Filed Pursuant to Rule 424(b)(2)
Registration No. 333-67770
PROSPECTUS SUPPLEMENT DATED OCTOBER 30, 2001
(TO PROSPECTUS DATED AUGUST 30, 2001)
[KRAFT LOGO]
KRAFT FOODS INC.
$1,250,000,000 4 5/8% NOTES DUE 2006
$2,000,000,000 5 5/8% NOTES DUE 2011
$ 750,000,000 6 1/2% NOTES DUE 2031
------------------------
Interest on the notes is payable semiannually on May 1 and November 1 of
each year, beginning May 1, 2002. We may not redeem the notes prior to maturity
unless specified events occur involving United States taxation. The notes will
be issued only in denominations of $1,000 and integral multiples of $1,000.
The notes are offered globally for sale in those jurisdictions in the
United States, Canada, Europe, Asia and elsewhere where it is lawful to make
such offers. See "Offering Restrictions."
We have applied to have the notes listed on the Luxembourg Stock Exchange.
------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS SUPPLEMENT OR THE ATTACHED PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
PUBLIC UNDERWRITING PROCEEDS TO KRAFT
OFFERING PRICE DISCOUNT (BEFORE EXPENSES)
-------------------------- ----------------------- --------------------------
PER NOTE TOTAL PER NOTE TOTAL PER NOTE TOTAL
-------- -------------- -------- ----------- -------- --------------
4 5/8% Notes due 2006 99.850% $1,248,125,000 0.350% $ 4,375,000 99.500% $1,243,750,000
5 5/8% Notes due 2011 99.947% $1,998,940,000 0.450% $ 9,000,000 99.497% $1,989,940,000
6 1/2% Notes due 2031 99.425% $ 745,687,500 0.875% $ 6,562,500 98.550% $ 739,125,000
-------------- ----------- --------------
Combined Total $3,992,752,500 $19,937,500 $3,972,815,000
-------------- ----------- --------------
The public offering prices set forth above do not include accrued interest.
Interest will accrue from November 2, 2001.
------------------------
The underwriters expect to deliver the notes to purchasers in book-entry
form only through The Depository Trust Company, Clearstream or Euroclear, on or
about November 2, 2001.
------------------------
Joint Book-Runners
JPMORGAN LEHMAN BROTHERS
------------------------
Senior Co-Managers
ABN AMRO INCORPORATED BNP PARIBAS DEUTSCHE BANC ALEX. BROWN
HSBC SALOMON SMITH BARNEY SG INVESTMENT BANKING
------------------------
Co-Managers
BANC ONE CAPITAL ORMES CAPITAL MURIEL SIEBERT THE WILLIAMS CAPITAL
MARKETS, INC. MARKETS, INC. & CO., INC. GROUP, L.P.
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
ABOUT THIS PROSPECTUS SUPPLEMENT...... S-1
SUMMARY OF THE OFFERING............... S-2
THE COMPANY........................... S-3
RECENT DEVELOPMENTS................... S-8
USE OF PROCEEDS....................... S-9
RATIO OF EARNINGS TO FIXED CHARGES.... S-9
CAPITALIZATION........................ S-10
SUMMARY HISTORICAL AND PRO FORMA
FINANCIAL AND OTHER DATA............ S-11
MANAGEMENT............................ S-13
DESCRIPTION OF NOTES.................. S-14
UNDERWRITING.......................... S-21
OFFERING RESTRICTIONS................. S-22
EXPERTS............................... S-25
LEGAL OPINIONS........................ S-26
LISTING AND GENERAL INFORMATION....... S-26
PROSPECTUS
ABOUT THIS PROSPECTUS................... 1
RISK FACTORS............................ 1
WHERE YOU CAN FIND MORE INFORMATION..... 1
CAUTIONARY STATEMENT REGARDING
FORWARD-LOOKING STATEMENTS............ 2
THE COMPANY............................. 3
RATIO OF EARNINGS TO FIXED CHARGES...... 3
USE OF PROCEEDS......................... 4
DESCRIPTION OF DEBT
SECURITIES............................ 4
DESCRIPTION OF DEBT
WARRANTS.............................. 16
CERTAIN UNITED STATES FEDERAL INCOME TAX
CONSIDERATIONS........................ 18
PLAN OF DISTRIBUTION.................... 26
EXPERTS................................. 28
LEGAL OPINIONS.......................... 28
------------------------
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS SUPPLEMENT AND THE ATTACHED PROSPECTUS. NO ONE HAS
BEEN AUTHORIZED TO PROVIDE YOU WITH DIFFERENT INFORMATION. IF THIS PROSPECTUS
SUPPLEMENT IS INCONSISTENT WITH THE ATTACHED PROSPECTUS, YOU SHOULD RELY ON THIS
PROSPECTUS SUPPLEMENT. IF ANYONE PROVIDES YOU WITH DIFFERENT OR INCONSISTENT
INFORMATION YOU SHOULD NOT RELY ON IT. WE ARE NOT MAKING AN OFFER OF THESE
SECURITIES IN ANY JURISDICTION WHERE THE OFFER IS NOT PERMITTED. NEITHER THE
DELIVERY OF THIS PROSPECTUS SUPPLEMENT OR THE ATTACHED PROSPECTUS, NOR ANY SALE
MADE HEREUNDER AND THEREUNDER SHALL UNDER ANY CIRCUMSTANCES, CREATE ANY
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF KRAFT FOODS INC.
SINCE THE DATE OF THIS PROSPECTUS SUPPLEMENT OR THE ATTACHED PROSPECTUS, OR THAT
THE INFORMATION CONTAINED OR INCORPORATED BY REFERENCE HEREIN OR THEREIN IS
CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE OF SUCH INFORMATION.
------------------------
IN CONNECTION WITH THIS OFFERING, J.P. MORGAN SECURITIES INC. AND LEHMAN
BROTHERS INC. OR THEIR RESPECTIVE AFFILIATES MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE NOTES AT LEVELS
WHICH MIGHT NOT OTHERWISE PREVAIL. IN ANY JURISDICTION WHERE THERE CAN ONLY BE
ONE STABILIZING AGENT, LEHMAN BROTHERS INC. OR ITS AFFILIATES SHALL EFFECT SUCH
TRANSACTIONS. THIS STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME
AND WILL BE CARRIED OUT IN COMPLIANCE WITH THE APPLICABLE LAWS, REGULATIONS AND
RULES.
------------------------
The distribution of this prospectus supplement and the attached prospectus
and the offering or sale of the notes in some jurisdictions may be restricted by
law. Persons into whose possession this prospectus supplement and the attached
prospectus come are required by us and the underwriters to inform themselves
about and to observe any applicable restrictions. This prospectus supplement and
the attached prospectus may not be used for or in connection with an offer or
solicitation by any person in any jurisdiction in which that offer or
solicitation is not authorized or to any person to whom it is unlawful to make
that offer or solicitation. See "Offering Restrictions" in this prospectus
supplement.
i
ABOUT THIS PROSPECTUS SUPPLEMENT
This prospectus supplement contains the terms of this offering of notes.
This prospectus supplement, or the information incorporated by reference in this
prospectus supplement, may add, update or change information in the attached
prospectus. If information in this prospectus supplement is inconsistent with
the attached prospectus, this prospectus supplement, or the information
incorporated by reference in this prospectus supplement, will apply and will
supersede that information in the attached prospectus.
It is important for you to read and consider all information contained in
this prospectus supplement and the attached prospectus in making your investment
decision. You should also read and consider the information in the documents we
have referred you to in "Where You Can Find More Information" in the attached
prospectus.
This prospectus supplement and the attached prospectus include particulars
given in compliance with the rules governing the listing of securities on the
Luxembourg Stock Exchange. We accept responsibility for the information
contained in this prospectus supplement and the attached prospectus. The
Luxembourg Stock Exchange takes no responsibility for the contents of this
document, makes no representations as to its accuracy or completeness and
expressly disclaims any liability whatsoever for any loss howsoever arising from
or in reliance upon the whole or any part of the contents of this prospectus
supplement and the attached prospectus.
We cannot guarantee that listing will be obtained on the Luxembourg Stock
Exchange. Inquiries regarding our listing status on the Luxembourg Stock
Exchange should be directed to our Luxembourg listing agent, Banque Generale du
Luxembourg.
Copies of this prospectus supplement, the attached prospectus, the
indenture, the underwriting agreement, our Current Report on Form 8-K filed with
the SEC on August 10, 2001 where you can find our audited combined financial
statements for the years ended December 31, 1999 and 2000, our quarterly report
on Form 10-Q for the quarter ended June 30, 2001 filed with the SEC, and our
Current Report on Form 8-K filed with the SEC on October 18, 2001, and all
future filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended, will be available free of charge at
the office of our Luxembourg paying agent so long as any of the notes are
outstanding and listed on the Luxembourg Stock Exchange. These documents include
audited combined financial statements and unaudited combined and consolidated
quarterly financial statements. Future financial statements will also be
available free of charge from the paying agent in Luxembourg when they are
prepared. We do not prepare unconsolidated financial statements.
Trademarks and servicemarks in this prospectus supplement and the attached
prospectus appear in bold italic type and are the property of or licensed by our
subsidiaries.
Kraft Foods Inc. is a holding company incorporated in Virginia on December
7, 2000. Its two principal subsidiaries are Kraft Foods North America, Inc. and
Kraft Foods International, Inc. In this prospectus supplement, we use the terms
"Kraft," "we," "our" and "us" when we do not need to distinguish among these
entities or when any distinction is clear from the context. Otherwise, we use
the terms "Kraft Foods Inc.," "Kraft Foods North America" and "Kraft Foods
International." The term "Philip Morris" refers to our parent, Philip Morris
Companies Inc. The term "Nabisco" refers to Nabisco Holdings Corp. and its
subsidiaries. On July 29, 2001, Nabisco and its wholly-owned subsidiary,
Nabisco, Inc., were merged with and into Kraft Foods North America.
References herein to "$" and "dollars" are to United States dollars, and
all financial data included herein or incorporated by reference, other than
EBITDA, underlying operating companies income and underlying operating companies
income margin, have been presented in accordance with accounting principles
generally accepted in the United States of America.
S-1
SUMMARY OF THE OFFERING
Issuer..................... Kraft Foods Inc.
Securities Offered......... $1,250,000,000 total principal amount of 4 5/8%
notes due 2006, maturing November 1, 2006.
$2,000,000,000 total principal amount of 5 5/8%
notes due 2011, maturing November 1, 2011.
$750,000,000 total principal amount of 6 1/2% notes
due 2031, maturing November 1, 2031.
Interest Rates............. The notes due 2006 will bear interest from November
2, 2001 at the rate of 4 5/8% per annum.
The notes due 2011 will bear interest from November
2, 2001 at the rate of 5 5/8% per annum.
The notes due 2031 will bear interest from November
2, 2001 at the rate of 6 1/2% per annum.
Interest Payment Dates..... May 1 and November 1 of each year, beginning on May
1, 2002.
Long-Term Senior Unsecured
Debt Ratings*.............. Standard & Poor's: A-
Moody's: A2
Fitch: A
Ranking.................... The notes will be our senior unsecured obligations
and will rank equally in right of payment with all
of our existing and future senior unsecured
indebtedness.
Redemption of Notes for
Tax Reasons................ We may redeem all, but not part, of the notes of
each series upon the occurrence of specified tax
events described under the heading "Description of
Notes -- Redemption for Tax Reasons" in this
prospectus supplement.
Covenants.................. We will issue the notes under an indenture
containing covenants that restrict our ability,
with significant exceptions, to:
-- incur debt secured by liens; and
-- engage in sale/leaseback transactions.
Use of Proceeds............ We intend to use the net proceeds of approximately
$3,972,815,000 to repay a portion of our existing
indebtedness to Philip Morris.
Listing.................... Application has been made to list the notes on the
Luxembourg Stock Exchange.
Clearance and Settlement... The notes will be cleared through The Depository
Trust Company, Clearstream and Euroclear.
Luxembourg Paying and
Transfer Agent............. Chase Manhattan Bank Luxembourg S.A.
Governing Law.............. State of New York.
* Ratings are not a recommendation to purchase, hold or sell the notes, inasmuch
as the ratings do not comment as to market price or suitability for a
particular investor. The ratings are based on current information furnished to
the rating agencies by us and information obtained by the rating agencies from
other sources. The ratings are only accurate as of the date hereof and may be
changed, superseded or withdrawn as a result of changes in, or unavailability
of, such information, and, therefore, a prospective purchaser should check the
current ratings before purchasing the notes.
S-2
THE COMPANY
We are the largest branded food and beverage company headquartered in the
United States and the second largest in the world based on 2000 revenue on a pro
forma basis for our acquisition of Nabisco. We have a superior brand portfolio
created and supported through dynamic product innovation, worldclass marketing,
experienced management, global scale and strategic acquisitions. Our brands are
sold in more than 140 countries and, according to A.C. Nielsen, are enjoyed in
over 99% of the households in the United States. Consumers of all ages around
the world enjoy our brands, whether at home or away from home, across the entire
spectrum of food and beverage occasions: breakfast, lunch, dinner and snacks.
In December 2000, to expand our global presence and to strengthen our
position in the fast growing snacks consumer sector, we acquired Nabisco, the
largest manufacturer and marketer of cookies and crackers in the world based on
retail sales. Together with Nabisco, we would have reported 2000 pro forma
revenue of $34.7 billion and 2000 pro forma earnings before interest, income
taxes, depreciation and amortization of $6.3 billion, had the acquisition been
completed on January 1, 2000.
Our portfolio includes 61 brands with 2000 revenue over $100 million,
accounting for 75% of our 2000 pro forma revenue. Seven of our brands, listed
below, had 2000 revenue over $1 billion, accounting for 40% of our 2000 pro
forma revenue:
- KRAFT -- the #1 cheese brand in the world, as well as our best known
brand for salad and spoonable dressings, packaged dinners, barbecue
sauce and other products;
- NABISCO -- the umbrella brand for the #1 cookie and cracker business
in the world, including nine of our $100 million brands;
- OSCAR MAYER -- the #1 processed meats brand in the United States;
- POST -- the #3 brand of ready-to-eat cereals in the United States;
- MAXWELL HOUSE -- one of the leading coffee brands in the world;
- PHILADELPHIA -- the #1 cream cheese brand in the world; and
- JACOBS -- the #1 roast and ground coffee brand in Western Europe.
We conduct our global food business through two units. Kraft Foods North
America operates in the United States, Canada and Mexico and accounted for $25.3
billion, or 73%, of our 2000 pro forma revenue. Kraft Foods International, which
operates in 63 countries and sells its products in more than 140 countries,
accounted for $9.4 billion, or 27%, of our 2000 pro forma revenue.
In the United States, for the twelve months ended June 30, 2001, based on
dollar shares, we held the #1 share position in 22 of our 25 core categories or,
based on volume or equivalent unit shares, in 21 of these 25 categories. In
addition, based on volume or equivalent unit shares, we held the #1 share
position in 21 of our 25 core international country categories. We strive to be
the category leader in all of our principal markets. Category leaders often
achieve higher margins than other category participants, due to the benefits of
scale, consumer loyalty and retail customer emphasis that are frequently
associated with category leadership.
------------------------
Our principal executive offices are located at Three Lakes Drive,
Northfield, Illinois 60093 and our telephone number is (847) 646-2000.
------------------------
S-3
OUR GOALS, STRENGTHS AND STRATEGIES
Our Goals
Our long-term mission is to be recognized as the undisputed leader of the
global food and beverage industry. To that end, we strive to be:
- the first choice of our consumers;
- an indispensable partner to our retailers and other customers;
- the most desired partner for strategic alliances;
- the employer of choice in our industry;
- a responsible citizen in our communities; and
- a consistent producer of industry-leading financial performance and
returns for our investors.
Our Strengths
Our strengths are:
- OUR SUPERIOR BRAND PORTFOLIO -- our brands enjoy consumer loyalty,
trust and satisfaction, and offer our retail customers a strong
combination of growth and profitability;
- OUR INNOVATIVE PRODUCTS SUPPORTED BY WORLDCLASS MARKETING -- we
nurture the growth of our brands by developing new and innovative
products and line and geographic extensions and supporting them with
effective advertising and promotions;
- OUR SUCCESSFUL PORTFOLIO MANAGEMENT -- a key contributor to our
growth and financial returns has been our proven ability to
strengthen our portfolio through acquisitions and divestitures;
- OUR GLOBAL SCALE -- our size and scope enable us to be more efficient
and effective in serving our customers worldwide and to expand our
brands geographically while reducing costs and improving productivity
and margins; and
- OUR MANAGEMENT'S PROVEN ABILITY TO EXECUTE -- we have an experienced
management team committed to achieving superior performance.
Our Strategies
We intend to create superior value for our investors by continuing to
execute our proven growth and operating strategies. We achieve significant
benefits from our scale by applying the following strategies across our entire
global organization:
- ACCELERATE GROWTH OF CORE BRANDS -- grow our brands by:
-- focusing on consumer sectors with attractive growth
characteristics;
-- addressing consumer needs, including convenience and health and
wellness;
-- expanding our presence in faster growing distribution channels;
and
-- targeting attractive demographic and economic segments in each
market;
S-4
- DRIVE GLOBAL CATEGORY LEADERSHIP -- attain and expand the leading
position in our categories across our key markets in order to capture
a higher share of each category's growth and profit;
- OPTIMIZE OUR PORTFOLIO -- actively manage our business and brand
portfolio through acquisitions, divestitures and licensing
arrangements to improve the growth profile and profitability of our
business;
- MAXIMIZE OPERATING EFFICIENCY -- drive excess costs and unproductive
assets out of our system and realize synergies from our acquisition
of Nabisco, while emphasizing product quality and customer service;
and
- BUILD EMPLOYEE AND ORGANIZATIONAL EXCELLENCE -- invest significant
resources in training, development and career management and utilize
employee measurement and compensation systems, all designed to
achieve our success in the marketplace.
------------------------
S-5
In the United States, based on dollar shares, we hold the #1 share position
in 22 of our 25 core categories or, based on volume or equivalent unit shares,
in 21 of these 25 categories. Our 25 core United States categories are those for
which we regularly report our performance to senior management and to our board
of directors.
KRAFT FOODS NORTH AMERICA
25 U.S. CORE CATEGORIES FOR THE TWELVE MONTHS ENDED JUNE 30, 2001
OUR U.S. OUR U.S.
DOLLAR/VOLUME CATEGORY CATEGORY
CONSUMER SECTOR/CATEGORY SHARE RANK MAJOR BRANDS DOLLAR SHARE (%) VOLUME SHARE (%)
------------------------ ------------- ------------ ---------------- ----------------
SNACKS
Cookies #1 OREO, CHIPS AHOY! 40.5% 35.5%
Crackers #1 RITZ, PREMIUM 50.5 45.2
Ready-to-Eat
Refrigerated Desserts #1 JELL-O 56.6 54.5
Snack Nuts #1 PLANTERS 46.4 44.6
Sugar Confectionery #1/#2 LIFE SAVERS, ALTOIDS, FARLEYS 19.4 16.6
BEVERAGES
Aseptic Juice Drinks #1 CAPRI SUN, TANG 43.1 48.3
Coffee #2 MAXWELL HOUSE 33.5 31.1
Powdered Soft Drinks #1 KOOL-AID, CRYSTAL LIGHT 84.1 80.8
CHEESE
Cream Cheese #1 PHILADELPHIA 67.0 61.3
Grated Cheese #1 KRAFT 54.7 49.5
Natural Cheese #1 KRAFT 27.7 24.2
Process Cheese Loaves #1 VELVEETA 87.1 83.8
Process Cheese Slices #1 KRAFT 55.1 47.0
GROCERY
Dry Packaged Desserts #1 JELL-O 82.0 78.6
Frozen Whipped Toppings #1 COOL WHIP 72.2 67.1
Ready-to-Eat Cereals #3 POST 16.0 16.1
Salad Dressings #1 KRAFT 31.6 32.8
Spoonable Dressings #1 KRAFT, MIRACLE WHIP 46.1 44.7
Steak Sauces #1 A.1 59.9 48.8
CONVENIENT MEALS
Bacon #1 OSCAR MAYER, LOUIS RICH 19.2 13.8
Cold Cuts #1 OSCAR MAYER, LOUIS RICH 31.5 30.9
Frozen Pizza #1 DIGIORNO, TOMBSTONE 38.3 38.3
Hot Dogs #2 OSCAR MAYER, LOUIS RICH 21.4 17.3
Lunch Combinations #1 LUNCHABLES 75.9 80.2
Macaroni & Cheese Dinners #1 KRAFT 82.4 71.5
---------------
Note: U.S. share data are supplied by A.C. Nielsen or Information Resources
Inc. and reflect grocery stores, supercenters and mass merchandisers;
share data do not include all retail outlets. All share data are for
the twelve-month period ended June 30, 2001 or, where not available as
of such date, for the date, in the month of June, closest to June 30,
2001 for which such data are available.
S-6
We hold the #1 share position, based on volume or equivalent unit shares,
in 21 of our 25 core international country categories. Our 25 core international
country categories are those for which we regularly report our performance to
senior management and to our board of directors.
KRAFT FOODS INTERNATIONAL
25 CORE COUNTRY CATEGORIES FOR THE TWELVE MONTHS ENDED JUNE 30, 2001
SHARE OUR CATEGORY
CONSUMER SECTOR/CATEGORY COUNTRY RANK MAJOR BRANDS VOLUME SHARE (%)
------------------------ ------- ----- ------------ ----------------
SNACKS
Biscuits Argentina #1 TERRABUSI 28.2%
Biscuits Venezuela #1 CLUB SOCIAL 44.5
Chocolate Austria #1 MILKA 48.0
Chocolate Belgium #1 COTE D'OR 31.2
Chocolate France #2 MILKA, COTE D'OR 14.6
Chocolate Germany #3 MILKA 11.1
Chocolate Norway #1 FREIA 52.9
Chocolate Sweden #1 MARABOU 50.0
Salty Snacks Scandinavia/Finland #1 ESTRELLA 35.7
BEVERAGES
Coffee France #1 CARTE NOIRE 40.9
Coffee Germany #1 JACOBS 25.3
Coffee Poland #1 JACOBS 18.6
Coffee Sweden #1 GEVALIA 43.6
Coffee United Kingdom #2 KENCO, MAXWELL HOUSE 21.5
Powdered Soft Drinks Argentina #1 TANG, CLIGHT 70.5
Powdered Soft Drinks Brazil #1 TANG, CLIGHT 51.7
CHEESE
Cream Cheese Germany #2 PHILADELPHIA 21.1
Cream Cheese Italy #1 PHILADELPHIA 63.4
Cream Cheese United Kingdom #1 PHILADELPHIA 60.6
Process Cheese Australia #1 KRAFT Singles 48.9
Process Cheese Slices Italy #1 KRAFT SOTTILETTE 56.4
Process Cheese United Kingdom #1 KRAFT DAIRYLEA 45.6
GROCERY
Spoonable Dressings Germany #1 MIRACEL WHIP 33.3
Yeast Spreads Australia #1 VEGEMITE 88.3
CONVENIENT MEALS
Canned Beef Italy #1 SIMMENTHAL 61.8
---------------
Note: International share data are supplied by A.C. Nielsen, except for
Venezuelan biscuits and Italian canned beef share data, which are
supplied by Information Resources Inc.; share data do not include all
retail outlets. All share data are for the twelve-month period ended
June 30, 2001 or, where not available as of such date, for the date,
in the month of June, closest to June 30, 2001 for which such data are
available.
S-7
RELATIONSHIP WITH PHILIP MORRIS
Philip Morris owns 49.5% of our outstanding Class A common stock and 100%
of our outstanding Class B common stock. Our Class A common stock has one vote
per share while our Class B common stock has ten votes per share. As a result,
Philip Morris controls 97.7% of the combined voting power of all of our
outstanding common stock. For as long as Philip Morris continues to own shares
of common stock representing more than 50% of the combined voting power of our
common stock, it will be able to direct the election of all of the members of
our board of directors and determine the outcome of all matters submitted to a
vote of our shareholders, including matters involving mergers or other business
combinations, the acquisition or disposition of assets, the incurrence of
indebtedness, the issuance of any additional shares of common stock or other
equity securities and the payment of dividends on common stock.
We have agreed with Philip Morris that so long as it holds more than 50% of
our outstanding common stock, our board of directors will have three members
designated by Philip Morris and four members who are not otherwise affiliated
with us or with Philip Morris. Two other members of our nine-person board of
directors are executive officers of Kraft.
Various legal actions, proceedings and claims relating to tobacco products
are pending or may be instituted against operating subsidiaries of Philip Morris
that are engaged in the manufacture and sale of cigarettes and also against
Philip Morris. If plaintiffs were successful in holding Philip Morris
responsible, shares of our Class A or Class B common stock that are owned by
Philip Morris would be among the assets of Philip Morris available to satisfy
these liabilities. Because Kraft Foods Inc. and its subsidiaries are separate
corporations that have not engaged in the business of manufacturing and selling
cigarettes, we believe that the risk that our assets could be attached to
satisfy these liabilities is remote.
RECENT DEVELOPMENTS
THIRD QUARTER FINANCIAL RESULTS
On October 16, 2001, we announced our financial results for the three
months ended September 30, 2001. On a reported basis, compared with our results
for the third quarter of 2000, worldwide volume increased 34.6%; operating
revenues increased 29.6% to $8.1 billion; and operating companies income
increased 17.5% to $1.5 billion, reflecting the acquisition of Nabisco. Net
earnings decreased 8.2% to $503 million and diluted earnings per share decreased
23.7% to $0.29 as a result of higher interest expense and goodwill amortization
from the Nabisco acquisition. Included in reported results for the third quarter
of 2001 are $37 million of costs to consolidate production lines in the United
States. These costs are part of the previously disclosed $200 million to $300
million in estimated charges for Kraft site closures, reconfigurations and other
consolidation programs associated with integrating Kraft and Nabisco.
VOLUNTARY RETIREMENT PROGRAM
On October 26, 2001, we announced a voluntary retirement program for
certain salaried employees in the United States as part of our integration with
Nabisco. We estimate that our workforce will be reduced by approximately 1,000
employees as a result of this program. We estimate that the program will result
in a total pre-tax charge of approximately $160 million in the first quarter of
2002. Of this amount, we estimate that the program will result in a $20 million
to $25 million reduction in operating cash flow in the first quarter of 2002.
The estimated $160 million pre-tax charge is part of the previously disclosed
$200 million to $300 million in estimated charges for Kraft site closures,
reconfigurations and other consolidation programs associated with integrating
Kraft and Nabisco.
NATIONAL CHEESE EXCHANGE LITIGATION
Our subsidiaries are parties to a variety of legal proceedings arising out
of the normal course of business, including the matters discussed under the
caption "Legal Proceedings" in our quarterly report on
S-8
Form 10-Q for the quarter ended June 30, 2001, which is incorporated herein by
reference. While the results of litigation cannot be predicted with certainty,
management believes that the final outcome of these proceedings will not have a
material adverse effect on our results of operations or financial position. The
following updates disclosure included in our quarterly report on Form 10-Q for
the quarter ended June 30, 2001 with respect to certain pending litigation.
Since 1996, seven putative class actions have been filed by various dairy
farmers alleging that we and others engaged in a conspiracy to fix and depress
the prices of bulk cheese and milk through their trading activity on the
National Cheese Exchange. Plaintiffs seek injunctive and equitable relief and
unspecified treble damages. Two of the actions were voluntarily dismissed by
plaintiffs after class certification was denied. Three cases were consolidated
in state court in Wisconsin, and in November 1999, the court granted our motion
for summary judgment. In June 2001, the Wisconsin Court of Appeals affirmed the
trial court's ruling, but, on October 23, 2001, the Wisconsin Supreme Court
granted the plaintiffs' petition for further review. Our motions to dismiss were
granted in the cases pending in Illinois state court and in the United States
District Court of the Central District of California. Appellate courts have
reversed and remanded both cases for further proceedings. No classes have been
certified in any of the cases.
USE OF PROCEEDS
In anticipation of this offering, our $4.0 billion 7.40% note payable to
Philip Morris, originally maturing in December 2002, was converted into a
3.56125% note maturing on November 20, 2001. We issued the 7.40% note in
connection with our acquisition of Nabisco. We plan to use the net proceeds of
the offering (before expenses), estimated to be approximately $3,972,815,000, to
repay a portion of the 3.56125% note.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our historical ratios of earnings to fixed
charges for the periods indicated:
YEAR ENDED DECEMBER 31,
NINE MONTHS ENDED ------------------------------------
SEPTEMBER 30, 2001 2000 1999 1998 1997 1996
------------------ ---- ---- ---- ---- ----
Ratios of earnings to fixed charges... 2.9 5.8 5.6 5.7 6.2 5.3
Earnings available for fixed charges represent earnings before income taxes
and cumulative effect of accounting change(s) and fixed charges excluding
capitalized interest, net of amortization, reduced by undistributed earnings of
our less than 50% owned affiliates. Fixed charges represent interest expense,
amortization of debt discount and expenses, capitalized interest, plus that
portion of rental expense deemed to be the equivalent of interest.
S-9
CAPITALIZATION
The following table sets forth our capitalization on a consolidated basis
as of September 30, 2001. We have presented our capitalization:
- on an actual basis; and
- on an as adjusted basis to reflect the issuance of notes offered
hereby and the use of the net proceeds therefrom (before expenses) to
repay a portion of our existing indebtedness to Philip Morris. See
"Use of Proceeds."
You should read the following table along with our financial statements and
the accompanying notes to those statements and our pro forma condensed combined
financial information and accompanying introductions and notes, together with
management's discussion and analysis of financial condition and results of
operations, that we have incorporated by reference in this prospectus
supplement, and our summary historical and pro forma financial and other data
included in this prospectus supplement. Since September 30, 2001 to the date of
this prospectus supplement, there has not been any material change in the
information set forth below.
AS OF SEPTEMBER 30,
2001
-------------------
AS
ACTUAL ADJUSTED
------- --------
(IN MILLIONS)
Short-term borrowings, including current maturities(1)...... $ 716 $ 716
Short-term obligations payable to Philip Morris(1).......... 2,361 2,361
Long-term obligations payable to Philip Morris(1)........... 9,000 5,027
4 5/8% Notes due 2006....................................... -- 1,250
5 5/8% Notes due 2011....................................... -- 2,000
6 1/2% Notes due 2031....................................... -- 750
Other long-term debt(1)..................................... 4,654 4,654
------- -------
Total debt............................................. 16,731 16,758
------- -------
Shareholders' equity:
Preferred stock, no par value, 500,000,000 shares
authorized; none issued and outstanding...............
Class A common stock, no par value, 3,000,000,000
shares authorized; 555,000,000 shares issued and
outstanding...........................................
Class B common stock, no par value, 2,000,000,000
shares authorized; 1,180,000,000 shares issued and
outstanding...........................................
Additional paid-in capital............................. 23,655 23,655
Earnings reinvested in the business.................... 2,069 2,069
Accumulated other comprehensive losses (primarily
currency translation adjustments)..................... (2,417) (2,417)
------- -------
Total shareholders' equity............................. 23,307 23,307
------- -------
Total capitalization........................................ $40,038 $40,065
======= =======
---------------
(1) Certain short-term borrowings and short-term obligations, including our
$4.0 billion 3.56125% note maturing on November 20, 2001 payable to Philip
Morris, have been reclassified as long-term in reliance on our revolving
credit facility which expires in 2006 and our current intention to
refinance certain of these borrowings and obligations on a long-term basis.
Long-term rates and maturities for such refinancings will vary depending on
market conditions at the time of issuance.
S-10
SUMMARY HISTORICAL AND PRO FORMA FINANCIAL AND OTHER DATA
The following table presents our summary historical and pro forma financial
and other data and should be read along with our financial statements and the
accompanying notes to those statements and our pro forma condensed combined
financial information and accompanying introductions and notes, together with
management's discussion and analysis of financial condition and results of
operations, that we have incorporated by reference in this prospectus
supplement. The unaudited financial information includes all adjustments,
consisting of normal recurring accruals, which we consider necessary for a fair
presentation of our results of operations for these periods.
On December 11, 2000, we acquired Nabisco. We have accounted for the
acquisition as a purchase. Nabisco's balance sheet has been consolidated with
our balance sheet as of December 31, 2000; however, Nabisco's earnings from
December 11, 2000 through December 31, 2000, have not been included in our
combined operating results because the amounts were insignificant. Our interest
cost of $65 million in 2000 associated with acquiring Nabisco has been included
in interest and other debt expense, net, in our combined statement of earnings
for the year ended December 31, 2000. Nabisco earnings have been included in our
consolidated operating results for the nine months ended September 30, 2001.
Prior to June 13, 2001, we were a wholly-owned subsidiary of Philip Morris.
On June 13, 2001, we completed an initial public offering (the "IPO") of
280,000,000 shares of our Class A common stock at a price of $31.00 per share.
The IPO proceeds, net of the underwriting discount and expenses, of $8.4 billion
were used to retire a portion of an $11.0 billion long-term note payable to
Philip Morris incurred in connection with the acquisition of Nabisco.
Subsequently, we repaid the balance of this note with proceeds of commercial
paper borrowings.
Our pro forma as adjusted statement of earnings, cash flow and other data
present our pro forma as adjusted results of operations for the year ended
December 31, 2000, as if the acquisition of Nabisco had occurred on January 1,
2000 and as if the IPO had been completed on January 1, 2000, with the net
proceeds being used to retire a portion of the $11.0 billion long-term note
payable to Philip Morris mentioned above.
Our as adjusted statement of earnings data for the nine months ended
September 30, 2001, present our as adjusted results of operations for the nine
months ended September 30, 2001, as if the IPO had been completed on January 1,
2001, with the net proceeds being used to retire a portion of the $11.0 billion
long-term note payable to Philip Morris mentioned above.
Our pro forma as adjusted results are not necessarily indicative of what
actually would have occurred if the acquisition had been consummated, and the
IPO had been completed, on the date indicated, nor are they necessarily
indicative of our future operating results. Our as adjusted results are not
necessarily indicative of what actually would have occurred if the IPO had been
completed on the date indicated.
We define EBITDA as earnings before interest and other debt expense, net;
provision for income taxes; depreciation; and amortization. We believe that
EBITDA is a measure commonly used by analysts and investors. Accordingly, we
have disclosed this information to permit a more complete analysis of our
operating performance. EBITDA should not be considered in isolation or as a
substitute for net earnings or other results of operations data or cash flow
data prepared in accordance with accounting principles generally accepted in the
United States as a measure of our profitability or liquidity. EBITDA, as we
calculate it, may not be comparable to similarly titled measures reported by
other companies.
We define operating companies income as operating income before
amortization of goodwill and corporate expenses. We use this measure to report
our segment profitability under accounting principles generally accepted in the
United States.
We also evaluate our operating results and the performance of our
businesses by reviewing underlying results, including underlying operating
revenue, underlying operating companies income and underlying operating
companies income margin. Underlying results reflect the results of our business
operations, excluding significant one-time items for employee separation
programs, write-downs of property, plant and equipment, estimated sales made in
advance of the century date change and gains (losses) on sales of businesses.
Underlying results also exclude the operating results of businesses that have
been sold. Accordingly, we have disclosed underlying results to permit a more
complete analysis of our operating performance.
S-11
Underlying operating companies income should not be considered in isolation or
as a substitute for net earnings or other results of operations data prepared in
accordance with accounting principles generally accepted in the United States.
We calculate operating companies income margin by dividing operating
companies income by operating revenue. We calculate underlying operating
companies income margin by dividing underlying operating companies income by
underlying operating revenue.
NINE MONTHS ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
----------------------------------------- -------------------------------
PRO FORMA
AS ADJUSTED AS ADJUSTED
1998 1999 2000 2000 2000 2001 2001
------- ------- ------- ----------- ------- ------- -----------
(IN MILLIONS, EXCEPT PER SHARE DATA)
STATEMENT OF EARNINGS DATA:
Operating revenue.................. $27,311 $26,797 $26,532 $34,679 $19,649 $25,115 $25,115
Cost of sales...................... 15,544 14,573 13,917 18,266 10,195 12,883 12,883
------- ------- ------- ------- ------- ------- -------
Gross profit..................... 11,767 12,224 12,615 16,413 9,454 12,232 12,232
Marketing, administration and
research costs................... 7,688 8,106 8,068 10,890 5,964 7,880 7,880
Amortization of goodwill........... 544 539 535 961 403 719 719
------- ------- ------- ------- ------- ------- -------
Operating income................. 3,535 3,579 4,012 4,562 3,087 3,633 3,633
Interest and other debt expense,
net.............................. 536 539 597 1,348 381 1,189 887
------- ------- ------- ------- ------- ------- -------
Earnings before income taxes..... 2,999 3,040 3,415 3,214 2,706 2,444 2,746
Provision for income taxes......... 1,367 1,287 1,414 1,427 1,120 1,110 1,247
------- ------- ------- ------- ------- ------- -------
Net earnings..................... $ 1,632 $ 1,753 $ 2,001 $ 1,787 $ 1,586 $ 1,334 $ 1,499
======= ======= ======= ======= ======= ======= =======
Basic and diluted earnings per
share............................ $ 1.12 $ 1.20 $ 1.38 $ 1.03 $ 1.09 $ 0.85 $ 0.86
======= ======= ======= ======= ======= ======= =======
Weighted average number of
shares........................... 1,455 1,455 1,455 1,735 1,455 1,568 1,735
BALANCE SHEET DATA:
Goodwill, net of accumulated
amortization..................... $16,408 $15,296 $31,584 $14,837 $31,472
Total assets....................... 31,391 30,336 52,071 29,728 51,823
Short-term borrowings, including
current maturities............... 109 105 859 203 716(1)
Short-term obligations payable to
Philip Morris.................... 342 688 865 376 2,361(1)
Long-term obligations payable to
Philip Morris.................... 6,234 6,602 21,407 6,409 9,000(1)
Other long-term debt............... 483 433 2,695 295 4,654(1)
Shareholders' equity............... 15,134 13,461 14,048 13,686 23,307
CASH FLOW DATA:
Cash provided by (used in):
Operating activities............. $ 2,324 $ 2,693 $ 3,254 $ 2,122 $ 1,412
Investing activities............. (763) (669) (16,138) (663) (723)
Financing activities............. (1,565) (2,031) 12,982 (1,445) (700)
Depreciation and amortization...... 1,038 1,030 1,034 $ 1,722 776 1,224
Capital expenditures............... (841) (860) (906) (1,151) (568) (691)
OTHER DATA:
Volume (in pounds)................. 12,694 12,817 13,130 17,613 9,744 12,996
EBITDA............................. $ 4,573 $ 4,609 $ 5,046 $ 6,284 $ 3,863 $ 4,857
Corporate expenses................. 103 135 208 208 151 141
Operating companies income:
Reported......................... 4,182 4,253 4,755 5,731 3,641 4,493
Underlying....................... 4,108 4,308 4,620 5,620 3,505 4,558
Operating companies income margin:
Reported......................... 15.3% 15.9% 17.9% 16.5% 18.5% 17.9%
Underlying....................... 15.3 16.4 17.4 16.3 17.9 18.2
---------------
(1) Certain short-term borrowings and short-term obligations have been
reclassified as long-term in reliance on our revolving credit facility which
expires in 2006 and our current intention to refinance certain of these
borrowings and obligations on a long-term basis. Long-term rates and
maturities for such refinancings will vary depending on market conditions at
the time of issuance.
S-12
MANAGEMENT
DIRECTORS AND EXECUTIVE OFFICERS
The following table sets forth information concerning the individuals who
serve as directors and executive officers of Kraft Foods Inc. as of October 26,
2001.
NAME TITLE
--------------------------------------------- ---------------------------------------------
Ronald J.S. Bell............................. Group Vice President, Kraft Foods
International and President European Union
Region
Geoffrey C. Bible............................ Director and Chairman
Louis C. Camilleri........................... Director
Calvin J. Collier............................ Senior Vice President, General Counsel and
Corporate Secretary; and Senior Vice
President, General Counsel and Corporate
Secretary, Kraft Foods North America
Roger K. Deromedi............................ Director and Co-Chief Executive Officer; and
President and Chief Executive Officer, Kraft
Foods International
James P. Dollive............................. Senior Vice President and Chief Financial
Officer
W. James Farrell............................. Director
Betsy D. Holden.............................. Director and Co-Chief Executive Officer; and
President and Chief Executive Officer, Kraft
Foods North America
John C. Pope................................. Director
Irene B. Rosenfeld........................... Group Vice President, Kraft Foods North
America, and President, Operations,
Technology and Kraft Foods Canada, Mexico and
Puerto Rico
Mary L. Schapiro............................. Director
William H. Webb.............................. Director
Deborah C. Wright............................ Director
S-13
DESCRIPTION OF NOTES
The following description of the particular terms of the notes, which we
refer to as the "notes", supplements the description of the general terms and
provisions of the debt securities set forth under "Description of Debt
Securities" beginning on page 4 in the attached prospectus. The attached
prospectus contains a detailed summary of additional provisions of the notes and
of the indenture, dated as of October 17, 2001, between Kraft and The Chase
Manhattan Bank, as trustee, under which the notes will be issued. The indenture
will be available for inspection at the office of our Luxembourg paying agent,
Chase Manhattan Bank Luxembourg S.A. The following description replaces the
description of the debt securities in the attached prospectus, to the extent of
any inconsistency. Terms used in this prospectus supplement that are otherwise
not defined will have the meanings given to them in the attached prospectus.
CERTAIN TERMS OF THE 4 5/8% NOTES DUE 2006
The notes due 2006 are a series of debt securities described in the
attached prospectus, which will be senior debt securities, will be initially
issued in the aggregate principal amount of $1,250,000,000 and will mature on
November 1, 2006.
The notes due 2006 will bear interest at the rate of 4 5/8% per annum from
November 2, 2001, payable semiannually in arrears on May 1 and November 1 of
each year, commencing May 1, 2002 to the persons in whose names the notes are
registered at the close of business on the preceding April 15 or October 15,
each a record date, as the case may be. Interest will be computed on the basis
of a 360-day year consisting of twelve 30-day months.
CERTAIN TERMS OF THE 5 5/8% NOTES DUE 2011
The notes due 2011 are a series of debt securities described in the
attached prospectus, which will be senior debt securities, will be initially
issued in the aggregate principal amount of $2,000,000,000 and will mature on
November 1, 2011.
The notes due 2011 will bear interest at the rate of 5 5/8% per annum from
November 2, 2001, payable semiannually in arrears on May 1 and November 1 of
each year, commencing May 1, 2002, to the persons in whose names the notes are
registered at the close of business on the preceding April 15 or October 15,
each a record date, as the case may be. Interest will be computed on the basis
of a 360-day year consisting of twelve 30-day months.
CERTAIN TERMS OF THE 6 1/2% NOTES DUE 2031
The notes due 2031 are a series of debt securities described in the
attached prospectus, which will be senior debt securities, will be initially
issued in the aggregate principal amount of $750,000,000 and will mature on
November 1, 2031.
The notes due 2031 will bear interest at the rate of 6 1/2% per annum from
November 2, 2001, payable semiannually in arrears on May 1 and November 1 of
each year, commencing May 1, 2002, to the persons in whose names the notes are
registered at the close of business on the preceding April 15 or October 15,
each a record date, as the case may be. Interest will be computed on the basis
of a 360-day year consisting of twelve 30-day months.
GENERAL
In some circumstances, we may elect to discharge our obligations on the
notes through defeasance or covenant defeasance. See "Description of Debt
Securities -- Defeasance" on pages 12-13 of the attached prospectus for more
information about how we may do this.
We may, without the consent of the holders of the notes, issue additional
notes having the same ranking and the same interest rate, maturity and other
terms as the notes, except for the issue price and
S-14
issue date. Any additional notes having such similar terms, together with the
applicable notes, will constitute a single series of notes under the indenture.
No additional notes may be issued if an event of default has occurred with
respect to the applicable series of notes.
The notes will not be entitled to any sinking fund.
BOOK-ENTRY NOTES
The notes will be offered and sold in principal amounts of $1,000 and
integral multiples of $1,000. We will issue the notes of each series in the form
of one or more permanent global notes in fully registered, book-entry form,
which we refer to as the "global notes." Each such global note will be deposited
with, or on behalf of, The Depository Trust Company ("DTC") or any successor
thereto (the "Depositary"), as Depositary, and registered in the name of Cede &
Co. (DTC's partnership nominee). Unless and until it is exchanged in whole or in
part for notes in definitive form, no global note may be transferred except as a
whole by the Depositary to a nominee of such Depositary. Investors may elect to
hold interests in the global notes through either the Depositary (in the United
States) or through Clearstream Banking, Societe Anonyme, Luxembourg
("Clearstream") or Euroclear Bank S.A./N.V., as operator of the Euroclear System
("Euroclear"), if they are participants in such systems, or indirectly through
organizations which are participants in such systems. Clearstream and Euroclear
will hold interests on behalf of their participants through customers'
securities accounts in Clearstream's and Euroclear's names on the books of their
respective depositaries, which in turn will hold such interests in customers'
securities accounts in the depositaries' names on the books of DTC. Citibank,
N.A. will act as depositary for Clearstream and The Chase Manhattan Bank will
act as depositary for Euroclear (in such capacities, the "U.S. Depositaries").
DTC advises that it is a limited-purpose trust company organized under the
New York Banking Law, a member of the Federal Reserve System, and a "clearing
agency" registered pursuant to the provision of Section 17A of the Securities
Exchange Act of 1934, as amended. DTC holds securities that its participants
("Participants") deposit with DTC. DTC also facilitates settlement of securities
transactions among its Participants, such as transfers and pledges in deposited
securities through electronic computerized book-entry changes in accounts of the
Participants, thereby eliminating the need for physical movement of securities
certificates.
"Direct Participants" in DTC include securities brokers and dealers and
banks. DTC is owned by members of the financial industry. Access to DTC's
book-entry system is also available to others, such as banks, securities brokers
and dealers that clear through or maintain a custodial relationship with a
Direct Participant, either directly or indirectly ("Indirect Participants").
Purchases of the notes under DTC's book-entry system must be made by or
through Direct Participants, which will receive a credit for the notes on the
records of DTC. The ownership interest of each actual purchaser of the notes,
which we refer to as the "beneficial owner," is in turn to be recorded on the
Participants' records. Beneficial owners will not receive written confirmation
from DTC of their purchase, but beneficial owners are expected to receive
written confirmations providing details of the transactions, as well as periodic
statements of their holdings from the Direct or Indirect Participant through
which the beneficial owner entered into the transaction. Transfers of ownership
interests in the global notes will be effected only through entries made on the
books of Participants acting on behalf of beneficial owners. Beneficial owners
will not receive certificates representing their ownership interests in the
global notes, except in the event that use of the book-entry system for the
notes is discontinued. The laws of some states 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 the global notes.
To facilitate subsequent transfers, all global notes deposited by
Participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co. The deposit of the global notes with DTC and their registration in
the name of Cede & Co. effect no change in beneficial ownership. DTC has no
knowledge of the actual beneficial owners of the notes; DTC's records reflect
only the identity of the Direct Participants to whose accounts such notes are
credited, which may or may not be the beneficial
S-15
owners. The Participants will remain responsible for keeping account of their
holdings on behalf of their customers.
So long as DTC or its nominee is the registered owner and holder of the
global notes, DTC or its nominee, as the case may be, will be considered the
sole owner or holder of the notes represented by the global notes for all
purposes under the indenture. Except as provided below, beneficial owners of
interests in the global notes will not be entitled to have book-entry notes
represented by the notes registered in their names, will not receive or be
entitled to receive physical delivery of notes in definitive form and will not
be considered the owners or holders thereof under the indenture. Accordingly,
each beneficial owner must rely on the procedures of DTC and, if the person is
not a Participant, on the procedures of the Participants through which such
person owns its interest, to exercise any rights of a holder under the
indenture. We understand that under existing industry practices, in the event
that we request any action of holders or that an owner of a beneficial interest
in the notes desires to give or take any action which a holder is entitled to
give or take under the indenture, DTC would authorize the Participants holding
the relevant beneficial interests to give or take the action, and the
Participants would authorize beneficial owners owning through the Participants
to give or to take the action or would otherwise act upon the instructions of
beneficial owners. Conveyance of notices and other communications by DTC to
Participants, by Participants to Indirect Participants, and by Participants and
Indirect Participants to beneficial owners, will be governed by arrangements
among them, subject to any statutory or regulatory requirements as may be in
effect from time to time.
Payments of principal of and interest on the notes will be made to DTC. We
will send all required reports and notices solely to DTC as long as DTC is the
registered holder of the global notes. Neither we, the trustee, nor any other
agent of ours or agent of the trustee will have any responsibility or liability
for any aspect of the records relating to, or payments made on account of,
beneficial ownership interests in global notes or for maintaining, supervising
or reviewing any records relating to the beneficial ownership interests. DTC's
practice is to credit the accounts of the Direct Participants with payment in
amounts proportionate to their respective holdings in principal amount of
beneficial interest in a security as shown on the records of DTC, unless DTC has
reason to believe that it will not receive payment on the payable date. Payments
by Participants to beneficial owners will be governed by standing instructions
and customary practices, as is the case with securities held for the accounts of
customers in bearer form or registered in "street name" and will be the
responsibility of the Participants.
Clearstream advises that it is incorporated as a limited liability company
under the laws of Luxembourg. Clearstream is owned by Cedel International and
Deutsche Bourse AG. The shareholders of these two entities comprise 93% of the
world's financial institutions. Clearstream holds securities for its
participating organizations ("Clearstream Participants") and facilitates the
clearance and settlement of securities transactions between Clearstream
Participants through electronic book-entry changes in accounts of Clearstream
Participants, thereby eliminating the need for physical movement of
certificates. Clearstream Participants are recognized financial institutions
around the world, including underwriters, securities brokers and dealers, banks,
trust companies and clearing corporations. In the United States, Clearstream
Participants are limited to securities brokers and dealers and banks, and may
include the underwriters. Indirect access to Clearstream is also available to
others, such as banks, brokers, dealers and trust companies that clear through
or maintain a custodial relationship with a Clearstream Participant either
directly or indirectly. Clearstream is an indirect participant in DTC.
Clearstream provides to Clearstream Participants, among other things, services
for safekeeping, administration, clearance and settlement of internationally
traded securities and securities lending and borrowing. Clearstream interfaces
with domestic markets in several countries. Clearstream has established an
electronic bridge with Euroclear Bank S.A./N.V. to facilitate settlement of
trades between Clearstream and Euroclear. As a registered bank in Luxembourg,
Clearstream is subject to regulation by the Luxembourg Commission for the
Supervision of the Financial Sector.
Distributions with respect to the notes held beneficially through
Clearstream will be credited to cash accounts of Clearstream Participants in
accordance with its rules and procedures, to the extent received by Clearstream.
S-16
Euroclear advises that it was created in 1968 to hold securities for
participants of Euroclear ("Euroclear Participants") and to clear and settle
transactions between Euroclear Participants through simultaneous electronic
book-entry delivery against payment, thereby eliminating the need for physical
movement of certificates and any risk from lack of simultaneous transfers of
securities and cash. Euroclear includes various other services, including
securities lending and borrowing, and interfaces with domestic markets in
several countries. The Euroclear System is owned by Euroclear Clearance System
Public Limited Company (ECSplc) and operated through a license agreement by
Euroclear Bank S.A./N.V., a bank incorporated under the laws of the Kingdom of
Belgium (the "Euroclear Operator"), under contract with Euroclear Clearance
Systems S.C., a Belgian cooperative corporation (the "Cooperative"). All
operations are conducted by the Euroclear Operator, and all Euroclear securities
clearance accounts and Euroclear cash accounts are accounts with the Euroclear
Operator, not the Cooperative. The Cooperative establishes policy for Euroclear
on behalf of Euroclear Participants. Euroclear Participants include banks
(including central banks), securities brokers and dealers and other professional
financial intermediaries and may include the underwriters. Indirect access to
Euroclear is also available to other firms that clear through or maintain a
custodial relationship with a Euroclear Participant, either directly or
indirectly.
The Euroclear Operator advises that it is regulated and examined by the
Belgian Banking and Finance Commission and the National Bank of Belgium.
Securities clearance accounts and cash accounts with the Euroclear Operator
are governed by the Terms and Conditions Governing Use of Euroclear and the
related Operating Procedures of the Euroclear System, and applicable Belgian law
(collectively, the "Terms and Conditions"). The Terms and Conditions govern
transfers of securities and cash within Euroclear, withdrawals of securities and
cash from Euroclear, and receipts of payments with respect to securities in
Euroclear. All securities in Euroclear are held on a fungible basis without
attribution of specific certificates to specific securities clearance accounts.
The Euroclear Operator acts under the Terms and Conditions only on behalf of
Euroclear Participants, and has no record of or relationship with persons
holding through Euroclear Participants.
Distributions with respect to the notes held beneficially through Euroclear
will be credited to the cash accounts of Euroclear Participants in accordance
with the Terms and Conditions, to the extent received by the U.S. Depositary for
Euroclear.
Notes will not be issued in definitive form except in very limited
circumstances. If any of Euroclear, Clearstream or DTC notifies us that it is
unwilling or unable to continue as a clearing system in connection with the
global notes or, in the case of DTC only, DTC ceases to be a clearing system
registered under the Exchange Act, and in each case a successor clearing system
is not appointed by us within 90 days after receiving such notice from
Euroclear, Clearstream or DTC or on becoming aware that DTC is no longer so
registered, we will issue or cause to be issued individual certificates in
registered form on registration of transfer of, or in exchange for, book-entry
interests in the notes represented by such global notes upon delivery of such
global notes for cancellation. In the event definitive notes are issued, the
holders thereof will be able to receive payments on the notes and effect
transfers of the notes at the office of the Luxembourg paying agent and transfer
agent. We have appointed Chase Manhattan Bank Luxembourg S.A. as paying agent
and transfer agent in Luxembourg with respect to the notes in definitive form,
and as long as the notes are listed on the Luxembourg Stock Exchange, we will
maintain a paying agent and transfer agent in Luxembourg, and any change in the
Luxembourg paying agent and transfer agent will be published in Luxembourg. See
"Notices."
GLOBAL CLEARANCE AND SETTLEMENT PROCEDURES
Initial settlement for the notes will be made in immediately available
funds. Secondary market trading between the Depositary Participants will occur
in the ordinary way in accordance with the Depositary's rules and will be
settled in immediately available funds using DTC's Same-Day Funds Settlement
System. Secondary market trading between Clearstream Participants and/or
Euroclear Participants will occur in the ordinary way in accordance with the
applicable rules and operating procedures of Clearstream and
S-17
Euroclear and will be settled using the procedures applicable to conventional
Eurobonds in immediately available funds.
Cross-market transfers between persons holding directly or indirectly
through DTC on the one hand, and directly or indirectly through Clearstream or
Euroclear Participants, on the other, will be effected in DTC in accordance with
the DTC rules on behalf of the relevant European international clearing system
by its U.S. Depositary; however, such cross-market transactions will require
delivery of instructions to the relevant European international clearing system
by the counterparty in such system in accordance with its rules and procedures
and within its established deadlines (European time). The relevant European
international clearing system will, if the transaction meets its settlement
requirements, deliver instructions to its U.S. Depositary to take action to
effect final settlement on its behalf by delivering interests in the notes to or
receiving interests in the notes from DTC, and making or receiving payment in
accordance with normal procedures for same-day funds settlement applicable to
DTC. Clearstream Participants and Euroclear Participants may not deliver
instructions directly to DTC.
Because of time-zone differences, credits of interests in the notes
received in Clearstream or Euroclear as a result of a transaction with a
Depositary Participant will be made during subsequent securities settlement
processing and will be credited the business day following the DTC settlement
date. Such credits or any transactions involving interests in such notes settled
during such processing will be reported to the relevant Euroclear or Clearstream
Participants on such business day. Cash received in Clearstream or Euroclear as
a result of sales of interests in the notes by or through a Clearstream
Participant or a Euroclear Participant to a Depositary Participant will be
received with value on the DTC settlement date but will be available in the
relevant Clearstream or Euroclear cash account only as of the business day
following settlement in DTC.
Although DTC, Clearstream and Euroclear have agreed to the foregoing
procedures in order to facilitate transfers of the notes among participants of
DTC, Clearstream and Euroclear, they are under no obligation to perform or
continue to perform such procedures and such procedures may be discontinued at
any time.
NOTICES
Notices to holders of the notes will be sent by mail or email to the
registered holders and will be published, whether the notes are in global or
definitive form, and, so long as the notes are listed on the Luxembourg Stock
Exchange, in a daily newspaper of general circulation in Luxembourg. It is
expected that publication will be made in Luxembourg in the Luxemburger Wort.
Any such notice shall be deemed to have been given on the date of such
publication or, if published more than once, on the date of the first such
publication. So long as the notes are listed on the Luxembourg Stock Exchange,
we will maintain a paying agent and transfer agent in Luxembourg and publish a
notice of any change in the Luxembourg paying agent and transfer agent in the
manner set forth above.
PAYMENT OF ADDITIONAL AMOUNTS
We will, subject to the exceptions and limitations set forth below, pay to
the beneficial owner of any note who is a non-United States holder (as defined
below) such additional amounts as may be necessary to ensure that every net
payment on such note, after deduction or withholding by us or any of our paying
agents for or on account of any present or future tax, assessment or other
governmental charge imposed upon or as a result of such payment by the United
States or any political subdivision or taxing authority of the United States,
will not be less than the amount provided in such note to be then due and
payable. However, we will not pay additional amounts if the beneficial owner is
subject to taxation solely for reasons other than its ownership of the note, nor
will we pay additional amounts for or on account of:
(a) any tax, assessment or other governmental charge that is imposed or
withheld solely by reason of the existence of any present or former connection
(other than the mere fact of being a beneficial owner of a note) between the
beneficial owner (or between a fiduciary, settlor, beneficiary or person holding
a power over such beneficial owner, if the beneficial owner is an estate or
trust, or a member or shareholder
S-18
of the beneficial owner, if the beneficial owner is a partnership or
corporation) of a note and the United States, including, without limitation,
such beneficial owner (or such fiduciary, settlor, beneficiary, person holding a
power, member or shareholder) being or having been a citizen or resident of the
United States or treated as being or having been a resident thereof;
(b) any tax, assessment or other governmental charge that is imposed or
withheld solely by reason of the beneficial owner (or a fiduciary, settlor,
beneficiary or person holding a power over such beneficial owner, if the
beneficial owner is an estate or trust, or a member or shareholder of the
beneficial owner, if the beneficial owner is a partnership or corporation) (1)
being or having been present in, or engaged in a trade or business in, the
United States, (2) being treated as having been present in, or engaged in a
trade or business in, the United States, or (3) having or having had a permanent
establishment in the United States;
(c) any tax, assessment or other governmental charge that is imposed or
withheld solely by reason of the beneficial owner (or a fiduciary, settlor,
beneficiary or person holding a power over such beneficial owner, if the
beneficial owner is an estate or trust, or a member or shareholder of the
beneficial owner, if the beneficial owner is a partnership or corporation) being
or having been with respect to the United States a personal holding company, a
controlled foreign corporation, a foreign personal holding company, a passive
foreign investment company, a foreign private foundation or other foreign
tax-exempt organization, or being a corporation that accumulates earnings to
avoid United States federal income tax;
(d) any tax, assessment or other governmental charge imposed on a
beneficial owner that actually or constructively owns 10% or more of the total
combined voting power of all of our classes of stock that are entitled to vote
within the meaning of Section 871(h)(3) of the Internal Revenue Code of 1986, as
amended (the "Code");
(e) any tax, assessment or other governmental charge which would not
have been so imposed but for the presentation of such note for payment on a date
more than 30 days after the date on which such payment became due and payable or
the date on which such payment is duly provided for, whichever occurs later;
(f) any tax, assessment or other governmental charge that is payable by
any method other than withholding or deduction by us or any paying agent from
payments in respect of such note;
(g) any gift, estate, inheritance, sales, transfer, personal property
or excise tax or any similar tax, assessment or other governmental charge;
(h) any tax, assessment or other governmental charge required to be
withheld by any paying agent from any payment in respect of any note if such
payment can be made without such withholding by at least one other paying agent;
(i) any tax, assessment or other governmental charge that is imposed or
withheld by reason of a change in law, regulation, or administrative or judicial
interpretation that becomes effective more than 15 days after the payment
becomes due or is duly provided for, whichever occurs later;
(j) any tax, assessment or other governmental charge imposed as a
result of the failure of the beneficial owner or any other person to comply with
applicable certification, information, documentation or other reporting
requirements concerning the nationality, residence, identity or connection with
the United States of the holder or beneficial owner of a note, if such
compliance is required by statute or regulation of the United States as a
precondition to relief or exemption from such tax, assessment or other
governmental charge;
(k) any tax, assessment or other governmental charge imposed by reason
of the failure of the beneficial owner to fulfill the statement requirements of
Sections 871(h) or 881(c) of the Code; or
(l) any combination of items (a), (b), (c), (d), (e), (f), (g), (h),
(i), (j) and (k).
In addition, we will not pay additional amounts to a beneficial owner of a note
that is a fiduciary, partnership, limited liability company or other fiscally
transparent entity, or to a beneficial owner of a note
S-19
that is not the sole beneficial owner of such note, as the case may be. This
exception, however, will apply only to the extent that a beneficiary or settlor
with respect to the fiduciary, or a beneficial owner or member of the
partnership, limited liability company or other fiscally transparent entity,
would not have been entitled to the payment of an additional amount had the
beneficiary, settlor, beneficial owner or member received directly its
beneficial or distributive share of the payment. For purposes of this paragraph,
the term "beneficial owner" includes any person holding a note on behalf of or
for the account of a beneficial owner.
As used herein, the term "non-United States holder" means a person that is
not a United States person. The term "United States person" means a citizen or
resident of the United States or a corporation or partnership created or
organized in or under the laws of the United States or any political subdivision
thereof, an estate the income of which is subject to United States federal
income taxation regardless of its source, a trust subject to the supervision of
a court within the United States and the control of a United States person as
described in Section 7701(a)(30) of the Code, or a trust that existed on August
20, 1996, and elected to continue its treatment as a domestic trust. "United
States" means the United States of America (including the States and the
District of Columbia), its territories, its possessions and other areas subject
to its jurisdiction (including the Commonwealth of Puerto Rico).
REDEMPTION FOR TAX REASONS
Each series of notes will mature and be redeemed at par on their respective
maturity dates of November 1, 2006, November 1, 2011, and November 1, 2031, and
are not redeemable prior to maturity except upon the occurrence of certain tax
events described below.
We may redeem a series of notes prior to maturity in whole, but not in
part, on not more than 60 days' notice and not less than 30 days' notice at a
redemption price equal to the principal amount of such notes plus any accrued
interest to the date fixed for redemption if:
- as a result of a change in or amendment to the tax laws, regulations
or rulings of the United States or any political subdivision or
taxing authority of or in the United States or any change in official
position regarding the application or interpretation of such laws,
regulations or rulings (including a holding by a court of competent
jurisdiction in the United States) that is announced or becomes
effective on or after October 30, 2001, we have or will become
obligated to pay additional amounts with respect to such series of
notes as described above under "Payment of Additional Amounts," or
- on or after October 30, 2001, any action is taken by a taxing
authority of, or any decision has been rendered by a court of
competent jurisdiction in, the United States or any political
subdivision of or in the United States, including any of those
actions specified above, whether or not such action was taken or
decision was rendered with respect to us, or any change, amendment,
application or interpretation is officially proposed, which, in any
such case, in the written opinion of independent legal counsel of
recognized standing, will result in a material probability that we
will become obligated to pay additional amounts with respect to such
series of notes,
and we in our business judgment determine that such obligations cannot be
avoided by the use of reasonable measures available to us.
If we exercise our option to redeem a series of notes, we will deliver to
the trustee a certificate signed by an authorized officer stating that we are
entitled to redeem the notes and the written opinion of independent legal
counsel if required.
S-20
UNDERWRITING
Subject to the terms and conditions set forth in the terms agreement dated
the date of this prospectus supplement which incorporates by reference the
underwriting agreement dated as of September 1, 2001, each of the underwriters
named below, for whom J.P. Morgan Securities Inc. and Lehman Brothers Inc. are
acting as representatives, has severally agreed to purchase, and we have agreed
to sell to each underwriter, the principal amount of notes set forth opposite
the name of each underwriter below.
PRINCIPAL AMOUNT OF PRINCIPAL AMOUNT OF PRINCIPAL AMOUNT OF
4 5/8% NOTES DUE 5 5/8% NOTES DUE 6 1/2% NOTES DUE
UNDERWRITERS 2006 2011 2031
------------ ------------------- ------------------- -------------------
J.P. Morgan Securities Inc............. $ 450,000,000 $ 720,000,000 $270,000,000
Lehman Brothers Inc.................... 450,000,000 720,000,000 270,000,000
ABN AMRO Incorporated.................. 50,000,000 80,000,000 30,000,000
BNP Paribas Securities Corp. .......... 50,000,000 80,000,000 30,000,000
Deutsche Banc Alex. Brown, Inc. ....... 50,000,000 80,000,000 30,000,000
HSBC Securities (USA) Inc. ............ 50,000,000 80,000,000 30,000,000
Salomon Smith Barney Inc. ............. 50,000,000 80,000,000 30,000,000
SG Cowen Securities Corporation........ 50,000,000 80,000,000 30,000,000
Banc One Capital Markets, Inc. ........ 12,500,000 20,000,000 7,500,000
Ormes Capital Markets, Inc. ........... 12,500,000 20,000,000 7,500,000
Muriel Siebert & Co., Inc. ............ 12,500,000 20,000,000 7,500,000
The Williams Capital Group, L.P. ...... 12,500,000 20,000,000 7,500,000
-------------- -------------- ------------
Total............................. $1,250,000,000 $2,000,000,000 $750,000,000
============== ============== ============
The underwriting agreement provides that the obligations of the
underwriters to purchase the notes included in this offering are subject to
approval of certain legal matters by counsel and to certain other conditions.
The underwriters are obligated to purchase all the notes if they purchase any of
the notes.
We have been advised by the underwriters that the underwriters propose
initially to offer some of the notes to the public at the public offering prices
set forth on the cover page of this prospectus supplement and some of the notes
to certain dealers at the public offering price less concessions not in excess
of 0.20%, in the case of the notes due 2006, not in excess of 0.30%, in the case
of the notes due 2011, and not in excess of 0.50%, in the case of the notes due
2031. The underwriters may allow, and these dealers may reallow, concessions not
in excess of 0.10%, in the case of the notes due 2006, not in excess of 0.15%,
in the case of the notes due 2011, and not in excess of 0.25%, in the case of
the notes due 2031, of the principal amount of the notes on sales of the notes
to certain other dealers. After the initial offering of the notes to the public,
the representatives may change the public offering price and concessions.
The following table shows the underwriting discounts and commissions that
we are to pay to the underwriters in connection with this offering (expressed as
a percentage of the principal amount of the notes).
PAID BY KRAFT
-------------
Per 4 5/8% Note due 2006.................................... 0.350%
Per 5 5/8% Note due 2011.................................... 0.450%
Per 6 1/2% Note due 2031.................................... 0.875%
In connection with the offering of the notes, J.P. Morgan Securities Inc.
and Lehman Brothers Inc. or their respective affiliates may purchase and sell
each series of notes in the open market. These transactions may include short
sales, stabilizing transactions and purchases to cover positions created by
short sales. Short sales involve the sale by the stabilizing underwriters of a
greater number of 4 5/8% notes due 2006, 5 5/8% notes due 2011, or 6 1/2% notes
due 2031, as the case may be, than they are required to purchase in
S-21
the offering. Stabilizing transactions consist of certain bids or purchases made
for the purpose of preventing or retarding a decline in the market price of the
notes while the offering is in progress.
Any of these activities may cause the price of the notes to be higher than
the price that otherwise would exist in the open market in the absence of such
transactions. These transactions may be effected in the over-the-counter market
or otherwise and, if commenced, may be discontinued at any time. Neither we nor
any of the underwriters make any representation or prediction as to the
direction or magnitude of any effect that the transactions described above may
have on the price of the notes. In addition, neither we nor any of the
underwriters make any representation that any of the underwriters will engage in
such transactions, or that such transactions, once begun, will not be
discontinued without notice.
We estimate that our total expenses of this offering, excluding
underwriting discounts, will be approximately $2,176,000. The underwriters have
agreed to pay certain expenses in connection with the offering.
The underwriters and their affiliates have performed certain investment
banking, advisory or general financing and banking services for us and our
affiliates from time to time for which they have received customary fees and
expenses. The underwriters and their affiliates may, from time to time, engage
in transactions with and perform services for us and our affiliates in the
ordinary course of their business. Certain of the underwriters and their
affiliates have in the past and may in the future act as lenders in connection
with our credit facilities. J.P. Morgan Securities Inc. is an affiliate of The
Chase Manhattan Bank, the trustee for the notes. These companies receive
standard fees for their services.
We have agreed to indemnify the underwriters against certain liabilities,
including liabilities under the Securities Act of 1933, as amended.
It is expected that delivery of the notes will be made against payment
therefor on or about November 2, 2001, which is the third business day following
the date of this prospectus supplement (such settlement cycle being referred to
as "T+3"). Purchasers of notes should be aware that the ability to settle
secondary market trades of the notes effected on the date of pricing and the
next succeeding business day may be affected by the T+3 settlement.
J.P. Morgan Securities Inc. and Lehman Brothers Inc. will make the notes
available for distribution on the internet through a proprietary web site and/or
a third-party system operated by Market Axess Inc., an internet-based
communications technology provider. Market Axess Inc. is providing the system as
a conduit for communications between J.P. Morgan Securities Inc. and its
customers and Lehman Brothers Inc. and its customers and is not a party to this
offering. J.P. Morgan Securities Inc. and Lehman Brothers Inc. do not believe
that Market Axess Inc. will function as an underwriter or agent of this
offering, nor do they believe that Market Axess Inc. will act as a broker for
any customer of J.P. Morgan Securities Inc. or Lehman Brothers Inc. Market Axess
Inc. is a registered broker-dealer and will receive compensation from J.P.
Morgan Securities Inc. and Lehman Brothers Inc. based on transactions that J.P.
Morgan Securities Inc. and Lehman Brothers Inc. transact through the system.
J.P. Morgan Securities Inc. and Lehman Brothers Inc. will make the notes
available to their customers through internet distributions, whether made
through a proprietary or third-party system, on the same terms as distributions
made through other channels.
Although application has been made to list the notes on the Luxembourg
Stock Exchange, the notes are new issues of securities with no established
trading market. We cannot assure you that the notes will have a liquid trading
market. We have been advised by the underwriters that they intend to make a
market in the notes, but they are not obligated to do so and may discontinue
such market-making at any time without notice.
OFFERING RESTRICTIONS
The notes are offered for sale in those jurisdictions in the United States,
Canada, Europe, Asia and elsewhere where it is lawful to make such offers.
S-22
Each of the underwriters has severally represented and agreed that it has
not offered, sold or delivered and it will not offer, sell or deliver, directly
or indirectly, any of the notes, or distribute this prospectus supplement or the
attached prospectus or any other offering material relating to the notes, in or
from any jurisdiction except under circumstances that will result in compliance
with the applicable laws and regulations thereof and that will not impose any
obligations on us except as set forth in the underwriting agreement and the
terms agreement.
In particular, each underwriter has severally represented and agreed that:
- (a) with respect to notes which have a maturity of one year or more,
it and each of its affiliates have not offered or sold and will not
offer or sell any such notes to persons in the United Kingdom prior
to the expiry of the period of six months from the issue date of such
notes except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as
principal or agent) for the purpose of their businesses or otherwise
in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995; (b) it and each of its
affiliates have complied and will comply with all applicable
provisions of the Financial Services Act 1986 (the "Act") (and, after
they come into force, all applicable provisions of the Financial
Services and Markets Act 2000 (the "FSMA")) with respect to anything
done by it in relation to such notes in, from or otherwise involving
the United Kingdom; and (c) it and each of its affiliates have only
issued or passed on and will only issue or pass on, in the United
Kingdom, before the repeal of Section 57 of the Act, any document
received by it in connection with the issue of such notes to a person
who is of a kind described in Article 11(3) of the Financial Services
Act 1986 (Investment Advertisements) (Exemptions) Order 1996 or is a
person to whom such document may otherwise lawfully be issued or
passed on. After the repeal of Section 57 of the Act it and each of
its affiliates will only communicate or cause to be communicated any
invitation or inducement to engage in investment activity (within the
meaning of Section 21 of the FSMA) received by it in connection with
the issue or sale of such notes in circumstances in which Section
21(1) of the FSMA does not apply to us;
- (a) it and each of its affiliates have not offered or sold and will
not offer or sell, directly or indirectly, in Hong Kong by means of
any document, any notes other than to persons whose ordinary business
is to buy or sell shares or debentures, whether as principal or
agent, or in circumstances which do not constitute an offer to the
public within the meaning of the Companies Ordinance (Chap. 32) of
Hong Kong; and (b) it and each of its affiliates have not issued and
will not issue, directly or indirectly, any invitation or
advertisement relating to the notes in Hong Kong, except if permitted
to do so under the securities laws of Hong Kong, other than with
respect to notes intended to be disposed of to persons outside Hong
Kong or to be disposed of in Hong Kong only to persons whose business
involves the acquisition, disposal or holding of securities, whether
as principal or agent;
- it and each of its affiliates have not offered or sold, and will not
offer or sell, any notes nor will it circulate or distribute any
offering document or material relating to the notes, directly or
indirectly, to the public or any member of the public in Singapore
other than (1) to an institutional investor or other person specified
in Section 106C of the Companies Act, Chapter 50 of Singapore (the
"Singapore Companies Act"); (2) to a sophisticated investor specified
in Section 106D of the Singapore Companies Act; or (3) otherwise
pursuant to, and in accordance with the conditions of, any other
applicable provision of the Singapore Companies Act;
- with respect to Germany, no selling prospectus (Verkaufsprospekt)
within the meaning of the German Securities Sales Prospectus Act
(Wertpapier-Verkaufsprospektgesetz) of December 13, 1990 (as amended)
has been and will be registered or published in respect of the notes
within the Federal Republic; and it and each of its affiliates have
not offered or sold and will not offer
S-23
and sell any notes in the Federal Republic otherwise than in
accordance with the provisions of the German Securities Sales
Prospectus Act;
- (a) it and each of its affiliates have not offered or sold and will
not offer or sell, directly or indirectly, any of the notes to the
public in the Republic of France; (b) it and each of its affiliates
have not distributed and will not distribute or cause to be
distributed in the Republic of France this prospectus supplement or
any other offering material relating to the notes, except (1) to
qualified investors (investisseurs qualifies) or (2) a restricted
group of investors (cercle restreint d'investisseurs), all as defined
in article L. 411-2 of the Code monetaire et financier, in Decret no.
98-880 dated 1st October, 1998 and in Regulation no. 98-09 of the
Commission des Operations de Bourse; and (c) offers and sales of
notes will be made in the Republic of France only to such qualified
investors or restricted group of investors;
- it and each of its affiliates have not offered or sold and will not
offer or sell, directly or indirectly, any of the notes in or to
residents of Japan or to any person for re-offering or re-sale,
directly or indirectly, in Japan or to any resident of Japan except
pursuant to an exemption from the registration requirements of the
Securities and Exchange Law available thereunder and in compliance
with the other relevant laws of Japan; and
- it and each of its affiliates have not, directly or indirectly,
offered or sold and will not, directly or indirectly, offer or sell
in The Netherlands any notes other than to persons who trade or
invest in securities in the conduct of a profession or business
(which include banks, stockbrokers, insurance companies, pension
funds, other institutional investors and finance companies and
treasury departments of large enterprises).
NOTICE TO CANADIAN RESIDENTS
Resale Restrictions
The distribution of the notes in Canada is being made only on a private
placement basis exempt from the requirement that we prepare and file a
prospectus with the securities regulatory authorities in each province where
trades of notes are made. Any resale of the notes in Canada must be made under
applicable securities laws which will vary depending on the relevant
jurisdiction, and which may require resales to be made under available statutory
exemptions or under a discretionary exemption granted by the applicable Canadian
securities regulatory authority. Purchasers are advised to seek legal advice
prior to any resale of the notes.
Representations of Purchasers
By purchasing notes in Canada and accepting a purchase confirmation, a
purchaser is representing to us and the dealer from whom the purchase
confirmation is received that:
- the purchaser (and any ultimate purchaser for which such purchaser is
acting as agent) is entitled under applicable provincial securities
laws to purchase the notes without the benefit of a prospectus
qualified under those securities laws and, in the case of purchasers
in provinces other than Ontario, without the services of a dealer
registered under such securities laws;
- where required by law, the purchaser is purchasing as principal and
not as agent;
- the purchaser has reviewed the text above under "Resale
Restrictions;"
- if the purchaser is resident in Ontario and is purchasing from a
fully registered dealer, (a) the purchaser is purchasing notes with
the benefit of the prospectus exemption provided by Section 72(1)(a),
72(1)(c) or 72(1)(d) of the Ontario Securities Act or (b) the
purchaser is a "portfolio adviser" within the meaning of Ontario
Securities Commission Rule 45-504 ("Rule 45-504") and is purchasing
notes on behalf of a "managed account" within the meaning of Rule
45-504;
S-24
- if the purchaser is resident in British Columbia, the purchaser is
not an individual and is purchasing as principal (or deemed by the
British Columbia Securities Act to be purchasing as principal) and is
purchasing the notes with the benefit of the prospectus exemption
provided by Section 74(2)(1), 74(2)(3) or 74(2)(4) of the British
Columbia Securities Act; and
- if the purchaser is a company, the purchaser was not established
solely for the purpose of acquiring notes in reliance on an exemption
from applicable prospectus requirements.
Rights of Action (Ontario Purchasers)
The securities being offered are those of a foreign issuer and Ontario
purchasers will not receive the contractual right of action prescribed by
Ontario securities law. As a result, Ontario purchasers must rely on other
remedies that may be available, including common law rights of action for
damages or rescission or rights of action under the civil liability provisions
of the United States federal securities laws. Prospective purchasers are advised
to consult their own legal advisers as to which, or whether any, of such rights
may be available to them.
Enforcement of Legal Rights
All of our directors and officers as well as the experts named herein may
be located outside of Canada and, as a result, it may not be possible for
Canadian purchasers to effect service of process within Canada upon us or such
persons. All or a substantial portion of our assets and such persons may be
located outside Canada and, as a result, it may not be possible to satisfy a
judgment against us or such persons in Canada or to enforce a judgment obtained
in Canadian courts against us or persons outside of Canada.
Notice to British Columbia Residents
A purchaser of notes to whom the Securities Act (British Columbia) applies
is advised that such purchaser is required to file with the British Columbia
Securities Commission an initial trade report within ten days of the sale of any
notes acquired by such purchaser in this offering. The report must be in the
form attached to British Columbia Securities Commission Blanket Order BOR
#95/17, a copy of which may be obtained from us. Only one report must be filed
for notes acquired on the same date and under the same prospectus exemption.
Taxation and Eligibility for Investment
Canadian purchasers of notes should consult their own legal and tax
advisors with respect to the tax consequences of an investment in the notes in
their particular circumstances and about the eligibility of the notes for
investment by the purchaser under relevant Canadian legislation.
EXPERTS
The combined financial statements of Kraft at December 31, 1999 and 2000,
and for each of the three years in the period ended December 31, 2000 and the
related financial statement schedule, incorporated by reference in this
prospectus supplement from our Current Report on Form 8-K, dated August 10,
2001, have been so incorporated in reliance on the reports of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
The consolidated financial statements of Nabisco at December 31, 1998 and
1999, and for each of the three years in the period ended December 31, 1999,
incorporated by reference in this prospectus supplement from our Current Report
on Form 8-K, dated August 10, 2001, have been audited by Deloitte & Touche LLP,
independent auditors, and have been so incorporated in reliance upon the reports
of such firm given upon their authority as experts in accounting and auditing.
S-25
LEGAL OPINIONS
The validity of the notes offered hereby will be passed upon for us by
Hunton & Williams, New York, and for the underwriters by Simpson Thacher &
Bartlett, New York. Sutherland Asbill & Brennan LLP, Washington, D.C., is also
representing us with respect to U.S. Federal income tax laws. Simpson Thacher &
Bartlett has in the past and may in the future represent our affiliates in
connection with other matters from time to time.
LISTING AND GENERAL INFORMATION
LISTING
Application has been made to list the notes on the Luxembourg Stock
Exchange. In connection with the listing application, the Articles of
Incorporation, Articles of Amendment to Articles of Incorporation and Amended
and Restated Bylaws of Kraft Foods Inc. and a legal notice (Notice Legale)
relating to the issuance of the notes will have been deposited prior to listing
with the Chief Registrar of the District Court of Luxembourg (Greffier en Chef
du Tribunal d'Arrondissement de et a Luxembourg), where these documents may be
examined and copies may be obtained on request. Copies of the above documents
will be available free of charge at the office of our Luxembourg paying agent.
INDEPENDENT ACCOUNTANTS
Our independent accountants are PricewaterhouseCoopers LLP. Prior to the
year ended December 31, 2000, Nabisco's independent auditors were Deloitte &
Touche LLP.
AUTHORIZATION
The resolutions relating to the sale and issuance of the notes were adopted
by the Board of Directors of Kraft on March 16, 2001.
MATERIAL CHANGE; LITIGATION
Other than as disclosed or contemplated herein or in the documents
incorporated by reference herein, there has been no material adverse change in
our financial position since December 31, 2000. Other than as disclosed or
contemplated herein or in the documents incorporated by reference herein,
neither we nor any of our subsidiaries is involved in litigation, administrative
proceedings or arbitration that are material in the context of the issue of the
notes and we are not aware of any such litigation, administrative proceeding or
arbitration pending or threatened.
IDENTIFICATION NUMBERS
The notes have been accepted for clearance through DTC, Euroclear and
Clearstream. The notes have been assigned the International Security
Identification Number (ISIN), CUSIP Numbers and Common Code numbers set forth
below:
COMMON
ISIN CUSIP CODE NO.
---- ----- --------
4 5/8% Notes due 2006.................. US50075NAA28 50075N AA 2 13845263
5 5/8% Notes due 2011.................. US50075NAB01 50075N AB 0 13845298
6 1/2% Notes due 2031.................. US50075NAC83 50075N AC 8 13845310
S-26
PROSPECTUS
[KRAFT LOGO]
KRAFT FOODS INC.
------------------------
DEBT SECURITIES AND WARRANTS TO PURCHASE DEBT SECURITIES
------------------------
We may offer to sell up to U.S.$5,000,000,000 of our debt securities or
warrants to purchase the debt securities in one or more offerings. In this
prospectus, we describe generally the terms of these securities. We will
describe the specific terms of the debt securities and debt warrants that we
offer in a supplement to this prospectus at the time of each offering. If any
offering involves underwriters, dealers or agents, we will describe our
arrangements with them in the prospectus supplement that relates to that
offering. You should read this prospectus and the applicable supplement
carefully before you invest.
------------------------
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.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
accuracy or adequacy of this prospectus. Any representation to the contrary is a
criminal offense.
------------------------
This prospectus may not be used to consummate sales of securities unless
accompanied by a prospectus supplement.
The date of this prospectus is August 30, 2001
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS....................................... 1
RISK FACTORS................................................ 1
WHERE YOU CAN FIND MORE INFORMATION......................... 1
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS... 2
THE COMPANY................................................. 3
RATIO OF EARNINGS TO FIXED CHARGES.......................... 3
USE OF PROCEEDS............................................. 4
DESCRIPTION OF DEBT SECURITIES.............................. 4
DESCRIPTION OF DEBT WARRANTS................................ 16
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS..... 18
PLAN OF DISTRIBUTION........................................ 26
EXPERTS..................................................... 28
LEGAL OPINIONS.............................................. 28
------------------------
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.
i
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement (No. 333-67770) that we
filed with the Securities and Exchange Commission using a "shelf" registration
process. Under this shelf registration process, we may sell any combination of
the debt securities and/or warrants to purchase any debt securities described in
the prospectus in one or more offerings up to a total amount of
U.S.$5,000,000,000, or the equivalent in foreign or composite currencies. This
prospectus provides you with a general description of the debt securities and
debt warrants we may offer. Each time we offer securities, we will provide you
with a prospectus supplement that will describe the specific amounts, prices and
terms of the securities being offered. The prospectus supplement may also add,
update or change information contained in this prospectus.
To understand the terms of our securities, you should carefully read this
document with the attached prospectus supplement. Together they give the
specific terms of the securities we are offering. You should also read the
documents we have referred you to in "Where You Can Find More Information" below
for information on our company and our financial statements.
Kraft Foods Inc. is a holding company incorporated in Virginia on December
7, 2000. Its two principal subsidiaries are Kraft Foods North America, Inc.,
which conducts our food business in the United States, Canada and Mexico, and
Kraft Foods International, Inc., which conducts our food business in the rest of
the world. In this prospectus, we use the terms "Kraft," "we," "our" and "us"
when we do not need to distinguish among these entities or when any distinction
is clear from the context. Otherwise, we use the terms "Kraft Foods Inc.,"
"Kraft Foods North America" and "Kraft Foods International." The term "Philip
Morris" refers to our parent, Philip Morris Companies Inc. The term "Nabisco"
refers to Nabisco Holdings Corp. and its subsidiaries, which we acquired in
December 2000.
Kraft Foods Inc. is a legal entity separate and distinct from Kraft Foods
North America, Kraft Foods International and its other direct and indirect
subsidiaries. Accordingly, the right of Kraft Foods Inc. and the right of its
creditors, to participate in any distribution of the assets or earnings of any
subsidiary is subject to the prior claims of creditors of that subsidiary,
except to the extent Kraft Foods Inc. is itself a creditor of that subsidiary.
Because we are a holding company, our principal source of funds is dividends
from our subsidiaries. Our principal wholly-owned subsidiaries currently are not
limited by long-term debt or other agreements in their ability to pay cash
dividends or make other distributions with respect to their common stock.
RISK FACTORS
For each series of debt securities, we will include risk factors, if
appropriate, in the prospectus supplement relating to that series.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the Securities and Exchange Commission, Washington, D.C.
20549, a registration statement on Form S-3 under the Securities Act of 1933, as
amended, with respect to the securities that we are offering by this prospectus.
This prospectus, which forms a part of the registration statement, does not
contain all of the information set forth in the registration statement and the
exhibits to the registration statement. Some items are omitted in accordance
with the rules and regulations of the SEC. For further information about us and
the securities we offer in this prospectus, we refer you to the registration
statement and the exhibits to the registration statement.
We are required to file annual, quarterly and special reports, proxy
statements and other information with the SEC. You may read and copy any
document we file, including the registration statement of which this prospectus
is a part, at the SEC's Public Reference Room at 450 Fifth Street, N.W.,
Washington, D.C. 20549. You may obtain information on the operation of the
Public Reference Room by calling the SEC at 1-800-SEC-0330. In addition, the SEC
maintains an Internet site at http://www.sec.gov that contains reports, proxy
and information statements, and other information
1
regarding issuers that file electronically with the SEC, from which you can
electronically access our SEC filings.
The SEC allows us to "incorporate by reference" the information in
documents that we file with them. This 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 in documents that we file after the date of this prospectus and
before the termination of the offering contemplated by this prospectus will
automatically update and supersede information in this prospectus.
Until we file our annual report on Form 10-K for the year ended December
31, 2001, with the SEC, we incorporate by reference our Current Report on Form
8-K filed with the SEC on August 10, 2001, which includes portions of our
prospectus dated June 12, 2001. We also incorporate by reference our quarterly
report on Form 10-Q for the quarterly period ended June 30, 2001 filed with the
SEC on August 13, 2001. We also incorporate by reference any future filings made
with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934, as amended, until all of the securities are sold.
We will provide without charge, upon written or oral request, to each
person, including any beneficial owner, to whom this prospectus is delivered, a
copy of any or all of the documents described above which have been or may be
incorporated by reference in this prospectus but not delivered with this
prospectus. Such request should be directed to:
Kraft Foods Inc.
Three Lakes Drive
Northfield, IL 60093
Attention: Office of the Corporate Secretary
Telephone: (847) 646-2805
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
Some of the information included in this prospectus, the applicable
prospectus supplement and the documents we have incorporated by reference
contain forward-looking statements. You can identify these forward-looking
statements by the use of words like "strategy," "expects," "plans," "believes,"
"will," "estimates," "intends," "projects," "goals," "targets" and other words
of similar meaning. You can also identify them by the fact that they do not
relate strictly to historical or current facts. These statements are based on
our assumptions and estimates and are subject to risks and uncertainties. We are
identifying below important factors that could cause actual results and outcomes
to differ materially from those contained in any forward-looking statement. Any
such statement is qualified by reference to the following cautionary statement.
Demand for our products is subject to intense competition, changes in
consumer preferences and local economic conditions. In order to compete
effectively against lower priced products in a consolidating environment at the
retail and manufacturer levels, our results are dependent upon our continued
ability to:
- promote our brands successfully;
- anticipate and respond to new consumer trends;
- develop new products and markets;
- broaden our brand portfolio;
- improve productivity; and
- respond to changing prices for our raw materials.
Our results are also dependent upon our ability to successfully integrate
and derive cost savings from the integration of Nabisco's operations with ours.
In addition, we are subject to the effects of foreign
2
economies and currency movements. Developments in any of these areas could cause
our results to differ materially from results that have been or may be
projected.
We caution you that the above list of important factors is not exclusive,
and other factors may be discussed in more detail under "Risk Factors" in the
applicable prospectus supplement or in our SEC filings incorporated by
reference. Any forward-looking statements are made as of the date of the
document in which they appear.
THE COMPANY
We are the largest branded food and beverage company headquartered in the
United States and the second largest in the world based on 2000 revenue on a pro
forma basis for our acquisition of Nabisco. Before the initial public offering
of our common stock in June 2001, we were a wholly-owned subsidiary of Philip
Morris. Immediately after the initial public offering, Philip Morris owned
approximately 49.5% of our outstanding Class A common stock and 100% of our
Class B common stock; and the public owned the rest. At that time, Philip Morris
owned common stock representing 97.7% of the combined voting power of our common
stock.
We have a superior brand portfolio created and supported through dynamic
product innovation, worldclass marketing, experienced management, global scale
and strategic acquisitions. Our brands are sold in more than 140 countries and,
according to A.C. Nielsen, are enjoyed in over 99% of the households in the
United States.
In December 2000, to expand our global presence and to strengthen our
position in the fast growing snacks consumer sector, we acquired Nabisco, the
largest manufacturer and marketer of cookies and crackers in the world based on
retail sales.
Our collection of brands represents one of the strongest portfolios in the
food and beverage industry. Our brands enjoy consumer loyalty and trust and
offer our retailer customers a strong combination of growth and profitability.
Our portfolio of brands includes KRAFT, NABISCO, OSCAR MAYER, POST, MAXWELL
HOUSE, PHILADELPHIA and JACOBS.
Our superior brand portfolio spans five core consumer sectors:
- SNACKS -- primarily cookies, crackers, salty snacks and confectionery;
- BEVERAGES -- primarily coffee, aseptic juice drinks and powdered soft
drinks;
- CHEESE -- primarily natural, process and cream cheese;
- GROCERY -- primarily ready-to-eat cereals, enhancers and desserts; and
- CONVENIENT MEALS -- primarily frozen pizza, packaged dinners, lunch
combinations and processed meats.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our historical ratios of earnings to fixed
charges for the periods indicated:
SIX MONTHS YEARS ENDED DECEMBER 31,
ENDED JUNE 30, ----------------------------
2001 2000 1999 1998 1997 1996
-------------- ---- ---- ---- ---- ----
Ratios of earnings to fixed
charges.......................... 2.5 5.8 5.6 5.7 6.2 5.3
Earnings available for fixed charges represent earnings before income taxes
and cumulative effect of accounting change(s) and fixed charges excluding
capitalized interest, net of amortization, reduced by undistributed earnings of
our less than 50% owned affiliates. Fixed charges represent interest expense,
3
amortization of debt discount and expenses, capitalized interest, plus that
portion of rental expense deemed to be the equivalent of interest.
USE OF PROCEEDS
Unless we otherwise state in the applicable prospectus supplement, we will
use a portion of the net proceeds from the sale of the offered securities to
repay indebtedness outstanding under our $4.0 billion note payable to Philip
Morris, which bears interest at 7.40% and matures in 2002, and the balance to
refinance maturing indebtedness, which will consist primarily of commercial
paper borrowings.
DESCRIPTION OF DEBT SECURITIES
The debt securities covered by this prospectus will be our direct unsecured
obligations. The debt securities will be issued in one or more series under an
indenture to be entered into between us and The Chase Manhattan Bank, as
trustee.
The indenture has been filed as an exhibit to the registration statement.
This prospectus briefly describes the material indenture provisions. Those
descriptions are qualified in all respects by reference to the actual text of
the indenture. For your reference, in the summary that follows, we have included
references to section numbers of the indenture so that you can more easily
locate these provisions.
The material financial, legal and other terms particular to debt securities
of each series will be described in the prospectus supplement relating to the
debt securities of that series. The prospectus supplement relating to the debt
securities of the series will be attached to the front of this prospectus. The
following briefly summarizes the material provisions of the indenture and the
debt securities, other than pricing and related terms disclosed in the
accompanying prospectus supplement. The prospectus supplement will also state
whether any of the terms summarized below do not apply to the series of debt
securities being offered. You should read the more detailed provisions of the
indenture, including the defined terms, for provisions that may be important to
you. You should also read the particular terms of a series of debt securities,
which will be described in more detail in the applicable prospectus supplement.
Prospective purchasers of debt securities should be aware that special
United States federal income tax, accounting and other considerations not
addressed in this prospectus may be applicable to instruments such as the debt
securities. The prospectus supplement relating to an issue of debt securities
will describe these considerations, if they apply.
Capitalized terms used below are defined under "Defined Terms."
GENERAL
The debt securities will rank equally with all of our other unsecured and
unsubordinated debt. The indenture does not limit the amount of debt we may
issue under the indenture and provides that additional debt securities may be
issued up to the aggregate principal amount authorized by a board resolution. We
may issue the debt securities from time to time in one or more series with the
same or various maturities, at par, at a discount or at a premium. The
prospectus supplement relating to any debt securities being offered will include
specific terms relating to the offering, including the particular amount, price
and other terms of those debt securities. These terms will include some or all
of the following:
- the title of the debt securities;
- any limit upon the aggregate principal amount of the debt securities;
- the date or dates on which the principal of the debt securities will be
payable or their manner of determination;
- if the securities will bear interest:
- the interest rate or rates;
4
- the date or dates from which any interest will accrue;
- the interest payment dates for the debt securities; and
- the regular record date for any interest payable on any interest
payment date;
or, in each case, their method of determination;
- the place or places where the principal of, and any premium and interest
on, the debt securities will be payable;
- currency or units of two or more currencies in which the debt securities
will be denominated and payable, if other than U.S. dollars, and the
holders' rights, if any, to elect payment in a foreign currency or a
foreign currency unit, including the Euro, other than that in which the
debt securities are payable;
- whether the amounts of payments of principal of, and any premium and
interest on, the debt securities are to be determined with reference to
an index, formula or other method, and if so, the manner in which such
amounts will be determined;
- whether the debt securities will be issued in whole or in part in the
form of global securities and, if so, the depositary and the global
exchange agent for the global securities, whether permanent or temporary;
- whether the debt securities will be issued as registered securities,
bearer securities or both, and any restrictions on the exchange of one
form of debt securities for another and on the offer, sale and delivery
of the debt securities in either form;
- if the debt securities are issuable in definitive form upon the
satisfaction of certain conditions, the form and terms of such
conditions;
- if denominations other than $1,000 or any integral multiple of $1,000,
the denominations in which the debt securities will be issued;
- the period or periods within which, the price or prices at which and the
terms on which any of the debt securities may be redeemed, in whole or in
part at our option, and any remarketing arrangements;
- the terms on which we would be required to redeem, repay or purchase debt
securities required by any sinking fund, mandatory redemption or similar
provision; and the period or periods within which, the price or prices at
which and the terms and conditions on which the debt securities will be
so redeemed, repaid and purchased in whole or in part;
- the portion of the principal amount of the debt securities that is
payable on the declaration of acceleration of the maturity, if other than
their principal amount; these debt securities could include original
issue discount, or OID, debt securities or indexed debt securities, which
are each described below;
- any special tax implications of the debt securities, including whether
and under what circumstances we will pay additional amounts under any
debt securities held by a person who is not a United States person for
tax payments, assessments or other governmental charges and whether we
have the option to redeem the debt securities which are affected by the
additional amounts instead of paying the additional amounts;
- any addition to or modification or deletion of any provisions for the
satisfaction and discharge of our obligations under the indenture and
specific series of debt securities;
- whether and to what extent the debt securities are subject to defeasance
on terms different from those described under the heading "Defeasance";
5
- any trustees, paying agents, transfer agents, registrars, depositaries or
similar agents with respect to the debt securities;
- if the debt securities bear no interest, any dates on which lists of
holders of these debt securities must be provided to the trustee;
- any addition to, or modification or deletion of, any event of default or
any covenant specified in the indenture; and
- any other specific terms of the debt securities.
(Section 301)
We may issue debt securities as original issue discount, or OID, debt
securities. OID debt securities bear no interest or bear interest at
below-market rates and are sold at a discount below their stated principal
amount. If we issue OID debt securities, the prospectus supplement will contain
the issue price of the securities and the rate at which and the date from which
discount will accrete.
We may also issue indexed debt securities. Payments of principal of, and
any premium and interest on, indexed debt securities are determined with
reference to the rate of exchange between the currency or currency unit in which
the debt security is denominated and any other currency or currency unit
specified by us, to the relationship between two or more currencies or currency
units, to the price of one or more specified securities or commodities, to one
or more securities or commodities exchange indices or other indices or by other
similar methods or formulas, all as specified in the prospectus supplement.
We may issue debt securities other than the debt securities described in
this prospectus. There is no requirement that any other debt securities that we
issue be issued under the indenture. Thus, any other debt securities that we
issue may be issued under other indentures or documentation containing
provisions different from those included in the indenture or applicable to one
or more issues of the debt securities described in this prospectus. (Section
301)
CONSOLIDATION, MERGER OR SALE
We have agreed not to consolidate with or merge into any other corporation
or convey or transfer or lease substantially all of our properties and assets to
any person, unless:
- we are a continuing corporation or any successor purchaser is an entity
organized under the laws of the United States or any state of the United
States;
- the successor corporation expressly assumes by a supplemental indenture
the due and punctual payment of the principal of, and any premium and
interest on, all the debt securities and the performance of every
covenant in the indenture that we would otherwise have to perform as if
it were an original party to the indenture;
- immediately after the effective date of the transaction, no event of
default has occurred and is continuing under the indenture; and
- we deliver to the trustee an officers' certificate and an opinion of
counsel, each stating that the consolidation, merger, conveyance or
transfer and the supplemental indenture comply with these provisions.
The successor corporation will assume all our obligations under the
indenture as if it were an original party to the indenture. After assuming such
obligations, the successor corporation will have all our rights and powers under
the indenture.
(Section 801)
6
WAIVERS UNDER THE INDENTURE
Under the indenture, the holders of a majority in aggregate principal
amount of the outstanding debt securities of any series, may on behalf of all
holders of that series:
- waive our compliance with certain covenants of the indenture; and
(Section 1009)
- waive any past default under the indenture, except:
- a default in the payment of the principal of, or any premium or
interest on, any debt securities of the series; and
- a default under any provision of the indenture which itself cannot be
modified without the consent of the holders of each affected debt
security of the series.
(Section 513)
EVENTS OF DEFAULT
When we use the term "Event of Default" in the indenture, we mean any of
the following:
- we fail to pay interest on any debt security for 30 days after payment
was due;
- we fail to make payment of the principal of, or any premium on, any debt
security when due;
- we fail to make any sinking fund payment when due;
- we fail to perform any other covenant or warranty in the indenture and
this failure continues for 90 days after we receive written notice of it
from the trustee or holders of 25% in principal amount of the outstanding
debt securities of that series;
- we or a court take certain actions relating to bankruptcy, insolvency or
reorganization of our company; or
- any other event of default that may be specified for the debt securities
of the series or in the board resolution with respect to the debt
securities of that series.
(Section 501)
The supplemental indenture or the form of security for a particular series
of debt securities may include additional Events of Default or changes to the
Events of Default described above. The Events of Default applicable to a
particular series of debt securities will be discussed in the prospectus
supplement relating to such series.
A default with respect to a single series of debt securities under the
indenture will not necessarily constitute a default with respect to any other
series of debt securities issued under the indenture. A default under our other
indebtedness will not be a default under the indenture. The trustee may withhold
notice to the holders of debt securities of any default, except for defaults
that involve our failure to pay principal or interest, if it determines in good
faith that the withholding of notice is in the interest of the holders. (Section
602)
If an Event of Default for any series of debt securities occurs and
continues (other than an Event of Default involving our bankruptcy, insolvency
or reorganization), either the trustee or the holders of at least 25% in
aggregate principal amount of the outstanding debt securities of the affected
series may require us upon notice in writing to us, to immediately repay the
entire principal (or, in the case of (a) OID debt securities, a lesser amount as
provided in those OID debt securities or (b) indexed debt securities, an amount
determined by the terms of those indexed debt securities), of all the debt
securities of such series together with an accrued interest on the debt
securities.
7
If an Event of Default occurs which involves our bankruptcy, insolvency or
reorganization, then all unpaid principal amounts (or, if the debt securities
are (a) OID debt securities, then the portion of the principal amount that is
specified in those OID debt securities or (b) indexed debt securities, then the
portion of the principal amount that is determined by the terms of those indexed
debt securities) and accrued interest on all debt securities of each series will
immediately become due and payable, without any action by the trustee or any
holder of debt securities. (Section 502)
Subject to certain conditions, the holders of a majority in principal
amount of the outstanding debt securities of a series may rescind a declaration
of acceleration if all events of default, besides the failure to pay principal
or interest due solely because of the declaration of acceleration, have been
cured or waived. (Section 502)
Other than its duties in case of a default, the trustee is not obligated to
exercise any of its rights or powers under the indenture at the request, order
or direction of any holders, unless the holders offer the trustee reasonable
indemnity. The holders of a majority in principal amount outstanding of any
series of debt securities may, subject to certain limitations, direct the time,
method and place of conducting any proceeding for any remedy available to the
trustee, or exercising any power conferred upon the trustee, for any series of
debt securities.
The indenture requires us to file each year with the trustee, an officer's
certificate that states that:
- the signing officer has supervised a review of the activities and
performance under the indenture; and
- to the best of his or her knowledge, based on the review, we comply with
all conditions and covenants of the indenture.
(Section 1005)
A judgment for money damages by courts in the United States, including a
money judgment based on an obligation expressed in a foreign currency, will
ordinarily be rendered only in U.S. dollars. New York statutory law provides
that a court shall render a judgment or decree in the foreign currency of the
underlying obligation and that the judgment or decree shall be converted into
U.S. dollars at the exchange rate prevailing on the date of entry of the
judgment or decree. If a court requires a conversion to be made on a date other
than a judgment date, the indenture requires us to pay additional amounts
necessary to ensure that the amount paid in U.S. dollars to a holder is equal to
the amount due in such foreign currency. (Section 516)
PAYMENT AND TRANSFER
We will pay the principal of, and any premium and interest on, fully
registered securities at the place or places that we will designate for such
purposes. We will make payment to the persons in whose names the debt securities
are registered on the close of business on the day or days that we will specify
in accordance with the indenture. We will pay the principal of, and any premium
on, registered debt securities only against surrender of those debt securities.
Any other payments, including payment on any securities issued in bearer form,
will be made as set forth in the applicable prospectus supplement. Holders may
transfer or exchange fully registered securities at the corporate trust office
of the trustee or at any other office or agency, maintained for such purposes,
without the payment of any service charge except for any tax or governmental
charge. (Section 305)
RESTRICTIVE COVENANTS
The indenture includes the following restrictive covenants:
Limitations on Liens
The indenture limits the amount of liens that we or our Subsidiaries may
incur or otherwise create in order to secure indebtedness for borrowed money,
upon any Principal Facility or any shares of capital stock
8
that any of our Subsidiaries owning any Principal Facility has issued to us or
any of our Subsidiaries. If we or any of our Subsidiaries incur such liens, then
we will secure the debt securities to the same extent and in the same proportion
as the debt that is secured by such liens. This covenant does not apply,
however, to any of the following:
- in the case of a Principal Facility, liens incurred in connection with
the issuance by a state or its political subdivision of any securities
the interest on which is exempt from United States federal income taxes
by virtue of Section 103 of the Internal Revenue Code or any other laws
and regulations in effect at the time of such issuance;
- liens existing on the date of the indenture;
- liens on property or shares of stock existing at the time we or any of
our Subsidiaries acquire such property or shares of stock, including
through a merger, share exchange or consolidation, or securing the
payment of all or part of the purchase price, construction or improvement
of such property incurred prior to, during, or within 180 days after the
later of the acquisition, completion of construction or improvement or
commencement of full operation of such property or within 180 days after
the acquisition of such shares for the purpose of financing all or a
portion of such purchase of the property or construction or improvement
on it; or
- liens for the sole purpose of extending, renewing or replacing all or a
part of the indebtedness secured by any lien referred to in the previous
bullet points or in this bullet point if the extension, removal and
replacement is limited to all or a part of the property secured by the
original lien.
Notwithstanding the foregoing, we and/or any of our Subsidiaries may incur
liens that would otherwise be subject to the restriction described above,
without securing debt securities issued under the indenture equally and ratably,
if the aggregate value of all outstanding indebtedness secured by the liens and
the value of Sale and Leaseback Transactions does not at the time exceed the
greater of:
- 10% of our Consolidated Net Tangible Assets; or
- 10% of our Consolidated Capitalization.
As of June 30, 2001, our Consolidated Net Tangible Assets were $12.2 billion and
our Consolidated Capitalization was $42 billion.
(Section 1007)
Sale and Leaseback Transactions
A Sale and Leaseback Transaction of any Principal Facility is prohibited,
unless within 180 days of the effective date of the arrangement, an amount equal
to the greater of the proceeds of the sale or the fair value of the property
("value") is applied to the retirement of long-term non-subordinated
indebtedness for money borrowed with more than one year stated maturity,
including our debt securities, except that such sales and leasebacks are
permitted to the extent that the "value" thereof plus the other secured debt
referred to in the previous paragraph does not exceed the amount stated in the
previous paragraph. (Section 1008)
There are no other restrictive covenants in the indenture. The indenture
does not require us to maintain any financial ratios, minimum levels of net
worth or liquidity or restrict the payment of dividends, the making of other
distributions on our capital stock or the redemption or purchase of our capital
stock. Moreover, the indenture does not contain any provision requiring us to
repurchase or redeem any debt securities or debt warrants or modify the terms
thereof or afford the holders thereof any other protection in the event of our
change of control, any highly leveraged transaction or any other event involving
us that may materially adversely affect our credit worthiness or the value of
the debt securities or debt warrants.
9
DEFINED TERMS
We define Subsidiaries as any corporation of which at least a majority of
all outstanding stock having ordinary voting power in the election of directors
of such corporation is at the time, directly or indirectly, owned by us or by
one or more Subsidiaries or by us and one or more Subsidiaries. (Section 101)
We define Principal Facility as all real property owned and operated by us
or any Subsidiary located within the United States and constituting part of any
manufacturing plant or distribution facility, including all attached plumbing,
electrical, ventilating, heating, cooling, lighting and other utility systems,
ducts and pipes but excluding trade fixtures (unless their removal would cause
substantial damage to the manufacturing plant or distribution facility),
business machinery, equipment, motorized vehicles, tools, supplies and
materials, security systems, cameras, inventory and other personal property and
materials. However, no manufacturing plant or distribution facility will be a
Principal Facility unless its net book value exceeds 0.25% of Consolidated
Capitalization. (Section 1007)
We define a Sale and Leaseback Transaction as the sale or transfer of a
Principal Facility with the intention of taking back a lease of the property,
except a lease for a temporary period of less than 3 years, including renewals,
with the intent that the use by us or any Subsidiary will be discontinued on or
before the expiration of such period. (Section 1008)
We define Consolidated Net Tangible Assets as the excess of all assets over
current liabilities appearing on our most recent quarterly or annual
consolidated balance sheet, less goodwill and other intangible assets and the
minority interests of others in Subsidiaries. (Section 101)
We define Consolidated Capitalization as the total of all of the assets
appearing on our most recent quarterly or annual consolidated balance sheet,
less:
- current liabilities, including liabilities for indebtedness maturing more
than 12 months from the date of the original creation thereof, but
maturing within 12 months from the date of our most recent quarterly or
annual consolidated balance sheet; and
- deferred income tax liabilities reflected in such consolidated balance
sheet.
(Section 101)
GLOBAL SECURITIES
We may issue the securities in whole or in part in the form of one or more
global securities that will be deposited with, or on behalf of, a depositary
identified in the applicable prospectus supplement.
We may issue the global securities in either registered or bearer form and
in either temporary or permanent form. We will describe the specific terms of
the depositary arrangement with respect to a series of securities in the
applicable prospectus supplement. We anticipate that the following provisions
will apply to all depositary arrangements.
Once a global security is issued, the depositary will credit on its
book-entry system the respective principal amounts of the individual securities
represented by that global security to the accounts of institutions that have
accounts with the depositary. These institutions are known as participants.
The underwriters for the securities will designate the accounts to be
credited. However, if we have offered or sold the securities either directly or
through agents, we or the agents will designate the appropriate accounts to be
credited.
Ownership of beneficial interests in a global security will be limited to
participants or persons that may hold beneficial interests through participants.
Ownership of beneficial interests in a global security will be shown on, and the
transfer of that ownership will be effected only through, records maintained by
the depositary's participants or persons that may hold through participants. The
laws of some states require that certain purchasers of securities take physical
delivery of securities. Those laws may limit the market for beneficial interests
in a global security.
10
So long as the depositary for a global security, or its nominee, is the
registered owner of a global security, the depositary or nominee will be
considered the sole owner or holder of the securities represented by the global
security for all purposes under the indenture. Except as provided in the
applicable prospectus supplement, owners of beneficial interests in a global
security:
- will not be entitled to have securities represented by global securities
registered in their names;
- will not receive or be entitled to receive physical delivery of
securities in definitive form; and
- will not be considered owners or holders of these securities under the
indenture.
Payments of principal of, and any premium and interest on, the individual
securities registered in the name of the depositary or its nominee will be made
to the depositary or its nominee as the registered owner of that global
security.
Neither we nor the trustee will have any responsibility or liability for
any aspect of the records relating to, or payments made on account of,
beneficial ownership interests of a global security, or for maintaining,
supervising or reviewing any records relating to beneficial ownership interests
and each of us and the trustee may act or refrain from acting without liability
on any information provided by the depositary.
We expect that the depositary, after receiving any payment of principal of,
and any premium and interest on, a global security, will immediately credit the
accounts of the participants with payments in amounts proportionate to their
respective holdings in principal amount of beneficial interest in a global
security as shown on the records of the depositary. We also expect that payments
by participants to owners of beneficial interests in a global security 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.
Debt securities represented by a global security will be exchangeable for
debt securities in definitive form of like tenor in authorized denominations
only if:
- the depositary notifies us that it is unwilling or unable to continue as
the depositary and a successor depositary is not appointed by us within
90 days;
- we deliver to the trustee for securities of such series in registered
form a company order stating that the securities of such series shall be
exchangeable; or
- an Event of Default has occurred and is continuing with respect to
securities of such series.
Unless and until a global security is exchanged in whole or in part for
debt securities in definitive certificated form, it may not be transferred or
exchanged except as a whole by the depositary.
You may transfer or exchange certificated securities at any office that we
maintain for this purpose in accordance with the terms of the indenture. We will
not charge a service fee for any transfer or exchange of certificated
securities, but we may require payment of a sum sufficient to cover any tax or
other governmental charge that we are required to pay in connection with a
transfer or exchange.
(Section 305)
REGISTRATION OF TRANSFER
You may effect the transfer of certificated securities and the right to
receive the principal of, and any premium and interest on, certificated
securities only by surrendering the certificate representing those certificated
securities and either reissuance by us or the trustee of the certificate to the
new holder or the issuance by us or the trustee of a new certificate to the new
holder.
11
We are not required to:
- issue, register, transfer or exchange securities of any series during a
period beginning at the opening of business 15 days before the day we
transmit a notice of redemption of the securities of the series selected
for redemption and ending at the close of business on the day of the
transmission;
- register, transfer or exchange any security so selected for redemption in
whole or in part, except the unredeemed portion of any security being
redeemed in part; or
- exchange any bearer securities selected for redemption except if a bearer
security is exchanged for a registered security of the same tenor that is
simultaneously surrendered for redemption.
(Section 305)
EXCHANGE
At your option, you may exchange your registered debt securities of any
series, except a global security, for an equal principal amount of other
registered debt securities of the same series having authorized denominations
upon surrender to our designated agent.
We may at any time exchange debt securities issued as one or more global
securities for an equal principal amount of debt securities of the same series
in definitive registered form. In this case, we will deliver to the holders new
debt securities in definitive registered form in the same aggregate principal
amount as the global securities being exchanged.
The depositary of the global securities may also decide at any time to
surrender one or more global securities in exchange for debt securities of the
same series in definitive registered form, in which case we will deliver the new
debt securities in definitive form to the persons specified by the depositary,
in an aggregate principal amount equal to, and in exchange for, each person's
beneficial interest in the global securities.
Notwithstanding the above, we will not be required to exchange any debt
securities if, as a result of the exchange, we would suffer adverse consequences
under any United States law or regulation.
(Section 305)
DEFEASANCE
Unless otherwise specified in the prospectus supplement, we can terminate
all of our obligations under the indenture with respect to the debt securities,
other than the obligation to pay the principal of, and any premium and interest
on, the debt securities and certain other obligations, at any time by:
- depositing money or United States government obligations with the trustee
in an amount sufficient to pay the principal of, and any premium and
interest on, the debt securities to their maturity; and
- complying with certain other conditions, including delivery to the
trustee of an opinion of counsel to the effect that holders of debt
securities will not recognize income, gain or loss for United States
federal income tax purposes as a result of our defeasance.
In addition, unless otherwise specified in the prospectus supplement, we
can terminate all of our obligations under the indenture with respect to the
debt securities, including the obligation to pay the principal of, and any
interest on, the debt securities, at any time by:
- depositing money or United States government obligations with the trustee
in an amount sufficient to pay the principal of, and the interest and any
premium on, the debt securities to their maturity; and
- complying with certain other conditions, including delivery to the
trustee of an opinion of counsel stating that there has been a ruling by
the Internal Revenue Service, or a change in the United States federal
tax law since the date of the indenture, to the effect that holders of
debt securities
12
will not recognize income, gain or loss for United States federal income
tax purpose as a result of our defeasance.
(Sections 402-404)
PAYMENTS OF UNCLAIMED MONEYS
Moneys deposited with the trustee or any paying agent for the payment of
principal of, or any premium and interest on, any debenture that remains
unclaimed for two years will be repaid to us at our request, unless the law
requires otherwise. If this happens and you want to claim these moneys, you must
look to us and not to the trustee or paying agent. (Section 409)
SUPPLEMENTAL INDENTURES NOT REQUIRING CONSENT OF HOLDERS
Without the consent of any holders of debt securities, we and the trustee
may supplement the indenture, among other things, to:
- pledge property to the trustee as security for the debt securities;
- reflect that another entity has succeeded us and assumed the covenants
and obligations of us under the debt securities and the indenture;
- cure any ambiguity or inconsistency in the indenture or in the debt
securities or make any other provisions necessary or desirable, as long
as the interests of the holders of the debt securities are not adversely
affected in any material respect;
- issue and establish the form and terms of any series of debt securities
as provided in the indenture;
- add to our covenants further covenants for the benefit of the holders of
debt securities, and if the covenants are for the benefit of less than
all series of debt securities, stating which series are entitled to
benefit;
- add any additional event of default and if the new event of default
applies to fewer than all series of debt securities, stating to which
series it applies;
- change the trustee or provide for an additional trustee;
- provide additional provisions for bearer debt securities so long as the
action does not adversely affect the interests of holders of any debt
securities in any material respect; or
- modify the indenture in order to continue its qualification under the
Trustee Indenture Act of 1939 or as may be necessary or desirable in
accordance with amendments to that Act.
(Section 901)
SUPPLEMENTAL INDENTURES REQUIRING CONSENT OF HOLDERS
With the consent of the holders of a majority in principal amount of the
series of the debt securities that would be affected by a modification of the
indenture, the indenture permits us and the trustee to supplement the indenture
or modify in any way the terms of the indenture or the rights of the holders of
the debt securities. However, without the consent of each holder of all of the
debt securities affected by that modification, we and the trustee may not:
- modify the maturity date of, or reduce the principal of, or premium on,
or change the stated final maturity of, any debt security;
- reduce the rate of or change the time for payment of interest on any debt
security or, in the case of OID debt securities, reduce the rate of
accretion of the OID;
- change any of our obligations to pay additional amounts under the
indenture;
13
- reduce or alter the method of computation of any amount payable upon
redemption, repayment or purchase of any debt security by us, or the time
when the redemption, repayment or purchase may be made;
- make the principal or interest on any debt security payable in a currency
other than that stated in the debt security or change the place of
payment;
- reduce the amount of principal due on an OID debt security upon
acceleration of maturity or provable in bankruptcy or reduce the amount
payable under the terms of an indexed debt security upon acceleration of
maturity or provable in bankruptcy;
- impair any right of repayment or purchase at the option of any holder of
debt securities;
- reduce the right of any holder of debt securities to receive or sue for
payment of the principal or interest on a debt security that would be due
and payable at the maturity thereof or upon redemption; or
- reduce the percentage in principal amount of the outstanding debt
securities of any series required to supplement the indenture or to waive
any of its provisions.
(Section 902)
A supplemental indenture that modifies or eliminates a provision intended
to benefit the holders of one series of debt securities will not affect the
rights under the indenture of holders of other series of debt securities.
REDEMPTION
The specific terms of any redemption of series of debt securities will be
contained in the prospectus supplement for that series. Generally, we must send
notice of redemption to the holders at least 30 days but not more than 60 days
prior to the redemption date. The notice will specify:
- the principal amount being redeemed;
- the redemption date;
- the redemption price;
- the place or places of payment;
- the CUSIP number of the debt securities being redeemed;
- whether the redemption is pursuant to a sinking fund;
- that on the redemption date, interest, or, in the case of OID debt
securities, original issue discount, will cease to accrue; and
- if bearer debt securities are being redeemed, that those bearer debt
securities must be accompanied by all coupons maturing after the
redemption date or the amount of the missing coupons will be deducted
from the redemption price, or indemnity must be furnished, and whether
those bearer debt securities may be exchanged for registered debt
securities not being redeemed.
(Section 1104)
On or before any redemption date, we will deposit an amount of money with
the trustee or with a paying agent sufficient to pay the redemption price.
(Section 1105)
If less than all the debt securities are being redeemed, the trustee shall
select the debt securities to be redeemed using a method it considers fair.
(Section 1103) After the redemption date, holders of debt securities which were
redeemed will have no rights with respect to the debt securities except the
right to receive the redemption price and any unpaid interest to the redemption
date. (Section 1106)
14
CONCERNING THE TRUSTEE
The Chase Manhattan Bank is the trustee under the indenture. The Chase
Manhattan Bank makes loans to, acts as trustee and performs certain other
services for us and certain of our subsidiaries and affiliates, including our
parent, Philip Morris, in the normal course of its business. Among other
services, The Chase Manhattan Bank or its affiliates provide us and our
affiliates with investment banking and cash management services, foreign
exchange and investment custody account services, and participate in our credit
facilities and those of our affiliates.
GOVERNING LAW
The laws of the State of New York govern the indenture and will govern the
debt securities.
(Section 112)
15
DESCRIPTION OF DEBT WARRANTS
We may issue debt warrants in registered certificated form for the purchase
of debt securities. We may issue debt warrants separately or together with any
debt securities offered by any prospectus supplement. If issued together with
any debt securities, debt warrants may be attached to or separate from such debt
securities. Debt warrants will be issued under debt warrant agreements to be
entered into between us and a bank or trust company, as debt warrant agent, all
as set forth in the prospectus supplement relating to the particular issue of
debt warrants. The debt warrant agent will act solely as our agent in connection
with the warrants and will not assume any obligation or relationship of agency
or trust for or with any holders or beneficial owners of warrants. The forms of
debt warrant agreement and debt warrant certificate are filed as exhibits to the
Registration Statement. The following summaries of certain provisions for the
forms of debt warrant agreement and debt warrant certificate are qualified in
all respects by reference to the applicable forms of debt warrant agreement and
debt warrant certificate, and you should read the applicable forms of debt
warrant agreement and debt warrant certificate for additional information before
you buy any debt warrants.
GENERAL
The prospectus supplement will describe the terms of the debt warrants
offered thereby, the debt warrant agreements relating to such debt warrants and
the debt warrant certificates representing such debt warrants, including the
following:
- the offering price;
- the designation, aggregate principal amount and terms of the debt
securities purchasable upon exercise of the debt warrants;
- if applicable, the designation and terms of the debt securities with
which the debt warrants are issued and the number of debt warrants issued
with each such debt security;
- if applicable, the date on and after which the debt warrants and the
related debt securities will be separately transferable;
- the principal amount of debt securities purchasable upon exercise of one
debt warrant and the price at which such principal amount of debt
securities may be purchased upon such exercise, and any provisions for
changes to or adjustments in the exercise price;
- the date on which the right to exercise the debt warrants will commence
and the date on which such right will expire;
- the maximum or minimum number of warrants which may be exercised at any
time;
- United States federal income tax consequences;
- the identity of the debt warrant agent; and
- any other terms of the debt warrants.
Debt warrant certificates may be exercised, and those that have been issued
separately or, if issued together with debt securities, once detachable, may be
exchanged for new debt warrant certificates of different denominations and may
be presented for registration of transfer at the corporate trust office of the
debt warrant agent or any other office indicated in the applicable prospectus
supplement. A debt warrant certificate that is not immediately detachable from a
debt security may be exchanged or transferred only with the debt securities to
which it was initially attached, and only in connection with the exchange or
transfer or such debt securities. (Sections 4.01 and 5.05) Debt warrants for the
purchase of debt securities will be in registered form only. (Section 1.02)
16
EXERCISE OF DEBT WARRANTS
Each debt warrant will entitle its holder to purchase for cash such
principal amount of debt securities at such exercise price as will in each case
be set forth in, or calculable from, the applicable prospectus supplement
relating to the debt warrants. (Section 2.01) Each holder of a debt warrant may
exercise it at any time up to 5:00 p.m., New York City time, on the debt warrant
expiration date set forth in the prospectus supplement. After such time, or such
later date to which such debt warrant expiration date may be extended by us,
unexercised debt warrants will be void. (Section 2.02)
A holder of a debt warrant may exercise it by following the general
procedures outlined below:
- delivering to the debt warrant agent the payment required by the
applicable prospectus supplement to purchase the underlying debt
security;
- properly completing and signing the reverse side of the debt warrant
certificate; and
- delivering the debt warrant certificate to the debt warrant agent.
If you comply with the procedures described above, your debt warrant will
be considered to have been exercised when the debt warrant agent receives
payment of the exercise price. After you have completed those procedures, we
will, as soon as practicable, issue and deliver to you the debt security that
you purchased upon exercise. If you exercise fewer than all of the debt warrants
represented by a debt warrant certificate, the debt warrant agent will issue to
you a new debt warrant certificate for the unexercised amount of debt warrants.
Holders of debt warrants will be required to pay any tax or governmental charge
that may be imposed in connection with transferring the underlying securities in
connection with the exercise of the debt warrants. (Section 2.03)
MODIFICATIONS
We, along with the debt warrant agent, may amend the debt warrant agreement
and the terms of the debt warrants, without the consent of the holders, for the
purpose of curing any ambiguity, or curing, correcting or supplementing any
defective provision contained in the debt warrant agreement, or in any other
manner which we and the debt warrant agent may deem necessary or desirable and
which will not adversely affect the interests of the holders. With the consent
of holders holding not fewer than a majority in number of the then outstanding
unexercised warrants that would be affected by a modification of the debt
warrant agreement or debt warrant certificates, we, along with the debt warrant
agent, may amend the debt warrant agreement and the terms of the debt warrants
in any way, other than to increase the exercise price, shorten the time period
during which warrants may be exercised, reduce the percentage of the number of
outstanding warrants required to consent to a modification, or materially and
adversely affect the exercise rights of the holders. (Section 6.01)
ENFORCEABILITY OF RIGHTS BY HOLDERS; GOVERNING LAW
The debt warrant agent will act solely as our agent in connection with the
debt warrant certificates and will not assume any obligations or relationship of
agency or trust for or with any holders of debt warrant certificates. (Section
5.02) Holders may, without the consent of the debt warrant agent or the trustee
for the applicable series of debt securities, enforce by appropriate legal
action, on their own behalf, their right to exercise their debt warrants in the
manner provided in their debt warrant certificates and the debt warrant
agreement. (Section 3.03) Prior to the exercise of their debt warrants, holders
of debt warrants will not have any of the rights of holders of the debt
securities purchasable upon such exercise, including the right to receive
payments of principal of, and any premium or interest on, the debt securities
purchasable upon such exercise or to enforce covenants in the indenture.
(Section 3.01)
Except as may otherwise be provided in the applicable prospectus
supplement, each issue of debt warrants and the applicable debt warrant
agreement will be governed by and construed in accordance with the laws of the
State of New York. (Section 3.01)
17
CERTAIN UNITED STATES FEDERAL INCOME
TAX CONSIDERATIONS
In the opinion of Sutherland Asbill & Brennan LLP, the following summary
describes generally the material United States federal income and estate tax
considerations with respect to your acquisition, ownership and disposition of
debt securities if you are a beneficial owner of such debt securities. Unless
otherwise indicated, this summary addresses only securities purchased at
original issue and held by beneficial owners as capital assets and does not
address all of the United States federal income and estate tax considerations
that may be relevant to you in light of your particular circumstances or if you
are subject to special treatment under United States federal income tax laws
(for example, if you are an insurance company, tax-exempt organization,
financial institution, broker or dealer in securities, person that holds debt
securities as part of an integrated investment (including a "straddle"),
"controlled foreign corporation," "passive foreign investment company," "foreign
personal holding company," or company that accumulates earnings to avoid United
States federal income tax). If a partnership holds debt securities, the tax
treatment of a partner will generally depend upon the status of the partner and
the activities of the partnership. This summary does not address special tax
considerations that may be relevant to you if you are a partner of a partnership
holding our debt securities. This summary does not discuss any aspect of state,
local or non-United States taxation.
This summary is based on current provisions of the Internal Revenue Code
(the "Code"), Treasury regulations, judicial opinions, published positions of
the United States Internal Revenue Service ("IRS") and all other applicable
authorities, all of which are subject to change, possibly with retroactive
effect. This summary is not intended as tax advice.
We will summarize any special United States federal income tax
considerations relevant to a particular issue of debt securities in the
applicable prospectus supplement. The United States federal income tax
considerations relevant to any warrants to purchase debt securities that we
issue will be summarized in the applicable prospectus supplement.
WE URGE PROSPECTIVE HOLDERS OF DEBT SECURITIES TO CONSULT THEIR TAX
ADVISORS REGARDING THE UNITED STATES FEDERAL, STATE, LOCAL AND NON-UNITED STATES
INCOME AND OTHER TAX CONSIDERATIONS OF ACQUIRING, HOLDING AND DISPOSING OF DEBT
SECURITIES.
UNITED STATES HOLDERS
This discussion applies to you if you are a "United States Holder." For
this purpose, a "United States Holder" is a beneficial owner of a debt security
that is:
- a citizen or resident of the United States;
- a corporation or partnership created or organized in, or under the laws
of, the United States or any political subdivision of the United States;
- an estate, the income of which is subject to United States federal income
taxation regardless of its source;
- a trust, if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United
States persons have the authority to control all substantial decisions of
the trust; or
- a trust that existed on August 20, 1996, and elected to continue its
treatment as a domestic trust.
"United States" means the United States of America (including the States
and the District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction (including the Commonwealth of Puerto Rico).
18
Payments of Interest
Except as set forth below, payments of stated interest on a debt security
generally will be taxable to you as ordinary interest income at the time the
interest accrues or is received, in accordance with your method of accounting
for tax purposes. Special rules governing the treatment of debt securities
issued with original issue discount, or "OID," are described below.
OID Debt Securities
Special tax accounting rules apply to debt securities issued with OID. A
debt security with an "issue price" which is less than its "stated redemption
price at maturity" will be issued with OID for United States federal income tax
purposes. Generally, however, under the "de minimis exception," if the
difference between a debt security's stated redemption price at maturity and its
issue price is less than 0.25% of the stated redemption price at maturity
multiplied by the number of complete years from the issue date to maturity, the
debt security will not be considered to have OID.
"Issue price" is the first price at which a substantial amount of the
particular issue of debt securities is sold to the public. "Stated redemption
price at maturity" is the sum of all payments on the debt security other than
payments of "qualified stated interest." "Qualified stated interest" generally
includes interest that is unconditionally payable at least annually over the
entire term of the debt security:
- at a fixed rate; or
- unless the applicable prospectus supplement states otherwise, at a
variable rate.
If a series of debt securities will be issued with interest that is not
qualified stated interest, we will so state in the applicable prospectus
supplement and we will address any relevant United States federal income tax
considerations not addressed in this summary.
If you own a debt security with OID, you generally will be required to
include OID in gross income for United States federal income tax purposes as it
accrues, in accordance with a constant yield method based on a compounding of
interest, in advance of your receipt of the cash payments attributable to such
income. However, you will not be required to include such cash payments
separately in income when received, even if denominated as interest, to the
extent they do not constitute qualified stated interest. If you are on the cash
method of accounting for tax purposes, this will result in the acceleration of
your recognition of ordinary income in respect of the debt securities. Under the
constant yield method, increasing amounts of OID are included in income in
successive periods.
If you own a debt security that qualifies for the de minimis exception
described above, you will be required to include the de minimis OID in income at
the time payments, other than payments of qualified stated interest, on the debt
securities are made in proportion to the amount paid. Any amount of de minimis
OID that you have included in income will be treated as capital gain.
You may elect to accrue all "interest" on a debt security as OID (i.e.,
using the constant yield method). If you elect this method, the debt security's
issue price will be deemed to be your tax basis in the debt security at the time
you acquire it, and all payments on the debt security will be included in its
stated redemption price at maturity. This election is available whether or not
the debt security has OID, and it applies to any stated interest, OID (including
discount that is de minimis) and market discount (as discussed below) on a debt
security, all as adjusted by any acquisition or other premium (as discussed
below). You may make this election on an obligation-by-obligation basis but, if
you make it on an obligation you purchased at a premium (defined below), it will
require you to amortize premium with respect to all of your debt instruments
with premium. You must make the election for the taxable year in which you
acquired the debt security, and you may not revoke the election without the
consent of the IRS.
19
Market Discount
If you purchase a debt security other than an OID debt security (including
a purchase in connection with its original issuance) for an amount that is less
than its stated redemption price at maturity, or, in the case of a OID debt
security, its "revised issue price" (defined as the sum of the issue price of
the debt security and the aggregate amount, if any, of the OID included, without
regard to the rules for acquisition premium discussed below, in the gross income
of all previous owners of the debt security), the amount of the difference will
be treated as "market discount" for United States federal income tax purposes,
unless such difference is less than a specified de minimis amount. Under the
market discount rules, you will be required to treat any payment other than
qualified stated interest on, or any gain from the sale, exchange, retirement or
other disposition of, your debt security as ordinary income to the extent of the
market discount which you have not previously included in income and are treated
as having accrued on your debt security at the time of such payment or
disposition. In addition, you may be required to defer, until the maturity of
the debt security or its earlier disposition in a taxable transaction, the
deduction of all or a portion of any interest expense on indebtedness incurred
or continued to purchase or carry such debt security.
Market discount will be considered to accrue ratably during the period from
the date you acquire the debt security to the maturity date of the debt
security, unless you elect to accrue on a constant yield method. If you elect to
include market discount in income currently as it accrues (on either a ratable
or constant yield method), the rule described above regarding deferral of
interest deductions will not apply. This election to include market discount in
income currently, once made, will apply to all market discount obligations
acquired by you on or after the first day of the first taxable year to which the
election applies, and you may not revoke this election without the consent of
the IRS.
Premium
If you purchase a debt security with OID for an amount that is greater than
the debt security's "adjusted issue price" (defined as the issue price of the
debt security increased by the aggregate amount of OID includible, if any, in
the gross income of all previous owners of the debt security and decreased by
the aggregate amount of payments made on the debt security, if any, other than
payments of qualified stated interest) but equal to or less than the sum of all
amounts payable on the debt security after the purchase date (other than
payments of qualified stated interest), you will be considered to have purchased
such debt security at an "acquisition premium." The portion of acquisition
premium with respect to a debt security that is properly allocable to any
taxable year will reduce the amount of OID you must include in your gross income
with respect to such debt security for the taxable year.
If you acquire a debt security for an amount that is greater than the sum
of all amounts payable on the debt security after the date of your acquisition
(other than payments of qualified stated interest), you will be considered to
have purchased such debt security at a premium and such debt security will have
no OID. You may elect to amortize this premium using a constant yield method,
generally over the remaining term of the debt security if the debt security is
not subject to optional redemption prior to maturity. Such premium shall be
deemed to be an offset to interest otherwise includible in income in respect of
such debt security for each accrual period. If the premium allocable to an
accrual period exceeds the qualified stated interest allocable to the accrual
period, you must treat the excess as a bond premium deduction for the accrual
period. However, the amount treated as a bond premium deduction is limited to
the amount by which your total interest income on the debt security in prior
accrual periods exceeds the total amount you treated as a bond premium deduction
on the debt security in prior accrual periods and if the premium allocable to an
accrual period exceeds the sum of:
- such amount treated as a bond premium deduction for the accrual period
and
- the qualified stated interest allocable to the accrual period,
the excess is carried forward to the next accrual period and is treated as a
bond premium deduction allocable to that period. In the case of instruments that
do provide for optional redemption prior to
20
maturity, premium is calculated by assuming that (a) you will exercise or not
exercise options in a manner that maximizes your yield, and (b) we will exercise
or not exercise options in a manner that minimizes your yield (except that we
will be assumed to exercise call options in a manner that maximizes your yield).
You will be required to amortize such premium to the assumed exercise date or
the maturity date of the debt security, as the case may be. If a debt security
is in fact redeemed prior to maturity, any unamortized premium may be deducted
in the year of redemption. If a debt security is not redeemed on the assumed
exercise date, it generally is deemed to be retired and reissued on that date,
requiring recomputation of the yield and amortization of any premium over the
remaining life of the debt security.
The election to amortize premium using a constant yield method, once made,
will apply to certain other debt instruments that you previously acquired at a
premium or that you acquire at a premium on or after the first day of the first
taxable year to which the election applies, and you may not revoke this election
without the consent of the IRS. If you do not make such an election, bond
premium will be taken into account in computing the gain or the loss recognized
on your disposition of a debt security because it is part of your tax basis for
such debt security.
Sale, Exchange or Retirement of Debt Securities
Upon the sale, exchange or retirement of a debt security, you will
recognize taxable gain or loss equal to the difference between the amount you
realize on the sale, exchange or retirement of the debt security (other than
amounts, if any, attributable to accrued but unpaid qualified stated interest
not previously included in your income, which will be taxable as interest
income) and your adjusted tax basis in the debt security. Your adjusted tax
basis in a debt security will equal the cost of the debt security to you,
increased by the amounts of any OID and market discount included in your taxable
income with respect to such debt security and reduced by any amortized bond
premium and amounts of other payments that do not constitute qualified stated
interest.
Gain or loss realized upon the sale or exchange of a debt security
generally will be capital gain or loss (except to the extent the gain represents
market discount or, as described below, with respect to foreign currency debt
securities) and will be long-term capital gain or loss if, at the time of the
sale, exchange or retirement, you have held the debt security for more than one
year. The maximum tax rate on ordinary income for taxpayers that are
individuals, estates or trusts currently is higher than the maximum tax rate on
long-term capital gains of such persons. The distinction between capital gain or
loss and ordinary income or loss also is relevant for purposes of the limitation
on the deductibility of capital losses.
Foreign Currency Debt Securities
We may issue debt securities that are denominated in a currency or currency
unit other than the U.S. dollar (a "foreign currency debt security"). A United
States Holder of a foreign currency debt security is subject to special United
States federal income tax rules discussed generally below.
Interest and OID
If you use the cash method of accounting for United States federal income
tax purposes, the amount of income you recognize will be the U.S. dollar value
of the interest payment we make to you based on the spot rate for that foreign
currency at the time you receive the payment. With respect to accruals of OID, a
cash method taxpayer translates OID into U.S. dollars under the rules for
accrual holders described below.
If you use the accrual method of accounting for United States federal
income tax purposes, the amount of income you recognize will be determined using
the average exchange rate during the relevant accrual period. When an accrual
period includes but does not end on the last day of your taxable year, the
relevant exchange rate with respect to each partial accrual period will be the
average exchange rate for such partial accrual period. Alternatively, an accrual
method taxpayer may elect to use the spot rate on the last day of the relevant
accrual period, or the payment date, if such date is within five business days
of the last day of the accrual period, instead of the average exchange rate
during the accrual period. If you make
21
this election, it will apply to all debt instruments you hold on or after the
beginning of the year in which the election is made and it cannot be revoked
without the consent of the IRS.
You will recognize exchange gain or loss with respect to any differences in
the exchange rate between the rate at which interest on a debt security is
included in income and the spot rate on the payment date for interest or OID (or
the disposition date in the case of amounts attributable to accrued but unpaid
interest or OID). Any exchange gain or loss recognized will be ordinary income
or loss.
Market Discount and Premium
The amount of market discount on a foreign currency debt security that you
will be required to include in income will generally be determined by
translating the market discount determined in the foreign currency into U.S.
dollars at the spot rate on the date the foreign currency debt security is
retired or otherwise disposed of. If you elect to accrue market discount
currently, then the amount accrued will be determined in the foreign currency
and then translated into U.S. dollars on the basis of the average exchange rate
in effect during the accrual period. You will be required to recognize exchange
gain or loss with respect to market discount which is accrued currently using
the approach applicable to the accrual of interest income as discussed above.
Bond premium on a foreign currency debt security will be computed in the
applicable foreign currency. You may elect to apply amortizable premium on a
foreign currency debt security to reduce the amount of foreign currency interest
income on such foreign currency debt security. If you make such an election, you
will be required to recognize exchange gain or loss attributable to movements in
exchange rates between the time premium is paid to acquire the foreign currency
debt security and the time it is amortized. If you do not make such an election,
you must translate the bond premium computed in the foreign currency into U.S.
dollars at the spot rate on the maturity date and such bond premium will
constitute a capital loss which may be offset or eliminated by exchange gain.
Sale, Exchange or Retirement of Foreign Currency Debt Securities
When you sell, exchange or otherwise dispose of a foreign currency debt
security, or we retire a foreign currency debt security, you will recognize gain
or loss attributable to the difference between the amount you realize on such
disposition or retirement and your tax basis in the debt security. In addition,
you will recognize foreign currency gain or loss attributable to the movement in
exchange rates between the time you purchased such debt security and the time of
its disposition. Such foreign currency gain or loss will be treated as ordinary
income or loss and is limited to the amount of overall gain or loss realized on
the disposition of your foreign currency debt security.
The amount realized by you upon the sale, exchange or retirement of a
foreign currency debt security will be the U.S. dollar value of the foreign
currency received (with the exception of amounts attributable to accrued but
unpaid qualified stated interest not previously included in your income, which
will be taxable as interest income), determined on the date of the sale,
exchange or retirement, or on the settlement date in the case of a foreign
currency debt security that is traded on an established securities market and
sold by a cash method taxpayer or an electing accrual method taxpayer. Your tax
basis in a foreign currency debt security generally will be:
- the U.S. dollar value of the foreign currency amount you paid to acquire
such foreign currency debt security determined on the date of acquisition
(or on the settlement date in the case of debt securities traded on an
established securities market if you are on the cash method of accounting
for United States federal income tax purposes or you are an electing
accrual method taxpayer), plus
- the amount of any OID and market discount includible in your gross income
with respect to the debt security, minus
- the amount of any payments you received that are not qualified stated
interest and any premium previously taken into account.
22
Gain or loss realized on the disposition of a foreign currency debt
security will be capital gain or loss except to the extent the gain represents
market discount not previously included in your gross income, or to the extent
gain or loss is attributable to movements in exchange rates. In both cases, such
portion of the gain or loss will be ordinary income or loss.
Foreign Currency Transactions
If you purchase a debt security with foreign currency, you will recognize
gain or loss attributable to the difference, if any, between the fair market
value of the debt security in U.S. dollars on the date of purchase and your tax
basis in the foreign currency. The U.S. dollar value, adjusted for any exchange
gain or loss with respect to the income accrued, generally will be your tax
basis in the foreign currency you receive as interest on (or OID with respect
to) a foreign currency debt security. In addition, you will have a tax basis in
any foreign currency you receive on the sale, exchange or retirement of a debt
security that is equal to the U.S. dollar value of such foreign currency,
determined at the time of such sale, exchange or retirement.
Any gain or loss you realize on a sale or other disposition of foreign
currency (including its exchange for U.S. dollars or its use to purchase a
foreign currency debt security) will be ordinary income or loss.
Backup Withholding and Information Reporting
Unless you are an exempt recipient such as a corporation or financial
institution, a backup withholding tax and certain information reporting
requirements may apply to payments we make to you of principal of and interest
(including OID, if any) or premium (if any) on, and proceeds of the sale or
exchange before maturity of, a debt security. Backup withholding and information
reporting will not apply to payments that we make on the debt securities to
exempt recipients, such as corporations or financial institutions, that
establish their status as such, regardless of whether such entities are the
beneficial owners of such debt securities or hold such debt securities as a
custodian, nominee or agent of the beneficial owner. However, with respect to
payments made to a custodian, nominee or agent of the beneficial owner, backup
withholding and information reporting may apply to payments made by such
custodian, nominee or other agent to you unless you are an exempt recipient and
establish your status as such.
If you are not an exempt recipient (for example, if you are an individual),
backup withholding will not be applicable to payments made to you if you (i)
have supplied an accurate Taxpayer Identification Number (usually on an IRS Form
W-9), (ii) have not been notified by the IRS that you have failed to properly
report payments of interest and dividends and (iii) in certain circumstances,
have certified under penalties of perjury that you have received no such
notification and have supplied an accurate Taxpayer Identification Number.
However, information reporting will be required in such a case.
Any amounts withheld from a payment to you by operation of the backup
withholding rules will be refunded or allowed as a credit against your United
States federal income tax liability, provided that any required information is
furnished to the IRS in a timely manner.
NON-UNITED STATES HOLDERS
This discussion applies to you if you are a "non-United States Holder." A
"non-United States Holder" is a beneficial owner of a debt security that is not
a United States Holder.
Interest and OID
If you are a non-United States Holder of debt securities, payments of
interest (including OID, if any) that we make to you will be subject to United
States withholding tax at a rate of 30% of the gross amount, unless you are
eligible for one of the exceptions described below.
23
Subject to the discussion of backup withholding below, no withholding of
United States federal income tax will be required with respect to payments we
make to you of interest (including OID, if any) provided that:
- you do not actually or constructively own 10% or more of the total
combined voting power of all classes of our stock entitled to vote within
the meaning of Section 871(h)(3) of the Code;
- you are not a bank receiving interest pursuant to a loan agreement
entered into in the ordinary course of your trade or business or a
controlled foreign corporation that is related to us through stock
ownership;
- such interest is not contingent on our profits, revenues, dividends or
changes in the value of our property nor is it otherwise described in
Section 871(h)(4) of the Code; and
- you have provided the required certifications as set forth in Section
871(h) and Section 881(c) of the Code.
To qualify for the exemption from withholding tax with respect to
registered debt securities, the last United States person in the chain of
payment prior to a payment to a non-United States Holder (the "Withholding
Agent") must have received in the year in which a payment of principal or
interest occurs, or in one of the three preceding years, a statement that:
- is signed by you under penalties of perjury;
- certifies that you are the beneficial owner and are not a United States
Holder; and
- provides your name and address.
This statement may be made on a Form W-8BEN or a substantially similar
substitute form and you must inform the Withholding Agent of any change in the
information on the statement within 30 days of such change. Under certain
circumstances, a Withholding Agent is allowed to rely on a Form W-8IMY or other
similar document furnished by a financial institution or other intermediary on
your behalf without having to obtain a Form W-8BEN from you. Subject to certain
exceptions, a payment to a foreign partnership or to certain foreign trusts is
treated as a payment directly to the foreign partners or the trust
beneficiaries, as the case may be.
If you are engaged in a United States trade or business and interest
received by you on a debt security is effectively connected with your conduct of
such trade or business, you will be exempt from the withholding of United States
federal income tax described above, provided you have furnished the Withholding
Agent with a Form W-8ECI or substantially similar substitute form stating that
interest on the debt security is effectively connected with your conduct of a
trade or business in the United States. In such a case, you will be subject to
tax on interest you receive on a net income basis in the same manner as if you
were a United States Holder. If you are a corporation, effectively connected
income may also be subject to a branch profits tax at a rate of 30% (or such
lower rate as may be specified by an applicable income tax treaty).
If you are not eligible for relief under one of the exceptions described
above, you may nonetheless qualify for an exemption from, or a reduced rate of,
United States federal income and withholding tax under a United States income
tax treaty. In general, this exemption or reduced rate of tax applies only if
you provide a properly completed Form W-8BEN or substantially similar form to
the Withholding Agent claiming benefits under an applicable income tax treaty.
24
Sale, Exchange or Retirement of Debt Securities
You generally will not be subject to United States federal income tax on
any gain realized upon your sale or other disposition of debt securities unless:
- the gain is effectively connected with your conduct of a trade or
business within the United States (and, under certain income tax
treaties, is attributable to a United States permanent establishment you
maintain); or
- you are an individual, you hold your debt securities as capital assets,
you are present in the United States for 183 days or more in the taxable
year of disposition and you meet other conditions, and you are not
eligible for relief under an applicable income tax treaty.
Gain that is effectively connected with your conduct of a trade or business
within the United States generally will be subject to United States federal
income tax, net of certain deductions, at the same rates applicable to United
States persons. If you are a corporation, the branch profits tax also may apply
to such effectively connected gain. If the gain from the sale or disposition of
your shares is effectively connected with your conduct of a trade or business in
the United States but under an applicable income tax treaty is not attributable
to a permanent establishment you maintain in the United States, your gain may be
exempt from United States tax under the treaty. If you are described in the
second bullet point above, you generally will be subject to United States tax at
a rate of 30% on the gain realized, although the gain may be offset by some
United States source capital losses realized during the same taxable year.
Backup Withholding and Information Reporting
Backup withholding tax and certain information reporting requirements may
apply to certain payments we make to you of principal of and interest (including
OID, if any) or premium (if any) on, and proceeds of your sale or exchange
before maturity of, a debt security. Backup withholding and information
reporting will not apply to payments we make to you if you have provided under
penalties of perjury the required certification of your non-United States person
status discussed above (provided that we do not have actual knowledge or reason
to know that you are a United States Holder) or if you are an exempt recipient,
such as a corporation or a financial institution.
If payments of principal, interest or premium (if any) on a debt security
are made to your custodian, nominee or agent, information reporting may be
required. Information reporting generally will be required on payments made
outside the United States by your custodian, nominee or agent if such custodian,
nominee or agent is:
- a United States person;
- a foreign person 50% or more of whose gross income for certain specified
periods is effectively connected with the conduct of a trade or business
in the United States;
- a foreign partnership that at any time during its taxable year is more
than 50% (by income or capital interest) owned by United States persons
or engaged in the conduct of a United States trade or business;
- a controlled foreign corporation for United States federal income tax
purposes; or
- a United States branch of a foreign bank or a foreign insurance company
for United States federal income tax purposes,
(any of the above, a "U.S. controlled person"). However, information reporting
will not be required in such a case if your custodian, nominee or agent obtains
a withholding certificate or other appropriate documentary evidence establishing
that you are not a United States person and does not have actual knowledge or
reason to know that the information contained therein is false, or you are
exempt recipient eligible for an exemption from information reporting. If
information reporting is required in these circumstances, backup withholding
will be required only if such custodian, nominee or agent has actual knowledge
that you are a United States Holder.
25
If you sell or redeem a debt security through a United States broker or the
United States office of a foreign broker, the proceeds from such sale or
redemption will be subject to information reporting, and backup withholding will
be required unless you provide a withholding certificate or other appropriate
documentary evidence to the broker and such broker does not have actual
knowledge or reason to know that you are a United States Holder, or you are an
exempt recipient eligible for an exemption from information reporting. If you
sell or redeem a debt security through the foreign office of a broker who is a
United States person or a U.S. controlled person, the proceeds from such sale or
redemption will be subject to information reporting unless you provide to such
broker a withholding certificate or other documentary evidence establishing that
you are not a United States Holder and such broker does not have actual
knowledge or reason to know that such evidence is false, or you are an exempt
recipient eligible for an exemption from information reporting. In circumstances
where information reporting by the foreign office of such a broker is required,
backup withholding will be required only if the broker has actual knowledge that
you are a United States Holder.
Estate Tax
A debt security held by an individual who at the time of death is a
non-United States Holder will not be subject to United States federal estate tax
as a result of such individual's death, provided that such individual does not
actually or constructively own 10% or more of the total combined voting power of
all classes of our stock entitled to vote within the meaning of Section
871(h)(3) of the Code and provided that the interest payments with respect to
such debt security are not effectively connected with such individual's conduct
of a United States trade or business. Recently enacted legislation reduces the
maximum federal estate tax rate over an 8-year period beginning in 2002 and
eliminates the tax for estates of decedents dying after December 31, 2009. In
the absence of renewal legislation, these amendments will expire and the federal
estate tax provisions in effect immediately prior to 2002 will be restored for
estates of decedents dying after December 31, 2010.
PLAN OF DISTRIBUTION
We may sell debt securities and debt warrants from time to time:
- directly to purchasers;
- through agents;
- through underwriters or dealers; or
- through a combination of these methods.
GENERAL
Underwriters, dealers, agents and remarketing firms that participate in the
distribution of the offered debt securities and debt warrants may be
"underwriters" as defined in the Securities Act of 1933, as amended. Any
discounts or commissions they receive from us and any profits they receive on
the resale of the offered debt securities and debt warrants may be treated as
underwriting discounts and commissions under the Securities Act. We will
identify any underwriters, agents or dealers and describe their commissions,
fees or discounts in the applicable prospectus supplement. Only underwriters
named in the prospectus supplement are deemed to be underwriters in connection
with this offering.
DIRECT SALES
We may choose to sell the offered debt securities and debt warrants
directly. In this case, no agents or underwriters would be involved.
26
AGENTS
We may designate agents to sell the debt securities and debt warrants. The
agents will agree to use their best efforts to solicit purchasers for the period
of their appointment.
UNDERWRITERS
If underwriters are used in a sale, they will acquire the offered debt
securities and debt warrants for their own account. The underwriters may resell
the debt securities and debt warrants in one or more transactions, including
negotiated transactions. These sales will be made at a fixed public offering
price or at varying prices determined at the time of the sale. We may offer the
debt securities and debt warrants to the public through an underwriting
syndicate or through a single underwriter.
Unless the applicable prospectus supplement states otherwise, the
obligations of the underwriters to purchase the offered debt securities and debt
warrants will be subject to certain conditions contained in an underwriting
agreement that we and the underwriters will enter into. The underwriters will be
obligated to purchase all other debt securities and debt warrants of the series
offered if any of the debt securities and debt warrants are purchased, unless
the applicable prospectus supplement says otherwise. Any discounts or
concessions allowed, re-allowed or paid to dealers may be changed from time to
time.
DEALERS
We may sell the offered securities and debt warrants to dealers as
principals, who may then resell such debt securities and debt warrants to the
public either at varying prices determined by such dealers or at a fixed
offering price agreed to with us.
INSTITUTIONAL PURCHASES
We may authorize agents, underwriters or dealers to solicit certain
institutional investors to purchase offered debt securities and debt warrants on
a delayed delivery basis pursuant to delayed delivery contracts providing for
payment and delivery on a specified future date. There may be limitations on the
minimum amount which may be purchased by any such institutional investor or on
the portion of the aggregate amount of the particular debt securities or debt
warrants that may be sold pursuant to such arrangements. The applicable
prospectus supplement will provide the details of any such arrangement,
including the offering price and commissions payable on the solicitation.
We will enter into such delayed delivery contracts only with institutional
purchasers that we approve. Such institutions may include commercial and savings
banks, insurance companies, pension funds, investment companies and educational
and charitable institutions, as well as other institutions that we may approve.
The obligations of any purchasers pursuant to delayed delivery and payment
arrangements will not be subject to any conditions except that:
- such purchase shall not at the time of delivery be prohibited under the
laws of any jurisdiction in the United States to which such institution
is subject; and
- if the particular debt securities are being sold to underwriters, we will
have sold to such underwriters the total amount of such debt securities
and debt warrants less the amount thereof covered by such arrangements.
Underwriters will not have any responsibility in respect of the validity
of delayed delivery and payment arrangements, our performance or
performance of institutional investors under these arrangements.
REMARKETING TRANSACTIONS
We may also sell offered debt securities and debt warrants that we have
purchased, redeemed or repaid through one or more remarketing firms acting as
principals for their own accounts or as our agents. The applicable prospectus
supplement will identify any remarketing firms and describe the terms of our
27
agreement with them and their compensation. Remarketing firms may be deemed to
be underwriters of the offered securities under the Securities Act.
INDEMNIFICATION
We may have indemnification or contribution agreements with agents,
underwriters, dealers and remarketing firms to indemnify them against certain
civil liabilities, including liabilities under the Securities Act. Agents,
underwriters, dealers and remarketing firms, and their affiliates, may engage in
transactions with, or perform services for, us in the ordinary course of
business. This includes commercial banking and investment banking transactions.
BEARER SECURITIES
Each agent, underwriter, and dealer participating in the distribution of
any debt securities that are issuable as bearer securities will agree that it
will not offer, sell or deliver, directly or indirectly, bearer securities in
the United States or to United States persons, other than qualifying financial
institutions, in connection with the original issuance of such debt securities.
MARKET MAKING, STABILIZATION AND OTHER TRANSACTIONS
Each series of offered debt securities and debt warrants will be a new
issue and will have no established trading market. We may elect to list any
series of offered debt securities on an exchange. Any underwriters that we use
in the sale of offered debt securities and debt warrants may make a market in
such securities, but may discontinue such market making at any time without
notice. Therefore, we cannot assure that the debt securities and debt warrants
will have a liquid trading market.
Any underwriter may engage in stabilizing transactions, syndicate covering
transactions and penalty bids. Stabilizing transactions permit bids to purchase
the underlying security so long as the stabilizing bids do not exceed a
specified maximum. Syndicate covering transactions involve purchases of the
securities in the open market after the distribution has been completed in order
to cover syndicate short positions. Penalty bids permit the underwriters to
reclaim a selling concession from a syndicate member when the securities
originally sold by such syndicate member are purchased in a syndicate covering
transaction to cover syndicate short positions. Such stabilizing transactions,
syndicate covering transactions and penalty bids may cause the price of the
securities to be higher than it would otherwise be in the absence of such
transactions. The underwriters may, if they commence these transactions,
discontinue them at any time.
EXPERTS
Our combined financial statements at December 31, 1999 and 2000, and for
each of the three years in the period ended December 31, 2000, and the related
financial statement schedule incorporated by reference in this prospectus from
our Current Report on Form 8-K, dated August 10, 2001, have been so incorporated
in reliance on the reports of PricewaterhouseCoopers LLP, independent
accountants, given on the authority of said firm as experts in auditing and
accounting.
The consolidated financial statements of Nabisco at December 31, 1998 and
1999, and for each of the three years in the period ended December 31, 1999,
incorporated by reference in this prospectus from our Current Report on Form
8-K, dated August 10, 2001, have been audited by Deloitte & Touche LLP,
independent auditors, and have been so incorporated in reliance upon the reports
of such firm given upon their authority as experts in accounting and auditing.
LEGAL OPINIONS
Hunton & Williams, New York, New York, will issue an opinion as to the
legality of the debt securities and debt warrants that we are offering in this
prospectus. We will also provide in the applicable prospectus supplement the
name of counsel that will issue an opinion as to certain legal matters for any
agents, underwriters or dealers.
28
PRINCIPAL OFFICE OF KRAFT FOODS INC.
Three Lakes Drive
Northfield, Illinois 60093
TRUSTEE AND PRINCIPAL AGENT
The Chase Manhattan Bank
270 Park Avenue
New York, New York 10017
LUXEMBOURG PAYING AGENT AND TRANSFER AGENT
Chase Manhattan Bank Luxembourg S.A.
5, Rue Plaetis
L-2338 Luxembourg
LEGAL ADVISORS
TO KRAFT TO KRAFT TO THE UNDERWRITERS
AS TO MATTERS OF UNITED AS TO MATTERS OF UNITED STATES AS TO MATTERS OF UNITED
STATES LAW FEDERAL INCOME TAX LAW STATES LAW
Hunton & Williams Sutherland Asbill & Brennan Simpson Thacher & Bartlett
200 Park Avenue LLP 425 Lexington Avenue
New York, New York 10166 1275 Pennsylvania Avenue NW New York, New York 10017
Washington, D.C. 20004
INDEPENDENT ACCOUNTANTS
TO KRAFT
PricewaterhouseCoopers LLP
200 E. Randolph Drive
Chicago, Illinois 60601
LISTING AGENT
Banque Generale du Luxembourg
50, avenue J.F. Kennedy
L-2951 Luxembourg
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
KRAFT FOODS INC.
$1,250,000,000
4 5/8% NOTES DUE 2006
$2,000,000,000
5 5/8% NOTES DUE 2011
$750,000,000
6 1/2% NOTES DUE 2031
[KRAFT LOGO]
JPMORGAN LEHMAN BROTHERS
ABN AMRO INCORPORATED
BNP PARIBAS
DEUTSCHE BANC ALEX. BROWN
HSBC
SALOMON SMITH BARNEY
SG INVESTMENT BANKING
BANC ONE CAPITAL MARKETS, INC.
ORMES CAPITAL MARKETS, INC.
MURIEL SIEBERT & CO., INC.
THE WILLIAMS CAPITAL GROUP, L.P.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------