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
July 1, 1998 (June 25, 1998)
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Date of Report (Date of earliest event reported)
FORTUNE BRANDS, INC.
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(Exact name of registrant as specified in its charter)
Delaware 1-9076 13-3295276
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
l700 East Putnam Avenue, Old Greenwich, Connecticut 06870-0811
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (203) 698-5000
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<PAGE>
INFORMATION TO BE INCLUDED IN THE REPORT
Item 5. Other Events.
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On June 30, 1998, Registrant issued and sold $200,000,000
aggregate principal amount of its 6 5/8% Debentures Due 2028 in an underwritten
public offering for an aggregate gross consideration of $199,240,000. Reference
is made to Registrant's Registration Statements on Form S-3 (Registration Nos.
33-50832, 33-42397, 33-23039 and 33-3985) under the Securities Act of 1933, as
amended, and the related Prospectus dated March 5, 1998, as supplemented by the
Prospectus Supplement dated June 25, 1998, filed with the Securities and
Exchange Commission. The aggregate net proceeds of the offering, after
underwriting commissions and estimated expenses, were $197,290,000. The managing
underwriter in respect of the offering was J.P. Morgan Securities Inc., 60 Wall
Street, New York, New York 10260.
Item 7. Financial Statements and Exhibits.
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(c) Exhibits.
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1. Underwriting Agreement dated June 25, 1998 between
Registrant and J.P. Morgan Securities Inc., acting
severally on behalf of itself and the other underwriters
named therein, in respect of the offering by Registrant
of $200,000,000 aggregate principal amount of its 6 5/8%
Debentures Due 2028.
4a. Indenture dated as of July 15, 1988 between Registrant
and The Chase Manhattan Bank (formerly known as Chemical
Bank, as successor by merger to Manufacturers Hanover
Trust Company), as Trustee (the "Trustee"), providing
for the issuance from time to time of one or more series
of debt securities of Registrant and under which
$200,000,000 aggregate principal amount of 6 5/8%
Debentures Due 2028 of Registrant have been issued, is
incorporated herein by reference to Exhibit 4a to the
Current Report on Form 8-K of Registrant dated June 27,
1989.
4b. First Supplemental Indenture dated as of November 14,
1990 between Registrant and the Trustee, amending and
supplementing the Indenture constituting Exhibit 4a
hereto, is incorporated herein by reference to Exhibit
4b to the Current Report on Form 8-K of Registrant dated
November 19, 1990.
4c. Second Supplemental Indenture dated as of September 1,
1991 between Registrant and the Trustee, further
amending and supplementing the Indenture constituting
Exhibits 4a and 4b hereto, is incorporated herein by
reference to Exhibit 4c to the Current Report on Form
8-K of Registrant dated October 10, 1991.
4d. Third Supplemental Indenture dated as of May 28, 1997
between Registrant and the Trustee, further amending and
supplementing the Indenture constituting Exhibits 4a, 4b
and 4c hereto, is incorporated herein by reference to
Exhibit 4a1 to the Quarterly Report on Form 10-Q of
Registrant dated August 12, 1997.
4e. Specimen of Registrant's 6 5/8% Debentures Due 2028.
SIGNATURE
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Pursuant to the requirements of the Securities Exchange Act of
1934, as amended, the Registrant has duly caused this Current Report to be
signed on its behalf by the undersigned thereunto duly authorized.
FORTUNE BRANDS, INC.
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(Registrant)
By /s/Mark Hausberg
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Mark Hausberg
Vice President and
Treasurer
Date: July 1, 1998
<PAGE>
EXHIBIT INDEX
Sequentially
Exhibit Numbered Page
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1. Underwriting Agreement dated June 25, 1998
between Registrant and J.P. Morgan Securities Inc.,
acting severally on behalf of itself and the other
underwriters named therein, in respect of the
offering by Registration of $200,000,000 aggregate
principal amount of its 6 5/8% Debentures Due 2028.
4a. Indenture dated as of July 15, 1988 between
Registrant and The Chase Manhattan Bank (formerly
known as Chemical Bank, as successor by merger to
Manufacturers Hanover Trust Company), as Trustee
(the "Trustee"), providing for the issuance from
time to time of one or more series of debt
securities of Registrant and under which
$200,000,000 aggregate principal amount of 6 5/8%
Debentures Due 2028 of Registrant have been issued,
is incorporated herein by reference to Exhibit 4a
to the Current Report on Form 8-K of Registrant
dated June 27, 1989.
4b. First Supplemental Indenture dated as of
November 14, 1990 between Registrant and the
Trustee, amending and supplementing the Indenture
constituting Exhibit 4a hereto, is incorporated
herein by reference to Exhibit 4b to the Current
Report on Form 8-K of Registrant dated November 19,
1990.
4c. Second Supplemental Indenture dated as of
September 1, 1991 between Registrant and the
Trustee, further amending and supplementing the
Indenture constituting Exhibits 4a and 4b hereto,
is incorporated herein by reference to Exhibit 4c
to the Current Report on Form 8-K of Registrant
dated October 10, 1991.
4d. Third Supplemental Indenture dated as of
May 28, 1997 between Registrant and the Trustee,
further amending and supplementing the Indenture
constituting Exhibits 4a, 4b and 4c hereto, is
incorporated herein by reference to Exhibit 4a1 to
the Quarterly Report on Form 10-Q of Registrant
dated August 12, 1997.
4e. Specimen of Registrant's 6 5/8% Debentures
Due 2028.
Exhibit 1
UNDERWRITING AGREEMENT
June 25, 1998
Fortune Brands, Inc.
1700 East Putnam Avenue
Old Greenwich, Connecticut 06870-0811
Dear Sirs:
We (the "Manager") understand that Fortune Brands, Inc., a
Delaware corporation (the "Company"), proposes to issue and sell
$200,000,000 aggregate principal amount of its 6 5/8% Debentures Due 2028
(the "Debt Securities" or the "Offered Securities"). Subject to the terms
and conditions set forth herein or incorporated by reference herein, the
Company hereby agrees to sell and the underwriters named below (the
"Underwriters") agree to purchase $200,000,000 principal amount of the Debt
Securities at 98.745% of the principal amount of such Debt Securities and
accrued interest from June 30, 1998, if any, to the date of payment and
delivery.
Principal Amount
Name of Underwriter of Debt Securities
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J.P. Morgan Securities Inc. $ 50,000,000
Goldman, Sachs & Co. 50,000,000
Morgan Stanley & Co. Incorporated 50,000,000
Salomon Brothers Inc 50,000,000
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$200,000,000
Upon delivery of such Offered Securities, the Underwriters will
pay for such Offered Securities at a closing to be held at the offices of
the Company at 1700 East Putnam Avenue, Old Greenwich, Connecticut at 10:00
a.m. (New York time) on June 30, 1998, or at such other time, not later than
July 7, 1998, as shall be designated by the Manager.
The Debt Securities shall have the following terms:
Maturity: July 15, 2028
Interest Rate: 6 5/8% per annum
Redemption Provisions: The Debentures will be
redeemable, in whole or in part, at
the option of the Company at any time
at a redemption price equal to the
greater of (i) 100% of the principal
amount of such Debentures, and (ii)
as determined by the Quotation Agent
(as defined in the Prospectus
Supplement), the sum of the present
values of the remaining scheduled
payments of principal and interest
thereon (not including any portion of
such payments of interest accrued as
of the date of redemption) discounted
to the date of redemption on a
semi-annual basis (assuming a 360-day
year consisting of twelve 30-day
months) at the Adjusted Treasury Rate
(as defined in the Prospectus
Supplement) plus 15 basis points
plus, in each case, accrued interest
thereon to the date of redemption
Interest Payment Dates: July 15 and January 15, commencing
January 15, 1999 (the Interest
payable on January 15, 1999 being in
respect of the period commencing June
30, 1998)
Form and Denomination: Global Security held through the
book-entry facilities of The
Depository Trust Company
All the provisions (other than the provisions of Article VII)
contained in the document entitled Fortune Brands, Inc. Underwriting
Agreement Standard Provisions (Debt Securities, Warrants to Purchase Debt
Securities and Foreign Currency Warrants) dated June 25, 1998, a copy of
which you have previously received, are herein incorporated by reference in
their entirety and shall be deemed to be a part of this Agreement to the
same extent as if such provisions had been set forth in full herein. The
term "Manager" as used therein shall mean J.P. Morgan Securities Inc.,
Goldman, Sachs & Co., Morgan Stanley & Co. Incorporated, and Salomon
Brothers Inc whose authority thereunder may be exercised by them jointly or
by J.P. Morgan Securities Inc. alone.
Very truly yours,
J.P. MORGAN SECURITIES INC.
Acting severally and on behalf
of itself and the other
Underwriters referred to above
By /s/Steven Christensen
Steven Christensen
Vice President
Accepted:
FORTUNE BRANDS, INC.
By /s/Mark Hausberg
Mark Hausberg
Vice President and Treasurer
<PAGE>
FORTUNE BRANDS, INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT SECURITIES,
WARRANTS TO PURCHASE DEBT SECURITIES
AND FOREIGN CURRENCY WARRANTS)
June 25, 1998
<PAGE>
From time to time, FORTUNE BRANDS, INC., a Delaware corporation (the
"Company"), may enter into one or more underwriting agreements that provide for
the sale of designated securities to the several underwriters named therein. The
standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
referred to as this Agreement. Unless otherwise defined herein, terms defined in
the Underwriting Agreement are used herein as therein defined.
I.
The Company proposes to issue and sell from time to time certain of (a)
its debt securities (the "Debt Securities") to be issued pursuant to the
provisions of an Indenture dated as of July 15, 1988, as supplemented (the
"Indenture"), between the Company and The Chase Manhattan Bank (formerly known
as Chemical Bank, as successor by merger to Manufacturers Hanover Trust
Company), as Trustee (the "Trustee"), (b) its Warrants (the "Debt Warrants") to
purchase Debt Securities (such Debt Securities to be purchasable through the
exercise of Debt Warrants being referred to herein as the "Debt Warrant
Securities") to be evidenced by warrant certificates (the "Warrant
Certificates") and to be issued pursuant to the provisions of the Debt Warrant
Agreement identified in the Underwriting Agreement and (c) up to $100,000,000 of
options, warrants or other rights (the "Foreign Currency Warrants") representing
the right to receive from the Company the cash value in U.S. dollars of the
right to sell and/or purchase the Base Currency Amount of the Base Currency
(each as identified in the Underwriting Agreement) for a designated amount of
U.S. dollars, the Foreign Currency Warrants to be issued pursuant to the
provisions of the Currency Warrant Agreement identified in the Underwriting
Agreement. The Debt Securities may be convertible into Common Stock, par value
$3.125 per share, of the Company ("Common Stock") as provided in or pursuant to
the Indenture, and Preferred Share Purchase Rights (the "Rights") may be
delivered with Common Stock upon conversion of any convertible Debt Securities.
The Debt Securities, Debt Warrants and Foreign Currency Warrants to be sold
pursuant to this Agreement, but not the Debt Warrant Securities or the Common
Stock or Rights, if any, issuable or deliverable upon conversion of any
convertible Debt Securities, are collectively referred to herein as the "Offered
Securities". The Debt Securities, Debt Warrants and Foreign Currency Warrants
will have or be of varying designations, maturities, rates and times of payment
of interest, selling prices, exercise prices, conversion prices, expiration
dates, redemption terms, currencies and other terms.
The Company has filed with the Securities and Exchange Commission (the
"Commission") registration statements relating to the Debt Securities, Debt
Warrants and Foreign Currency Warrants and the shares of Common Stock and
Rights, if any, issuable or deliverable upon conversion of any convertible Debt
Securities, has filed such amendments thereto as may have been required to the
date of the Underwriting Agreement and has filed with, or mailed for filing to,
or shall promptly hereafter file with or mail for filing to, the Commission a
prospectus supplement specifically relating to the Offered Securities and the
Debt Warrant Securities, if any, pursuant to Rule 424 under the Securities Act
of 1933. The term "Registration Statement" means such registration statements as
amended to the date of the Underwriting Agreement. The term "Basic Prospectus"
means the prospectus included in the Registration Statement relating to the Debt
Securities, the Debt Warrants and the Foreign Currency Warrants, as updated from
time to time. The term "Prospectus" means the Basic Prospectus together with the
prospectus supplement specifically relating to the Offered Securities and the
Debt Warrant Securities, if any, as filed with, or mailed for filing to, or as
shall promptly hereafter be filed with or mailed for filing to, the Commission
pursuant to such Rule 424. The term "preliminary prospectus" means a preliminary
prospectus supplement specifically relating to the Offered Securities and the
Debt Warrant Securities, if any, together with the Basic Prospectus. As used
herein, the terms "Registration Statement", "Basic Prospectus", "Prospectus" and
"preliminary prospectus" shall include in each case the material, if any,
incorporated by reference therein.
The term "Underwriters' Securities" means the Offered Securities to be
purchased by the Underwriters herein. The term "Contract Securities" means the
Offered Securities, if any, to be purchased pursuant to the delayed delivery
contracts referred to below.
II.
If the Prospectus provides for sales of Offered Securities pursuant to
delayed delivery contracts, the Company hereby authorizes the Underwriters to
solicit offers to purchase Contract Securities on the terms and subject to the
conditions set forth in the Prospectus pursuant to delayed delivery contracts
substantially in the form of Exhibit A attached hereto ("Delayed Delivery
Contracts") but with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors
approved by the Company and of the types set forth in the Prospectus. On the
Closing Date (as hereinafter defined), the Company will pay the Manager as
compensation, for the accounts of the Underwriters, the fee set forth in the
Underwriting Agreement in respect of the principal amount and number of Contract
Securities. The Underwriters will not have any responsibility in respect of the
validity or the performance of Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the principal amount and number of Contract Securities
shall be deducted from the principal amount and number of Offered Securities to
be purchased by the several Underwriters and the aggregate principal amount or
number of Offered Securities to be purchased by each Underwriter shall be
reduced pro rata in proportion to the principal amount or number, as the case
may be, of Offered Securities set forth opposite each Underwriter's name in the
Underwriting Agreement, except to the extent that the Manager determines that
such reduction shall be otherwise and so advises the Company.
III.
The Company is advised by the Manager that the Underwriters propose to
make a public offering of their respective portions of the Underwriters'
Securities as soon after this Agreement is entered into as in the Manager's
judgment is advisable. The terms of the public offering of the Underwriters'
Securities are set forth in the Prospectus.
IV.
Except as otherwise provided in this Article IV, payment for the
Underwriters' Securities shall be made by wire transfer to an account designated
by the Company in immediately available funds at the time, on the date and at
the place set forth in the Underwriting Agreement, upon delivery to the Manager
for the respective accounts of the several Underwriters of the Underwriters'
Securities (other than Debt Securities in registered global form or Foreign
Currency Warrants in registered global form) registered in such names and in
such denominations as the Manager shall request in writing not less than two
full business days prior to the date of delivery and, in the case of
Underwriters' Securities that are Debt Securities in registered global form or
Foreign Currency Warrants in registered global form, upon delivery to the
Depositary identified in the Underwriting Agreement of a single global Debt
Security or a single global Foreign Currency Warrant certificate, as the case
may be, registered in the name of the Depositary or a nominee thereof, for
credit to the respective accounts of the Depositary participants. The time and
date of such payment and delivery with respect to the Underwriters' Securities
are herein referred to as the Closing Date.
Delivery of any Underwriters' Securities that are (i) Debt Securities
in bearer form on the Closing Date shall be initially effected by delivery of a
single temporary global Debt Security without coupons (the "Global Debt
Security") evidencing the Offered Securities that are Debt Securities in bearer
form and (ii) Debt Warrants in bearer form shall be effected only by delivery of
a single permanent global Debt Warrant (the "Global Debt Warrant") evidencing
the Offered Securities that are Debt Warrants in bearer form, in each case to a
common depositary for Morgan Guaranty Trust Company of New York, Brussels
office, as operator of the Euro-clear System ("Euro-clear"), and for Centrale de
Livraison de Valeurs Mobilieres S.A. ("CEDEL") for credit to the respective
accounts at Euro-clear or CEDEL of each Underwriter or such other accounts as
each Underwriter may direct. Any Global Debt Security or Global Debt Warrant
shall be delivered to the Manager not later than the Closing Date, against
payment of funds to the Company in the net amount due to the Company for such
Global Debt Security or Global Debt Warrant, as the case may be, by the method
and in the form set forth herein. The Company shall cause definitive Debt
Securities in bearer form to be prepared and delivered in exchange for such
Global Debt Security in such manner and at such time as may be provided in or
pursuant to the Indenture; provided, however, that the Global Debt Security
shall be exchangeable for definitive Debt Securities in bearer form only on or
after the date specified for such purpose in the Prospectus. The Offered Debt
Warrants shall be evidenced only by a Global Debt Warrant until their
expiration.
V.
The several obligations of the Underwriters hereunder are subject to
the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission or, if any Foreign Currency
Warrants are being purchased, the application for registration on Form 8-A
referred to below shall be in effect and no order suspending trading or
striking or withdrawing the Foreign Currency Warrants from listing on any
national securities exchange shall be in effect and there shall have been no
material adverse change in the condition of the Company and its
subsidiaries, taken as a whole, from that set forth in the Registration
Statement and the Prospectus; and the Manager shall have received, on the
Closing Date, a certificate, dated the Closing Date and signed by an
executive officer of the Company, to the foregoing effect. Such certificate
will also provide that the representations and warranties of the Company
contained herein are true and correct as of the Closing Date. The officer
making such certificate may rely upon the best of his knowledge as to
proceedings pending or threatened.
(b) The Manager shall have received on the Closing Date an opinion
of Chadbourne & Parke LLP, counsel for the Company, dated the Closing Date,
to the effect set forth in Exhibit B attached hereto.
(c) The Manager shall have received on the Closing Date an opinion
of Davis Polk & Wardwell, counsel for the Underwriters, dated the Closing
Date, to the effect set forth in Exhibit C attached hereto.
(d) The Manager shall have received on the Closing Date a letter
dated the Closing Date, in form and substance satisfactory to the Manager,
from Coopers & Lybrand L.L.P., independent certified public accountants,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in or incorporated by
reference in the Registration Statement and the Prospectus.
(e) If any Foreign Currency Warrants are to be purchased
hereunder, (i) not later than the date of the applicable Underwriting
Agreement, a United States national securities exchange shall have accepted
such Foreign Currency Warrants for listing, subject to official notice of
issuance, and (ii) as of the date of the Underwriting Agreement, the
Company's application for registration on Form 8-A relating to the Foreign
Currency Warrants shall have become effective under the Securities Exchange
Act of 1934.
VI.
In further consideration of the agreements of the Underwriters
contained in this Agreement, the Company covenants as follows:
(a) To furnish the Manager, without charge, a copy of the
Registration Statement including exhibits and materials, if any,
incorporated by reference therein and, during the period mentioned in
paragraph (c) below, as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments thereto
as the Manager may reasonably request. The terms "supplement" and
"amendment" or "amend" as used in this Agreement shall include all documents
filed by the Company with the Commission subsequent to the date of the Basic
Prospectus, pursuant to the Securities Exchange Act of 1934, which are
deemed to be incorporated by reference in the Prospectus.
(b) Before amending or supplementing the Registration Statement or
the Prospectus with respect to the Offered Securities, to furnish the
Manager a copy of each such proposed amendment or supplement.
(c) If, during such period after the first date of the public
offering of the Offered Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered, any event
shall occur as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare and furnish, at its own expense, to
the Underwriters, either amendments or supplements to the Prospectus so that
the statements in the Prospectus as so amended or supplemented will not, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus will comply with law.
(d) To endeavor to qualify the Offered Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the
Manager shall reasonably request and to pay all expenses (including fees and
disbursements of counsel) in connection with such qualification and in
connection with the determination of the eligibility of the Offered
Securities for investment under the laws of such jurisdictions as the
Manager may designate; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as
a foreign corporation in any jurisdiction in which it is not qualified.
(e) To make generally available to the Company's security holders
as soon as practicable an earnings statement covering a twelve-month period
beginning after the date of the Underwriting Agreement and ending at the end
of a fiscal quarter of the Company, which shall satisfy the provisions of
Section 11(a) of the Securities Act of 1933 and the applicable rules and
regulations (including Rule 158) thereunder.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to offer,
sell, contract to sell or otherwise dispose of any securities of the Company
substantially similar to the Offered Securities, without the prior written
consent of the Manager.
VII.
Each of the several Underwriters agrees with the Company that:
(a) except to the extent permitted under U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D) (the "D Rules"), (i) it has not offered or sold, and
during the restricted period will not offer or sell, Debt Securities in
bearer form to a person who is within the United States or its possessions
or to a United States person, and (ii) it has not delivered and will not
deliver within the United States or its possessions definitive Debt
Securities in bearer form that are sold during the restricted period;
(b) it has and throughout the restricted period will have in
effect procedures reasonably designed to ensure that its employees or agents
who are directly engaged in selling Debt Securities in bearer form are aware
that such Debt Securities may not be offered or sold during the restricted
period to a person who is within the United States or its possessions or to
a United States person, except as permitted by the D Rules;
(c) if it is a United States person, it is acquiring the Debt
Securities in bearer form for purposes of resale in connection with their
original issuance and if it retains Debt Securities in bearer form for its
own account, it will only do so in accordance with the requirements of U.S.
Treas. Reg. Section 1.163-5(c)(2)(i)(D)(6);
(d) with respect to each affiliate that acquires from it Debt
Securities in bearer form for the purpose of offering or selling such Debt
Securities during the restricted period, it either (i) repeats and confirms
the representations and agreements contained in clauses (a), (b) and (c) on
its behalf or (ii) agrees that it will obtain from such affiliate for the
Manager's benefit and the benefit of the Company the representations and
agreements contained in clauses (a), (b) and (c); and
(e) it will comply with or observe any other restrictions or
limitations set forth in the Prospectus on persons to whom, or the
jurisdictions in which, or the manner in which, the Debt Securities may be
offered, sold, resold or delivered.
If Underwriters' Securities that are Debt Securities are to be distributed
through a selling group consisting of banks, brokers or dealers, the Manager
agrees that it shall cause each member of such selling group to enter into an
agreement that it will comply with this paragraph. Terms used in this paragraph
have the meanings given to them by the applicable provisions of the U.S.
Internal Revenue Code and regulations thereunder, including the D Rules.
Each of the several Underwriters further agrees with the Company that:
(a) except to the extent permitted under the D Rules, (i) it has
not offered or sold, and will not offer or sell at any time, Debt Warrants
in bearer form to a person who is within the United States or its
possessions or to a United States person, and (ii) it has not delivered and
will not deliver within the United States or its possessions Debt Warrants
in bearer form that are sold at any time;
(b) except to the extent permitted under the D Rules, (i) it has
not offered or sold, and during the restricted period will not offer or
sell, Debt Warrant Securities in bearer form to a person who is within the
United States or its possessions or to a United States person, and (ii) it
has not delivered and will not deliver within the United States or its
possessions definitive Debt Warrant Securities in bearer form that are sold
during the restricted period;
(c) it has and throughout the restricted period will have in
effect procedures reasonably designed to ensure that its employees or agents
who are directly engaged in selling Debt Warrants in bearer form or Debt
Warrant Securities in bearer form are aware that such Debt Warrants may not
be offered or sold at any time, and such Debt Warrant Securities may not be
offered or sold during the restricted period, to a person who is within the
United States or its possessions or to a United States person, except as
permitted by the D Rules;
(d) if it is a United States person, it is acquiring the Debt
Warrants in bearer form and any Debt Warrant Securities in bearer form for
purposes of resale in connection with their original issuance and if it
retains Debt Warrants in bearer form or Debt Warrant Securities in bearer
form for its own account, it will only do so in accordance with the
requirements of U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(D)(6);
(e) with respect to each affiliate that acquires from it Debt
Warrants in bearer form or Debt Warrant Securities in bearer form for the
purpose of offering or selling such Debt Warrants at any time or offering or
selling such Debt Warrant Securities during the restricted period, it either
(i) repeats and confirms the representations and agreements contained in
clauses (a), (b), (c) and (d) on its behalf or (ii) agrees that it will
obtain from such affiliate for the Manager's benefit and the benefit of the
Company the representations and agreements contained in clauses (a), (b),
(c) and (d); and
(f) it will comply with or observe any other restrictions or
limitations set forth in the Prospectus on persons to whom, or the
jurisdictions in which, or the manner in which, the Debt Warrants may be
offered, sold, resold or delivered.
If Underwriters' Securities that are Debt Warrants are to be distributed through
a selling group consisting of banks, brokers or dealers, the Manager agrees that
it shall cause each member of such selling group to enter into an agreement that
it will comply with this paragraph. Terms used in this paragraph have the
meanings given to them by the applicable provisions of the U.S. Internal Revenue
Code and regulations thereunder, including the D Rules.
VIII.
The Company represents and warrants to each Underwriter that (i) each
document, if any, filed or to be filed pursuant to the Securities Exchange Act
of 1934 and incorporated by reference in the Prospectus complied or will comply
when so filed in all material respects with such Act and the rules and
regulations thereunder, (ii) each part of the registration statement (including
the documents incorporated by reference therein), filed with the Commission
pursuant to the Securities Act of 1933 relating to the Debt Securities, Debt
Warrants and Foreign Currency Warrants when such part became effective, did not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, (iii) each preliminary prospectus, if any, filed pursuant to Rule
424 under the Securities Act of 1933 complied when so filed in all material
respects with such Act and the applicable rules and regulations thereunder, (iv)
the Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act of 1933 and the applicable rules and regulations thereunder and
(v) the Registration Statement and the Prospectus do not contain and, as amended
or supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; except that these representations and warranties do not
apply to (a) statements or omissions in the Registration Statement, any
preliminary prospectus or the Prospectus based upon information furnished to the
Company in writing by any Underwriter expressly for use therein and (b) those
parts of the Registration Statement which constitute the Statement of
Eligibility under the Trust Indenture Act of 1939 on Form T-1 of the Trustee.
The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls such Underwriter within the meaning of either
Section 15 of the Securities Act of 1933 or Section 20 of the Securities
Exchange Act of 1934, from and against any and all losses, claims, damages and
liabilities caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, any preliminary
prospectus or the Prospectus (if used within the period set forth in paragraph
(c) of Article VI hereof and as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information furnished in writing to the Company by any Underwriter expressly for
use therein; provided, however, that the foregoing indemnity with respect to
preliminary prospectuses shall not inure to the benefit of any Underwriter (or
to the benefit of any person controlling such Underwriter) from whom the person
asserting any such losses, claims, damages or liabilities purchased Offered
Securities if a copy of the Prospectus or the Prospectus as then amended or
supplemented (if the Prospectus has been amended or supplemented prior to the
written confirmation of the sale of such Offered Securities to such person) had
not been sent or given to such person at or prior to such written confirmation
and the untrue statement or omission of a material fact contained in such
preliminary prospectus was corrected in such Prospectus or Prospectus as amended
or supplemented, as the case may be.
Each Underwriter agrees to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement and any person
controlling the Company to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with reference to information relating to
such Underwriter furnished in writing by such Underwriter expressly for use in
the Registration Statement, any preliminary prospectus or the Prospectus.
In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and the representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm (in addition to local counsel) for all
such indemnified parties, and that all such fees shall be reimbursed as they are
incurred. Such firm shall be designated in writing by the Manager in the case of
parties indemnified pursuant to the second preceding paragraph and by the
Company in the case of parties indemnified pursuant to the first preceding
paragraph. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but if settled with such consent
or if there be a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment.
If the indemnification provided for in this Article VIII is unavailable
to an indemnified party under the second or third paragraphs hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities in
such proportion as is appropriate to reflect (i) the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Offered Securities and (ii) the relative fault of the Company on
the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other in connection with the offering of the Offered Securities shall be
deemed to be in the same proportion as the total net proceeds from the offering
of such Offered Securities (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Underwriters in respect thereof. The relative fault of the Company on the one
hand and of the Underwriters on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VIII were determined by pro
rata allocation or by any other method of allocation which does not take account
of the considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Article VIII, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten and distributed to the public
by such Underwriter were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act of 1933) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Article VIII are several, in
proportion to the respective principal amount or number, as the case may be, of
Offered Securities purchased by each of such Underwriters, and not joint.
The indemnity and contribution agreements contained in this Article
VIII and the representations and warranties of the Company in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by any Underwriter or
on behalf of any Underwriter or any person controlling any Underwriter or by or
on behalf of the Company, its directors or officers or any person controlling
the Company and (iii) acceptance of and payment for any of the Offered
Securities.
IX.
This Agreement shall be subject to termination in the absolute
discretion of the Underwriters, by notice given to the Company, if prior to the
Closing Date (i) trading in securities generally on the New York Stock Exchange
shall have been suspended or materially limited, (ii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or (iii) there shall have occurred any
material outbreak or escalation of hostilities or other calamity or crisis the
effect of which on the United States or the international financial markets is
such as to make it, in the judgment of the Manager, impracticable to market the
Offered Securities.
X.
If any one or more of the Underwriters shall fail or refuse to purchase
Underwriters' Securities which it or they have agreed to purchase pursuant to
the Underwriting Agreement, and the aggregate amount of Underwriters' Securities
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the aggregate amount of the
Underwriters' Securities, the other Underwriters shall be obligated severally in
the proportions which the amounts of Underwriters' Securities set forth opposite
their names in the Underwriting Agreement bear to the aggregate amount of
Underwriters' Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Manager may specify, to
purchase the Underwriters' Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase; provided that in no event
shall the amount of Underwriters' Securities which any Underwriter has agreed to
purchase pursuant to the Underwriting Agreement be increased pursuant to this
Article X by an amount in excess of one-ninth of such amount of Underwriters'
Securities without the written consent of such Underwriter. If any Underwriter
or Underwriters shall fail or refuse to purchase Underwriters' Securities and
the aggregate amount of Underwriters' Securities with respect to which such
default occurs is more than one-tenth of the aggregate amount of the
Underwriters' Securities and arrangements satisfactory to the Manager and the
Company for the purchase of such Underwriters' Securities, are not made within
36 hours after such default, this Agreement, or the provisions hereof applicable
to the sale and purchase of the Underwriters' Securities, will terminate without
liability on the part of any non-defaulting Underwriter or of the Company. In
any such case either the Manager or the Company shall have the right to postpone
the Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus or
in any other documents or arrangements may be effected. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under the Underwriting Agreement.
If this Agreement shall be terminated by the Underwriters or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement, with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with the Offered
Securities.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
<PAGE>
Exhibit A
DELAYED DELIVERY CONTRACT
, 199
Fortune Brands, Inc.
1700 East Putnam Avenue
Old Greenwich, Connecticut 06870-0811
Dear Sirs:
The undersigned hereby agrees to purchase from FORTUNE BRANDS, INC., a
Delaware corporation (the "Company"), and the Company agrees to sell to the
undersigned the Company's securities described in Schedule I annexed hereto (the
"Securities"), offered by the Company's Prospectus dated
, 199 and Prospectus Supplement dated , 199 , receipt of copies
of which is hereby acknowledged, at the purchase price stated in Schedule I and
on the further terms and conditions set forth in this contract. The undersigned
does not contemplate selling Securities prior to making payment therefor.
The undersigned will purchase from the Company Securities in the
principal amounts and number on the delivery dates as set forth in Schedule I.
Each such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "Delivery Date".
Payment for the Securities which the undersigned has agreed to purchase
on each Delivery Date shall be made to the Company or its order by wire transfer
to an account designated by the Company in immediately available funds, at 10:00
A.M. (New York time) on the Delivery Date, upon delivery to the undersigned of
the Securities to be purchased by the undersigned on the Delivery Date, in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to the Delivery Date, except that payment for any
Securities that are Debt Securities in registered global form or Foreign
Currency Warrants in registered global form shall be so made on the Delivery
Date upon delivery to the Depositary named in the Prospectus Supplement referred
to above of a single global Debt Security or a single global Foreign Currency
Warrant certificate, as the case may be, registered in the name of such
Depositary or a nominee thereof, for credit to the account of such Depositary
participant as the undersigned may so designate.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
have taken place to the underwriters (the "Underwriters") named in the
Prospectus Supplement referred to above of, such part of the Securities as is to
be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned at its address
set forth below notice to such effect, accompanied by a copy of the opinion of
counsel for the Company delivered to the Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
If this contract is acceptable to the Company, it is requested that the
Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This will
become a binding contract, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
This contract shall be governed by and construed in accordance with the
internal laws of the State of New York.
Very truly yours,
-------------------------------
(Purchaser)
By
-----------------------------
-----------------------------
(Title)
-----------------------------
-----------------------------
(Address)
Accepted:
FORTUNE BRANDS, INC.
By
--------------------------------
Name:
Title:
<PAGE>
PURCHASER - PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed
are as follows (please print):
Telephone No.
Name (Including Area Code) Department
<PAGE>
SCHEDULE I
Securities:
Principal amount or Number to be Purchased:
Purchase Price:
Delivery Dates:
<PAGE>
Exhibit B
Opinion of Chadbourne & Parke LLP,
Counsel for the Company
The opinion of Chadbourne & Parke LLP, counsel for the Company, to be
delivered pursuant to Article V, paragraph (b) of the document entitled Fortune
Brands, Inc. Underwriting Agreement Standard Provisions (Debt Securities,
Warrants to Purchase Debt Securities and Foreign Currency Warrants) shall be to
the effect that:
(i) the Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware;
(ii) each of the following subsidiaries of the Company: ACCO World
Corporation, Acushnet Company, JBB Worldwide, Inc. and MasterBrand
Industries, Inc. has been duly incorporated and is validly existing under
the laws of its state of incorporation;
(iii) the Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the Company
and has been duly qualified under the Trust Indenture Act of 1939, as
amended;
(iv) each of the Debt Warrant Agreement, if any, and the Currency
Warrant Agreement, if any, has been duly authorized, executed and delivered
by the Company and is a valid and binding agreement of the Company;
(v) the Offered Securities and the Debt Warrant Securities, if
any, when executed and either authenticated or countersigned in accordance
with the provisions of, as the case may be, the Indenture, the Debt Warrant
Agreement, if any, or the Currency Warrant Agreement, if any, and delivered
and paid for (A) by the Underwriters pursuant to the Underwriting Agreement
or by institutional investors, if any, pursuant to Delayed Delivery
Contracts, in the case of the Offered Securities, and (B) upon exercise of
Debt Warrants pursuant to the Debt Warrant Agreement, in the case of the
Debt Warrant Securities, will be valid and binding obligations of the
Company and will be entitled to the benefits of, as the case may be, the
Indenture, the Debt Warrant Agreement or the Currency Warrant Agreement;
(vi) the shares of Common Stock initially issuable upon conversion
of any convertible Debt Securities have been duly authorized and reserved
for such issuance, the shares of Common Stock, if any, issued upon
conversion of any convertible Debt Securities in accordance with their terms
will be validly issued, fully paid and non-assessable and the accompanying
Rights, if any, have been duly authorized and will be validly issued;
(vii) the Registration Statement and the Prospectus, as amended or
supplemented, if applicable (except for the financial statements and other
financial and statistical data contained or incorporated by reference
therein, as to which such counsel need express no opinion), comply as to
form in all material respects with the Securities Act of 1933 and the rules
and regulations thereunder;
(viii) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement
of the Company, except as rights to indemnity and contribution thereunder
may be limited by applicable law;
(ix) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and are valid and binding
agreements of the Company;
(x) the issuance of the Offered Securities and the Debt Warrant
Securities, if any, in accordance with, as the case may be, the Indenture,
the Debt Warrant Agreement, if any, and the Currency Warrant Agreement, if
any, and the sale thereof in accordance with the Underwriting Agreement, and
the issuance of the shares of Common Stock initially issuable upon
conversion of any convertible Debt Securities and the accompanying Rights,
if any, do not and will not contravene the Certificate of Incorporation or
By-laws of the Company or any provision of any indenture, mortgage or other
agreement known to such counsel by which the Company is bound;
(xi) no authorization from any regulatory board, agency or
instrumentality having jurisdiction over the Company (other than
registration under the Securities Act of 1933 and qualification of the
Indenture under the Trust Indenture Act of 1939, as amended, and
qualification or other authorization under state securities or "blue sky"
laws, as to which such counsel need express no opinion) is required for the
performance by the Company of the Underwriting Agreement;
(xii) the Indenture, the Debt Warrant Agreement, if any, and the
Currency Warrant Agreement, if any, and the Offered Securities, the Debt
Warrant Securities, if any, and, if applicable, the capital stock of the
Company and the Rights conform to the descriptions thereof in the
Prospectus;
(xiii) such counsel is of the opinion that each document, if any,
filed pursuant to the Securities Exchange Act of 1934 (except as to
financial statements and other financial and statistical data contained or
incorporated therein, as to which such counsel need not express any opinion)
and incorporated by reference in the Prospectus complied when so filed as to
form in all material respects with such Act and the rules and regulations
thereunder; and
(xiv) such counsel believes that, based upon their examination and
participation in conferences, but without independent verification except as
specified (except for the financial statements and other financial and
statistical data contained or incorporated by reference therein, as to which
such counsel need express no opinion), each part of the Registration
Statement (including the documents incorporated by reference therein) filed
with the Commission pursuant to the Securities Act of 1933 relating to the
Offered Securities and the Debt Warrant Securities, if any, when such part
became effective, did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and that (except for the
financial statements and other financial and statistical data contained or
incorporated by reference therein, as to which such counsel need express no
opinion) the Registration Statement and the Prospectus on the date of the
Underwriting Agreement did not, and the Prospectus, as amended or
supplemented, if applicable, on the Closing Date does not, contain any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering its opinion, Chadbourne & Parke LLP may limit its opinion
to matters of the laws of the United States of America and the State of New York
and the General Corporation Law of the State of Delaware.
<PAGE>
Exhibit C
Opinion of Davis Polk & Wardwell,
Counsel for the Underwriters
The opinion of Davis Polk & Wardwell, counsel for the Underwriters, to
be delivered pursuant to Article V, paragraph (c) of the document entitled
Fortune Brands, Inc. Underwriting Agreement Standard Provisions (Debt
Securities, Warrants to Purchase Debt Securities and Foreign Currency Warrants)
shall be to the effect that:
(i) the Indenture has been duly authorized, executed and delivered
by the Company and is a valid and binding agreement of the Company and has
been duly qualified under the Trust Indenture Act of 1939;
(ii) each of the Debt Warrant Agreement, if any, and the Currency
Warrant Agreement, if any, has been duly authorized, executed and delivered
by the Company and is a valid and binding agreement of the Company;
(iii) the Offered Securities and the Debt Warrant Securities, if
any, when executed and either authenticated or countersigned in accordance
with the provisions of, as the case may be, the Indenture, the Debt Warrant
Agreement, if any, or the Currency Warrant Agreement, if any, and delivered
and paid for (A) by the Underwriters or by institutional investors, if any,
pursuant to Delayed Delivery Contracts, in the case of the Offered
Securities, and (B) upon exercise of the Debt Warrants pursuant to the Debt
Warrant Agreement, in the case of the Debt Warrant Securities, will be valid
and binding obligations of the Company and will be entitled to the benefits
of, as the case may be, the Indenture, the Debt Warrant Agreement and the
Currency Warrant Agreement;
(iv) the Underwriting Agreement has been duly authorized, executed
and delivered by the Company and is a valid and binding agreement of the
Company, except as rights to indemnity and contribution thereunder may be
limited by applicable law;
(v) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and are valid and binding
agreements of the Company;
(vi) the statements in the Prospectus under "Description of Debt
Securities", ["Description of Debt Warrants", "Description of Foreign
Currency Warrants", "Description of Capital Stock", "Plan of Distribution"
and "Underwriting"], insofar as such statements constitute a summary of the
documents or proceedings referred to therein, fairly present the information
called for with respect to such documents and proceedings; and
(vii) such counsel (A) is of the opinion that the Registration
Statement and Prospectus, as amended or supplemented, if applicable (except
for the financial statements contained or incorporated by reference therein
and other financial data derived from such financial statements, as to which
such counsel need not express any opinion), comply as to form in all
material respects with the Securities Act of 1933 and the rules and
regulations thereunder and (B) believes that the Registration Statement and
the Prospectus (except for the financial statements contained or
incorporated by reference therein and other financial data derived from such
financial statements, as to which such counsel need not express any belief)
on the date of the Underwriting Agreement did not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein not misleading and that the Prospectus (except
as aforesaid), as amended or supplemented, if applicable, on the Closing
Date does not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided that such counsel may state that their opinion and belief is based
upon their participation in the preparation of the Registration Statement
and the Prospectus and any amendments and supplements thereto (other than
the documents incorporated by reference therein) and review and discussion
of the contents thereof, but is without independent check or verification
except as specified.
Exhibit 4e
[Form of Face Registered Security]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY") (55 WATER
STREET, NEW YORK, NEW YORK), TO THE COMPANY 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 REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY, AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR
CERTIFICATES IN DEFINITIVE REGISTERED FORM, THIS CERTIFICATE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE (A) BY THE DEPOSITARY TO A NOMINEE THEREOF OR (B)
BY A NOMINEE THEREOF TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR
(C) BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR NOMINEE
OF SUCH SUCCESSOR DEPOSITARY.
SEE REVERSE FOR CERTAIN DEFINITIONS
REGISTERED REGISTERED
NUMBER
R-1 $200,000,000.00
FORTUNE BRANDS, INC.
6 5/8% Debentures Due 2028
CUSIP 349631 AG 6
FORTUNE BRANDS, INC., a corporation duly organized and existing under the
laws of the State of Delaware (herein referred to as the "Company"), for value
received, hereby promises to pay to CEDE & CO. or registered assigns, the
principal sum of TWO HUNDRED MILLION DOLLARS on July 15, 2028, and to pay
interest, semiannually on January 15 and July 15 of each year commencing January
15, 1999, on said principal sum at the rate of 6 5/8% per annum, from the
January 15 or July 15, as the case may be, next preceding the date of this
Security to which interest has been paid, unless the date hereof is a date to
which interest has been paid, in which case from the date of this Security, or
unless no interest has been paid on the Securities, in which case from June 30,
1998, until payment of said principal sum has been made or duly provided for.
Notwithstanding the foregoing, if the date hereof is after a January 1 or July
1, as the case may be, and before the following January 15 or July 15, this
Security shall bear interest from such January 15 or July 15; provided, however,
that if the Company shall default in the payment of interest due on such January
15 or July 15, then this Security shall bear interest from the next preceding
January 15 or July 15 to which interest has been paid, or, if no interest has
been paid on the Securities, from June 30, 1998. The interest so payable on any
January 15 or July 15 will, subject to certain exceptions provided in the
Indenture referred to on the reverse hereof, be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is registered at the close
of business on the January 1 or July 1, as the case may be, next preceding such
January 15 or July 15. The principal of and interest on this Security are
payable at the office or agency of the Company in the Borough of Manhattan, The
City of New York, in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts;
provided that interest may be paid, at the option of the Company, by check
mailed to the Person entitled thereto at his address appearing on the Security
Register. Any interest not punctually paid or duly provided for shall be payable
as provided in said Indenture. If this Security is a Global Security, then
notwithstanding, each interest and principal payment will be made in accordance
with the procedures of the Depositary as then in effect.
Reference is made to the further provisions of this Security set forth on
the reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee by the manual signature of one of its authorized officers, this Security
shall not be entitled to any benefit under said Indenture, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused thi instrument to be duly
executed under its corporate seal.
Dated: June 30, 1998
FORTUNE BRANDS, INC.
By
Mark Hausberg
Vice President and
Treasurer
[SEAL]
Attest:
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
THE CHASE MANHATTAN
BANK, as Trustee
By
Authorized Officer
<PAGE>
[FORM OF REVERSE OF REGISTERED SECURITY]
FORTUNE BRANDS, INC.
6 5/8% Notes Due 2028
This Security is one of a duly authorized issue of Securities of the
Company designated as its 6 5/8% Notes Due 2028 (Securities of such series being
hereinafter called the "Securities"), limited, except as provided in the
Indenture referred to below, in aggregate principal amount to $200,000,000,
issued and to be issued under an Indenture dated as of July 15, 1988
(hereinafter called the "Indenture") between the Company and The Chase Manhattan
Bank (formerly known as Chemical Bank, as successor by merger to Manufacturers
Hanover Trust Company), as Trustee (hereinafter called the "Trustee", which term
includes any successor trustee under the Indenture with respect to the
Securities of this series), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, obligations, duties and immunities thereunder of the
Company, the Trustee and the Holders of the Securities, and the terms upon which
the Securities are, and are to be, authenticated and delivered.
Except as otherwise provided in the Indenture, this Security will be issued
in global form only registered in the name of the Depositary or its nominee.
This Security will not be issued in definitive form, except as otherwise
provided in the Indenture, and ownership of this Security shall be maintained in
book-entry form by the Depositary for the accounts of participating
organizations of the Depositary.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this
Security at the times, place and rate, and in the coin and currency, herein
prescribed.
Securities will be redeemable, in whole or in part, at the option of the
Company at any time at a redemption price equal to the greater of (i) 100% of
the principal amount of such Securities, and (ii) as determined by the Quotation
Agent (as defined below), the sum of the present values of the remaining
scheduled payments of principal and interest thereon (not including any portion
of such payments of interest accrued as of the date of redemption) discounted to
the date of redemption on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Adjusted Treasury Rate (as defined
below) plus 15 basis points plus, in each case, accrued interest thereon to the
date of redemption.
"Adjusted Treasury Rate" means, with respect to any redemption date, the
rate per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the remaining
term of the Debentures to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of the Securities.
"Comparable Treasury Price" means, with respect to any redemption date, (i)
the average of the Reference Treasury Dealer Quotations for such redemption
date, after excluding the highest and lowest such Reference Treasury Dealer
Quotations, or (ii) if the Trustee obtains fewer than three such Reference
Treasury Dealer Quotations, the average of all of such Quotations. The Quotation
Agent shall compute the average of such Quotations.
"Quotation Agent" means the Reference Treasury Dealer appointed by the
Company.
"Reference Treasury Dealer" means (i) each of J.P. Morgan Securities Inc.,
Goldman, Sachs & Co., Morgan Stanley & Co. Incorporated and Salomon Brothers
Inc, and their respective successors; provided, however, that if any of the
foregoing shall cease to be a primary U.S. Government securities dealer in New
York City (a "Primary Treasury Dealer"), the Company shall substitute therefor
another Primary Treasury Dealer; and (ii) any other Primary Treasury Dealer
selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Company, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding such redemption date.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each holder of the Debentures to be
redeemed. Unless the Company defaults in payment of the redemption price, on and
after the redemption date, interest will cease to accrue on the Securities or
portions thereof called for redemption. If less than all the Securities are to
be redeemed, the Securities to be redeemed shall be selected by the Trustee by
such method as the Trustee shall deem fair and equitable.
Section 4.03 (including subparagraph (4) thereof and clause (B), but not
clause (A), of such subparagraph) and Section 10.10 (including subparagraph (5)
thereof) of the Indenture contain provisions applicable to this Security that
provide for defeasance at any time of (a) the entire indebtedness on this
Security and (b) certain restrictive covenants and certain Events of Default
upon compliance by the Company with certain conditions set forth therein.
As provided in the Indenture and subject to certain limitations therein set
forth, this Security may be registered for transfer on the Security Register of
the Company, upon surrender of this Security for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company, the Trustee and the Security Registrar duly
executed by, the registered Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities are issuable only as Registered Securities in denominations
of $1,000 and any integral multiple thereof. As provided in the Indenture, and
subject to certain limitations therein set forth, Securities are exchangeable
for a like aggregate principal amount of Registered Securities of different
authorized denominations, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue, and neither the
Company or the Trustee nor any such agent shall be affected by notice to the
contrary.
If an Event of Default, as defined in the Indenture, with respect to the
Securities shall occur, the principal of all the Securities may be declared due
and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company with the consent of the Holders of a majority in
aggregate principal amount of the then Outstanding Securities of this series and
of each other series issued under the Indenture and affected by such amendment
or modification. The Indenture also permits the Holders of a majority in
aggregate principal amount of the Securities at the time Outstanding, on behalf
of the Holders of all the Securities, to waive certain past defaults under the
Indenture with respect to the Securities and their consequences. Any such
consent or waiver shall be conclusive and binding upon the Holder of this
Security and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof whether or not a notation of such consent or waiver is made upon this
Security.
No recourse shall be had for the payment of the principal of or the
interest on this Security, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or any successor
corporation, either directly or through the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issue hereof, expressly waived and released.
Except as otherwise defined herein, all terms used in this Security which
are defined in the Indenture shall have the meanings assigned to them in the
Indenture.
This Security shall be deemed to be a contract made under the laws of the
State of New York and for all purposes shall be construed in accordance with and
governed by the laws of said State.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants
in common
UNIF GIFT
MIN ACT - Custodian
-------------- --------------
(Cust) (Minor)
under Uniform Gifts to Minors
Act____________________________________
(State)
Additional abbreviations may also be used though not in the above list.
------------------------------
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s)
and transfer(s) unto
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PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
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(Please print or typewrite name and address
including postal zip code of assignee)
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the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
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Attorney to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated: ______________________
__________________________________
NOTICE: The signature
to this assignment must
correspond with the name
as it appears upon the
face of the within
instrument in every
particular, without
alteration or enlargement
or any change whatever.
