acts or refrains from acting, it may require an
officers' certificate and/or an opinion of counsel that conform to the
requirements of the indenture and the trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such
certificate or opinion
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- whenever in performing its duties the trustee deems it necessary or
desirable that a matter be proved or established prior to taking or
allowing or omitting any action under the indenture, such matter (unless
other evidence is specifically prescribed in the indenture) may, in the
absence of negligence or bad faith on the part of the trustee, be deemed
conclusively proved and established by an officers' certificate delivered
to the trustee, and such certificate, in the absence of negligence or bad
faith on the part of the trustee, shall protect the trustee for any action
taken, allowed or omitted by it under the provisions of the indenture
- the trustee may act through outside attorneys and agents and shall not be
responsible for the misconduct or negligence of any agent or attorney
appointed with due care
- any request, direction, order or demand of Nabisco mentioned in the
indenture will be sufficiently evidenced by an officers' certificate
(unless other evidence is specifically prescribed in the indenture); and
any board resolution may be evidenced by a copy certified by our Secretary
or our Assistant Secretary
- the trustee is under no obligation to exercise any of the rights or powers
vested in it by the indenture at the request, order or direction of any of
the holders, unless such holders have offered to the trustee reasonable
security or indemnity against the costs, expenses and liabilities that
might be incurred by it in compliance with such request or direction
- the trustee will not be liable for any action it takes or omits to take in
good faith that it believes to be authorized or within its rights or
powers or for any action it takes or omits to take in accordance with the
direction of the holders in accordance with the indenture relating to the
time, method and place of conducting any proceeding for any remedy
available to the trustee, or exercising any trust or power conferred upon
the trustee under the indenture
- the trustee may consult with counsel and the written advice of such
counsel or any opinion of counsel will be full and complete authorization
and protection for any action taken or omitted by it under the indenture
in good faith and in reliance thereon
- prior to the occurrence of an Event of Default under the indenture and
after the curing or waiving of all Events of Default, the trustee shall
not be bound to make an investigation into the facts or matters stated in
any document without a written request from the holders of at least a
majority in aggregate principal amount of the Debt Securities of all
affected series then outstanding
If the trustee believes that payment within a reasonable time of the costs,
expenses or liabilities likely to be incurred by it in making such an
investigation is not reasonably assured by the security provided by the
indenture, the trustee may require reasonable indemnity against such expenses or
liabilities before proceeding. (SEE SECTION 7.2 OF THE INDENTURE)
Subject to indenture provisions for the indemnification of the trustee and
certain other limitations, the holders of at least a majority in aggregate
principal amount (or, if any Debt Securities are original issue discount
securities, such portion of the principal as may be specified by their terms) of
the outstanding Debt Securities of all series affected (voting as a single
class) may direct the time, method and place of conducting any proceeding for
any remedy available to the trustee or exercising any trust or power conferred
on the trustee with respect to the Debt Securities of such series. However, the
trustee may refuse to follow any direction that conflicts with law or the
indenture, that may involve the trustee in personal liability, or that the
trustee determines in good faith may be unduly prejudicial to the rights of
holders that do not join in giving such direction. The trustee may take any
other action it deems proper that is not inconsistent with any directions
received from holders of Debt Securities. (SEE SECTION 6.5 OF THE INDENTURE)
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WAIVER
Subject to various provisions in the indenture, the holders of at least a
majority in principal amount (or, if the Debt Securities are original issue
discount securities, such portion of the principal as may be specified by their
terms) of the outstanding Debt 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 Debt Securities of such series and its
consequences (except a default in the payment of principal of or interest on any
Debt 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 Debt Security affected). Upon any such waiver, such default ceases
to exist and any Event of Default resulting from such a default will cease to
exist for every purpose of the indenture. However, no such waiver will extend to
any subsequent or other default or Event of Default. (SEE SECTION 6.4 OF THE
INDENTURE)
PROCEEDINGS BY HOLDERS
The indenture provides that no holder of Debt Securities may institute any
proceeding with respect to the indenture or the Debt Securities, or for the
appointment of a receiver or trustee, or for any other remedy under the
indenture, unless:
- the holder has previously given to the trustee written notice of a
continuing Event of Default with respect to the Debt Securities
- the holders of at least 25% in aggregate principal amount of all series
affected make a written request to the trustee to institute proceedings in
its own name as trustee under the indenture
- the holder or holders offers to the trustee indemnity reasonably
satisfactory to the trustee against any costs, liabilities or expenses to
be incurred in compliance with the request
- the trustee fails to institute the requested proceeding for 60 days after
its receipt of such notice, request and offer of indemnity
- during such 60-day period, the holders of a majority in aggregate
principal amount of the affected series do not give the trustee a
direction inconsistent with the written request
A holder may not use the indenture to prejudice the rights of another holder
or to obtain a preference or priority over another holder. (SEE SECTION 6.6 OF
THE INDENTURE)
We are required under Section 13 and Section 15(d) of the Exchange Act to
file certain reports, information and documents, including our annual report,
with the SEC. Within 15 days of any such filing, we must file copies with the
trustee. (SEE SECTION 4.7 OF THE INDENTURE)
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
The indenture allows us to terminate our obligations under the Debt
Securities of a series and the indenture with respect to that series if:
- all Debt Securities of the series previously authenticated and delivered,
with certain exceptions, have been delivered to the trustee for
cancellation and we have paid all sums payable by us under the indenture,
or
- the Debt Securities of the series mature within one year (or they are all
to be called for redemption within one year under arrangements
satisfactory to the trustee for giving the notice of redemption) and we
irrevocably deposit in trust with the trustee as trust funds solely for
the benefit of the holders of such Debt Securities, for that purpose,
money or U.S. government obligations or a combination of the two
sufficient (unless such funds consist solely of money, in the opinion of a
nationally recognized firm of independent public accountants expressed in
a
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written certification delivered to the trustee), without consideration of
any reinvestment, to pay principal of and interest on the Debt Securities
of the series to maturity or redemption, as the case may be, and to pay
all other sums payable by us under the indenture, and we deliver to the
trustee an officers' certificate and an opinion of counsel, in each case
stating that we have complied with all conditions provided for in the
indenture relating to the satisfaction and discharge of the indenture with
respect to the series
- Our obligations to compensate and indemnify the trustee will however,
survive any termination. (SEE SECTION 8.1 OF THE INDENTURE)
The indenture lists certain conditions that we must satisfy to discharge our
obligations concerning a series of Debt Securities. If we meet these conditions,
any and all of our obligations related to the series will be discharged and the
indenture will deem that we have paid in full any and all payments the indenture
and the Debt Securities of the series require us to make ("legal defeasance").
In addition, if we meet the conditions, we may omit to comply with any term,
provision or condition related to the series without creating an Event of
Default ("covenant defeasance"). The conditions are as follows:
- we have irrevocably deposited in trust with the trustee as trust funds
solely for the benefit of the holders of the Debt Securities of the
series, for payment of the principal and interest of the series, money or
U.S. government obligations or a combination of the two sufficient (unless
such funds consist solely of money, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification delivered to the trustee) without consideration of any
reinvestment and after payment of all federal, state and local taxes or
other charges and assessments payable by the trustee, to pay and discharge
the principal and accrued interest on such series to maturity or earlier
redemption (irrevocably provided for under arrangements satisfactory to
the trustee), as the case may be
- such deposit does not breach, violate or constitute a default under the
indenture or any other material agreement or instrument to which we are a
party or by which we are bound
- no default with respect to the series has occurred and is continuing on
the date of the deposit
- we have delivered to the trustee an opinion of counsel that the holders of
the series will not recognize income, gain or loss for federal income tax
purposes as a result of our defeasance and that the holders of the series
have a valid security interest in the trust funds subject to no prior
liens under the Uniform Commercial Code, and
- we have delivered to the trustee an officers' certificate and an opinion
of counsel, in each case stating that we have complied with all conditions
precedent provided for in the indenture relating to the defeasance
In the case of legal defeasance, we may replace the opinion of counsel with
a ruling directed to the trustee received from the Internal Revenue Service to
the same effect. Subsequent to legal defeasance, our obligations will no longer
be outstanding, except that our obligations to compensate and indemnify the
trustee and our right to recover excess money held by the trustee shall survive.
(SEE SECTIONS 8.2 AND 8.3 OF THE INDENTURE)
MODIFICATION OF THE INDENTURE
The indenture provides that we and the trustee may amend or supplement the
indenture or the Debt Securities of any series without notice to or the consent
of any holder to:
- cure any ambiguity, defect or inconsistency in the indenture (provided
that such amendments or supplements do not materially and adversely affect
the interest of the holder)
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- comply with Article 5 of the indenture
- comply with any requirements of the SEC in connection with the
qualification of the indenture under the Trust Indenture Act
- evidence and provide for the acceptance of appointments under the
indenture with respect to the Debt Securities of any or all series by a
successor trustee
- establish the form or forms or terms of Debt Securities of any series or
of the coupons of such Debt Securities as permitted under the indenture
- provide for uncertificated or unregistered Debt Securities and make all
appropriate changes for such purpose
- make any change that does not materially and adversely affect the rights
of any holder
(SEE SECTION 9.1 OF THE INDENTURE)
The indenture also allows us and the trustee, subject to certain conditions,
to amend the indenture and the outstanding Debt Securities with the written
consent of a majority in principal amount of the holders of all series of Debt
Securities affected by such amendment, with all such series voting together as a
single class. This majority may also waive future compliance by us with any
provision of the indenture or such Debt Securities by written notice to the
trustee.
However, unless every affected holder consents, we may not:
- extend the stated maturity of the principal, any sinking fund obligation
or any installment of interest on such holder's Debt Security
- reduce the principal amount
- reduce the rate of interest (including any amount in respect of original
issue discount)
- reduce any premium payable
- 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
- reduce the amount of the principal of an original issue discount security
that would be due and payable upon an acceleration of maturity or reduce
the amount provable in bankruptcy
- change any place of payment where, or the currency in which, any Debt
Security or any premium or interest is payable
- impair the right to institute suit for the enforcement of any such payment
on or after its due date
- reduce the percentage in principal amount of outstanding Debt Securities
of a series whose consent is required for any supplemental indenture, or
for any waiver of convenants or defaults and their consequences under the
indenture
- waive a default in the payment of principal or interest on any Debt
Security of such holder
- modify any of the above provisions, 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
Debt Security affected thereby
A supplemental indenture that changes or eliminates any covenant or other
provision of the indenture that has expressly been included solely for the
benefit of one or more particular series of Debt Securities, or that modifies
the rights of holders of Debt Securities of such series with respect to
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such covenant or provision, will be deemed not to affect the rights under the
indenture of the holders of Debt Securities of any other series or of the
coupons related to such other Debt Securities. However, a holder does not have
to approve the particular form of any proposed amendment, supplement or waiver
for it to be valid; it is sufficient if such consent approves the substance.
After such an amendment, supplement or waiver becomes effective, we will give to
the affected holder a notice briefly describing the amendment, supplement or
waiver. We will mail supplemental indentures to holders upon request. Any
failure by us to mail such notice or any defect will not, however, in any way
impair or affect the validity of any such supplemental indenture or waiver. (SEE
SECTION 9.2 OF THE INDENTURE)
CONCERNING THE TRUSTEE
We and our affiliates maintain ordinary banking relationships with Citibank,
N.A. and its affiliates. Citibank, N.A. is one of the senior managing agents
under both our and RJRN's principal credit agreements and is the trustee under
an indenture pursuant to which RJRN has issued debt securities. Citibank, N.A.
and its affiliates have also extended loans to Nabisco, RJRN and their
respective subsidiaries and provide them with other financial services.
PLAN OF DISTRIBUTION
We may offer the Debt Securities directly to purchasers or indirectly
through underwriters, dealers or agents. We may also offer them directly to
underwriters, dealers or agents. We will name any such underwriters, dealers or
agents in the relevant prospectus supplement. We will also set forth in the
relevant prospectus supplement:
- the terms of the offering of such Debt Securities
- the proceeds we receive from such a sale
- any underwriting discounts and other items constituting underwriters'
compensation
- any initial public offering price
- any discounts or concessions allowed or reallowed or paid to dealers
- any securities exchanges on which we may list such Debt Securities
We may distribute the Debt Securities from time to time in one or more
transactions at:
- a fixed price
- prices that may be changed
- market prices at the time of sale
- prices related to prevailing market prices
- negotiated prices
We will describe the method of distribution in the relevant prospectus
supplement.
If we use underwriters, in the relevant prospectus supplement we will:
- name the managing underwriter, if any
- name any other underwriters
- disclose the terms of the transaction, including any underwriting
discounts and other items constituting compensation of the underwriters
and dealers, if any
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The underwriters will acquire any such Debt Securities for their own
accounts and they may resell the Debt Securities from time to time in one or
more transactions, including:
- negotiated transactions
- at a fixed public offering price
- at varying prices determined at the time of sale
Any initial public offering price and any discounts or concessions allowed
or reallowed or paid to dealers may be changed from time to time. We anticipate
that any underwriting agreement pertaining to any Debt Securities will:
- entitle the underwriters to indemnification by us against certain civil
liabilities under the Securities Act, or to contribution with respect to
payments that the underwriters may be required to make related to any such
civil liability
- subject the obligations of the underwriters to certain conditions
precedent
- obligate the underwriters to purchase all Debt Securities offered in a
particular offering if any such Debt Securities are purchased
In connection with an offering of Debt Securities, underwriters may engage
in transactions that stabilize, maintain or otherwise affect the price of the
Debt Securities. Specifically, underwriters may:
- overallot in connection with the offering, creating a syndicate short
position
- bid for, and purchase, Debt Securities in the open market to cover
syndicate short positions
- bid for, and purchase, Debt Securities in the open market to stabilize the
price of the Debt Securities
- reclaim selling concessions allowed for distributing the Debt Securities
in the offering if the syndicate repurchases previously distributed Debt
Securities in syndicate covering transactions, in stabilization
transactions or otherwise
Any of these activities may stabilize or maintain the market price of the
Debt Securities above independent market levels. Underwriters are not required
to engage in these activities, and may end any of these activities at any time.
If we use a dealer in an offering of Debt Securities, we will sell such Debt
Securities to the dealer, as principal. The dealer may then resell the Debt
Securities to the public at varying prices to be determined by such dealer at
the time of resale. We will set forth the name of the dealer and the terms of
the transaction in the prospectus supplement.
If we use an agent in an offering of Debt Securities, we will name the agent
and describe the terms of the agency in the relevant prospectus supplement.
Unless we indicate otherwise in the prospectus supplement, we will require an
agent to act on a best efforts basis for the period of its appointment.
Dealers and agents named in a prospectus supplement may be considered
underwriters of the Debt Securities described in the prospectus supplement under
the Securities Act. We may indemnify them against certain civil liabilities
under the Securities Act. In the ordinary course of business, we may engage in
transactions with underwriters, dealers and agents and they may perform services
for us.
We may solicit offers to purchase Debt Securities and make sales directly to
institutional investors or others who may be considered underwriters under the
Securities Act with respect to such sales. We will describe the terms of any
such offer in the relevant prospectus supplement.
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If we authorize underwriters or other agents to solicit offers to purchase
Debt Securities from institutional investors pursuant to contracts providing for
payment and delivery at a future date, we will indicate that we are doing so in
the relevant prospectus supplement. We must approve all purchasers under such
contracts; the institutional investors may include commercial and savings banks,
insurance companies, pension funds, investment companies, educational and
charitable institutions and others. We will not subject the obligations of such
purchasers to any conditions except that:
- we will not allow such purchases if they violate the laws of any
jurisdiction to which a proposed purchaser is subject, and
- if we are also selling the Debt Securities to underwriters, we will not
sell to the underwriters subject to delayed delivery
Underwriters and other agents will not be responsible for the validity or
performance of such contracts.
We will set forth in the relevant prospectus supplement the anticipated
delivery date of Debt Securities and the prospectus delivery obligations of
dealers.
LEGAL MATTERS
James A. Kirkman III, our Executive Vice President, General Counsel and
Secretary, will pass upon the validity of the Debt Securities. Mr. Kirkman holds
common stock and options to purchase the common stock of Nabisco Holdings, our
parent. His common stock and options in the aggregate account for less than 0.1%
of the outstanding shares of all classes of Nabisco Holdings' common stock.
EXPERTS
Deloitte and Touche LLP, independent auditors, audited our consolidated
financial statements and financial statement schedules incorporated in this
prospectus by reference from our Annual Report on Form 10-K for the year ended
December 31, 1997, as stated in their report. We incorporated the consolidated
financial statements and financial statement schedules in reliance upon Deloitte
and Touche's report, given upon the authority of that firm as experts in
accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Registration fee................................................. $ 278,000
Blue Sky fees and expenses....................................... 10,000*
Printing and engraving expenses.................................. 75,000*
Legal fees and expenses.......................................... 100,000*
Trustee fees and expenses........................................ 250,000*
Accounting fees and expenses..................................... 75,000*
Miscellaneous.................................................... 12,000*
---------
Total........................................................ $ 800,000
---------
---------
</TABLE>
- ------------------------
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 14A:3-5 of the New Jersey Business Corporation Act (the "Act") sets
forth the extent to which our officers and directors may be indemnified against
any liabilities which they may incur in their capacity as such. Section 14A:3-5
of the Act provides standard provisions that no indemnification shall be made if
such person shall have been adjudged liable to a corporation unless the court in
which such proceeding was brought determines upon application that the
defendant, officers or directors are fairly and reasonably entitled to indemnity
for such expenses despite such adjudication of liability. In any case, a
corporation must indemnify an officer or director against expenses (including
attorney's fees) to the extent that he has been successful on the merits or
otherwise or in defense of any claim or issue.
Directors and officers of the Registrant may be indemnified under certain
insurance policies maintained on our behalf. Section 7 of the form of
underwriting agreement filed as Exhibit 1 to this registration statement
provides for indemnification of directors, officers who sign the registration
statement and controlling persons of Nabisco by the underwriters, and for
indemnification of each underwriter and its controlling persons by us, against
certain liabilities.
Article IV of our Amended and Restated By-Laws provides for indemnification
of the officers and directors to the full extent permitted by applicable law.
II-1
<PAGE>
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ------------- -----------------------------------------------------------------------------------------------------
<C> <S>
1 Form of Underwriting Agreement Standard Provisions (incorporated by reference to Exhibit 1 to the
Registration Statement on Form S-3 of Nabisco, Inc., Registration No. 33-93214, filed on June 7,
1995, as amended ("Form S-3, Registration No. 33-93214")).
4.1 Indenture dated as of June 5, 1995 between Nabisco, Inc., and Citibank, N.A. (incorporated by
reference to Exhibit 4.1 to Form S-3, Registration No. 33-93214 (including forms of Debt Securities).
4.2 Form of Debt Securities (included in Exhibit 4.1 above).
5 Opinion of James A. Kirkman III, Executive Vice President, General Counsel and Secretary of Nabisco,
regarding the legality of the securities being registered.
12.1 Computation of Ratio of Earnings to Fixed Charges/Deficiency in the Coverage of Fixed Charges by
Earnings Before Fixed Charges for the nine months ended September 30, 1998 (incorporated by reference
to Exhibit 12 to Nabisco's Quarterly Report on Form 10-Q for the nine months ended September 30,
1998).
12.2 Computation of Ratio of Earnings to Fixed Charges/Deficiency in the Coverage of Fixed Charges by
Earnings Before Fixed Charges for the five fiscal years ended December 31, 1997 (incorporated by
reference to Exhibit 12 to Nabisco's Annual Report on Form 10-K for the fiscal years ended December
31, 1995, 1996 and 1997 and to Exhibit 12 to the Registration Statement on Form S-4 of Nabisco, Inc.,
Registration No. 33-90224, filed on March 10, 1995, as amended).
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of James A. Kirkman III (included in the opinion filed as Exhibit 5).
24 Powers of Attorney of Steven F. Goldstone, James M. Kilts, James E. Healey, Herman Cain, John T.
Chain, Jr., David B. Jenkins and Kay Koplovitz.
</TABLE>
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the
II-2
<PAGE>
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial BONA FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to our directors, officers and controlling persons
pursuant to the foregoing provisions, or otherwise, we have been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by a registrant of expenses incurred or paid by a director,
officer or controlling person of such registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, we will,
unless in the opinion of our counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by us is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(d) The undersigned hereby undertakes that:
1. For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrants pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
2. For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Nabisco, Inc.
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this amendment to the
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Town of Parsippany, State of New Jersey, on January 22,
1999.
NABISCO, INC.
By: /s/ IAN E. LEE-LEVITEN
-----------------------------------------
Ian E. Lee-Leviten
SENIOR VICE PRESIDENT AND CONTROLLER
(PRINCIPAL ACCOUNTING OFFICER)
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities indicated on January 22, 1999.
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
*
- ------------------------------ Chairman of the Board January 22, 1999
Steven F. Goldstone
Director, President and
* Chief Executive Officer
- ------------------------------ (Principal Executive January 22, 1999
James M. Kilts Officer)
Executive Vice President
* and Chief Financial
- ------------------------------ Officer (Principal January 22, 1999
James E. Healey Financial Officer)
/s/ IAN E. LEE-LEVITEN Senior Vice President and
- ------------------------------ Controller (Principal January 22, 1999
Ian E. Lee-Leviten Accounting Officer)
*
- ------------------------------ Director January 22, 1999
Herman Cain
*
- ------------------------------ Director January 22, 1999
John T. Chain, Jr.
*
- ------------------------------ Director January 22, 1999
David B. Jenkins
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
*
- ------------------------------ Director January 22, 1999
Kay Koplovitz
</TABLE>
<TABLE>
<S> <C> <C> <C>
*By: /s/ IAN E. LEE-LEVITEN
-------------------------
(Ian E. Lee-Leviten)
Attorney-in-Fact
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION PAGE
- ------------- ---------------------------------------------------------------------------------------------- ---------
<C> <S> <C>
1 Form of Underwriting Agreement Standard Provisions (incorporated by reference to Exhibit 1 to
the Registration Statement on Form S-3 of Nabisco, Inc., Registration No. 33-93214, filed on
June 7, 1995, as amended ("Form S-3, Registration No. 33-93214")).
4.1 Indenture dated as of June 5, 1995 between Nabisco, Inc., and Citibank, N.A. (incorporated by
reference to Exhibit 4.1 to Form S-3, Registration No. 33-93214 (including forms of Debt
Securities).
4.2 Form of Debt Securities (included in Exhibit 4.1 above).
5 Opinion of James A. Kirkman III, Executive Vice President, General Counsel and Secretary of
Nabisco, regarding the legality of the securities being registered.
12.1 Computation of Ratio of Earnings to Fixed Charges/Deficiency in the Coverage of Fixed Charges
by Earnings Before Fixed Charges for the nine months ended September 30, 1998 (incorporated by
reference to Exhibit 12 to Nabisco's Quarterly Report on Form 10-Q for the nine months ended
September 30, 1998).
12.2 Computation of Ratio of Earnings to Fixed Charges/Deficiency in the Coverage of Fixed Charges
by Earnings Before Fixed Charges for the five fiscal years ended December 31, 1997
(incorporated by reference to Exhibit 12 to Nabisco's Annual Report on Form 10-K for the
fiscal years ended December 31, 1995, 1996 and 1997 and to Exhibit 12 to the Registration
Statement on Form S-4 of Nabisco, Inc., Registration No. 33-90224, filed on March 10, 1995, as
amended).
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of James A. Kirkman III (included in the opinion filed as Exhibit 5).
24 Powers of Attorney of Steven F. Goldstone, James M. Kilts, James E. Healey, Herman Cain, John
T. Chain, Jr., David B. Jenkins and Kay Koplovitz.
</TABLE>
<PAGE>
EXHIBIT 5
October 23, 1998
Nabisco, Inc.
7 Campus Drive
Parsippany, New Jersey 07054
Ladies and Gentlemen:
I have acted as counsel for Nabisco, Inc. ("the Company") in connection with
the accompanying Registration Statement on Form S-3 (together with its exhibits,
the "Registration Statement") for the issuance and sale of debt securities (the
"Debt Securities") of the Company.
I have examined the Registration Statement and such other documents and
records, and made such other investigations, as I have deemed necessary and
relevant for this opinion. Based on this review, I am of the opinion that the
Debt Securities of the Company will be duly authorized, legally valid and
binding obligations of the Company when they have been (a) duly authorized and
executed by the Company; (b) duly authenticated as contemplated by the
Registration Statement; and (c) delivered against payment therefor in the manner
described in the Registration Statement and any applicable prospectus or pricing
supplement.
This opinion is subject to the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other similar laws affecting the
rights and remedies of creditors generally and of general principles of equity,
whether applied by a court of law or equity.
The opinions set forth herein are limited to the laws of the State of New
York, the New Jersey Business Corporation Act and the federal laws of the United
States.
I consent to the filing of this opinion as an exhibit to the Registration
Statement and to the use of my name therein under the heading "Legal Matters".
Very truly yours,
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Nabisco, Inc. ("the Company") on Form S-3 (the "Registration Statement") of
our report dated January 26, 1998 appearing in the Annual Report on Form 10-K of
the Company for the year ended December 31, 1997. We also consent to the
reference to us under the headings "Experts" in the Prospectus, which is part of
this Registration Statement.
/s/ Deloitte & Touche LLP
Parsippany, New Jersey
October 23, 1998
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each of the undersigned appoints James
A. Kirkman III as the attorney-in-fact and agent of the undersigned, with full
power and authority of substitution, to execute for and on behalf of the
undersigned a shelf REGISTRATION STATEMENT ON FORM S-3 for the offerings of debt
securities by NABISCO, INC., a New Jersey corporation (the "Company"), all
pre-effective and post-effective amendments or supplements to this Registration
Statement and all related documents and instruments, and to file the same with
the Securities and Exchange Commission and with each exchange on which Company
securities may be listed, granting to this attorney-in-fact and agent full power
and authority to take such action as he deems advisable or necessary to carry
out the intent of this Power of Attorney.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of March 5, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------ --------------------------
<C> <S>
/s/ STEVEN F. GOLDSTONE
- ------------------------------ Chairman of the Board
Steven F. Goldstone
/s/ JAMES M. KILTS
- ------------------------------ Director, President and
James M. Kilts Chief Executive Officer
/s/ JAMES E. HEALEY Executive Vice President
- ------------------------------ and Chief Financial
James E. Healey Officer
/s/ ROBERT A. SCHIFFNER, JR.
- ------------------------------ Senior Vice President and
Robert A. Schiffner, Jr. Controller
/s/ HERMAN CAIN
- ------------------------------ Director
Herman Cain
/s/ JOHN T. CHAIN, JR.
- ------------------------------ Director
John T. Chain, Jr.
/s/ DAVID B. JENKINS
- ------------------------------ Director
David B. Jenkins
/s/ KAY KOPLOVITZ
- ------------------------------ Director
Kay Koplovitz
/s/ JOHN G. MEDLIN, JR.
- ------------------------------ Director
John G. Medlin, Jr.
</TABLE>
