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FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST
EVENT REPORTED): JULY 22, 1996
CHIQUITA BRANDS INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
NEW JERSEY 1-1550 04-1923360
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
250 EAST FIFTH STREET, CINCINNATI, OHIO 45202
(Address of principal executive offices)
Registrant's telephone number, including area code: (513) 784-8000
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INFORMATION TO BE INCLUDED IN THE REPORT
Items 1, 2, 3, 4, 6 and 8 are not applicable and are omitted from this Report.
ITEM 5. OTHER EVENTS.
On July 22, 1996, Chiquita Brands International, Inc. (the "Company")
entered into a Terms Agreement relating to 2,000,000 shares of $3.75 Convertible
Preferred Stock, Series B (the "Preferred Stock"), plus an additional 300,000
shares of Preferred Stock solely to cover over-allotments. Further information
concerning the Preferred Stock is provided in the exhibits filed with this
Current Report on Form 8-K.
On July 23, 1996, the Company entered into a Terms Agreement relating
to $150,000,000 aggregate principal amount of 10-1/4% Senior Notes due 2006
(the "Senior Notes"). Further information concerning the Senior Notes is
provided in the exhibits filed with this Current Report on Form 8-K.
The Senior Notes and the Preferred Stock are a portion of the
securities registered on the Company's Form S-3 Registration Statement No.
333-00789.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements of Businesses Acquired.
Not Applicable.
(b) Pro Forma Financial Information.
Not Applicable.
(c) Exhibits
The following exhibits are filed with or incorporated by reference
into this Current Report on Form 8-K:
EXHIBIT NO. DESCRIPTION
99.1 Terms Agreement dated July 22, 1996 relating to the Preferred Stock
between the Company and the Underwriters for the Preferred Stock.
2
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99.2 Form of Certificate of Amendment to the Company's Second Restated
Certificate of Incorporation establishing the terms of the Preferred
Stock.
99.3 Prospectus Supplement dated July 22, 1996, relating to the Preferred
Stock and Prospectus dated May 1, 1996, filed pursuant to Rule
424(b)(5) under the Securities Act of 1933 and incorporated by
reference herein.
99.4 Terms Agreement dated July 23, 1996 relating to the Senior Notes
between the Company and the Underwriters for the Senior Notes.
99.5 Form of Second Supplemental Indenture dated as of July 15, 1996 to
Indenture dated as of February 15, 1994 between the Company and The
Fifth Third Bank, as Trustee.
99.6 Terms of the Senior Notes approved by the Executive Committee of the
Board of Directors of the Company.
99.7 Prospectus Supplement dated July 23, 1996, relating to the Senior
Notes and Prospectus dated May 1, 1996, filed pursuant to Rule
424(b)(5) under the Securities Act of 1933 and incorporated by
reference herein.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: July 23, 1996 CHIQUITA BRANDS INTERNATIONAL, INC.
By: /s/ William A. Tsacalis
--------------------------------------
William A. Tsacalis
Vice President and Controller
4
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EXHIBIT 99.1
CHIQUITA BRANDS INTERNATIONAL, INC.
("Company")
$3.75 Convertible Preferred Stock, Series B
TERMS AGREEMENT
July 22, 1996
CHIQUITA BRANDS INTERNATIONAL, INC.
250 East Fifth Street
Cincinnati, Ohio 45202
Attention: Gerald R. Kondritzer
Vice President and Treasurer
Dear Sirs:
On behalf of the several Underwriters named in Schedule A hereto and
for their respective accounts, we offer to purchase, on and subject to the terms
and conditions of the Underwriting Agreement Basic Provisions relating to the
securities of Chiquita Brands International, Inc. dated January, 1996
("Underwriting Agreement"), the following securities ("Securities") on the
following terms:
Equity Securities
Title: $3.75 Convertible Preferred Stock, Series B, par value $1.00 per share
(the "Series B Preferred Shares")
Number of Shares to be Issued: 2,000,000 shares
Voting Rights: As described in the Prospectus Supplement, dated July 22, 1996,
pertaining to the Series B Preferred Shares (the "Prospectus Supplement")
Preferred Stock Dividends: Cash dividends to accrue at an annual rate of $3.75
per share, cumulative and payable quarterly in arrears on March 7, June 7,
September 7 and December 7, commencing September 7, 1996, except that if any
such date is not a business day, then such dividend will be payable on the next
succeeding business day
Optional Redemption: Not applicable
Mandatory Redemption/Sinking Fund: Not applicable
Liquidation Preference: $50.00 per share plus dividends in arrears, if any
Name of Exchange or Market: New York Stock Exchange
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2
Period Designated Pursuant to Paragraph 5(m)(i) of the
Underwriting Agreement: 90 days
Period Designated Pursuant to Paragraph 8(j) of the
Underwriting Agreement: 90 days
Conversion Provisions: As described in the Prospectus
Supplement
Other Terms
Price to Public: $50.00 per share
Underwriting Discounts and Commission: $1.625 per share; $3,250,000 total
Proceeds to Company: $48.375 per share; $96,750,000 total
Over-Allotment Option: 300,000 shares
Delivery Date: July 26, 1996
Method of Payment: Wire transfer of immediately available funds
Name of Transfer Agent and Registrar: Securities Transfer Company
Names and Addresses of Representatives:
Lehman Brothers Inc.
3 World Financial Center
New York, New York 10285
Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Prudential Securities Incorporated
One New York Plaza
New York, New York 10292
SBC Warburg Inc.
787 Seventh Avenue
New York, New York 10019
The respective shares of the Securities to be purchased by each of the
Underwriters are set forth opposite their names in Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated herein by
reference except that (i) Schedules I and II thereto are hereby deleted in their
entirety and replaced by Schedules B and C, respectively, hereto and (ii)
certain issuances of common stock by the Company consented to by Lehman
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3
Brothers Inc. shall be excluded from the restrictions contained in Paragraph
5(m)(i) of the Underwriting Agreement.
In addition to the conditions set forth in Paragraph 8 to the
Underwriting Agreement, the respective obligations of the Underwriters are
subject to their receipt of (i) the opinion of McCarter & English, New Jersey
counsel to the Company, addressed to the Underwriters and dated the Delivery
Date and (ii) letters from each executive officer and director of the Company
addressed to the Underwriters in form and substance satisfactory to counsel to
the Underwriters. If Option Securities are purchased, at any date after the
Delivery Date as specified herein, the respective obligations of the
Underwriters are subject to their receipt of an additional opinion from such
counsel, addressed to the Underwriters and dated such later date, confirming
that the statements expressed as of the Delivery Date in such opinion remain
valid as of such later date, in form and substance to be mutually agreed upon by
such New Jersey counsel and the Representatives.
The Securities will be made available for checking and packaging at the
office of Lehman Brothers Inc. at least 24 hours prior to the Delivery Date.
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4
Please signify your acceptance of our offer by signing the enclosed
response to us in the space provided and returning it to us.
Very truly yours,
LEHMAN BROTHERS INC.
BEAR, STEARNS & CO. INC.
PRUDENTIAL SECURITIES INCORPORATED
SBC WARBURG INC.
As Underwriters
By: LEHMAN BROTHERS INC.
By: /s/ Michael Konigsberg
-------------------------------
Authorized Representative
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To: LEHMAN BROTHERS INC. Date: July 22, 1996
BEAR, STEARNS & CO. INC.
PRUDENTIAL SECURITIES INCORPORATED
SBC WARBURG INC.
As Underwriters
c/o Lehman Brothers Inc.
3 World Financial Center
New York, New York 10285
We accept the offer contained in your letter, dated July 22, 1996,
relating to 2,000,000 shares of our Convertible Preferred Stock, Series B, par
value $1.00 per share (the "Terms Agreement"). We also confirm that, to the best
of our knowledge after reasonable investigation, the representations and
warranties of the undersigned in the Underwriting Agreement Basic Provisions
filed as an exhibit to the undersigned's registration statement on Form S-3 (No.
333-00789) (together with the Terms Agreement, the "Underwriting Agreement") are
true and correct, no stop order suspending the effectiveness of the Registration
Statement (as defined in the Underwriting Agreement) or of any part thereof has
been issued and, to the knowledge of the undersigned, no proceedings for that
purpose have been instituted or are contemplated by the Securities and Exchange
Commission and, subsequent to the respective dates of the most recent financial
statements in the Prospectus (as defined in the Underwriting Agreement), there
has been no material adverse change in the financial position or results of
operations of the undersigned and its subsidiaries except as set forth in or
contemplated by the Prospectus.
Very truly yours,
CHIQUITA BRANDS INTERNATIONAL, INC.
By: /s/ Gerald R. Kondritzer
-------------------------------------
Name: Gerald R. Kondritzer
Title: Vice President and Treasurer
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SCHEDULE A
<TABLE>
<CAPTION>
Number of
Underwriter Shares
----------- ------
<S> <C>
Lehman Brothers Inc........................................... 500,000
Bear, Stearns & Co. Inc....................................... 500,000
Prudential Securities Incorporated............................ 500,000
SBC Warburg Inc............................................... 500,000
---------
Total............................................. 2,000,000
=========
</TABLE>
<PAGE> 7
SCHEDULE B
SIGNIFICANT SUBSIDIARIES
SUBSIDIARY JURISDICTION OF INCORPORATION
Caribbean Enterprises, Inc. Delaware
Great White Fleet Ltd. Bermuda
DSF Ltd. Bermuda
Chiquita Brands, Inc. Delaware
Chiquita Europe B.V. Netherlands
Chiquita Banana Company B.V. Netherlands
Chiriqui Land Company Delaware
Chiquita International Trading Company Delaware
M.M. Holding Ltd. Bermuda
Chiquita International Limited Bermuda
Friday Canning Corporation Wisconsin
Maritrop Trading Corporation Delaware
Tela Railroad Company Delaware
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SCHEDULE C
DESIGNATED SUBSIDIARIES
Caribbean Enterprises, Inc.
Great White Fleet Ltd.
Chiquita Brands, Inc.
Chiriqui Land Company
Chiquita International Trading Company
Chiquita International Limited
Friday Canning Corporation
Maritrop Trading Corporation
Tela Railroad Company
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Exhibit 99.2
CERTIFICATE OF AMENDMENT
TO THE
SECOND RESTATED CERTIFICATE OF INCORPORATION
OF
CHIQUITA BRANDS INTERNATIONAL, INC.
To: Secretary of State
State of New Jersey
Pursuant to the provisions of N.J.S. 14A:7-2(2) and 14A:9-1, the
undersigned corporation, Chiquita Brands International, Inc. (the
"Corporation"), executes the following Certificate of Amendment to its Second
Restated Certificate of Incorporation (the "Certificate of Incorporation").
1. The name of the corporation is Chiquita Brands International, Inc.
2. The following resolution, deleting the designation of a class of
securities, was duly adopted by the Board of Directors of the Corporation
by unanimous written consent as of the 15th day of July, 1996, pursuant to
the authority vested in the Board of Directors by the Certificate of
Incorporation:
WHEREAS, none of the Corporation's Mandatorily Exchangeable
Cumulative Preference Stock, Series C (the "Series C Stock"), is
currently outstanding and none may be issued in the future because
all of such shares have converted in accordance with the terms of
the Series C Stock to Capital Stock, par value $0.33 per share
("Common Stock"); therefore, the Board of Directors desires to
delete the classification and terms of the Series C Stock from the
Corporation's Second Restated Certificate of Incorporation.
RESOLVED, that the Corporation's Second Restated Certificate of
Incorporation is hereby amended to delete the designation of the
class of securities titled Mandatorily Exchangeable Cumulative
Preference Stock, Series C, and eliminate Subsection E. of Section
IV of the Second Restated Certificate of Incorporation titled
"Special Provisions Applicable to the Series C Preference Stock;"
and the proper officers of the Corporation are authorized to execute
and file, as necessary, any documents or certificates with the
Secretary of State of New Jersey to effect such amendment.
3. The following resolutions, establishing and designating a new series
of shares and fixing and determining the relative rights and preferences
thereof, were duly adopted by the Executive Committee of the Board of
Directors of the Corporation as of the 22nd day of July, 1996, pursuant to
the authority vested in the Board of Directors by the Certificate of
Incorporation, exercised on behalf of the Board of Directors by the
Executive Committee pursuant to resolutions of the Board of Directors so
authorizing it to act:
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RESOLVED, that pursuant to the authority expressly vested in the Executive
Committee by resolution of the Board of Directors authorizing the Executive
Committee to exercise the authority of the Board of Directors, and pursuant
to the Corporation's Second Restated Certificate of Incorporation, the
Executive Committee hereby classifies Two Million, Three Hundred Thousand
(2,300,000) shares of the Corporation's Non-Voting Cumulative Preferred
Stock, par value $1.00 per share, as a new series designated "$3.75
Convertible Preferred Stock, Series B" (the "Series B Preferred Stock").
RESOLVED, that the terms and conditions of the Series B Preferred Stock,
including its rights, preferences, privileges, voting powers, restrictions,
qualifications, limitations, and other terms and conditions shall be as set
forth in Exhibit 1 attached hereto.
RESOLVED, that the Corporation's Second Restated Certificate of
Incorporation is hereby amended as follows:
(a) Section IV of such certificate is amended to add a new
Subsection E titled "Special Provisions Applicable to Series B Preferred
Stock," in the form attached hereto as Exhibit 1; and
(b) paragraph (g) of Subsection D titled "Special Provisions Applicable
to Series A Preferred Stock" of Section IV of the Second Restated
Certificate of Incorporation is amended to read in its entirety as follows:
"(g) Equal Rank.
All shares of Series A Preferred Stock shall be identical in
all respects, and all shares of Series A Preferred Stock
shall be of equal rank with shares of $3.75 Convertible
Preferred Stock, Series B, in respect of the preference as to
dividends and to payments upon the Liquidation of the
Corporation."
and, the proper officers of the Corporation are authorized to execute and
file, as necessary, any documents or certificates with the New Jersey
Secretary of State to effect such amendments.
4. The resolution set forth in numbered paragraph 2 was duly adopted by the
Board of Directors of the Corporation by unanimous written consent as of
the 15th day of July, 1996, and the resolutions set forth in numbered
paragraph 3 were adopted by unanimous written consent of the Executive
Committee of the Board of Directors as of July 22, 1996.
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5. The Certificate of Incorporation is further amended so that the
designation and number of shares of each class and series acted upon in the
resolutions, and the relative rights, preferences and limitations of each
such class and series are as stated in Exhibit 1 attached hereto, which is
the same exhibit referred to in the foregoing resolutions.
IN WITNESS WHEREOF, the undersigned has signed this Certificate of
Amendment to the Certificate of Incorporation this __th day of July, 1996.
CHIQUITA BRANDS INTERNATIONAL, INC.
By: ___________________________________
William A. Tsacalis
Vice President and Controller
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EXHIBIT 1
SUBSECTION E. SPECIAL PROVISIONS APPLICABLE TO SERIES B PREFERRED
STOCK
There is hereby established a series of the Corporation's Non-Voting
Cumulative Preferred Stock , $1.00 par value, which shall be designated "$3.75
Convertible Preferred Stock, Series B" ("Series B Preferred Stock") and shall
consist of Two Million, Three Hundred Thousand (2,300,000) shares, and no more.
The relative, participating, optional and other special rights and the
qualifications, limitations and restrictions of the Series B Preferred Stock
shall be as follows:
(a) Dividends.
(i) The holders of outstanding shares of the Series B Preferred Stock
shall be entitled to receive (subject to the rights of holders of shares of
$2.875 Non-Voting Cumulative Preferred Stock, Series A, or any series of
Non-Voting Cumulative Preferred Stock or Series Preference Stock and/or any
other class or series of preferred or preference stock which the Corporation may
in the future issue which ranks senior to or on a parity with the Series B
Preferred Stock as to dividends), when, as and if declared by the Board of
Directors out of funds legally available therefor, cumulative preferential cash
dividends at the per share rate of $0.9375 per quarter and no more
("Preferential Dividends"), payable on the seventh (7th) day of March, June,
September and December of each year (each such date being hereinafter referred
to as a "Preferential Dividend Payment Date") commencing September 7, 1996;
provided, however, that the Preferential Dividend payable on September 7, 1996
(the "Initial Preferential Dividend") with respect to any share of Series B
Preferred Stock outstanding on the record date for the Initial Preferential
Dividend shall be computed in accordance with Subsection E(a)(iv). If September
7, 1996 or any other Preferential Dividend Payment Date shall not be a business
day, then the Preferential Dividend Payment Date shall be on the next succeeding
business day. Each such dividend will be payable to holders of record as they
appear on the stock books of the Corporation on such record date, not less than
10 nor more than 60 days preceding the Preferential Dividend Payment Date, as
shall be fixed by the Board of Directors. Dividends on the Series B Preferred
Stock shall accrue from the date of issuance of the Series B Preferred Stock,
and dividends accrued as of each Preferential Dividend Payment Date shall
accumulate to the extent not paid on such date. Accumulated unpaid dividends
shall not bear interest. All payments of Preferential Dividends to holders of
Series B Preferred Stock shall be rounded up to the nearest whole cent.
(ii) So long as any shares of Series B Preferred Stock are outstanding:
(A) no dividend (other than a dividend or distribution paid in shares
of, or warrants or rights to subscribe for or purchase shares of, Capital
Stock or any other stock of the Corporation ranking junior to the Series B
Preferred Stock as to dividends and upon liquidation) shall be declared or
paid or set aside for payment or other distribution declared or made upon
the Capital Stock or upon any other stock of the Corporation ranking junior
to or (except as provided in the following sentence) on a parity with the
Series B Preferred Stock as to dividends,
(B) nor shall any Capital Stock nor any other stock of the Corporation
ranking junior to or on a parity with the Series B Preferred Stock as to
dividends be redeemed,
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purchased or otherwise acquired for any consideration (or any moneys be
paid to or made available for a sinking fund for the redemption of any
shares of any such stock) by the Corporation (except by conversion into or
exchange for stock of the Corporation ranking junior to the Series B
Preferred Stock as to dividends and upon liquidation),
(C) nor shall the Corporation purchase or otherwise acquire (except
pursuant to a purchase or exchange offer made on the same terms to all
holders of shares of Series B Preferred Stock), or convert in part, but not
in whole, into shares of Capital Stock at the option of the Corporation
pursuant to Subsection E(c)(ii) outstanding shares of Series B Preferred
Stock,
unless, in each case, the full Preferential Dividends, if any, accumulated on
all outstanding shares of the Series B Preferred Stock through the most recent
Preferential Dividend Payment Date shall have been paid or deposited for payment
or contemporaneously are declared and paid or deposited for payment. When
dividends have not been paid in full upon the shares of Series B Preferred
Stock, all dividends and other distributions declared upon the Series B
Preferred Stock and any other shares of the Corporation ranking on a parity as
to dividends and such other distributions with the shares of Series B Preferred
Stock shall be declared pro rata so that the amount of dividends and other
distributions declared and paid per share on the Series B Preferred Stock and
such other shares shall in all cases bear to each other the same ratio that
accumulated unpaid dividends per share on the shares of Series B Preferred Stock
and such other shares bear to each other. Holders of the shares of Series B
Preferred Stock shall not be entitled to any dividends, whether payable in cash,
property or stock, in excess of full cumulative dividends, as herein provided.
(iii) Any dividend payment made on shares of Series B Preferred Stock
shall first be credited against the earliest accumulated unpaid dividend
due with respect to shares of Series B Preferred Stock.
(iv) Any dividends payable for any period greater or less than a full
quarterly dividend period shall be computed on the basis of a 360-day year
consisting of four 90-day quarters or twelve 30-day months.
(b) Liquidation.
(i) Upon any dissolution, liquidation or winding up of the affairs of
the Corporation, whether voluntary or involuntary (collectively, a
"Liquidation"), the holders of shares of Series B Preferred Stock shall be
entitled to receive out of the assets of the Corporation available for
distribution to shareholders, after payment of all debts and other
liabilities of the Corporation and all liquidation preferences of holders
of shares of any class or series of preferred or preference stock which the
Corporation may issue in the future which ranks prior to the Series B
Preferred Stock with respect to liquidation rights, but before any
distribution or payment is made to holders of Capital Stock of the
Corporation or on any other shares of the Corporation ranking junior to the
shares of Series B Preferred Stock upon liquidation, liquidating
distributions in the amount of $50 per share, plus an amount equal to all
accumulated unpaid Preferential Dividends thereon to the date of
Liquidation, and no more. If upon any Liquidation the amounts payable with
respect to the Series B Preferred Stock and any other shares of the
Corporation ranking as to any such distribution on a parity with the Series
B Preferred Stock are not paid in full, the holders of shares of Series B
Preferred Stock and of such other shares will share ratably in any such
distribution of assets of the Corporation in proportion to the full
respective distributable amounts to which they are entitled. After payment
of the full amount of the liquidating distribution to which they are
entitled, the holders of
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shares of Series B Preferred Stock will not be entitled to any further
participation in any distribution or payments by the Corporation.
(ii) Neither the merger nor consolidation of the Corporation into or
with any other corporation or other entity, nor the merger or consolidation
of any other corporation or other entity into or with the Corporation, nor
a sale, transfer or lease of all or any part of the assets of the
Corporation for cash, securities or other property, shall be deemed to be a
Liquidation for purposes of this Subsection E(b).
(c) Conversions.
(i) Automatic Conversion Upon the Occurrence of Certain Events.
Immediately prior to the effectiveness of a merger or consolidation of the
Corporation that results in the conversion or exchange of the Capital Stock into
or for, or that results in the holders of Capital Stock obtaining the right to
receive, cash, securities or other assets, whether of the Corporation or of any
other person or entity (any such merger or consolidation is referred to herein
as a "Merger or Consolidation"), other than a Merger or Consolidation in which
the Series B Preferred Stock remains outstanding and holders of Series B
Preferred Stock obtain the right to receive upon conversion of their shares into
Capital Stock or any other security the same cash, securities or other assets
that they would have received with respect to the maximum number of shares of
Capital Stock which such holders would have received (other than in payment of
accumulated unpaid dividends) upon conversion of their shares of Series B
Preferred Stock (at the option of the Corporation pursuant to clause (ii) of
this Subsection E(c) or at the option of the holder pursuant to clause (iii) of
this Subsection E(c), whichever is greater) immediately prior to the
effectiveness of the Merger or Consolidation, each outstanding share of Series B
Preferred Stock shall automatically convert into the maximum number of shares of
Capital Stock which such holders would have received (other than in payment of
accumulated unpaid dividends) upon conversion of their shares of Series B
Preferred Stock (at the option of the Corporation pursuant to clause (ii) of
this Subsection E(c) or at the option of the holder pursuant to clause (iii) of
this Subsection E(c), whichever is greater), plus the right to receive an amount
of cash equal to the accumulated unpaid dividends on such share of Series B
Preferred Stock to and including the immediately preceding Preferential Dividend
Payment Date.
(ii) Conversion at the Option of the Corporation. At any time and from
time to time on and after September 10, 1999, and upon notice given as provided
herein, the Corporation may convert, in whole or in part, the outstanding shares
of Series B Preferred Stock; provided, however, that prior to September 10,
2003, the Corporation may exercise its right to convert only if the "Current
Market Price" (as defined in Subsection E(c)(viii)) of the Capital Stock on the
"Notice Date" (as defined in Subsection E(c)(viii)) with respect to such
conversion shall not be less than $7.00 per share, subject to adjustment as
provided below (the "Strike Price"). On the date fixed for conversion, each
outstanding share of Series B Preferred Stock to be converted pursuant to this
Subsection E(c)(ii) shall convert into:
(A) the lesser of (x) that number of shares of Capital Stock as shall
equal the applicable amount set forth in the table below divided by the
Current Market Price (as defined in Subsection E(c)(viii)) per share of
Capital Stock on the date of conversion:
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<TABLE>
<CAPTION>
If converted during Current Market Value
the 12-month period of Common Stock
beginning September 10: to be issued
----------------------- ------------
<S> <C>
1999................................. $51.50
2000................................. $50.75
2001 and thereafter.................. $50.00
</TABLE>
or (y) 10 shares of Capital Stock, subject to adjustment as provided below
("the Maximum Conversion Rate"); plus
(B) the right to receive an amount of cash equal to the accumulated
unpaid dividends on such share of Series B Preferred Stock to and including
the immediately preceding Preferential Dividend Payment Date; plus
(C) the right to receive an amount of cash equal to dividends accrued
since the immediately preceding Preferential Dividend Payment Date,
calculated in accordance with Subsection E(a)(iv); provided, however, that
no amount shall be due and payable pursuant to this clause (C) if the
conversion date follows a record date for the payment of a Preferential
Dividend and precedes the next succeeding Preferential Dividend Payment
Date.
The Maximum Conversion Rate and the Strike Price shall each be proportionately
adjusted when, as and if the Conversion Rate shall be adjusted pursuant to
Subsection E(c)(iv).
(iii) Conversion at the Option of the Holder. At any time and from time
to time after the 60th day following the final closing of the initial public
offering of Series B Preferred Stock, each holder of Series B Preferred Stock
shall have the right to convert, in whole or in part, the outstanding shares of
Series B Preferred Stock; provided, however, that if the shares of Series B
Preferred Stock to be converted have been earlier called for conversion at the
option of the Corporation, the right of the holder to convert such shares will
terminate as of 5:00 P.M., New York City time, on the business day immediately
preceding the date fixed for such conversion. Each outstanding share of Series B
Preferred Stock to be converted at the option of the holder shall convert into
that number of shares of Capital Stock as shall be determined in accordance with
the Conversion Rate in effect on the date upon which the certificates
representing shares of Series B Preferred Stock are surrendered for conversion,
plus the right to receive an amount of cash equal to the accumulated unpaid
dividends on such share of Series B Preferred Stock to be converted to and
including the immediately preceding Preferential Dividend Payment Date. In order
to convert shares of Series B Preferred Stock into Capital Stock the holder
thereof shall surrender, at the office in the United States designated by the
Corporation in writing from time to time for registration of transfers and
conversion, the certificate or certificates therefor, duly endorsed to the
Corporation or in blank, and give written notice to the Corporation at said
office that such holder elects to convert such shares and shall state in writing
therein the name or names (with addresses) in which such holder wishes the
certificate or certificates for Capital Stock to be issued. Shares of Series B
Preferred Stock surrendered for conversion after the close of business on a
record date for payment of Preferential Dividends and before 9:00 A.M., New York
time, on the next succeeding Preferential Dividend Payment Date must be
accompanied by payment of an amount equal to the Preferential Dividend thereon
which is to be paid on such Preferential Dividend Payment Date. Shares of Series
B Preferred Stock shall be deemed to have been converted on the date of the
surrender of such certificate or certificates for shares for conversion as
provided above, and the person or persons entitled to receive the Capital Stock
issuable upon such conversion shall be treated for all purposes as the record
holder or holders
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of such Capital Stock on such date. As soon as practicable on or after the date
of conversion as aforesaid, the Corporation will issue and deliver a certificate
or certificates for the number of full shares of Capital Stock issuable upon
such conversion, together with cash for any fraction of a share, as provided in
Subsection E(c)(vi), to the person or persons entitled to receive the same.
(iv) Conversion Rate; Adjustments. The Conversion Rate to be used to
determine the number of shares of Capital Stock to be delivered on the
conversion of the Series B Preferred Stock into shares of Capital Stock pursuant
to Subsection E(c)(iii) shall be initially 3.3333 shares of Capital Stock for
each share of Series B Preferred Stock; provided, however, that such Conversion
Rate shall be subject to adjustment from time to time as provided below in this
Subsection E(c)(iv). All adjustments to the Conversion Rate shall be calculated
in 1/100ths of a share of Capital Stock. No adjustment of less than one percent
(1%) of the Conversion Rate shall be required; however, any such adjustment not
made due to such limitation shall be carried forward and shall be taken into
account in any subsequent adjustment. Such rate in effect at any time is herein
called the "Conversion Rate."
(A) If the Corporation shall:
(1) pay a dividend or make a distribution with respect to the
Capital Stock in shares of Capital Stock (other than a dividend or
distribution which is also paid to holders of Series B Preferred Stock
and in which such holders shall receive, with respect to each share of
Series B Preferred Stock, the same number of shares of Capital Stock as
shall be distributed with respect to the maximum number of shares of
Capital Stock into which such share of Preferred Stock shall then be
convertible at the option of the Corporation pursuant to Subsection
E(c)(ii) or at the option of the holder pursuant to Subsection
E(c)(iii), whichever is greater),
(2) subdivide or split its outstanding shares of Capital Stock,
(3) combine its outstanding shares of Capital Stock into a
smaller number of shares, or
(4) issue by reclassification of its shares of Capital Stock any
shares of Capital Stock of the Corporation,
then, in any such event, the Conversion Rate shall be adjusted by
multiplying the Conversion Rate in effect immediately prior to the date of
such event by a fraction, of which the numerator shall be the number of
outstanding shares of Capital Stock immediately following such event, and
of which the denominator shall be the number of outstanding shares of
Capital Stock immediately prior to such event. Such adjustment shall become
effective at the opening of business on the business day next following the
record date for determination of shareholders entitled to receive such
dividend or distribution in the case of a dividend or distribution and
shall become effective immediately after the effective date in case of a
subdivision, split, combination, or reclassification.
(B) If the Corporation shall issue rights or warrants to all holders of its
outstanding shares of Capital Stock entitling them to subscribe for or
purchase shares of Capital Stock at a price per share less than the Current
Market Price on the record date fixed for determination of stockholders
entitled to receive such rights or warrants (in each case other than
instances when such rights or warrants are also issued to holders of shares
of Series
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B Preferred Stock in which such holders shall receive, with respect to each
share of Series B Preferred Stock, the same rights or warrants as shall be
issued with respect to the maximum number of shares of Capital Stock into
which each share of Preferred Stock shall then be convertible at the option
of the Corporation pursuant to Subsection E(c)(ii) or at the option of the
holder pursuant to Subsection E(c)(iii), whichever is greater), then the
Conversion Rate shall be adjusted by multiplying the Conversion Rate in
effect at the opening of business on the date after such record date by a
fraction, of which the numerator shall be the number of shares of Capital
Stock outstanding at the close of business on such record date plus the
total number of additional shares of Capital Stock issuable upon exercise
of such rights or warrants, and of which the denominator shall be the
number of shares of Capital Stock outstanding on the close of business on
such record date plus the number of shares that the aggregate exercise
price of the total number of rights or warrants so issued would purchase at
such Current Market Price. Such adjustment shall become effective
immediately after the opening of business on the day following the record
date fixed for determination of stockholders entitled to receive such
rights or warrants. To the extent that shares of Capital Stock are not
delivered after the expiration or termination of such rights or warrants,
the Conversion Rate shall be readjusted to the Conversion Rate that would
then be in effect had the adjustments made upon the issuance of such rights
or warrants been made on the basis of delivery of only the number of shares
of Capital Stock actually delivered. In the event that such rights or
warrants are not so issued, the Conversion Rate shall again be adjusted to
be the Conversion Rate that would then be in effect if such date fixed for
the determination of stockholders entitled to receive such rights or
warrants had not been fixed. In determining whether any rights or warrants
entitle the holders to subscribe for or purchase shares of Capital Stock at
less than such Current Market Price, and in determining the aggregate
exercise price of such rights or warrants, there shall be taken into
account any consideration received for such rights or warrants, the value
of such consideration, if other than cash, to be determined by the Board of
Directors.
(C) If the Corporation shall pay a dividend or make a distribution to all
holders of its Capital Stock of evidences of its indebtedness or other
assets (including securities of the Corporation but excluding dividends or
other distributions paid exclusively in cash and excluding any portion of
distributions and dividends to the extent referred to in clauses (A) or
(B) above), (in each case other than a dividend or distribution which is
also paid or made to holders of Series B Preferred Stock in which such
holders shall receive, with respect to each share of Series B Preferred
Stock, the same evidences of indebtedness or other assets as shall be paid
or distributed with respect to the maximum number of shares of Capital
Stock into which each share of Preferred Stock shall then be convertible
at the option of the Corporation pursuant to Subsection E(c)(ii) or at the
option of the holder pursuant to Subsection E(c)(iii), whichever is
greater), then in each such case the Conversion Rate shall be adjusted by
multiplying the Conversion Rate in effect immediately prior to the date of
such distribution by a fraction, of which the numerator shall be the
Current Market Price per share of Capital Stock on the record date
mentioned below, and of which the denominator shall be such Current Market
Price per share of Capital Stock less the fair market value (as determined
by the Board of Directors of the Corporation, whose determination shall be
conclusive) as of such record date of the portion of the assets or
evidences of indebtedness so distributed, applicable to one share of
Capital Stock. Such adjustment shall become effective on the opening of
business on the business day next following the record date for the
determination of shareholders entitled to receive such distribution.
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<PAGE> 10
(D) If the Corporation shall pay a dividend or make a distribution
consisting exclusively of cash (excluding any cash portion of distributions
referred to in Subsection E(c)(iv)(C)) (collectively, "All-Cash
Distributions") to all holders of Capital Stock, then, to the extent such
All-Cash Distribution, combined with (A) all other All-Cash Distributions
made within the preceding 12 months in respect of which no adjustment has
been made, plus (B) any cash and the fair market value of other
consideration payable in respect of any Corporation Tender Offer (as
defined in Subsection E(c)(viii)) concluded within the preceding 12 months
in respect of which no adjustment has been made, exceed ten percent (10%)
of the product of (x) the Current Market Price of the Capital Stock, times
(y) the number of issued and outstanding shares of Capital Stock (assuming
the conversion into Capital Stock of each outstanding security or debt
instrument which is by its terms convertible into Capital Stock at the
option of the holder, without the payment of additional consideration
therefor, regardless of whether or not such security or debt instrument
shall be so convertible on such date), each as measured on the record date
for such All-Cash Distribution (such excess being herein called the "Excess
Distribution"), then the Conversion Rate shall be adjusted by multiplying
the Conversion Rate in effect immediately prior to the date of such
All-Cash Distribution by a fraction, of which the numerator shall be the
Current Market Price of the Capital Stock, and of which the denominator
shall be the Current Market Price of the Capital Stock less the quotient of
the Excess Distribution divided by the number of issued and outstanding
shares of Capital Stock (measured as described in clause "(y)" above), each
as measured on the record date. Such adjustment shall become effective on
the opening of business on the business day next following the record date
for the determination of shareholders entitled to receive such All-Cash
Distribution (provided, however, that no such adjustment shall be made in
respect of any All-Cash Distribution described in this Subsection which was
also paid or made to holders of shares of Series B Preferred Stock in which
such holders shall receive, with respect to each share of Series B
Preferred Stock, the same All-Cash Distribution as shall be paid or made
with respect to the maximum number of shares of Capital Stock into which
each share of Series B Preferred Stock shall be convertible at the option
of the Corporation pursuant to Subsection E(c)(ii) or at the option of the
holder pursuant to Subsection E(c)(iii), whichever is greater).
(E) If the Corporation shall make payment of any cash or other
consideration payable in respect of any Corporation Tender Offer, then, to
the extent such Corporation Tender Offer involves payment of an aggregate
consideration that combined with (A) all All-Cash Distributions made within
the preceding 12 months in respect of which no adjustment has been made,
plus (B) any cash and the fair market value of other consideration payable
in respect of any Corporation Tender Offer concluded within the preceding
12 months in respect of which no adjustment has been made, exceeds ten
percent (10%) of the product of (x) the Current Market Price of the Capital
Stock, times (y) the number of issued and outstanding shares of Capital
Stock (assuming the conversion into Capital Stock of each outstanding
security or debt instrument which is by its terms convertible into Capital
Stock at the option of the holder, without the payment of additional
consideration therefor, regardless of whether or not such security or debt
instrument shall be so convertible on such date), each as measured on the
expiration date of such Corporation Tender Offer (such excess being herein
called the "Excess Consideration"), then the Conversion Rate shall be
adjusted by multiplying the Conversion Rate in effect immediately prior to
the expiration date of such Corporation Tender Offer by a fraction, of
which the numerator shall be the Current Market Price of the Capital Stock,
and of which the denominator shall be the Current Market Price of the
Capital Stock less the quotient of the Excess Consideration divided by the
number of issued and outstanding shares of Capital Stock (measured as
described in clause "(y)"
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<PAGE> 11
above), each as measured on such expiration date (provided, however, that
no such adjustment shall be made in respect of any Corporation Tender Offer
described in this Subsection which was also made to holders of shares of
Series B Preferred Stock in which such holders shall receive, with respect
to each share of Series B Preferred Stock, the same payment in respect of a
Corporation Tender Offer with respect to the maximum number of shares of
Capital Stock into which each share of Series B Preferred Stock shall
then be convertible at the option of the Corporation pursuant to Subsection
E(c)(ii) or at the option of the holder pursuant to Subsection E(c)(iii),
whichever is greater).
(F) From time to time, to the extent permitted by law, the Corporation
may make temporary upward adjustments to the Conversion Rate by any amount
for any period of at least 20 days, in which case the Corporation shall
give not less than 15 nor more than 60 days' notice of such adjustment, if
the Board of Directors has made a determination that such adjustment would
be in the best interests of the Corporation, which determination shall be
conclusive.
(G) Anything in this Subsection E(c)(iv) notwithstanding, the Board of
Directors shall be entitled to make such upward adjustments in the
Conversion Rate, in addition to those required by this Subsection E(c)(iv),
(1) as the Board of Directors in its discretion shall determine to be
advisable, in order that any stock dividends, subdivision of shares,
distribution of rights to purchase stock or securities, or a distribution
of securities convertible into or exchangeable for stock (or any
transaction which could be treated as any of the foregoing transactions
pursuant to Section 305 of the Internal Revenue Code of 1986, as amended,
or any successor section thereto) hereafter made by the Corporation to its
shareholders shall not be taxable; and (2) as the Board of Directors in its
discretion shall determine to be necessary or appropriate in order to
preserve the relative rights of the holders of Capital Stock, on the one
hand, and the holders of Series B Preferred Stock, on the other hand, as
such rights are set forth in this Certificate of Incorporation.
(H) In any case in which this Subsection E(c)(iv) shall require that an
adjustment as a result of any event become effective at the opening of
business on the business day next following a record date, and the date
fixed for conversion pursuant to Subsection E(c)(i), (ii) or (iii) occurs
after such record date, but before the occurrence of such event, the
Corporation may in its sole discretion elect to defer the following until
after the occurrence of such event:
(1) issuing to the holder of any shares of the Series B Preferred
Stock surrendered for conversion the additional shares of Capital Stock
issuable upon such conversion over and above the shares of Capital
Stock issuable upon such conversion on the basis of the Conversion Rate
prior to adjustment; and
(2) paying to such holder any amount in cash in lieu of a
fractional share of Capital Stock pursuant to Subsection E(c)(vi).
(v) Notice of Adjustments. Whenever the Conversion Rate is adjusted as
herein provided, the Corporation shall:
(A) forthwith compute the adjusted Conversion Rate in accordance with
Subsection E(c)(iv) and prepare a certificate signed by the Chief Executive
Officer, the Chairman, the President, any Vice President or the Treasurer
of the Corporation setting forth the adjusted
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<PAGE> 12
Conversion Rate, the Maximum Conversion Rate and, if applicable, the Strike
Price, and the method of calculation thereof in reasonable detail and the
facts requiring such adjustment and upon which such adjustment is based,
and file such certificate forthwith with the transfer agent or agents for
the Series B Preferred Stock and the Capital Stock; and
(B) mail a notice stating that the Conversion Rate, the Maximum
Conversion Rate and, if applicable, the Strike Price have been adjusted,
the facts requiring such adjustment and upon which such adjustment is based
and setting forth the adjusted Conversion Rate. the Maximum Conversion Rate
and, if applicable, the Strike Price to the holders of record of the
outstanding shares of the Series B Preferred Stock at or prior to the time
the Corporation mails a financial statement to its shareholders covering
the quarterly fiscal period during which the facts requiring such
adjustment occurred, but in any event within 120 days after a fourth
quarter/fiscal year-end period or 60 days after the end of any other
quarterly fiscal period.
In addition to the foregoing, the Corporation will calculate and
provide notice to the transfer agent or agents for the Series B Preferred Stock
and the Capital Stock within 30 days after (1) the date of initial issuance of
the shares of Series B Preferred Stock, or (2) the occurrence of any event
triggering an adjustment of the Maximum Conversion Rate, of the number of shares
of Capital Stock required to be reserved for issuance upon conversion of the
issued and outstanding shares of Series B Preferred Stock; provided that no such
notice need be sent if the number of shares of Capital Stock then reserved is in
excess of the number of shares of Capital Stock required to be reserved as so
calculated.
(vi) No Fractional Shares. No fractional shares of Capital Stock
shall be issued upon conversion of shares of Series B Preferred Stock but, in
lieu of any fraction of a share of Capital Stock which would otherwise be
issuable in respect of the aggregate number of shares of the Series B Preferred
Stock surrendered by the same holder for conversion on any conversion date, the
holder shall have the right to receive an amount in cash equal to the same
fraction of the Current Market Price of the Capital Stock on the date of
conversion.
(vii) Cancellation. All Shares of Series B Preferred Stock which
shall have been converted into shares of Capital Stock or which shall have been
purchased or otherwise acquired by the Corporation shall assume the status of
authorized but unissued shares of Non-Voting Cumulative Preferred Stock
undesignated as to series.
(viii) Definitions. As used in this Subsection E:
(A) The term "business day" shall mean any day other than a
Saturday, Sunday or a day on which banking institutions in the States
of New York or Ohio are authorized or obligated by law or executive
order to close.
(B) The term "Corporation Tender Offer" shall mean a tender offer
(as such term has been defined by the applicable rules, regulations and
interpretations of the Securities and Exchange Commission and by courts
interpreting the relevant provisions of the Securities Exchange Act of
1934, as amended) by the Corporation and/or any of its subsidiaries for
Capital Stock.
(C) The term "Current Market Price" per share of Capital Stock on
any date shall mean the average of the daily Market Prices for the
fifteen consecutive Trading Dates
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<PAGE> 13
ending on the second Trading Date immediately preceding such date
(appropriately adjusted to take into account the occurrence during such
fifteen-day period, or following such fifteen-day period and prior to
such date, of any event that results in an adjustment of the Conversion
Rate).
(D) The term "Market Price" for any day shall mean (1) if the
Capital Stock is listed or admitted for trading on the New York Stock
Exchange (or any successor to such exchange) or, if not so listed or
admitted, on any national or regional securities exchange, the last
sale price, or the closing bid price if no sale occurred, of the
Capital Stock on the principal securities exchange on which the Capital
Stock is listed, or (2) if not listed or traded as described in clause
(1), the last reported sales price of the Capital Stock on the National
Market System of the National Association of Securities Dealers
Automated Quotations System, or any similar system of automated
dissemination of quotations of securities prices then in common use, if
so quoted, or (3) if not quoted as described in clause (2), the mean
between the high bid and the low asked quotations for the Capital Stock
as reported by the National Quotation Bureau Incorporated if at least
two securities dealers have inserted both bid and asked quotations for
the Capital Stock on at least five of the ten preceding days. If the
Capital Stock is quoted on a national securities or central market
system in lieu of a market or quotation system described above, then
the closing price shall be determined in the manner set forth in clause
(1) of the preceding sentence if actual transactions are reported and
in the manner set forth in clause (3) of the preceding sentence if bid
and asked quotations are reported but actual transactions are not. If
none of the conditions set forth above is met, the closing price of
Capital Stock on any day or the average of such closing prices for any
period shall be the fair market value of the Capital Stock as
determined by a member firm of the New York Stock Exchange, Inc. (or
any successor to such exchange) selected by the Corporation.
(E) The term "Notice Date" shall mean the following: with respect
to any notice given by the Corporation in connection with a conversion
(including any potential conversion upon the effectiveness of a Merger
or Consolidation) of any of the Series B Preferred Stock, the date of
mailing of such notice to the holders of Series B Preferred Stock.
(F) The term "Trading Date" shall mean (1) a date on which the
New York Stock Exchange (or any successor to such exchange) is open for
the transaction of business, or (2) if the Capital Stock is not at such
time listed or admitted for trading on the New York Stock Exchange (or
any successor to such Exchange), a date upon which the principal
national or regional securities exchange upon which the Capital Stock
is listed or admitted to trading is open for the transaction of
business, or (3) if not listed or admitted to trading as described in
clauses (1) or (2), and if at such time the sales price of Capital
Stock is quoted on the National Market System of the National
Association of Securities Dealers Automated Quotations System, or any
similar system of automated dissemination of quotations of securities
prices then in common use, a date for which such system provides
quotations with respect to securities upon which it reports, or (4) if
not so quoted, and if at such time the bid and asked prices of the
Capital Stock are reported by the National Quotation Bureau
Incorporated, a date for which the National Quotation Bureau
Incorporated provides bid and asked prices with respect to securities
upon which it reports, or (5) if not so quoted, any business day.
(ix) Notice of Conversion. The Corporation shall provide notice
of any exercise of its right to convert shares of Series B Preferred Stock to
holders of record of the Series B Preferred
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Stock to be converted by mailing a notice of conversion to such holders, which
notice will specify an effective date of conversion that is not less than 15
nor more than 60 days after the date of such notice. The Corporation will
provide notice of any potential conversion upon the effectiveness of a Merger
or Consolidation not less than 15 nor more than 60 days prior to the effective
date thereof; provided, however, that if the timing of the effectiveness of a
Merger or Consolidation makes it impracticable to provide at least 15 days'
notice, the Corporation shall provide such notice as soon as practicable prior
to such effectiveness. Each such notice shall be provided by mailing notice of
such conversion first class postage prepaid, to each holder of record of the
Series B Preferred Stock to be converted, at such holder's address as it
appears on the stock register of the Corporation. Each such notice shall state,
as appropriate, the following:
(A) the conversion date;
(B) the number of shares of Series B Preferred Stock to be
converted and, if less than all the shares held by such holder are to
be converted, the number of such shares to be converted;
(C) the number of shares of Capital Stock deliverable upon
conversion, or a description of the formula pursuant to which such
number shall be determined;
(D) the place or places where certificates for such shares are to
be surrendered for conversion; and
(E) that dividends on the shares of Series B Preferred Stock to
be converted will cease to accrue on the effective date of conversion.
The Corporation's obligation to deliver shares of Capital Stock and
provide cash in accordance with this Subsection E(c) shall be deemed fulfilled
if, on or before an effective date of conversion, the Corporation shall deposit,
with a bank or trust company having an office or agency in the Borough of
Manhattan in New York City, or which has an affiliate or correspondent having an
office or agency in the Borough of Manhattan in New York City, which depository
has a capital and surplus of at least $50,000,000, such number of shares of
Capital Stock as are required to be delivered by the Corporation pursuant to
this Subsection E(c) upon the occurrence of the related conversion, together
with cash sufficient to pay all accumulated unpaid dividends, cash in lieu of
fractional share amounts and/or any additional payment pursuant to Subsection
E(c)(ii)(C), if applicable, on the shares to be converted as required by this
Subsection E(c), in trust for the account of the holders of the shares to be
converted, with irrevocable instructions and authority to such bank or trust
company that such shares and cash be delivered upon conversion of the shares of
Series B Preferred Stock so converted. Any interest accrued on such cash shall
be paid to the Corporation from time to time. Any shares of Capital Stock or
cash so deposited and unclaimed at the end of three years from such conversion
date shall be repaid and released to the Corporation, after which the holder or
holders of such shares of Series B Preferred Stock so converted shall look,
subject to applicable state escheat or unclaimed funds laws, only to the
Corporation for delivery of shares of Capital Stock and cash, if applicable.
Each holder of shares of Series B Preferred Stock to be converted shall
surrender the certificates evidencing such shares to the Corporation at the
place designated in the notice of such conversion and shall thereupon be
entitled to receive certificates evidencing shares of Capital Stock and cash, if
applicable, following such surrender and following the date of such conversion.
In case fewer than all the shares of Series B Preferred Stock represented by any
such surrendered certificate are converted, a new certificate shall be issued at
the expense of the Corporation representing the unconverted shares. If such
notice of conversion
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<PAGE> 15
(if required) shall have been duly given, then, notwithstanding that the
certificates evidencing any shares of Series B Preferred Stock subject to
conversion shall not have been surrendered, the shares represented thereby
subject to conversion shall be deemed no longer outstanding, dividends with
respect to the shares of Series B Preferred Stock subject to conversion shall
cease to accrue after the date fixed for conversion and all rights with respect
to such shares subject to conversion shall forthwith after such date cease and
terminate, except for the right of the holders to receive the shares of Capital
Stock and/or any applicable cash amounts without interest upon surrender of
their certificates therefor; provided that if on the date fixed for conversion
shares of Capital Stock and cash, if applicable, necessary for the conversion
shall have been deposited by the Corporation in trust for the account of the
holders of the shares of Series B Preferred Stock so to be converted as provided
above, then the holder or holders of such shares of Series B Preferred Stock so
converted shall look only to such bank or trust company for delivery of shares
of Capital Stock and cash, if applicable, unless and until such shares of
Capital Stock and cash are repaid and released to the Corporation. No holder of
a certificate of shares of Series B Preferred Stock shall be, or have any rights
as, a holder of the shares of Capital Stock issuable in connection with the
conversion thereof, including, without limitation, voting rights or the right to
receive any dividend from the Corporation with respect to such shares of Capital
Stock, until surrender of such certificate for a certificate representing such
Capital Stock. Upon such surrender, there shall be paid to the holder the amount
of any dividend or other distribution (without interest) which became payable in
respect of the number of whole shares of Capital Stock issuable upon such
surrender on or after the conversion date, but which was not paid by reason of
any earlier failure to surrender certificates that represented shares of Series
B Preferred Stock. If fewer than all the outstanding shares of Series B
Preferred Stock are to be converted at the option of the Corporation, shares to
be converted shall be selected by the Corporation from outstanding shares of
Series B Preferred Stock by lot, pro rata (as nearly as may be) or by any other
method reasonably determined by the Board of Directors of the Corporation to be
appropriate and fair to the holders of Series B Preferred Stock.
(x) Corporation's Option to Pay Accumulated Unpaid Dividends in Common
Stock Upon Conversion on or after September 10, 1999. Notwithstanding anything
to the contrary contained herein, if the effective date of any conversion is on
or after September 10, 1999 and if on such date there are accumulated unpaid
dividends with respect to the Series B Preferred Stock to be so converted, then
on such effective date the Corporation may deliver, in lieu of any cash payment
in respect of accumulated unpaid dividends and, if applicable, any additional
payment pursuant to Subsection E(c)(ii)(C), that number of shares of Capital
Stock the aggregate Current Market Price of which on such date shall equal the
amount of such cash payment. Such option may be exercised by the Corporation for
all or part of such cash payment.
(xi) No Interest on Accumulated Unpaid Dividends. Any payment with
respect to accumulated unpaid dividends upon conversion of shares of Series B
Preferred Stock, whether such payment is made in cash or, pursuant to Subsection
E(c)(x), in shares of Capital Stock, shall not provide for any interest on such
accumulated unpaid dividends.
(d) Voting Rights.
(i) Holders of Series B Preferred Stock shall have no right to vote on
any matter submitted to a vote of shareholders of the Corporation, except as
otherwise provided by applicable law and this Subsection E(d). In addition to
any voting rights to which the holders of shares of Series B Preferred Stock
shall be entitled pursuant to applicable law, whenever, at any time,
Preferential Dividends payable on the Series B Preferred Stock shall be in
arrears with respect to six (6) or more Preferential Dividend Payment Dates,
whether or not consecutive, the holders of shares of Series
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<PAGE> 16
B Preferred Stock shall have the right, voting separately as a class with
holders of shares of any one or more series of Non-Voting Cumulative Preferred
Stock, Series Preference Stock and/or any other class or series of shares
ranking on a parity with shares of Series B Preferred Stock as to dividends and
upon which like voting rights have been conferred and are exercisable, to elect
two directors of the Corporation at the Corporation's next meeting of
shareholders at which directors are to be elected and at each subsequent meeting
of shareholders at which directors are to be elected until such right is
terminated as provided in this Subsection E(d). Upon the vesting of such voting
right in the holders of shares of Series B Preferred Stock, the maximum
authorized number of members of the Board of Directors shall automatically be
increased by two and the two vacancies so created shall be filled by vote of the
holders of shares of Series B Preferred Stock (voting as a class with the
holders of shares of any one or more other class or series of shares ranking on
such a parity and upon which like voting rights have been conferred and are
exercisable) as set forth herein. The right of the holders of shares of Series B
Preferred Stock to elect members of the Board of Directors of the Corporation as
aforesaid shall continue until such time as all dividends accumulated on shares
of Series B Preferred Stock shall have been paid or deposited for payment in
full, at which time such right shall terminate, except as by law expressly
provided, subject to revesting in the event of each and every subsequent default
of the character above mentioned.
(ii) Upon any termination of the right of the holders of Series B
Preferred Stock and, if applicable, the holders of shares of any one or more
other series of Non-Voting Cumulative Preferred Stock, Series Preference Stock
and/or other class or series of shares ranking on such a parity to vote as a
class for directors as herein provided, the term of office of all directors then
in office elected by shares of Series B Preferred Stock and such other series
voting as a class shall terminate immediately. If the office of any director
elected by the holders of shares of Series B Preferred Stock and, if applicable,
the holders of shares of one or more other series of Non-Voting Cumulative
Preferred Stock, Series Preference Stock and/or other class or series of shares
on such a parity, voting as a class, becomes vacant by reason of death,
resignation, retirement, disqualification, removal from office, or otherwise,
the remaining director elected by the holders of shares of Series B Preferred
Stock and, if applicable, the holders of shares of any one or more other series
of Non-Voting Cumulative Preferred Stock, Series Preference Stock and/or other
class or series of shares ranking on such a parity, voting as a class, may
choose a successor who shall hold office for the unexpired term in respect of
which such vacancy occurred. Whenever the special voting powers vested in the
holders of shares of Series B Preferred Stock and the holders of shares of any
one or more other series of Non-Voting Cumulative Preferred Stock, Series
Preference Stock and/or other class or series of shares ranking on such a parity
to vote as a class for directors as provided in this Subsection E(d)(ii) shall
have expired, the number of directors shall become such number as may be
provided for in the By-Laws, or resolution of the Board of Directors thereunder,
irrespective of any increase made pursuant to the provisions of this Subsection
E(d)(ii).
(iii) While any Series B Preferred Stock is outstanding, the
Corporation shall not, without the affirmative consent (given in writing or at a
meeting duly called for that purpose) of the holders of at least two-thirds
(2/3rds) of the aggregate number of votes entitled to be exercised by holders of
all affected series of Non-Voting Cumulative Preferred Stock then outstanding
(provided that each other series shall have voting rights similar or identical
to the voting rights set forth in this Subsection E(d)(iii)): (A) amend the
Certificate of Incorporation of the Corporation to authorize the creation of any
class or series of stock having a preference as to dividends or upon liquidation
senior to or on a parity with the Series B Preferred Stock (hereinafter in this
Subsection (E)(d)(iii) referred to as "Senior Stock"); provided, however, that
no such approval of holders of Series B Preferred Stock (or other affected
series of Non-Voting Cumulative Preferred Stock having similar voting rights)
shall be required to amend the Certificate of Incorporation of the Corporation
to authorize the
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<PAGE> 17
creation of any series of Senior Stock that may be authorized out of the
Non-Voting Cumulative Preferred Stock or the Series Preference Stock, the terms
of which may be established by any amendment to the Certificate of Incorporation
of the Corporation which may be adopted by the Board of Directors of the
Corporation without shareholder approval, or (B) amend, alter or repeal the
Certificate of Incorporation of the Corporation in a manner that would
materially adversely affect the terms of Series B Preferred Stock.
(iv) With respect to any matter upon which holders of shares of
Series B Preferred Stock shall be entitled to vote pursuant to this Subsection
E(d), each such holder shall be entitled to exercise the number of votes equal
to the maximum number of shares of Capital Stock into which the shares of Series
B Preferred Stock held by such holder shall then be convertible at the option of
the Corporation pursuant to Subsection E(c)(ii) or at the option of the holder
pursuant to Subsection (E)(c)(iii), whichever is greater, on the record date for
determining the shareholders of the Corporation entitled to vote.
(e) Increase in Shares.
The number of shares of Series B Preferred Stock may, to the extent of
the Corporation's authorized and unissued Non-Voting Cumulative Preferred Stock,
be increased by further resolution duly adopted by the Board of Directors and
the filing of an amendment to the Certificate of Incorporation of the
Corporation.
(f) Exclusive Rights.
Each holder of shares of Series B Preferred Stock shall hold such
Series B Preferred Stock subject to the right of the Corporation to effect a
conversion in accordance with the provisions of Subsection E(c) hereof and, in
the event of such a conversion, shall have the right to receive, as full
payment, discharge and satisfaction of the obligations of the Corporation with
respect to such Series B Preferred Stock, only those shares of Capital Stock and
cash, if applicable, delivered as provided in accordance with Subsection E(c)
hereof.
(g) Equal Rank.
All shares of Series B Preferred Stock shall be identical in all
respects, and all shares of Series B Preferred Stock shall be of equal rank with
shares of $2.875 Non-Voting Cumulative Preferred Stock, Series A, in respect of
the preference as to dividends and to payments upon the Liquidation of the
Corporation.
17
<PAGE> 1
EXHIBIT 99.4
CHIQUITA BRANDS INTERNATIONAL, INC.
("Company")
10-1/4% Senior Notes due 2006
TERMS AGREEMENT
July 23, 1996
CHIQUITA BRANDS INTERNATIONAL, INC.
250 East Fifth Street
Cincinnati, Ohio 45202
Attention: Gerald R. Kondritzer
Vice President and Treasurer
Dear Sirs:
We offer to purchase, on and subject to the terms and conditions
of the Underwriting Agreement Basic Provisions relating to the securities of
Chiquita Brands International, Inc. dated January, 1996 ("Underwriting
Agreement"), the following securities ("Securities") on the following terms:
Debt Securities
Title: 10-1/4% Senior Notes due 2006
Rank: Senior Debt Securities
Principal Amount: $150,000,000
Interest Rate: 10-1/4% from July 26, 1996, payable: semi-annually on May 1 and
November 1, commencing November 1, 1996
Maturity: November 1, 2006
Form: The Securities are to be issued in the form of one or more global
securities registered in the name of the Depository Trust Company or its nominee
Optional Redemption: As described in the Prospectus Supplement
Sinking Fund: Not applicable
Indenture: Indenture, dated as of February 15, 1994, between the Company and The
Fifth Third Bank, as trustee as supplemented by the First Supplemental
Indenture, dated as of June 15, 1994, and the Second Supplemental Indenture
dated as of July 15, 1996
Delayed Delivery Contracts: Not authorized
<PAGE> 2
2
Delivery Date: July 26, 1996
Method of Payment: Wire transfer of immediately available funds
Underwriting Fees and Discounts: 2.75%
Purchase Price to Underwriters: 96.657%, plus accrued interest from July 26,
1996
Expected Reoffering Price to Public: 99.407%, plus accrued interest, if any,
from July 26, 1996
Names and Addresses of Underwriters:
Lehman Brothers Inc.
3 World Financial Center
New York, New York 10285
Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Furman Selz LLC
230 Park Avenue
New York, New York 10169
The respective principal amounts of the Debt Securities to be
purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated
herein by reference except that Schedules I and II thereto are hereby deleted
and replaced in their entirety by Schedules B and C hereto, respectively.
The Closing will take place at 10:00 A.M., New York City time, on
July 26, 1996, at the offices of Simpson Thacher & Bartlett, 425 Lexington
Avenue, New York, New York 10017.
<PAGE> 3
3
Please signify your acceptance by signing the enclosed response to
us in the space provided and returning it to us.
Very truly yours,
LEHMAN BROTHERS INC.
BEAR, STEARNS & CO. INC.
FURMAN SELZ LLC
As Underwriters
By: LEHMAN BROTHERS, INC.
By /s/ David H. Jeffries
-------------------------------
Authorized Representative
<PAGE> 4
To: LEHMAN BROTHERS INC. Date: July 23, 1996
BEAR, STEARNS & CO. INC.
FURMAN SELZ LLC
As Underwriters
c/o Lehman Brothers Inc.
3 World Financial Center
New York, New York 10285
We accept the offer contained in your letter, dated July 23, 1996,
relating to $150,000,000 principal amount of our 10-1/4% Senior Notes due 2006
(the "Terms Agreement"). We also confirm that, to the best of our knowledge
after reasonable investigation, the representations and warranties of the
undersigned in the Underwriting Agreement Basic Provisions filed as an exhibit
to the undersigned's registration statement on Form S-3 (No. 333-00789)
(together with the Terms Agreement, the "Underwriting Agreement") are true and
correct, no stop order suspending the effectiveness of the Registration
Statement (as defined in the Underwriting Agreement) or of any part thereof has
been issued and, to the knowledge of the undersigned, no proceedings for that
purpose have been instituted or are contemplated by the Securities and Exchange
Commission and, subsequent to the respective dates of the most recent financial
statements in the Prospectus (as defined in the Underwriting Agreement), there
has been no material adverse change in the financial position or results of
operations of the undersigned and its subsidiaries except as set forth in or
contemplated by the Prospectus.
Very truly yours,
CHIQUITA BRANDS INTERNATIONAL, INC.
By: /s/ Gerald R. Kondritzer
------------------------------------
Name: Gerald R. Kondritzer
Title: Vice President and Treasurer
<PAGE> 5
SCHEDULE A
10-1/4% Senior Notes due 2006
<TABLE>
<CAPTION>
Underwriter Principal Amount
<S> <C>
Lehman Brothers Inc............................................................. $ 82,500,000
Bear, Stearns & Co. Inc......................................................... 33,750,000
Furman Selz LLC................................................................. 33,750,000
------------
Total.................................................................. $150,000,000
============
</TABLE>
<PAGE> 6
SCHEDULE B
SIGNIFICANT SUBSIDIARIES
SUBSIDIARY JURISDICTION OF INCORPORATION
Caribbean Enterprises, Inc. Delaware
Great White Fleet Ltd. Bermuda
DSF Ltd. Bermuda
Chiquita Brands, Inc. Delaware
Chiquita Europe B.V. Netherlands
Chiquita Banana Company B.V. Netherlands
Chiriqui Land Company Delaware
Chiquita International Trading Company Delaware
M.M. Holding Ltd. Bermuda
Chiquita International Limited Bermuda
Friday Canning Corporation Wisconsin
Maritrop Trading Corporation Delaware
Tela Railroad Company Delaware
<PAGE> 7
SCHEDULE C
DESIGNATED SUBSIDIARIES
Caribbean Enterprises, Inc.
Great White Fleet Ltd.
Chiquita Brands, Inc.
Chiriqui Land Company
Chiquita International Trading Company
Chiquita International Limited
Friday Canning Corporation
Maritrop Trading Corporation
Tela Railroad Company
<PAGE> 1
Exhibit 99.5
CHIQUITA BRANDS INTERNATIONAL, INC.
and
THE FIFTH THIRD BANK, Trustee
--------------------------------------------
SECOND SUPPLEMENTAL INDENTURE
--------------------------------------------
Dated as of July 15, 1996
To
INDENTURE
Dated as of February 15, 1994
Amending the Indenture, dated as of February 15, 1994, as previously
supplemented with respect to the 9-1/8% Senior Notes due 2004 issued
thereunder by a Board Resolution dated February 8, 1994 and by the
First Supplemental Indenture dated as of June 15, 1994.
<PAGE> 2
SECOND SUPPLEMENTAL INDENTURE (the "Second Supplemental
Indenture"), dated as of July 15, 1996, between CHIQUITA BRANDS INTERNATIONAL,
INC., a New Jersey corporation (the "Company"), and THE FIFTH THIRD BANK, an
Ohio banking corporation, as Trustee (the "Trustee").
RECITALS
The Company and the Trustee are parties to an Indenture, dated
as of February 15, 1994, relating to the issuance from time to time by the
Company of its Senior Debt Securities on terms to be specified at the time of
issuance. The Indenture has been previously supplemented (as so supplemented,
the "Indenture") by (a) a Board of Resolution dated February 8, 1994, pursuant
to which the Company issued its 9 1/8% Senior Notes due 2004 in the aggregate
principal amount of $175,000,000 (the "9 1/8% Senior Notes") and (b) the First
Supplemental Indenture dated as of June 15, 1994 relating to the 9 1/8% Senior
Notes. The 9 1/8% Senior Notes are the sole series of Debt Securities
outstanding under the Indenture. Capitalized terms used herein, not otherwise
defined herein, shall have the meanings assigned to them in the Indenture.
The Company has duly authorized the execution and delivery of
this Second Supplemental Indenture in order to provide for the issuance of
Global Securities in connection with future series of Debt Securities, which may
be issued under the Indenture, but not the 9 1/8% Senior Notes.
The Company has requested the Trustee and the Trustee has
agreed to join with it in the execution and delivery of this Second Supplemental
Indenture.
Section 901 (4) of the Indenture provides that the Company,
acting pursuant to a Board Resolution, and the Trustee, at any time and from
time to time, may enter into an indenture supplemental to the Indenture to add
to, change or eliminate any of the provisions of the Indenture; provided,
however, that any such additions, changes or eliminations shall become effective
only when there is no Debt Security Outstanding of any series created prior to
the execution of such supplemental indenture which is entitled to the benefit of
such provision and as to which such supplemental indenture would apply.
The Company has determined that this Second Supplemental
Indenture complies with Section 901 (4) and does not require the consent of any
Holders of Debt Securities. On the basis of the foregoing, the Trustee has
determined that this Second Supplemental Indenture is in form satisfactory to
it.
The Company has furnished the Trustee with an Opinion of
Counsel complying with the requirements of Section 903 of the Indenture, stating
that the execution of this Second Supplemental Indenture is authorized or
permitted by the Indenture, and has delivered to the Trustee a Board Resolution
authorizing the execution and delivery of this Second Supplemental Indenture,
together with such other documents as may have been required by Section 102 of
the Indenture.
1
<PAGE> 3
All things necessary to make this Second Supplemental
Indenture a valid agreement of the Company and the Trustee and a valid amendment
of and supplement to the Indenture have been done.
NOW, THEREFORE, it is agreed that the Indenture is amended for
the equal and proportionate benefit of all Holders of Debt Securities issued
under the Indenture after the date hereof:
ARTICLE 1
AMENDMENTS TO THE INDENTURE
SECTION 1.1. Section 101 of the Indenture is hereby amended by
amending and adding the following definitions:
The definition of "Debt Securities" is amended to read in its
entirety as follows:
"Debt Securities" means securities, including Global
Securities (unless the context indicates otherwise), evidencing unsecured
indebtedness of the Company authenticated and delivered under this Indenture.
The following definition is added after the definition of
"Exchange Act":
"Global Security" means a Debt Security in global form
established pursuant to Section 203.
The following definition is added after the definition of
"Trust Indenture Act":
"U.S. Depositary" means a clearing agency registered under the
Exchange Act, or any successor thereto, which shall in either case be designated
by the Company pursuant to Section 301, until a successor U.S. Depositary shall
have become such pursuant to the applicable provisions of this Indenture, and
thereafter "U.S. Depositary" shall mean or include each Person who is then a
U.S. Depositary hereunder, and if at any time there is more than one such
Person, "U.S. Depositary" as used with respect to the Debt Securities of any
series shall mean the U.S. Depositary with respect to the Debt Securities of
that series.
SECTION 1.2. Article Two of the Indenture is hereby amended by
adding Section 203 as follows:
Section 203. DEBT SECURITIES IN GLOBAL FORM.
If any Debt Security of a series is issuable in global form,
such Debt Security may provide that it shall represent the aggregate amount of
Outstanding Debt Securities from time to time endorsed thereon and may also
provide that the aggregate amount of Outstanding Debt Securities represented
thereby may from time to time be reduced to reflect exchanges. Any endorsement
of a Global Security to reflect the amount, or any increase or decrease in the
amount, of Outstanding Debt Securities represented thereby shall be made by the
Trustee and in such manner as shall be specified
2
<PAGE> 4
in such Global Security. Any instructions by the Company with respect to a
Global Security, after its initial issuance, shall be in writing but need not
comply with Section 102. Global Securities may be issued in either temporary or
permanent form.
None of the Company, the Trustee, any Paying Agent or the Debt
Security Registrar 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 such beneficial ownership interests.
SECTION 1.3. Section 301 of the Indenture is hereby amended by
deleting the word "and" from the end of Section 301(14), by renumbering Section
301(15) as Section 301(16), and by inserting new Section 301(15) as follows:
(15) whether the Debt Securities of the series shall be issued
in whole or in part in the form of one or more Global Securities and, in such
case, the U.S. Depositary for such Global Security or Securities; whether such
global form shall be permanent or temporary; the manner in which and the
circumstances under which Global Securities representing Debt Securities of the
series may be exchanged for Debt Securities in definitive form, if other than,
or in addition to, the manner and circumstances specified in Section 305 hereof;
the extent to which, or the manner in which, any interest payable on any Global
Security on an Interest Payment Date will be paid, if other than in the manner
provided in Section 307; the manner in which the principal of, or premium, if
any, on, any Global Security will be paid, if other than as set forth elsewhere
herein; and
SECTION 1.4. Section 303 of the Indenture is hereby amended by
adding the following paragraph at the end thereof:
If the Company shall establish pursuant to Section 301 that
the Debt Securities of a series are to be issued in whole or in part in the form
of one or more Global Securities, then the Company shall execute and the Trustee
shall, in accordance with Section 303 and the Company Order with respect to such
series, authenticate and deliver one or more Global Securities in temporary or
permanent form that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of the Outstanding Debt Securities of
such series to be represented by one or more Global Securities, (ii) shall be
registered in the name of the U.S. Depositary for such Global Security or
Securities or the nominee of such depositary, and (iii) shall bear a legend
substantially to the following effect: "This Debt Security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary, unless and until this Debt Security is
exchanged in whole or in part for Debt Securities in definitive form" and such
other legend as may be required by the U.S. Depositary.
SECTION 1.5. Section 305 of the Indenture is hereby amended by
adding the following paragraphs at the end thereof:
Notwithstanding any other provision of this Section, unless
and until it is exchanged in whole or in part for Debt Securities in definitive
form, a Global Security representing all or a
3
<PAGE> 5
portion of the Debt Securities of a series may not be transferred except as a
whole by the U.S. Depositary for such series to a nominee of such U.S.
Depositary or by a nominee of such U.S. Depositary to such depositary or another
nominee of such U.S. Depositary or by such U.S. Depositary or any other such
nominee to a successor U.S. Depositary for such series or a nominee of such
successor U.S. Depositary.
If at any time the U.S. Depositary for the Debt Securities of
a series notifies the Company that it is unwilling or unable to continue as U.S.
Depositary for the Debt Securities of such series or if at any time the U.S.
Depositary for Debt Securities of such series shall no longer be a clearing
agency registered and in good standing under the Exchange Act or other
applicable statute or regulation, the Company shall appoint a successor U.S.
Depositary with respect to the Debt Securities of such series. If a successor
U.S. Depositary for the Debt Securities of such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such condition, the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Debt Securities
of such series, will authenticate and deliver, Debt Securities of such series in
definitive form in an aggregate principal amount equal to the principal amount
of the Global Security or Securities representing such series in exchange for
such Global Security or Securities.
The Company may at any time and in its sole discretion
determine that the Debt Securities of any series issued in the form of one or
more Global Securities shall no longer be represented by such Global Security or
Securities. In such event, the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of definitive
Debt Securities of such series, will authenticate and deliver, Debt Securities
of such series in definitive form and in an aggregate principal amount equal to
the principal amount of the Global Security or Securities representing such
series in exchange for such Global Security or Securities.
If the Debt Securities of any series shall have been issued in
the form of one or more Global Securities and if an Event of Default with
respect to the Debt Securities of such series shall have occurred and be
continuing, the Company will promptly execute, and the Trustee, upon receipt of
a Company Order for the authentication and delivery of definitive Debt
Securities of such series, will authenticate and deliver Debt Securities of such
series in definitive form and in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.
If specified by the Company pursuant to Section 301 with
respect to the Debt Securities of a series, the U.S. Depositary for such series
of Debt Securities may surrender a Global Security for such series of Debt
Securities in exchange in whole or in part for Debt Securities of such series of
like tenor and terms and in definitive form on such terms as are acceptable to
the Company and such U.S. Depositary. Thereupon, the Company shall execute and
the Trustee shall authenticate and deliver, without charge:
(i) to each Person specified by the U.S. Depositary a
new Debt Security or Securities of the same series, of like
tenor and terms and of any authorized denomination as
requested by such Person in an aggregate principal amount
equal to
4
<PAGE> 6
and in exchange for such Person's beneficial interest in the
Global Security; and
(ii) to the U. S. Depositary a new Global Security in
a denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the
aggregate principal amount of the Debt Securities delivered
to Holders thereof.
Upon the exchange of a Global Security for Debt Securities in
definitive form, such Global Security shall be canceled by the Trustee.
Definitive Debt Securities issued in exchange for a Global Security pursuant to
this Section shall be registered in such names and in such authorized
denominations as the U.S. Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such definitive Debt Securities
to the Persons in whose names such Debt Securities are so registered.
ARTICLE 2
MISCELLANEOUS
SECTION 2.1. This Second Supplemental Indenture may be
executed in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts together shall constitute but one and the
same instrument.
SECTION 2.2. All provisions of this Second Supplemental
Indenture shall be deemed to be incorporated in, and made part of, the
Indenture; and the Indenture, as supplemented by this Second Supplemental
Indenture, shall be read, taken and construed as one and the same instrument.
SECTION 2.3. In case any provision in this Second Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 2.4. Nothing in this Second Supplemental Indenture,
express or implied, shall give to any Person (other than the parties hereto, any
Debt Security Registrar, any Paying Agent, and Authenticating Agent and their
successors under the Indenture, and the Holders of the Debt Securities), any
benefit or any legal or equitable right, remedy or claim under the Indenture.
SECTION 2.5. This Second Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York.
5
<PAGE> 7
IN WITNESS WHEREOF, the parties have caused this Second
Supplemental Indenture to be signed and acknowledged by their respective
officers thereunto duly authorized as of the day and year first above written.
CHIQUITA BRANDS INTERNATIONAL, INC.
[Seal]
By:_____________________________________
Title:__________________________________
[Attest]
[Seal] THE FIFTH THIRD BANK, Trustee
By:_____________________________________
Title:__________________________________
[Attest]
6
<PAGE> 8
STATE OF OHIO )
) S.S.:
COUNTY OF HAMILTON )
On the ___ day of __________, 1996, before me personally came
to me known, who being by me duly sworn, did depose and say that he resides at
, that he is a of THE FIFTH THIRD BANK, one of
the corporations described in and which executed the above instrument; that he
knows the corporate seal of said corporation; that one of the seals affixed to
the said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that he signed
his name thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed by official
seal the day and year in this certificate first above written.
________________________________________
Notary Public
Commission Expires:_____________________
[Seal]
7
<PAGE> 9
STATE OF OHIO )
) S.S.:
COUNTY OF HAMILTON )
On the ___ day of __________, 1996, before me personally came
to me known, who being by me duly sworn, did depose and say that he
resides at , that he is a of CHIQUITA BRANDS
INTERNATIONAL, INC., one of the corporations described in and which executed
the above instrument; that he knows the corporate seal of said corporation;
that one of the seals affixed to the said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed by official
seal the day and year in this certificate first above written.
________________________________________
Notary Public
Commission Expires:_____________________
[Seal]
8
<PAGE> 1
EXHIBIT 99.6
Terms of 10-1/4% Senior Notes due 2006
Pursuant to and as part of a Unanimous Written Consent dated as of
July 23, 1996, the Executive Committee of the Board of Directors of Chiquita
Brands International, Inc. (the "Company") approves the following terms of its
10-1/4% Senior Notes due 2006: The Company is authorized to issue, pursuant to
Registration Statement Nos. 33-51995 and 333-00789 of the Company, under the
Securities Act of 1933 and in accordance with the Indenture dated as of February
15, 1994 (the "Indenture") between the Company and The Fifth Third Bank, as
Trustee (the "Trustee"), as supplemented to date, a series of $150,000,000
aggregate principal amount of senior debt securities with the following terms:
(1) The title of the series of senior debt securities shall be
10-1/4% Senior Notes due 2006 (the "Senior Notes").
(2) The aggregate principal amount of the Senior Notes which may be
authenticated and delivered under the Indenture pursuant to the terms of this
resolution shall be $150,000,000.
(3) The Senior Notes shall mature on November 1, 2006.
(4) Interest in respect of the Senior Notes shall accrue at the rate
of 10-1/4% per annum. Interest in respect of the Senior Notes shall accrue
from July 26, 1996, and shall be payable on Interest Payment Dates of May 1
and November 1 of each year, commencing November 1, 1996. The Regular Record
Dates for interest payable on Interest Payment Dates shall be April 15 and
October 15, respectively.
(5) In addition to payment by means provided in the Indenture, and
subject to the provisions of Section (8) below, payments in respect of the
principal of, premium, if any, and interest on any Senior Notes shall be payable
at, and the Senior Notes may be surrendered for registration of transfer or for
exchange at, the office or agency of the Company maintained for such purposes,
which initially shall be Securities Transfer Company, Cincinnati, Ohio. Notices
and demands to or upon the Company in respect of the Senior Notes and the
Indenture may be addressed to the Company at its principal executive offices,
250 East Fifth Street, Cincinnati, Ohio 45202, Attn: General Counsel.
(6) The Senior Notes are not subject to redemption at the option of
the Company prior to November 1, 2001. Thereafter, the Senior Notes will be
subject to redemption at the option of the Company, in whole or in part, upon
not less than 30 nor more than 60 days' notice, at the redemption prices
(expressed as percentages of principal amount) set forth below plus accrued and
unpaid interest thereon to but not including the applicable redemption date, if
redeemed during the twelve-month period beginning on November 1 of the years
indicated below:
1
<PAGE> 2
<TABLE>
<CAPTION>
Year Percentage
<S> <C> <C>
2001 . . . . . . . . . . . . . . . . . . . . . . . . 105.125%
2002 . . . . . . . . . . . . . . . . . . . . . . . . 103.417%
2003 . . . . . . . . . . . . . . . . . . . . . . . . 101.708%
2004 and thereafter . . . . . . . . . . . . . . . 100.000%
</TABLE>
The provisions of Article XI of the Indenture shall apply to any redemption
described above. The Senior Notes may be subject to purchase by the Company
prior to maturity, at the option of holders, pursuant to Section 1014 of Exhibit
B attached to this resolution.
(7) The Company shall have no sinking fund or analogous obligations
in respect of the Senior Notes.
(8) The Senior Notes initially shall be issued in the form of one
Global Note held in book-entry form; however, beneficial ownership interests in
the Senior Notes may be held by purchasers ("Beneficial Owners") in amounts of
$1,000 and multiples thereof. The Global Note shall be issued in permanent form
and shall be deposited with the Depository Trust Company or its nominee ("DTC",)
as U.S. Depositary. For so long as DTC serves as U.S. Depositary, the provisions
of the Letter of Representations, to be entered into between the Company and
DTC, shall be applicable to the Senior Notes. Beneficial Owners of Senior Notes
evidenced by the Global Note will not be considered Holders thereof under the
Indenture for any purpose, including with respect to the giving of any
directions, instructions or approvals to the Trustee thereunder.
(9) The Senior Notes shall rank pari passu with other existing and
future unsecured senior indebtedness of the Company.
(10) Each of the definitions set forth in Exhibit A attached to this
resolution shall apply to the Senior Notes and shall be deemed to be
incorporated by reference into and made a part of this resolution and, with
respect to the Senior Notes, of the Indenture.
(11) Each of the covenants set forth in Exhibit B attached to this
resolution shall apply to the Senior Notes and shall be deemed to be
incorporated by reference into and made a part of this resolution and, with
respect to the Senior Notes, of the Indenture.
(12) The Global Note representing the Senior Notes shall be
substantially in the form attached hereto as Exhibit C, with such changes as the
officer executing the Global Note may approve, such approval to be conclusively
evidenced by the execution thereof by manual or facsimile signature.
All capitalized terms used but not defined in this resolution,
including Exhibits A, B, and C to this resolution, shall have the meanings set
forth in the Indenture.
2
<PAGE> 3
Exhibit A
Definitions
"Acquired Indebtedness" means Indebtedness of a Person (i) existing
at the time such Person becomes a Subsidiary or (ii) assumed in connection with
the acquisition of assets of such Person.
"Adjusted Consolidated Assets" on any date means the amount of (i)
all assets of the Company and the Subsidiaries on a consolidated basis less (ii)
all Indebtedness of Subsidiaries on a consolidated basis, in each case as
determined as of the last day of the immediately preceding fiscal quarter in
accordance with GAAP.
"Calculation Date" has the meaning specified in the definition
"Change of Control."
"Change of Control" means an event or series of events by which (i)
any "person" (as such term is used in Sections 13(d) and 14(d) of the Exchange
Act) other than Permitted Lindner Holders is or becomes the "beneficial owner"
(as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a
person shall be deemed to have "beneficial ownership" of all shares that such
person has the right to acquire, whether such right is exercisable immediately
or only after the passage of time), directly or indirectly, of more than 40% of
the total voting power of all Voting Shares of the Company then outstanding,
provided that the Permitted Lindner Holders "beneficially own" (as so defined) a
lesser percentage of the Voting Shares than such other person and do not have
the right or ability by voting power, contract or otherwise to elect or
designate for election a majority of the Board of Directors of the Company; (ii)
the Company consolidates with or merges into another corporation or conveys,
transfers or leases all or substantially all of its assets to any Person, or any
corporation consolidates with or merges into the Company, in either event
pursuant to a transaction in which or as a result of which the outstanding
Voting Shares of the Company are changed into or exchanged for cash, securities
or other property, other than any such transaction between the Company and a
wholly-owned Subsidiary; (iii) the Company or any Subsidiary purchases or
otherwise acquires, directly or indirectly, beneficial ownership of 30% or more
of the Company's capital stock within any 12-month period; (iv) on any date, the
individuals who at the beginning of the two-year period immediately preceding
such date constituted the Company's Board of Directors (together with any new
directors whose election by the Company's Board of Directors, or whose
nomination for election by the Company's shareholders, was approved by a vote of
at least 66 2/3% of the directors then still in office who were either directors
at the beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
directors then in office; or (v) on any day (a "Calculation Date") the Company
makes any distribution or distributions of cash, property or securities (other
than regular quarterly dividends, Common Stock, preferred stock which is
substantially equivalent to Common Stock or rights to acquire such stock) to
holders of Capital Stock of the Company or purchases or otherwise acquires
Capital Stock (other than upon the conversion of a security convertible into
Capital Stock) of the Company and the sum of the Fair Market Value of such
distribution or purchase, plus the Fair Market Value of all other such
distributions and purchases which have occurred during the preceding 12-month
period, exceeds 30% of the Fair Market Value of the Company's outstanding
Capital Stock. This percentage is calculated on each Calculation Date by
determining the percentage of the Fair Market Value of the Company's outstanding
Capital Stock as of such Calculation Date which is represented by the Fair
Market Value of the distributions and purchases which have occurred on such date
and adding to that percentage all of the percentages which have been similarly
calculated on the dates of all such distributions and purchases during the
preceding 12-month period.
"Change of Control Triggering Event" means the occurrence of both a
Change of Control and a Rating Decline.
"Consolidated Interest Expense" means for any period the sum of (i)
the aggregate of the interest expense on Indebtedness of the Company and its
Subsidiaries for such period, on a consolidated basis, plus (ii),
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without duplication, that portion of capital lease rentals of the Company and
its Subsidiaries representative of the interest factor for such period, in each
case as determined in accordance with GAAP.
"Consolidated Net Income" means for any period the net income or loss
of the Company and its Subsidiaries for such period on a consolidated basis as
determined in accordance with GAAP adjusted by excluding the after-tax effect of
(i) net gains or losses in respect of dispositions of assets other than in the
ordinary course of business, (ii) any gains or losses from currency exchange
transactions not in the ordinary course of business consistent with past
practice, (iii) the net income of any Subsidiary to the extent that dividends or
distributions by such Subsidiary in the amount of such net income are restricted
or prohibited and (iv) any gains or losses attributable to write-ups or
write-downs of assets or liabilities other than in the ordinary course of
business.
"Consolidated Net Worth" of any Person means the consolidated
stockholders' equity of such Person and its Subsidiaries, as determined in
accordance with GAAP.
"Consolidated Tax Expense" of the Company means for any period the
aggregate of the federal, state, local and foreign income tax expense of the
Company and its consolidated Subsidiaries for such period, determined in
accordance with GAAP.
"Disqualified Stock" has the meaning specified in the covenant
numbered 1012 and entitled "Limitation on Restricted Payments".
"Fair Market Value" means, with respect to any asset or property, the
price which could be negotiated in an arm's length free market transaction, for
cash, between a willing seller and a willing and able buyer, neither of whom is
under undue pressure or compulsion to complete the transaction. Fair Market
Value shall be determined by the Board of Directors acting in good faith and
shall be evidenced by a Board Resolution delivered to the Trustee.
"Fixed Charge Coverage Ratio" means for any period the ratio of (i)
the sum of Consolidated Net Income, Consolidated Interest Expense and
Consolidated Tax Expense, plus all depreciation and, without duplication, all
amortization, in each case, for such period, of the Company and its Subsidiaries
on a consolidated basis, all as determined in accordance with GAAP, to (ii)
Consolidated Interest Expense for such period; provided, however, that in making
such computation, the Consolidated Interest Expense attributable to interest on
any Indebtedness computed on a pro forma basis and bearing a floating interest
rate shall be computed as if the rate in effect on the date of computation had
been the applicable rate for the entire period.
"Food-Related Businesses" means businesses or operations involving
food or food products, including, without limitation, sourcing, processing,
transportation, shipping and distribution, and related assets and
infrastructure.
"GAAP" or "generally accepted accounting principles" means generally
accepted accounting principles as in effect and as implemented by the Company on
the date of the Indenture.
"Intercompany Debt Obligations" means any Indebtedness of the Company
or any Subsidiary which, in the case of the Company, is owing to any Subsidiary
and which, in the case of any Subsidiary, is owing to the Company or any other
Subsidiary.
"Investment Grade" means BBB- or higher by S&P or Baa3 or higher by
Moody's or the equivalent of such ratings by S&P or Moody's or any other Rating
Agency permitted to be used.
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"Moody's" means Moody's Investors Services, Inc.
"Permitted Indebtedness" means (i) Indebtedness of the Company or any
Subsidiary outstanding on the date of issuance of the Senior Notes; (ii) the
Senior Notes; (iii) Indebtedness of the Company not in excess of $250 million in
principal amount outstanding at any time under revolving credit or similar bank
facilities and any refinancings, replacements, renewals, extensions,
substitutions, refundings, deferrals, restructurings, amendments, supplements or
modifications of such Indebtedness; provided, however, that the proceeds of such
Indebtedness referred to in this clause (iii) shall be invested in, or used in
connection with, Food-Related Businesses; (iv) Indebtedness of a Subsidiary
(including Acquired Indebtedness), which is non-recourse to the Company, the
proceeds of which are or have been used for working capital purposes or for
capital expenditures in Food-Related Businesses; (v) Acquired Indebtedness of a
Subsidiary incurred in the acquisition of a Food-Related Business; provided,
however, that (A) such Acquired Indebtedness is non-recourse to the Company and
not incurred in contemplation of such acquisition and (B) the Company's Fixed
Charge Coverage Ratio for the four full fiscal quarters immediately preceding
such acquisition, on a pro forma basis after giving effect to such acquisition,
exceeds the Company's Fixed Charge Coverage Ratio for the four full fiscal
quarters immediately preceding such acquisition; (vi) Indebtedness of (A) the
Company or any Subsidiary denominated in or measured by the currency of any
country other than the United States, which Indebtedness is incurred for hedging
purposes in the ordinary course of business consistent with past practice or (B)
the Company or any other Subsidiary (in either case, other than for borrowed
money), incurred in connection with Indebtedness of a Subsidiary referred to in
clause (A) above which is (y) a guarantee of such Subsidiary Indebtedness, or
(z) a reimbursement obligation relating to a letter of credit supporting such
Subsidiary Indebtedness; (vii) Intercompany Debt Obligations; provided, however,
that the obligations of the Company with respect to such Indebtedness shall be
evidenced by an intercompany note and shall be subordinated in right of payment
from and after such time as all Senior Notes issued and outstanding shall become
due and payable (whether at Stated Maturity, by acceleration or otherwise) to
the payment and performance of the Company's obligations under the Senior Notes;
(viii) guarantees by a Subsidiary, which are non-recourse to the Company, of
Indebtedness of a Person that is not the Company, another Subsidiary nor a
Related Person; provided, however, that the aggregate amount of Indebtedness so
guaranteed at any time shall not exceed $15 million principal amount
outstanding; and provided, further, that the proceeds of such Indebtedness are
or have been used by such Person in Food-Related Businesses; and (ix) additional
Indebtedness of the Company (including Acquired Indebtedness) the aggregate
principal amount of which outstanding at any time does not exceed 5% of Adjusted
Consolidated Assets.
"Permitted Liens" means (i) Liens existing on the date of the
issuance of the Senior Notes on assets of the Company or any Subsidiary; (ii)
Liens on assets acquired after the date of the issuance of Senior Notes or Liens
to secure the purchase price of assets to be acquired; (iii) Liens on properties
of any Subsidiary securing Indebtedness the proceeds of which are or have been
used for working capital purposes or capital expenditures relating to
Food-Related Businesses; (iv) Liens securing Indebtedness of (A) the Company or
any Subsidiary denominated in or measured by the currency of any country other
than the United States, which Indebtedness is incurred for hedging purposes in
the ordinary course of business consistent with past practice and (B) the
Company or any other Subsidiary, to the extent permitted under clause (vi)(B) of
Permitted Indebtedness; (v) Liens of a Person existing at the time such Person
becomes a Subsidiary or assumed in connection with the acquisition of assets of
such Person; (vi) Liens on working capital assets; (vii) any extension, renewal
or replacement (or successive extensions, renewals or replacements), in whole or
in part, of the foregoing; (viii) carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in the ordinary course of
business and with respect to amounts not overdue for a period of more than 90
days or being contested in good faith by appropriate proceedings; (ix) judgment
Liens and other similar Liens arising in the ordinary course of business;
provided, however, that the execution or other enforcement thereof is being
effectively stayed and the claims secured thereby are being actively contested
in good faith and by appropriate proceedings; (x) Liens securing Intercompany
Debt Obligations; (xi) Liens for taxes not yet due or payable under law or being
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contested in good faith; (xii) Liens upon property of a foreign Subsidiary to
secure Indebtedness of that foreign Subsidiary; (xiii) Liens in accordance with
customary banking practice to secure Indebtedness in connection with foreign
trade; (xiv) easements, rights-of-way, restrictions and other similar
encumbrances to the extent incurred in the ordinary course of business; (xv)
pledges or deposits in connection with workers' compensation, unemployment
insurance and other social security legislation; and (xvi) deposits to secure
the performance of bids, trade contracts (other than for borrowed money),
leases, statutory obligations, surety and appeal bonds, performance bonds,
interest rate, foreign exchange and commodity hedging transactions and other
obligations of a like nature incurred in the ordinary course of business.
"Permitted Lindner Holders" means, collectively, Carl H. Lindner,
Robert D. Lindner, Carl H. Lindner III, S. Craig Lindner and Keith E. Lindner,
the respective estates, spouses, heirs, ancestors, lineal descendants, legatees
and legal representatives of any of the foregoing and the trustee or other
representative of any bona fide trust or other entity formed for estate or
tax-planning purposes of which one or more of the foregoing are the sole
beneficiaries or the grantors thereof or contributors thereto, American
Financial Group, Inc., an Ohio corporation, or any entity of which any of the
foregoing, individually or collectively, beneficially own more than 50% of the
Voting Shares.
"Purchase Date" means a date fixed by the Company that is no earlier
than 30 days and no later than 60 days after the mailing of notice to
bondholders of a Change of Control Triggering Event.
"Rating Agencies" means S&P and Moody's or, if S&P or Moody's or both
shall not make a rating of the Senior Notes publicly available, a nationally
recognized securities rating agency or agencies, as the case may be, selected by
the Company, which shall be substituted for S&P or Moody's or both, as the case
may be.
"Rating Category" means (i) with respect to S&P, any of the following
categories: BB, B, CCC, CC, C and D (or equivalent successor categories); (ii)
with respect to Moody's, any of the following categories: Ba, B, Caa, Ca, C and
D (or equivalent successor categories); and (iii) the equivalent of any such
category of S&P or Moody's used by another Rating Agency. In determining whether
the rating of the Senior Notes has decreased by one or more gradations,
gradations within Rating Categories (+ and - for S&P, 1, 2, and 3 for Moody's or
the equivalent gradations for another Rating Agency) shall be taken into account
(e.g., with respect to S&P, a decline in a rating from BB+ to BB, as well as
from BB- to B+ will constitute a decrease of one gradation).
"Rating Date" means the date which is 90 days prior to the earlier of
(i) a Change of Control and (ii) public notice of the occurrence of a Change of
Control or of the intention by the Company to effect a Change of Control.
"Rating Decline" means the occurrence of the following on, or within
90 days after, the earlier of (i) the occurrence of a Change of Control and (ii)
the date of public notice of the occurrence of a Change of Control or of the
public notice of the intention of the Company to effect a Change of Control
(which 90 day period shall be extended so long as the rating of the Senior Notes
is under publicly announced consideration for possible downgrading by any of the
Rating Agencies): (a) in the event the Senior Notes are rated by either Rating
Agency on the Rating Date as Investment Grade, the rating of the Senior Notes
shall be reduced below Investment Grade by both Rating Agencies; or (b) in the
event the Senior Notes are rated below Investment Grade by both Rating Agencies
on the Rating Date, the rating of the Senior Notes by either Rating Agency shall
be decreased by one or more gradations (including gradations within Rating
Categories as well as between Rating Categories).
"Refinancing" has the meaning specified in the definition
"Refinancing Indebtedness."
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"Refinancing Indebtedness" means any renewals, extensions,
substitutions, refundings, refinancings, replacements, deferrals,
restructurings, amendments, supplements or modifications of any Indebtedness
(each, a "Refinancing") of the Company or any of its Subsidiaries outstanding on
the date of the issuance of Senior Notes or other Indebtedness permitted to be
incurred by the Company or any of its Subsidiaries pursuant to the terms of the
Indenture (other than Indebtedness referred to in clauses (iii), (iv), (v),
(vi),(vii) or (viii) of the definition of Permitted Indebtedness), but only to
the extent that (i) the aggregate amount of Indebtedness represented thereby is
not increased by such Refinancing, (ii) the Indebtedness incurred in such
Refinancing is not incurred by a Subsidiary if the Company initially incurred
the Indebtedness being renewed, extended, substituted, refunded, refinanced,
replaced, deferred, restructured, amended, supplemented or modified and (iii)
the Indebtedness incurred in such Refinancing is not incurred by the Company if
a Subsidiary initially incurred the Indebtedness being renewed, extended,
substituted, refunded, refinanced, replaced, deferred, restructured, amended,
supplemented or modified, and such Indebtedness was non-recourse to the Company.
"Related Person" means (i) any Affiliate of the Company, (ii) any
Person who directly or indirectly holds 10% or more of any class of Capital
Stock of the Company, (iii) with respect to any such Person who is a natural
Person, any other natural Person having a relationship with such Person by
blood, marriage or adoption not more remote than first cousin and (iv) any
officer or director of the Company.
"Restricted Payments" has the meaning specified in the covenant
numbered 1012 entitled "Limitation on Restricted Payments."
"S&P" means Standard and Poor's Rating Services, a division of McGraw
Hill, Inc.
"Senior Notes" means the Company's 10-1/4% Senior Notes due 2006
issued under the Indenture.
"Subordinated Indebtedness" means the Company's 7% Convertible
Subordinated Debentures due March 28, 2001 and 11-1/2% Subordinated Notes due
June 1, 2001 which are outstanding on the date of this Indenture.
"Surviving Entity" means in connections with a consolidation, merger,
conveyance or transfer described in Article VIII, the Person (if other than the
Company) referred to in clause (ii) of Section 801(1).
"Voting Shares" means stock of the class or classes having general
voting power under ordinary circumstances to elect the board of directors,
managers or trustees of a corporation (irrespective of whether or not at the
time stock of any other class or classes shall have or might have voting power
by reason of the happening of any contingency).
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Exhibit B
Covenants
SECTION 803. Consolidation, Merger, Conveyance or Transfer - Additional
Provisions.
In addition to the provisions set forth in Section 801, the
Company shall not consolidate with or merge into any other corporation or sell,
convey, assign, transfer, lease or otherwise dispose of all or substantially all
of its properties and assets as an entirety to any Person unless:
(1) immediately after giving effect to such transaction
(and treating any Indebtedness not previously an obligation of the
Company or a Subsidiary which becomes the obligation of the Company
or any of its Subsidiaries in connection with or as a result of such
transaction as having been incurred at the time of such transaction),
the Company (in the case of clause (i) of Section 801 (1) of the
Indenture) or the Surviving Entity (in the case of clause (ii)
thereof) could incur at least $1.00 of additional Indebtedness (other
than Permitted Indebtedness or Refinancing Indebtedness) pursuant to
Section 1011;
(2) immediately after giving effect to such transaction
(and treating any Indebtedness not previously an obligation of the
Company or a Subsidiary which becomes the obligation of the Company
or any of its Subsidiaries in connection with or as a result of such
transaction as having been incurred at the time of such transaction),
the Company (in the case of clause (i) of Section 801 (1) of the
Indenture) or the Surviving Entity (in the case of clause (ii)
thereof) shall have a Consolidated Net Worth equal to or greater than
the lesser of (A) the Consolidated Net Worth of the Company
immediately prior to such transaction or (B) 80% of the Consolidated
Net Worth of the Company immediately prior to such transaction
provided that such amount shall not be less than $500 million; and
(3) immediately after giving effect to such transaction on
a pro forma basis, the Fixed Charge Coverage Ratio of the Company (in
the case of clause (i) of Section 801 (1) of the Indenture) or of the
Surviving Entity (in the case of clause (ii) thereof) shall be at
least 2.0 to 1 for the four full fiscal quarters immediately
preceding such transaction; provided, however, that if the Fixed
Charge Coverage Ratio of the Company for the four full fiscal
quarters immediately preceding such transaction is within the range
set forth in column (A) below, then the Fixed Charge Coverage Ratio
of the Company (in the case of clause (i) of Section 801 (1) of the
Indenture) or of the Surviving Entity (in the case of clause (ii)
thereof) for the four full fiscal quarters immediately preceding such
transaction on a pro forma basis shall be at least equal to the
lesser of (x) the ratio determined by multiplying the percentage set
forth in column (B) below by the Fixed Charge Coverage Ratio of the
Company for the four full fiscal quarters immediately preceding such
transaction or (y) the ratio set forth in column (C) below:
<TABLE>
<CAPTION>
A B C
<S> <C> <C> <C>
2.2222:1 to 2.9999:1............................... 90% 2.4:1
3.00:1 to 3.9999:1................................. 80% 2.8:1
4.00:1 or greater.................................. 70% 3.0:1
</TABLE>
and provided, further, that, if immediately after giving effect to
such transaction on a pro forma basis, the Fixed Charge Coverage
Ratio of the Company (in the case of clause (i) of Section 801(1) of
the Indenture) or the Surviving Entity (in the case of clause (ii)
thereof), as the case may be, for the four full
B 1
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fiscal quarters immediately preceding such transaction is 3.0 to 1 or
more, the calculation in the preceding proviso shall be inapplicable
and such transaction shall be deemed to have complied with the
requirements of this Section 803.
Notwithstanding the foregoing, if the Company effects a consolidation, merger or
sale, conveyance, assignment, transfer, lease or other disposition of assets,
the conditions set forth in clauses (1) and (3) above shall not apply to a
transaction involving a Surviving Entity which is otherwise subject to the
foregoing provisions if the Surviving Entity (i) was formed for the purpose of
effecting such transaction, (ii) did not engage in any business prior to such
transaction and, (iii) immediately prior to such transaction, had no
Indebtedness or liabilities, contingent or otherwise, of any kind whatsoever.
SECTION 1009. Limitations on Liens.
(a) The Company will not, and will not permit any
Subsidiary to, create, assume, incur or suffer to be created, assumed or
incurred any Lien upon any of their respective assets without making effective
provision whereby all the Senior Notes shall be directly secured equally and
ratably with the Indebtedness or other obligations secured by such Lien, so long
as any such Indebtedness or other obligations shall be so secured, except for
(i) Permitted Liens and (ii) Liens securing an aggregate amount of Indebtedness,
which together with the aggregate value of Sale and Leaseback Transactions
permitted by the provisions of Subsection (b) of Section 1010 hereof (other than
such transactions in which debt has been retired in accordance with the
provisions of Subsection (b) of Section 1010 hereof), does not at the time
exceed 5% of Adjusted Consolidated Assets.
(b) The Certificate of a Firm of Independent Public
Accountants shall be conclusive evidence as to the amount, at the date specified
in such Certificate, of Adjusted Consolidated Assets.
SECTION 1010. Limitation on Sale and Leaseback Transactions.
(a) The Company will not sell or transfer, in any
transaction or series of related transactions, any assets with an aggregate fair
market value of $10 million or more relating to Food-Related Business, to any
Person (other than a Subsidiary) with the intention of taking back a lease of
such assets (any transaction or series of transactions subject to the provisions
of this Section 1010 being herein referred to as a "Sale and Leaseback
Transaction"), except a Sale and Leaseback Transaction for a period of less than
three years with the intent that the use of the assets by the Company will be
discontinued on or before the expiration of such period.
(b) The Company may enter into a Sale and Leaseback
Transaction which would otherwise be prohibited by Subsection (a) of this
Section 1010, provided, that (i) the Company shall apply an amount equal to the
value of the assets subject to the Sale and Leaseback Transaction (A) to build
or purchase capital assets used in the Company's business or (B) to retire
long-term Indebtedness for money borrowed (including the Senior Notes) of the
Company or (ii) the value thereof plus the aggregate Indebtedness permitted to
be secured under the provisions of clause (ii) of Subsection (a) of Section 1009
does not at the time exceed 5% of Adjusted Consolidated Assets.
(c) The term "value" shall, for the purpose of this Section
1010 and Section 1009(a), mean, with respect to a Sale and Leaseback
Transaction, as of any particular time, the amount equal to the greater of (i)
the net proceeds of the sale of the property leased pursuant to such Sale and
Leaseback Transaction or (ii) the fair value of such property at the time of
entering into such Sale and Leaseback Transaction, as determined by the Board of
Directors, in each such case divided first by the number of full years of the
term of the lease and then
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multiplied by the number of full years of such term remaining at the time of
determination, without regard to any renewal or extension options contained in
the lease.
(d) The Certificate of a Firm of Independent Public
Accountants shall be conclusive evidence as to the amount, at the date specified
in such Certificate, of Adjusted Consolidated Assets.
SECTION 1011. Limitation on Indebtedness.
(a) The Company shall not, and shall not permit any
Subsidiary to, create, incur, assume, or guarantee the payment of any
Indebtedness (including Acquired Indebtedness) other than Permitted Indebtedness
or Refinancing Indebtedness, unless after giving effect to such event on a pro
forma basis the Company's Fixed Charge Coverage Ratio for the four full fiscal
quarters immediately preceding such event, taken as one period, is not less than
2.0 to 1. For the purposes of determining any particular amount of Indebtedness,
there shall not be included the amount of any guarantees of (or obligations with
respect to letters of credit supporting, or joint or joint and several
obligations in respect of) Indebtedness, the amount of which is otherwise
included.
(b) For purposes of determining compliance with this
Section 1011, (i) in the event that an item of Indebtedness meets the criteria
of more than one of the clauses of the definition of Permitted Indebtedness or
Refinancing Indebtedness, the Company, in its sole discretion, shall classify
such item of Indebtedness and shall be required to include the amount and type
of such Indebtedness in only one of such clauses and (ii) the amount of
Indebtedness issued at a price which is less than the principal amount thereof
shall be equal to the amount of the liability in respect thereof determined in
accordance with GAAP.
SECTION 1012. Limitation on Restricted Payments.
(a) The Company shall not, directly or indirectly, (i)
declare or pay any dividend on, or make any distribution in respect of, or
purchase, redeem or retire for value, or permit any of its Subsidiaries,
directly or indirectly, to so purchase, redeem or retire for value, any Capital
Stock of the Company, other than through the issuance solely of the Company's
own Capital Stock or rights thereto, (ii) make any principal payment on, or
redeem, repurchase, defease or otherwise acquire or retire for value, prior to
scheduled principal payment or maturity, Indebtedness of the Company (excluding
Indebtedness of Subsidiaries) which is expressly subordinate in right of payment
to the Senior Notes or permit any of its Subsidiaries, directly or indirectly,
to do so or (iii) make any loan to, incur, create, assume or suffer to exist any
guarantee of Indebtedness of, or make advancement to, or other investment in, or
permit any of its Subsidiaries to make any loan, incur, create, assume or suffer
to exist any guarantee of Indebtedness of, or make advancement to, or other
investment in, any Related Person of the Company (other than a Subsidiary of the
Company) except for any transaction with an officer or director of the Company
entered into in the ordinary course of business of the Company (including
compensation or employee benefit arrangements with any officer or director of
the Company) (such payments or any other actions described in (i), (ii) and
(iii), collectively, "Restricted Payments") provided, that the term "Restricted
Payment" shall not include the making of any principal payment on, or
redemption, repurchase, defeasance or other acquisition or retirement for value,
prior to scheduled principal payment or maturity, of (A) any of the Company's
Subordinated Indebtedness existing at the date of the Indenture as long as no
such acquisition or retirement is made with the proceeds of Indebtedness which
has a maturity date earlier than the existing Subordinated Indebtedness being
acquired or retired or (B) Indebtedness of the Company which is incurred after
the date of the Indenture and expressly subordinated in right of payment to the
Senior Notes if such acquisition or retirement is made with the proceeds of
Indebtedness which is subordinate in right of payment to the Senior Notes and
has a maturity date no earlier than that of the latest maturity date of any
Outstanding Senior Notes.
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(b) The Company may make a Restricted Payment which would
otherwise be prohibited by Subsection (a) of this Section 1012, provided, that
(1) at the time of and after giving effect to the proposed Restricted Payment no
Event of Default (and no event that, after notice or lapse of time, or both,
would become an Event of Default) shall have occurred and be continuing, and (2)
at the time of and after giving effect to the proposed Restricted Payment (the
value of any such payment, if other than cash, as determined by the Board of
Directors, whose determination shall be conclusive and evidenced by a Board
Resolution), the aggregate amount of all Restricted Payments declared or made
after March 31, 1996 shall not exceed the sum of (A) 50% of the aggregate
cumulative Consolidated Net Income of the Company accrued on a cumulative basis
during the period beginning on April 1, 1996 and ending on the last day of the
Company's last fiscal quarter ending prior to the date of such proposed
Restricted Payment (or, if such aggregate cumulative Consolidated Net Income
shall be a loss, minus 100% of such loss) plus (B) the aggregate proceeds
received by the Company as capital contributions to the Company after March 31,
1996, or from the issuance and sale (other than to a Subsidiary) after March 31,
1996 of Capital Stock (excluding the issuance or sale of preferred stock that is
mandatorily redeemable, or redeemable at the option of the holder of such
preferred stock, in either case, prior to the Stated Maturity of the Senior
Notes (collectively, the "Disqualified Stock")) and any Indebtedness or other
securities of the Company convertible into or exercisable for Capital Stock
(other than Disqualified Stock) of the Company which has been so converted or
exercised, as the case may be, plus (C) the aggregate proceeds received by the
Company from the issuance in February 1994 of its $2.875 Non-Voting Cumulative
Preferred Stock, Series A, plus (D) $70 million; provided, however, that the
foregoing provisions of this Subsection and Subsection (a) will not prevent the
payment of any dividend within 60 days after the date of its declaration if at
the date of declaration such payment would be permitted by such provisions.
SECTION 1013. Transactions with Related Persons.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, enter into or suffer to exist any
transaction or series of related transactions (including, without limitation,
the sale, purchase, exchange or lease of assets, property or services) with any
Related Person (other than a Subsidiary) unless (i) such transaction or series
of transactions is on terms that are no less favorable to the Company or such
Subsidiary, as the case may be, than would be available in a comparable
transaction with an unrelated third party and (ii)(A) with respect to a
transaction or series of related transactions involving aggregate payments in
excess of $10 million but less than $20 million, the Company delivers an
Officer's Certificate to the Trustee certifying that such transaction complies
with clause (i) above and (B) with respect to a transaction or series of related
transactions involving aggregate payments equal to or greater than $20 million,
such transaction or series of related transactions is approved by a majority of
the Board of Directors of the Company including the approval of at least two
disinterested directors; provided that in the event that the Company has only
one disinterested director a transaction or series of related transactions
involving aggregate payments equal to or exceeding $20 million shall be approved
by a majority of the Board of Directors of the Company including the approval of
the disinterested director. Notwithstanding the foregoing, the restrictions set
forth in the preceding sentence shall not apply to (y) any transaction with an
officer or director of the Company entered into in the ordinary course of
business (including compensation or employee benefit arrangements with any
officer or director of the Company) and (z) any transaction entered into in the
ordinary course of business with a Subsidiary.
SECTION 1014. Purchase of Senior Notes upon a Change of Control Triggering
Event.
(a) In the event that there occurs at any time a Change of
Control Triggering Event, each Holder of Senior Notes shall have the right, at
such Holder's option, to require the Company to purchase all or any part (in
integral multiples of $1,000) of such Holder's Senior Notes on the Purchase Date
at a purchase price
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<PAGE> 12
(the "Purchase Price") payable in cash of 101% of the principal amount thereof,
plus accrued and unpaid interest, if any, to the Purchase Date, in accordance
with the procedures set forth in Subsections (b) and (c) of this Section.
(b) Within thirty days following any Change of Control
Triggering Event, the Company shall send by first-class mail, postage prepaid,
to the Trustee and to each Holder of the Senior Notes, at his address appearing
in the Debt Security Register, a notice stating:
(1) that a Change of Control Triggering Event has occurred
and that such Holder has the right to require the Company to purchase
such Holder's Senior Notes at the Purchase Price, together with such
information as the Company deems relevant or as may be required to be
disclosed pursuant to applicable securities or other laws regarding
such Change of Control Triggering Event;
(2) the Purchase Date;
(3) the Purchase Price;
(4) the place at which Senior Notes are to be presented and
surrendered for purchase; and
(5) that interest accrued to the Purchase Date will be paid
as specified in such notice and that, unless the Company shall
default in payment of the Purchase Price, after the Purchase Date
interest thereon will cease to accrue with respect to any Senior
Notes presented and surrendered for purchase.
(c) Holders of Senior Notes electing to have such Senior
Notes purchased will be required to surrender such Senior Notes to the Company
at the address specified in the notice by the close of business on the fifteenth
day prior to the Purchase Date. Any such surrender of Senior Notes for purchase
by the Company shall be irrevocable. No Senior Notes shall be deemed to have
been presented and surrendered until such Senior Notes are actually received by
the Company or its designated agent. Holders of Senior Notes whose Senior Notes
are purchased only in part will be issued new Senior Notes equal in principal
amount to the unpurchased portion of the Senior Notes surrendered.
(d) Notwithstanding anything to the contrary herein or in
the Debt Securities of any series, the Company shall not be obligated to give
notice to Holders of Debt Securities of any series or to purchase Debt
Securities with respect to more than one Change of Control Triggering Event.
SECTION 1015. Defeasance of Certain Obligations.
The Company may omit to comply with any term, provision or
condition set forth in Section 801 of the Indenture and in Sections 803, 1009,
1010, 1011, 1012, 1013 and 1014 hereof and any such omission with respect to
such Sections shall not be an Event of Default, in each case with respect to the
Senior Notes, provided, that the following conditions have been satisfied:
(1) with respect to all Outstanding Senior Notes not
theretofore delivered to the Trustee for cancellation, the Company
shall have deposited or caused to be deposited with the Trustee for
the Senior Notes as trust funds or obligations in trust an amount of
cash, U.S. Government Obligations or a combination of cash and U.S.
Government Obligations, in each case in an amount which, together
with, as evidenced by a Certificate of a Firm of Independent Public
Accountants delivered to such Trustee, the predetermined and certain
income to accrue on any U.S. Government Obligations when due (without
the consideration of any reinvestment thereof) is sufficient to pay
and discharge when due the entire
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<PAGE> 13
indebtedness on all such Outstanding Senior Notes of such series for
unpaid principal (and premium, if any) and interest to the Stated
Maturity or any Redemption Date, as the case may be;
(2) such deposit will not result in a breach or violation
of, or constitute a default under, the Indenture or any other
agreement or instrument to which the Company is a party or by which
it is bound;
(3) no Event of Default or event which with the giving of
notice or lapse of time, or both, would become an Event of Default
with respect to the Senior Notes shall have occurred and be
continuing on the date of such deposit and no Event of Default under
Section 501(6) or Section 501(7) of the Indenture or event which with
the giving of notice or lapse of time, or both, would become an Event
of Default under Section 501(6) or Section 501(7) of the Indenture
shall have occurred and be continuing on the 91st day after such
date; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the defeasance
contemplated in this Section have been complied with.
All the obligations of the Company under the Indenture with respect to the
Senior Notes, other than with respect to Section 801 of the Indenture and
Sections 803 and 1009 through 1014 hereof, shall remain in full force and
effect. Anything in this Section 1015 to the contrary notwithstanding, the
Trustee for the Senior Notes shall deliver or pay to the Company, from time to
time upon Company Request, any money or U.S. Government Obligations held by it
as provided in this Section 1015 which, as expressed in a Certificate of a Firm
of Independent Public Accountants delivered to such Trustee, are in excess of
the amount thereof which would then have been required to be deposited for the
purpose for which such money or U.S. Government Obligations were deposited or
received, provided such delivery can be made without liquidating any U.S.
Government Obligations.
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EXHIBIT C
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
This Debt Security may not be transferred except as a whole by the Depositary to
a nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such nominee to
a successor Depositary or a nominee of such successor Depositary, unless and
until this Debt Security is exchanged in whole or in part for Debt Securities in
definitive form.
NOTE NO. __ $150,000,000
CHIQUITA BRANDS INTERNATIONAL, INC.
10-1/4% SENIOR NOTE DUE 2006
CUSIP 170032 AL 0
CHIQUITA BRANDS INTERNATIONAL, INC., a New Jersey corporation (herein
called the "Company") which term includes any successor corporation under an
Indenture hereinafter referred to, for value received, hereby promises to pay to
Cede & Co. or registered assigns upon presentation and surrender of this Senior
Note the principal sum of ONE HUNDRED FIFTY MILLION (U.S. $150,000,000) on
November 1, 2006, and to pay interest thereon on November 1, 1996 and thereafter
on May 1 and November 1 in each year, accruing from July 26, 1996 or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, at the rate of 10-1/4% per annum, until the principal hereof is
paid or duly provided for. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Senior Note (or one or more Predecessor
Debt Securities) is registered at the close of business on a Regular Record Date
for such interest which shall be the April 15 or October 15 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for, and interest on
such Defaulted Interest at the then applicable interest rate borne by the Senior
Notes, to the extent lawful, shall forthwith cease to be payable to the Holder
on such Regular Record Date, and may be paid to the Person in whose name this
Senior Note (or one or more Predecessor Debt Securities) is registered at the
close of business on a Special Record Date to be fixed by the Trustee for the
payment of such Defaulted Interest, notice whereof shall be given to Holders of
Senior Notes not less than 10 days prior to such Special Record Date, or may be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Senior Notes may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture. Payment of the principal of (and premium, if any)
and interest on this Senior Note will be made at the office or agency of the
Company maintained for that purpose in Cincinnati, Ohio, or at such other office
or agency of the Company as may be maintained for such purpose, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. Interest shall be computed on
the basis of a 360-day year of four 90-day quarters or twelve 30-day months.
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Chiquita Brands International, Inc.
10-1/4% Senior Note due 2006
This Senior Note (as defined herein) is one of a duly authorized
issue of Senior Debt Securities of the Company (herein called the "Debt
Securities") of the series hereinafter specified, which series is limited
(except as otherwise provided in the Indenture referred to below) in an
aggregate principal amount to $150,000,000, all such Debt Securities issued and
to be issued under the Indenture dated as of February 15, 1994, between the
Company and The Fifth Third Bank, as trustee (herein called the "Trustee," which
term includes any successor Trustee under the Indenture) as supplemented by a
First Supplemental Indenture dated as of June 15, 1994, and a Second
Supplemental Indenture dated as of July 15, 1996, and by Board Resolutions dated
February 8, 1994 and July 23, 1996 (herein called the "Indenture"), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the rights and limitations of rights thereunder of the Holders of
the Debt Securities and of the rights, duties, obligations and immunities and
the Company and the Trustee for each series of Debt Securities, and of the terms
upon which the Debt Securities are, and are to be, authenticated and delivered.
As provided in the Indenture, the Debt Securities may be issued in one or more
series, which different series may be issued in various aggregate principal
amounts, in various authorized denominations, may mature at different times, may
bear interest, if any, at different rates, may be subject to different
redemption provisions, if any, may be subject to different sinking funds, if
any, may be subject to different covenants and Events of Default and may
otherwise vary as in the Indenture provided or permitted. This Senior Note is
one of a series of Debt Securities designated therein as 10-1/4% Senior Notes
due 2006 (the "Senior Notes").
The Indenture contains provisions for defeasance at any time of (a)
the entire principal amount of all of the Debt Securities and (b) certain
restrictive covenants and certain Events of Default, in each case upon
compliance with certain conditions set forth therein.
The Senior Notes are subject to redemption upon not less than 30 days
prior notice by first-class mail, at any time on or after November 1, 2001 as a
whole or in part, at the election of the Company, at a Redemption Price equal to
the percentage of the principal amount set forth below if redeemed during the
twelve-month period beginning November 1 of the years indicated below:
<TABLE>
<CAPTION>
Redemption
Year Price
<S> <C> <C>
2001..................................................... 105.125%
2002..................................................... 103.417%
2003..................................................... 101.708%
</TABLE>
and thereafter at 100% of the principal amount, in each case together with
accrued interest to the redemption date (subject to the right of Holders of
record on relevant record dates to receive interest due on an Interest Payment
Date). If less than all of the Senior Notes are to be redeemed, the Trustee
shall select the Senior Notes or portions thereof to be redeemed by lot.
If a Change of Control Triggering Event occurs at any time, each
Holder of the Senior Notes shall have the right to require that the Company
purchase such Holder's Senior Notes in whole or in part in integral multiples of
$1,000 at a purchase price in cash in an amount equal to 101% of the principal
amount thereof plus accrued and unpaid interest, if any, to the Purchase Date.
If the case of a purchase of Senior Notes in connection with a Change
of Control Triggering Event, interest accrued to the Purchase Date will be paid
as specified in a notice from the Company and, unless the
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Chiquita Brands International, Inc.
10-1/4% Senior Note due 2006
Company shall default in payment of the Purchase Price, after the Purchase Date
interest will cease to accrue with respect to any Senior Notes presented and
surrendered for purchase.
If an Event of Default with respect to the Senior Notes shall occur
and be continuing, there may be declared due and payable in the manner and with
the effect provided in the Indenture the principal of this Senior Note, plus all
accrued and unpaid interest to and including the date the Senior Notes become
due and payable.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of any series of Debt Securities under the
Indenture at any time by the Company and the Trustee of any series of Debt
Securities with the consent of the Holders of more than 50% in the aggregate
principal amount of the Outstanding Debt Securities of each series of Debt
Securities to be affected thereby. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the Debt Securities of any series at the time Outstanding, on behalf of the
Holders of all the Debt Securities of such series, to waive compliance by the
Company with certain provisions of the Indenture and certain past defaults under
the Indenture and their consequences with respect to such series. Any such
consent or waiver by or on behalf of the Holder of this Senior Note shall be
conclusive and binding upon such Holder and upon all future Holders of this
Senior Note and of any Senior Note issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent or waiver is made upon this Senior Note.
No reference herein to the Indenture and no provision of this Senior
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of (and premium, if
any) and interest on this Senior Note at the times, place and rate herein
prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Senior Note is registrable on the Debt
Security Register of the Company, upon surrender of this Senior Note for
registration of transfer at the office or agency of the Company maintained for
such purpose in Cincinnati, Ohio or at such other office or agency of the
Company as may be maintained for such purpose, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Debt Security Registrar duly executed by, the Holder hereof or his or her
attorney duly authorized in writing, and thereupon one or more new Senior Notes,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Senior Notes are issuable only in registered form without
coupons; beneficial owners may hold denominations of $1,000 and any integral
multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the Senior Notes are exchangeable for a like
aggregate principal amount of Senior Notes of a like tenor and of a different
authorized denomination, as requested by the Holder or beneficial owner
surrendering the same.
No service charge shall be made to the Holders for any registration
of transfer or exchange or redemption of Senior Notes, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
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Chiquita Brands International, Inc.
10-1/4% Senior Note due 2006
Prior to and at the time of due presentment of this Senior Note for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Senior Note is registered
as the owner hereof for all purposes, whether or not this Senior Note be
overdue, and neither the Company, the Trustee nor any agent shall be affected by
notice to the contrary.
All terms used in this Senior Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been duly
executed by the Trustee by manual signature, this Senior Note shall not be
entitled to any benefit under the Indenture, or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: July ___, 1996
CHIQUITA BRANDS INTERNATIONAL, INC.
[Corporate Seal] ____________________________________
Gerald R. Kondritzer
Vice President and Treasurer
Attest:
- --------------------------
Donna K. Leonard
Assistant General Counsel and
Assistant Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated herein described in
the within mentioned Indenture.
THE FIFTH THIRD BANK, as Trustee
By:____________________________
Authorized Officer
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Chiquita Brands International, Inc.
10-1/4% Senior Note due 2006
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
- -------------------------------------------------------------------------------
Please print or typewrite name and address including postal zip code of assignee
- -------------------------------------------------------------------------------
the within Senior Note of Chiquita Brands International, Inc. and does hereby
irrevocably constitute and appoint
- -------------------------------------------------------------------------------
to transfer the said Senior Note on the books of the Company, will full power of
substitution in the premises.
Dated:_________________________________
------------------------------------
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within instrument in every
particular, without alteration or
enlargement or any change whatever.
C 5
