-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TSXONELXZYqEUnTgst3r6bZ58GmxNTriMZU3PdvFcGv/uVrmodGEFsHyZh51WU3m sN3jXZIycZvNaXFtsn61Yw== 0000101063-96-000044.txt : 19960813 0000101063-96-000044.hdr.sgml : 19960813 ACCESSION NUMBER: 0000101063-96-000044 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 19960630 FILED AS OF DATE: 19960812 SROS: AMEX SROS: BSE SROS: NYSE SROS: PSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: CHIQUITA BRANDS INTERNATIONAL INC CENTRAL INDEX KEY: 0000101063 STANDARD INDUSTRIAL CLASSIFICATION: AGRICULTURE PRODUCTION - CROPS [0100] IRS NUMBER: 041923360 STATE OF INCORPORATION: NJ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 001-01550 FILM NUMBER: 96608201 BUSINESS ADDRESS: STREET 1: 250 E FIFTH ST CITY: CINCINNATI STATE: OH ZIP: 45202 BUSINESS PHONE: 5137848011 FORMER COMPANY: FORMER CONFORMED NAME: UNITED BRANDS CO DATE OF NAME CHANGE: 19900403 10-Q 1 FORM 10-Q SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Quarterly Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 For the Quarterly Period Ended Commission File June 30, 1996 Number 1-1550 CHIQUITA BRANDS INTERNATIONAL, INC. Incorporated under the IRS Employer I.D. Laws of New Jersey No. 04-1923360 250 East Fifth Street, Cincinnati, Ohio 45202 (513) 784-8000 Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months, and (2) has been subject to such filing requirements for the past 90 days. YES X NO As of August 1, 1996, there were 55,591,779 shares of Common Stock outstanding. Page 1 of 13 Pages CHIQUITA BRANDS INTERNATIONAL, INC. TABLE OF CONTENTS Page(s) PART I - Financial Information Consolidated Statement of Income for the quarters and six months ended June 30, 1996 and 1995 . . . . . . 3 Consolidated Balance Sheet as of June 30, 1996, December 31, 1995 and June 30, 1995 . . . . . . . . 4 Consolidated Statement of Cash Flow for the six months ended June 30, 1996 and 1995 . . . . . . . . . . . 5 Notes to Consolidated Financial Statements . . . . . 6 Management's Analysis of Operations and Financial Condition . . . . . . . . . . . . . . . . 7-8 PART II - Other Information Item 1 - Legal Proceedings . . . . . . . . . . . . . . . 8 Item 2 - Changes in Securities . . . . . . . . . . . . . 9 Item 4 - Submission of Matters to a Vote of Security Holders . . . . . . . . . . . . . . . . . . . . 9 Item 6 - Exhibits and Reports on Form 8-K . . . . . . . . . . . . . . . . . . . . 10 Signature . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Part I - Financial Information
CHIQUITA BRANDS INTERNATIONAL, INC. CONSOLIDATED STATEMENT OF INCOME (Unaudited) (In thousands, except per share amounts) Quarter Ended June 30, Six Months Ended June 30, 1996 1995 1996 1995 Net sales $ 713,698 $ 727,519 $ 1,338,504 $ 1,401,788 ---------- ---------- ---------- ---------- Operating expenses Cost of sales 534,591 547,336 1,006,590 1,043,331 Selling, general and administrative 81,319 85,500 154,554 162,903 Depreciation 22,668 24,519 44,379 49,170 ---------- ---------- ---------- ---------- 638,578 657,355 1,205,523 1,255,404 Operating income 75,120 70,164 132,981 146,384 Interest income 7,671 8,432 15,011 15,102 Interest expense (34,949) (41,452) (70,116) (82,869) Other income, net 247 551 441 977 ---------- ---------- ---------- ---------- Income from continuing operations before income taxes 48,089 37,695 78,317 79,594 Income taxes (5,000) (5,600) (11,000) (13,900) Income from continuing operations 43,089 32,095 67,317 65,694 Discontinued operations -- 2,035 -- 6,064 Income before extraordinary item 43,089 34,130 67,317 71,758 Extraordinary loss from debt refinancing (5,556) (4,713) (5,556) (4,713) Net income $ 37,533 $ 29,417 $ 61,761 $ 67,045 ========== ========== ========== ========== Weighted average number of common shares outstanding (see Exhibit 11) 55,984 53,907 55,952 53,694 ========== ========== ========== ========== Earnings per common share: Primary - Continuing operations $ .73 $ .55 $ 1.13 $ 1.15 - Discontinued operations -- .04 -- .11 - Extraordinary item (.10) (.08) (.10) (.09) ---------- ---------- ---------- ---------- - Net income $ .63 $ .51 $ 1.03 $ 1.17 ========== ========== ========== ========== Fully diluted - Continuing operations $ .68 $ .52 $ 1.06 $ 1.07 - Discontinued operations -- .03 -- .10 - Extraordinary item (.09) (.07) (.09) (.08) ---------- ---------- ---------- ---------- - Net income $ .59 $ .48 $ .97 $ 1.09 ========== ========== ========== ========== Dividends per common share $ .05 $ .05 $ .10 $ .10 ========== ========== ========== ==========
See Notes to Consolidated Financial Statements.
CHIQUITA BRANDS INTERNATIONAL, INC. CONSOLIDATED BALANCE SHEET (Unaudited) (In thousands, except share amounts) June 30, 1996 December 31, 1995 June 30, 1995 ASSETS Current assets Cash and equivalents $ 205,338 $ 236,675 $ 227,787 Marketable securities 66,865 34,743 -- Trade receivables (less allowances of $11,105, $11,310 and $14,842) 218,451 184,364 233,633 Other receivables, net 87,023 89,848 89,492 Inventories 251,280 293,379 287,358 Other current assets 30,767 37,827 33,808 ---------- ---------- ---------- Total current assets 859,724 876,836 872,078 Restricted cash 39,520 39,520 77,530 Net assets of discontinued operations -- -- 56,785 Property, plant and equipment, net 1,158,226 1,182,144 1,340,630 Investments and other assets 352,049 356,805 326,105 Intangibles, net 166,150 168,228 155,942 ---------- ---------- ---------- Total assets $ 2,575,669 $ 2,623,533 $ 2,829,070 ========== ========== ========== LIABILITIES AND SHAREHOLDERS' EQUITY Current liabilities Notes and loans payable $ 91,565 $ 119,456 $ 115,392 Long-term debt due within one year 53,762 52,877 76,679 Accounts payable 224,959 206,717 239,052 Accrued liabilities 108,425 130,893 128,130 ---------- ---------- ---------- Total current liabilities 478,711 509,943 559,253 Long-term debt of parent company 780,663 840,925 840,644 Long-term debt of subsidiaries 394,515 401,121 532,031 Accrued pension and other employee benefits 86,420 85,514 74,286 Other liabilities 107,952 113,823 114,317 ---------- ---------- ---------- Total liabilities 1,848,261 1,951,326 2,120,531 ---------- ---------- ---------- Shareholders' equity Preferred and preference stock 138,369 138,369 190,639 Capital stock, $.33 par value (55,561,291, 54,769,140 and 50,384,019 shares) 18,520 18,256 16,795 Capital surplus 583,861 581,019 513,398 Retained earnings (deficit) (13,342) (65,437) 2,831 Minimum pension liability adjustment -- -- (15,124) ---------- ---------- ---------- Total shareholders' equity 727,408 672,207 708,539 ---------- ---------- ---------- Total liabilities and shareholders' equity $ 2,575,669 $ 2,623,533 $ 2,829,070 ========== ========== ==========
See Notes to Consolidated Financial Statements.
CHIQUITA BRANDS INTERNATIONAL, INC. CONSOLIDATED STATEMENT OF CASH FLOW (Unaudited) (In thousands) Six Months Ended June 30, 1996 1995 Cash provided (used) by: Operations Income from continuing operations $ 67,317 $ 65,694 Depreciation and amortization 48,141 52,144 Write-down of Costa Rican banana producing assets 8,900 -- Changes in current assets and liabilities 12,678 (4,626) Other (1,803) (1,881) ---------- ---------- Cash flow from operations 135,233 111,331 ---------- ---------- Investing Capital expenditures (32,652) (29,767) Restricted cash deposits -- (2,500) Proceeds from sales of transportation assets and other divestitures 5,350 12,208 Increase in marketable securities (39,235) -- Other 1,373 3,344 ---------- ---------- Cash flow from investing (65,164) (16,715) ---------- ---------- Financing Debt transactions Issuances of long-term debt 23,738 196,712 Repayments of long-term debt (94,219) (209,132) Decrease in notes and loans payable (25,497) (7,726) Stock transactions Issuances of capital stock 4,238 942 Dividends (9,666) (9,142) ---------- ---------- Cash flow from financing (101,406) (28,346) ---------- ---------- Discontinued operations -- (4,006) ---------- ---------- Increase (decrease) in cash and equivalents (31,337) 62,264 Balance at beginning of period 236,675 165,523 ---------- ---------- Balance at end of period $ 205,338 $ 227,787 ========== ==========
See Notes to Consolidated Financial Statements. CHIQUITA BRANDS INTERNATIONAL, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Unaudited) Interim results are subject to significant seasonal variations and are not necessarily indicative of the results of operations for a full fiscal year. In the opinion of management, all adjustments (which include only normal recurring adjustments) necessary for a fair statement of the results of the interim periods shown have been made. See Notes to Consolidated Financial Statements included in the Company's Annual Report on Form 10-K for the year ended December 31, 1995 for additional information relating to the Company's financial statements. In December 1995, the Company's remaining meat operations were sold to Smithfield Foods, Inc. As a result, the Meat Division is accounted for as a discontinued operation in 1995.
Inventories consist of the following (in thousands): June 30, December 31, June 30, 1996 1995 1995 Bananas and other fresh produce $ 34,670 $ 39,920 $ 36,056 Other food products 35,774 64,528 47,422 Growing crops 120,086 120,178 115,730 Materials and supplies 50,415 56,925 73,334 Other 10,335 11,828 14,816 $ 251,280 $293,379 $287,358
In June 1996, Chiquita called for redemption at par and defeased its $66 million outstanding 10 1/2% Subordinated Debentures. This debt prepayment resulted in an extraordinary charge of $5.6 million consisting primarily of a non-cash write- off of unamortized discount. During the second quarter 1995, the Company replaced $153 million of ship loans with loans having longer maturities totaling $187 million, resulting in an extraordinary loss of $4.7 million. In accordance with its long-standing policy to periodically hedge transactions denominated in foreign currencies, at June 30, 1996, the Company had option contracts which ensure conversion of approximately $200 million of foreign sales through 1996 and approximately $100 million of foreign sales in the first half of 1997 at rates not higher than 1.49 Deutsche marks per dollar or lower than 1.40 Deutsche marks per dollar. The carrying value of these option contracts, and their fair value based on quoted market prices, were not significant at June 30, 1996. In July and August 1996, the Company sold 2,300,000 shares of $3.75 Convertible Preferred Stock and $150 million principal amount of 10 1/4% Senior Notes due 2006 for net proceeds of approximately $255 million. In July 1996, using proceeds from the offerings, the Company called for redemption and defeased its $220 million outstanding 11 1/2% Subordinated Notes at a redemption premium of 5.7% of the principal amount. CHIQUITA BRANDS INTERNATIONAL, INC. MANAGEMENT'S ANALYSIS OF OPERATIONS AND FINANCIAL CONDITION OPERATIONS Net sales for the quarter and first half ended June 30, 1996 decreased 1.9% and 4.5% from the same periods last year primarily as a result of the sale of Numar Costa Rica. Operating income for the quarter was $75 million in 1996 compared to $70 million in 1995. The elimination of earnings from the divested Numar operation was more than offset by an improvement in banana operating results, which benefited from higher prices and further improvements in delivered product costs. First half operating income in 1996 was $133 million after $12 million of first quarter write-downs and costs resulting from damage to the Company's banana producing assets caused by industry-wide flooding in Costa Rica. Operating income for the first half of 1995 was $146 million. 1996 first half banana operating results, excluding the flood related charges, improved sufficiently to offset the elimination of Numar earnings. Improvements in delivered product cost and second quarter banana prices more than offset the effect of lower European Union banana prices early in the year which resulted primarily from the overissuance of special import licenses to European-based banana companies in late 1995. Net interest expense for the second quarter and first half of 1996 decreased by $6 million and $13 million from the prior year levels as a result of sales of non-core assets in 1995 as well as the Company's refinancing and deleveraging program. The Company's effective tax rate is affected by the level and mix of income between various domestic and foreign jurisdictions in which the Company operates. FINANCIAL CONDITION Cash flow from operations increased to $135 million in the first half of 1996 from $111 million in the prior year period and was used primarily for repayments of debt. As a result of sales of non-core assets and debt repayments, net debt (total debt less cash and securities) has decreased by $251 million since June 30, 1995 to $1.0 billion at June 30, 1996. After giving effect to the Company's securities offerings and prepayment of its $220 million outstanding 11 1/2% Subordinated Notes completed subsequent to June 30, 1996 (see "Notes to Consolidated Financial Statements"), net debt at June 30, 1996 adjusted on this pro forma basis decreased to $915 million. OTHER Reference is made to Part I, Item 1 - "Business-Risks of International Operations" in the Company's 1995 Form 10-K and "Management's Analysis of Operations and Financial Condition" in the Company's 1995 Annual Report to Shareholders and the discussion of the European Union ("EU") banana quota and licensing regime and the Framework Agreement and the pending international challenges to this EU regime. In July 1996, the EU adopted an interim measure that increased its annual banana quota for 1996 to adjust for the entry of Sweden, Finland and Austria into the EU but made its preferential licensing system applicable to the increase. Prior to their entry into the EU, these countries had unregulated banana markets in which the Company supplied a significant portion of the bananas. Implementation of the quota and licensing regime continues to evolve and there can be no assurance that the EU banana regulations will not change further. In connection with the international trade action pending in the World Trade Organization ("WTO") filed by the United States, Ecuador, Guatemala, Honduras and Mexico challenging the EU banana quota and licensing regime and the Framework Agreement, the WTO panel that will hear the case has been selected and a timetable established which calls on the panel to issue its ruling by January 28, 1997. Following any ruling by the WTO panel, certain appeal procedures are available that could extend by a few months the time before the ruling is final. Thereafter, the parties have a "reasonable" period of time to implement the ruling. There can be no assurance as to the results of the WTO proceeding. Part II - Other Information Item 1 - Legal Proceedings In 1993, Great White Fleet Ltd., the Company's shipping subsidiary ("GWF"), redelivered three cargo ships to RSG Reefer Services GmbH ("RSG"), in reliance on the force majeure provisions of the applicable contract of affreightment with RSG, due to the imposition of the European Union banana quota and licensing regime. In 1994, RSG commenced an arbitration proceeding in London, England disputing the occurrence of a force majeure event and seeking damages from GWF. A hearing on the merits was held in May and June 1996 during which RSG claimed it suffered damages in the range of $16 to $20 million. The parties are awaiting the arbitrators' decision. Although the outcome of this proceeding cannot be predicted, the Company's management believes, based on advice of counsel, that GWF was contractually entitled to redeliver the ships and that RSG's damage claim is exaggerated. Reference is made to Part I, Item 3 - "Legal Proceedings" in the Company's 1995 Form 10-K and the discussion of the cases pending in various courts alleging injuries as a result of exposure to DBCP, an agricultural chemical. Five new lawsuits, each involving one plaintiff, were filed in May 1996 in Mississippi state court against the manufacturer and banana producer defendants that are defendants in the other cases. Each case was removed to the United States District Court for the Southern District of Mississippi, Southern Division, where the defendants' motions to dismiss on grounds of lack of personal jurisdiction and plaintiffs' motions to remand the cases to state court are pending. The Company continues to vigorously defend itself in these cases. The Company believes it has a number of meritorious defenses in these cases, including that at all times during which it used DBCP commercially, the product was registered for use by the United States Environmental Protection Agency. In addition, the Company ceased using the product on a commercial basis in 1977, promptly after learning that health hazards might exist. Item 2 - Changes in Securities In July and August 1996, the Company issued 2,300,000 shares of $3.75 Non-Voting Cumulative Preferred Stock, Series B ("Series B Shares"). The Series B Shares are non-voting; have a liquidation preference of $50.00 per share; are entitled to receive preferred annual dividends of $3.75 per share; after October 7, 1996, are convertible into 3.3333 shares of the Company's Capital Stock, par value $.33 per share ("Common Stock"), at the option of the holder; and, after September 9, 1999, are convertible into Common Stock at specified conversion rates at the option of the Company. The Series B Shares are not redeemable and there is no redemption or sinking fund obligation with respect to the Series B Shares. As to dividends and upon liquidation, the Series B Shares rank prior to the Common Stock and pari passu with the Company's shares of $2.875 Non-Voting Cumulative Preferred Stock, Series A ("Series A Shares"). In addition, if the Company fails to pay six or more quarterly dividends on Series B Shares, holders of Series B Shares, voting as a separate class together with holders of Series A Shares, will have the right to elect two additional directors to continue in office until the dividend arrearages are eliminated. On July 26, 1996, the Company also issued $150 million of 10 1/4% Senior Notes due 2006 ("Senior Notes"). The Senior Notes are general unsecured obligations of the Company and rank pari passu with the Company's existing and future senior unsecured indebtedness, and senior to the Company's existing and future subordinated indebtedness. The terms of the Senior Notes contain restrictions on the payment of dividends and other distributions on, and repurchases and redemptions of, the Company's capital stock similar to those of other debt agreements of the Company. At June 30, 1996, approximately $220 million was available for these payments under the most restrictive of these agreements. Item 4 - Submission of Matters to a Vote of Security Holders In connection with the election of seven directors of the Company, proxies were solicited pursuant to Regulation 14 under the Securities Exchange Act of 1934 and the following votes were cast at the Company's Annual Meeting of Shareholders held on May 8, 1996: Name Votes For Votes Withheld Carl H. Lindner 43,241,192 199,218 Keith E. Lindner 43,295,240 145,170 Fred J. Runk 43,298,749 141,661 Jean Head Sisco 43,304,009 136,401 William W. Verity 43,230,296 210,114 Oliver W. Waddell 43,290,578 149,832 Ronald F. Walker 43,303,492 136,918 Proxies representing 11,735,026 shares were not voted. Item 6 - Exhibits and Reports on Form 8-K Page Number(s) (a) Exhibit 3(a)- Certificate of Amendment to the Company's Second Restated Certificate of Incorporation establishing the terms of the Series B Preferred Stock . . . . . . . . . . ** Exhibit 4 - Indenture dated as of February 15, 1994 between the Company and The Fifth Third Bank, Trustee, with respect to Senior Debt Securities, under which the Company's 9 1/8% Senior Notes due 2004 and the Company's 10 1/4% Senior Notes due 2006 have been issued (incorporated by reference to Exhibit 4(c) of Registration Statement 333-00789), as supplemented by the First Supplemental Indenture dated as of June 15, 1994 (incorporated by reference to Exhibit 6(a)99(c) of the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1994) and by the Second Supplemental Indenture dated as of July 15, 1996 (attached hereto); and as further supplemented by the Certificate of the Vice President and Controller of the Company establishing the terms of the 9 1/8% Senior Notes (incorporated by reference to Exhibit 7(c)(3) of the Company's Current Report on Form 8-K dated February 8, 1994) and by the Terms of 10 1/4% Senior Notes approved by the Executive Committee of the Board of Directors of the Company (incorporated by reference to Exhibit 7(c)99.6 of the Company's Current Report on Form 8-K dated July 22, 1996) . . . . . . . ** Exhibit 11 - Computation of Earnings Per Common Share . . . . 12-13 Exhibit 27 - Financial Data Schedule . . . . . . . . . . . . ** **Copy omitted from this Quarterly Report on Form 10-Q. Copy included in report filed electronically with the Securities and Exchange Commission. (b) The following report on Form 8-K was filed by the Company during the quarter ended June 30, 1996: April 30, 1996 - to report the Company's announcement of results of operations for the quarter ended March 31, 1996. In addition, a report on Form 8-K dated July 22, 1996 was filed by the Company to report the terms of the offerings of the Series B Shares and the 10 1/4% Senior Notes. SIGNATURE 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 thereunto duly authorized. CHIQUITA BRANDS INTERNATIONAL, INC. By: /s/ William A. Tsacalis William A. Tsacalis Vice President and Controller (Chief Accounting Officer) August 9, 1996 EX-11 2 Exhibit 11
CHIQUITA BRANDS INTERNATIONAL, INC. COMPUTATION OF EARNINGS PER COMMON SHARE (Unaudited) (In thousands, except per share amounts) Quarter Ended Six Months Ended June 30, June 30, 1996 1995 1996 1995 A. Primary earnings per common share Income from continuing operations $ 43,089 $ 32,095 $ 67,317 $ 65,694 Dividends on Series A Preferred Stock (2,066) (2,066) (4,133) (4,133) ---------- ---------- ---------- ---------- Income from continuing operations attributable to common shares 41,023 30,029 63,184 61,561 Discontinued operations -- 2,035 -- 6,064 ---------- ---------- ---------- ---------- Income attributable to common shares before extraordinary item 41,023 32,064 63,184 67,625 Extraordinary loss from debt refinancing (5,556) (4,713) (5,556) (4,713) ---------- ---------- ---------- ---------- Net income attributable to common shares $ 35,467 $ 27,351 $ 57,628 $ 62,912 ========== ========== ========== ========== Shares used in calculation of per share data: Weighted average common and equivalent Series C preference shares outstanding 55,408 53,512 55,249 53,279 Less restricted common shares (278) (419) (294) (405) Dilutive effect of assumed exercise of stock options and warrants 854 814 997 820 ---------- ---------- ---------- ---------- 55,984 53,907 55,952 53,694 ========== ========== ========== ========== Primary earnings per common share: Continuing operations $ .73 $ .55 $ 1.13 $ 1.15 Discontinued operations -- .04 -- .11 Extraordinary item (.10) (.08) (.10) (.09) ---------- ---------- ---------- ---------- Net income $ .63 $ .51 $ 1.03 $ 1.17 ========== ========== ========== ========== /TABLE Exhibit 11 (continued)
CHIQUITA BRANDS INTERNATIONAL, INC. COMPUTATION OF EARNINGS PER COMMON SHARE (Unaudited) (In thousands, except per share amounts) Quarter Ended Six Months Ended June 30, June 30, 1996 1995 1996 1995 B. Fully diluted earnings per common share Income from continuing operations $ 43,089 $ 32,095 $ 67,317 $ 65,694 Discontinued operations -- 2,035 -- 6,064 -------- -------- -------- -------- Income before extraordinary item 43,089 34,130 67,317 71,758 Extraordinary loss from debt refinancing (5,556) (4,713) (5,556) (4,713) --------- -------- -------- -------- Net income $ 37,533 $ 29,417 $ 61,761 $ 67,045 ========= ======== ======== ======== Shares used in calculation of per share data: Weighted average common and equivalent Series C preference shares outstanding 55,408 53,512 55,249 53,279 Less restricted common shares (278) (399) (284) (384) Dilutive effect of assumed conversion of Series A Preferred Stock 7,566 7,566 7,566 7,566 Dilutive effect of assumed exercise of options and warrants 854 1,036 1,158 938 -------- -------- -------- -------- 63,550 61,715 63,689 61,399 ======== ======== ======== ======== Fully diluted earnings per common share: Continuing operations $ .68 $ .52 $ 1.06 $ 1.07 Discontinued operations -- .03 -- .10 Extraordinary item (.09) (.07) (.09) (.08) -------- -------- -------- -------- Net income $ .59 $ .48 $ .97 $ 1.09 ======== ======== ======== ======== /TABLE EX-3 3 EXHIBIT 3(a) As filed July 24, 1996 with Lorna R. Hooks, Secretary of State of the State of New Jersey 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: 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. 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 24th day of July, 1996. CHIQUITA BRANDS INTERNATIONAL, INC. By: /s/William A. Tsacalis William A. Tsacalis Vice President and Controller 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, 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 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:
If converted during Current Market Value the 12-month period of Common Stock beginning September 10: to be issued 1999 $51.50 2000 $50.75 2001 and thereafter $50.00
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 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 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. (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)" 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 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 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 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 (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 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 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. EX-4 4 EXHIBIT 4 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. 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. 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 is sued 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 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 recordsrelating 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 2 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 portion of the Debt Securities of a series may not be transferred except as a whole by the U.S. Depositary for suchseries 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 3 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 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. 4 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: /s/Gerald R. Kondritzer Title: Vice President and Treasurer [Attest] /s/Donna K. Leonard Assistant General Counsel and Assistant Secretary [Seal] THE FIFTH THIRD BANK, Trustee By:/s/Kerry R. Byrne Title:Vice President [Attest] /s/Greg Hahn 5 STATE OF OHIO ) ) S.S.: COUNTY OF HAMILTON ) On the 24th day of July,1996, before me personally came Kerry R. Byrne to me known, who being by me duly sworn, did depose and say that he resides at 2341 East Hill Avenue, Cincinnati, Ohio 45208, that he is a Vice President 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. /s/Traci L. Powers Notary Public, State of Ohio Commission Expires: Feb. 24, 1999 [Seal] 6 STATE OF OHIO ) ) S.S.: COUNTY OF HAMILTON ) On the 24th day of July, 1996, before me personally came Gerald R. Kondritzer to me known, who being by me duly sworn, did depose and say that he resides at 2324 Madison Road, Cincinnati, Ohio 45208, that he is a Vice President and Treasurer 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. /s/Barbara M. Howland Notary Public, State of Ohio Commission Expires: July 19, 1998 [Seal] 7 EX-27 5
5 This schedule contains summary financial information extracted from the Chiquita Brands International, Inc. Form 10-Q for the six months ended June 30, 1996 and is qualified in its entirety by reference to such financial statements. 1,000 6-MOS DEC-31-1996 JUN-30-1996 205,338 66,865 229,556 11,105 251,280 859,724 1,704,465 546,239 2,575,669 478,711 1,175,178 0 138,369 18,520 570,519 2,575,669 1,338,504 1,338,504 1,006,590 1,006,590 44,379 0 70,116 78,317 11,000 67,317 0 (5,556) 0 61,761 1.03 .97 Amounts include an extraordinary loss of $.10 per share ($.09 per share fully diluted) resulting from refinancing of debt in the second quarter.
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