EXHIBIT 4.4
[FORM OF FACE OF SUBORDINATED DEBT SECURITY]
No. $
CUSIP
XXXX FOODS COMPANY
Xxxx Foods Company, a Delaware corporation (herein called the
"Issuer", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_______________ or registered assigns, the principal sum of ___________ United
States Dollars on _______________, and to pay interest, semiannually on
____________ and _______________ of each year, commencing _______________, on
said principal sum, at the rate per annum specified in the title of this [
], on a semiannual bond equivalent basis using a 360-day year composed of twelve
30-day months from the _______________ or the ___________, as the case may be,
next preceding the date of this [ ] to which interest has been paid,
unless the date hereof is a date to which interest has been paid, in which case
from the date of this [ ], or unless no interest has been paid on this
[ ], in which case from ______________, _____________, until payment of said
principal sum has been made or duly provided for. Payments of such principal
and interest shall be made at the office or agency of the Issuer in
_____________, which, subject to the right of the Issuer to vary to terminate
the appointment of such agency, shall initially be at the principal office of
___________ [, and subject to any laws or regulations applicable thereto in the
country of any such agency and subject to the right of the Issuer to vary or
terminate the appointment of any such agency or to appoint additional and other
such agencies, at the main offices of _________ in _________]; provided, that
payment of interest may be made at the option of the Issuer by check mailed to
the address of the person entitled thereto as such address shall appear on the
Security Register. Notwithstanding the foregoing, if the date hereof is after
the ____ day of __________ or ____________, as the case may be, and before the
following __________ or ________, this [ ] shall bear interest from such
_________ or ___________; provided, that if the Issuer shall default in the
payment of interest due on such ______________ or ____________, then this
[__________] shall bear interest from the next preceding ________ or
____________, to which interest has been paid or, if no interest has been paid
on this [ ], from ___________. The interest so payable on any
_____________ or _____________, will, subject to certain exceptions provided in
the Indenture referred to on the reverse hereof, be paid to the person in whose
name this [ ] is registered at the close of business on the ___________ or
___________, as the case may be, next preceding such ____________ or
_____________.
Reference is made to the further provisions of this [___________] set
forth on the reverse hereof. Such further provisions shall for all purposes
have the same effect as though fully set forth at this place.
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This [ ] shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been manually
signed by the Trustee or Authentication Agent under the Indenture referred to on
the reverse hereof.
IN WITNESS WHEREOF, XXXX FOODS COMPANY has caused this instrument to
be signed by facsimile by its duly authorized officers and has caused a
facsimile of its corporate seal to be affixed hereunto or imprinted hereon.
XXXX FOODS COMPANY
By:___________________________
ATTEST:
______________________________
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the Series designated herein referred
to in the within-mentioned Indenture.
Dated: ____________________,
as Trustee
By:___________________________
Authorized Signatory
[or
____________________,
as Trustee
By:[
______________________________
[Name of Authentication Agent,
as Authentication Agent]
By:___________________________
Authorized Signatory
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[FORM OF REVERSE OF DEBT SECURITY]
XXXX FOODS COMPANY
_______% [ ] Due ___________
This [ ] is one of a duly authorized issue of debentures,
notes, bonds or other evidences of indebtedness of the Issuer (hereinafter
called the "Securities") of the Series hereinafter specified, all issued or to
be issued under and pursuant to an indenture dated as of January 15, 1998
(herein called the "Indenture"), duly executed and delivered by the Issuer to [
], as Trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a description of the rights, limitations of
rights, obligations, duties and immunities thereunder of the Trustee, the Issuer
and the Holders of the Securities and of the terms upon which the Securities
are, and are to be, authenticated and delivered. The Securities may be issued
in one or more Series, which different Series may be issued in various aggregate
principal amounts, may bear interest at different rates, which may be fixed or
variable, may be subject to different redemption provisions (if any), may be
subject to different sinking, purchase or analogous funds (if any) and may
otherwise vary as provided in the Indenture. This [ ] is one of a
Series designated as the ____% [ ] Due ___________ of the Issuer, limited
in aggregate principal amount to ___________.
In case an Event of Default with respect to the ____% [_______] Due
___________ shall have occurred and be continuing, the principal hereof may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer and the
Trustee, with the consent of the Holders of a majority of the aggregate
principal amount of the Securities at the time Outstanding (as defined in the
Indenture) of all Series to be affected (treated as one class), evidenced as
provided in the Indenture, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or modifying in any manner the
rights of the Holders of the Securities of each such Series; provided, however,
that no such supplemental indenture shall (i) extend the final maturity of any
Security, or reduce the principal amount thereof or any premium thereon, or
reduce the rate or extend the time of payment of interest thereon, or reduce any
amount payable upon redemption thereof, or impair or affect the right of any
Holder to institute suit for the payment thereof or, if the Securities provide
therefor, any right of repayment at the option of the Securityholder, without
the consent of the Holder of each Security so affected, or (ii) reduce the
aforesaid percentage of Securities of any Series, the Holders of which are
required to consent to any such supplemental indenture, without the consent of
the Holder of each Security affected. It is also provided in the Indenture
that, with respect to certain defaults or Events of Default regarding the
Securities of any Series, prior to any declaration accelerating the maturity of
such Securities, the Holders of a majority in aggregate principal amount
Outstanding of the Securities of such Series (or, in the case of certain
defaults or Events of Default, all or certain Series of the Securities) may on
behalf of the Holders
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of all the Securities of such Series (or all or certain Series of the
Securities, as the case may be) waive any such past default or Event of Default
and its consequences. The preceding sentence shall not, however, apply to a
default in the payment of the principal of or premium, if any, or interest on
any of the Securities. Any such consent or waiver by the Holder of this [
] (unless revoked as provided in the Indenture) shall be conclusive and binding
upon such Holder and upon all future Holders and owners of this [ ] and
any [ ] which may be issued in exchange or substitution herefor,
irrespective of whether or not any notation thereof is made upon this [ ]
or such other [ ].
No reference herein to the Indenture, and no provision of this [
] or of the Indenture, shall alter or impair the obligation of the Issuer, which
is absolute and unconditional, to pay the principal of [(and any premium, if
any)] and interest on this [ ] in the manner, at the respective times, at
the rate, and in the coin or currency herein prescribed.
The [ ] are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple of $1,000. As provided in
the Indenture, and subject to certain limitations set forth therein, [ ]
in registered form are exchangeable for one or more new Securities of this
Series and of like tenor, for the same aggregate principal amount and of
authorized denominations, as requested by the Holder surrendering the same at
the agency of the Issuer in ________ [or ____________]. No service charge shall
be made for any such exchange, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
[The [ ] may be redeemed at the option of the Issuer as a
whole, or from time to time in part, on any date after ____ and prior to
maturity, upon mailing a notice of such redemption not less than 15 nor more
than 60 days prior to the date fixed for redemption to the Holders of [ ]
at their last registered addresses, all as further provided in the Indenture, at
the following redemption prices (expressed in percentages of the principal
amount) together in each case with accrued interest to the date fixed for
redemption:
If redeemed during the twelve-month period beginning [_________]:
Year Percentage Year Percentage]
---- ---------- ---- ----------
[The [____________________] are also subject to redemption, through
the operation of the sinking fund as herein provided on _____________ and on
each ___________ thereafter to and including _____________ on notice as set
forth above and at 100% of the principal amount thereof (the sinking fund
redemption price), together with accrued interest to the date fixed for
redemption.]
[As and for a sinking fund for the retirement of the [___________] and
so long as any of the [____________] remain outstanding and unpaid, the Issuer
will pay to the Trustee in cash (subject to the right to deliver certain
[___________________] in credit therefor as provided in the
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Indenture), on or before ____________ and on or before _______________ in each
year thereafter to and including __________________ an amount sufficient to
redeem $________ principal amount of the [___________________] (or such lesser
amount equal to the principal amount then Outstanding) at the sinking fund
redemption price.]
[At its option the Issuer may pay into the sinking fund for the
retirement of [__________________], in cash except as provided in the Indenture,
on or before ____________ and on or before ________________ in each year
thereafter to and including ________________, an amount sufficient to redeem an
additional principal amount of [______________________] up to but not to exceed
$____________ at the sinking fund redemption price. To the extent that the
right to such optional sinking fund payment is not exercised in any year, it
shall not be cumulative or carried forward to any subsequent year.]
[Subject to the next two succeeding sentences, a Holder of a Security
may convert it into Common Stock of the Company at any time before the close of
business on [ ]. If the Security is called for redemption, the
Holder may convert it at any time before the close of business on the Redemption
Date. A Security in respect of which a Holder has delivered a notice of
exercise of the option to require the Company to purchase such Security may be
converted only if the notice of exercise is withdrawn in accordance with the
terms of the Indenture.
The initial Conversion Rate is _____ shares of Common Stock per $1,000
principal amount, subject to adjustment in certain events described in the
Indenture. The Company will deliver cash or a check in lieu of any fractional
share of Common Stock.
To convert a Security a Holder must (1) complete and manually sign the
conversion notice on the back of the Security (or complete and manually sign a
facsimile of such notice) and deliver such notice to the Conversion Agent, (2)
surrender the Security to a Conversion Agent, (3) furnish appropriate
endorsements and transfer documents if required by the Conversion Agent, the
Company or the Trustee and (4) if required, pay all transfer or similar taxes.
A Holder may convert a portion of a Security if the principal amount
of such portion is $1,000 or an integral multiple of $1,000. No payment or
adjustment will be made for dividends on the Common Stock except as provided in
the Indenture.
The Conversion Rate will be adjusted for dividends or distributions on
Common Stock payable in Common Stock or other Capital Stock; subdivisions,
combinations or certain reclassifications of Common Stock; distributions to all
holders of Common Stock of certain rights to purchase Common Stock for a period
expiring within 45 days at less than the market price at the time of
determination; and distributions to such holders of assets or debt securities of
the Company or certain rights to purchase securities of the Company (excluding
cash dividends or distributions). However, no adjustment need be made if
Securityholders may participate in the transaction or in certain other cases.
The Company from time to time may voluntarily increase the Conversion Rate.
If the Company is a party to a consolidation, merger or binding share
exchange or a transfer of all or substantially all of its assets, or upon
certain distributions described in the
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Indenture, the right to convert a Security into Common Stock may be changed into
a right to convert it into securities, cash or other assets of the Company or
another person.]
Upon due presentment for registration of transfer of this [ ]
at the office or agency of the Issuer in ____________ [or __________________], a
new [ ] or [ ] of this Series of authorized denominations for an
equal aggregate principal amount will be issued to the transferee in exchange
therefor, subject to the limitations provided in the Indenture, without charge
except for any tax or other governmental charge imposed in connection therewith.
The Issuer, the Trustee and any agent of the Issuer or the Trustee may
deem and treat the registered Holder hereof as the absolute owner of this [
] (whether or not this [ ] shall be overdue and notwithstanding any
notation of ownership or other writing hereon), for the purpose of receiving
payment of, or on account of, the principal hereof and premium, if any, and
interest hereon, and for all other purposes, and neither the Issuer nor the
Trustee nor any authorized agent of the Issuer or the Trustee shall be affected
by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the
Issuer in the Indenture or any indenture supplemental thereto or in this [
], or because of the creation of any indebtedness represented thereby, shall be
had against any incorporator, stockholder, officer or director, as such, of the
Issuer or of any successor corporation, either directly or through the Issuer or
any successor corporation, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released
by the acceptance hereof and as part of the consideration for the issue hereof.
Payment of the principal of [(premium, if any)] and interest on this [
] is expressly subordinated in right of payment as set forth in the Indenture,
to the payment when due of all Senior Indebtedness as defined in the Indenture,
and this [ ] is issued subject to such provisions, and such Holder of this [
], by accepting the same, agrees to and shall be bound by such provisions and
authorizes and directs the Trustee in his behalf to take such action as may be
necessary or appropriate to acknowledge or effectuate the subordination as
provided in the Indenture and appoints the Trustee his attorney-in-fact for any
and all such purposes.
The Indenture with respect to any Series will be discharged and
cancelled except for certain Sections thereof, subject to the terms of the
Indenture, upon the payment of all the Securities of such Series or upon the
irrevocable deposit with the Trustee of cash or Government Obligations (or a
combination thereof) sufficient for such payment in accordance with Article Ten
of the Indenture.
The Indenture and this [________________] shall be deemed to be
contracts made under the laws of the State of New York, and for all purposes
shall be governed by and construed in accordance with the laws of such State.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
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_______________________________________________
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
Please Insert Social Security or
Other Identifying Number of Assignee
[_______________________________________________________________]
__________________ the within [ ] and hereby does irrevocably constitute and
appoint_______________________________________________ Attorney to transfer said
[ ] on the books of the within-mentioned Company, with full power of
substitution in premises.
Dated: ___________ ____________________________________
*
_____________________________________
NOTICE: The signature to this assignment must
correspond with the name as written upon the face
of the [ ] in every particular, without
alteration or enlargement or any change whatever.
OPTION TO ELECT REPAYMENT
The undersigned hereby requests and instructs the Company to repay
this [ ] (or portion thereof specified below) pursuant to its terms at a
price equal to the principal amount thereof, together with interest accrued to
the date of repayment, to the undersigned at:
_________________________________________________________________.
(Please Print or Typewrite Name and Address of the Undersigned)
For this [ ] to be repaid the Company must receive, at the office
of the Trustee, [
], [ ], or at such other place or places of which the
Company shall from time to time notify the Holder of this [ ], during the
period from and including [ ] to and including the close of
business on [ ] (or if [ ] is not a Business
Day, the immediately preceding Business Day), (i) this [ ] with this "Option
to Elect Repayment" form duly completed, or (ii) a communication in the form
specified above in this [ ]. The exercise of this "Option to Elect
Repayment" is irrevocable.
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* Your signatures must be guaranteed by a member of the Medallion System.
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If less than the entire principal amount of this [ ] is to be
repaid, specify the portion thereof (which shall be in increments of $1,000)
which the Holder elects to have repaid: $_________; and specify the denomination
or denominations (which shall be in increments of $1,000) of the [ ] to be
issued to the Holder for the portion of this [ ] not being repaid (in the
absence of any such specification, one such [ ] will be issued for the
portion not being repaid): $_____________.
Dated: ________________ ___________________________________
**
___________________________________
Note: The signature on this Option to Elect
Repayment must correspond with the name as written
upon the face of this [ ] in every particular
without alteration or enlargement.
Holder's Tax I.D. Number: _________
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** Your signatures must be guaranteed by a member of the Medallion System.
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