-----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, Mw+pzyJy3EMpuR70+aX3H4hEBwpUoo/ghjZrwdFIDak0EPYnhuGVXaXGZP32/SLB 3wcRDK5U8nA3KD5UwIor4g== 0000950152-96-003561.txt : 19960725 0000950152-96-003561.hdr.sgml : 19960725 ACCESSION NUMBER: 0000950152-96-003561 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 19960722 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 19960724 SROS: NYSE 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: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-01550 FILM NUMBER: 96598189 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 8-K 1 CHIQUITA 8-K 1 FORM 8-K SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): JULY 22, 1996 CHIQUITA BRANDS INTERNATIONAL, INC. (Exact name of registrant as specified in its charter) NEW JERSEY 1-1550 04-1923360 (State or other (Commission (IRS Employer jurisdiction of File Number) Identification No.) incorporation) 250 EAST FIFTH STREET, CINCINNATI, OHIO 45202 (Address of principal executive offices) Registrant's telephone number, including area code: (513) 784-8000 2 INFORMATION TO BE INCLUDED IN THE REPORT Items 1, 2, 3, 4, 6 and 8 are not applicable and are omitted from this Report. ITEM 5. OTHER EVENTS. On July 22, 1996, Chiquita Brands International, Inc. (the "Company") entered into a Terms Agreement relating to 2,000,000 shares of $3.75 Convertible Preferred Stock, Series B (the "Preferred Stock"), plus an additional 300,000 shares of Preferred Stock solely to cover over-allotments. Further information concerning the Preferred Stock is provided in the exhibits filed with this Current Report on Form 8-K. On July 23, 1996, the Company entered into a Terms Agreement relating to $150,000,000 aggregate principal amount of 10-1/4% Senior Notes due 2006 (the "Senior Notes"). Further information concerning the Senior Notes is provided in the exhibits filed with this Current Report on Form 8-K. The Senior Notes and the Preferred Stock are a portion of the securities registered on the Company's Form S-3 Registration Statement No. 333-00789. ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS. (a) Financial Statements of Businesses Acquired. Not Applicable. (b) Pro Forma Financial Information. Not Applicable. (c) Exhibits The following exhibits are filed with or incorporated by reference into this Current Report on Form 8-K: EXHIBIT NO. DESCRIPTION 99.1 Terms Agreement dated July 22, 1996 relating to the Preferred Stock between the Company and the Underwriters for the Preferred Stock. 2 3 99.2 Form of Certificate of Amendment to the Company's Second Restated Certificate of Incorporation establishing the terms of the Preferred Stock. 99.3 Prospectus Supplement dated July 22, 1996, relating to the Preferred Stock and Prospectus dated May 1, 1996, filed pursuant to Rule 424(b)(5) under the Securities Act of 1933 and incorporated by reference herein. 99.4 Terms Agreement dated July 23, 1996 relating to the Senior Notes between the Company and the Underwriters for the Senior Notes. 99.5 Form of Second Supplemental Indenture dated as of July 15, 1996 to Indenture dated as of February 15, 1994 between the Company and The Fifth Third Bank, as Trustee. 99.6 Terms of the Senior Notes approved by the Executive Committee of the Board of Directors of the Company. 99.7 Prospectus Supplement dated July 23, 1996, relating to the Senior Notes and Prospectus dated May 1, 1996, filed pursuant to Rule 424(b)(5) under the Securities Act of 1933 and incorporated by reference herein. 3 4 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Date: July 23, 1996 CHIQUITA BRANDS INTERNATIONAL, INC. By: /s/ William A. Tsacalis -------------------------------------- William A. Tsacalis Vice President and Controller 4 EX-99.1 2 EXHIBIT 99.1 1 EXHIBIT 99.1 CHIQUITA BRANDS INTERNATIONAL, INC. ("Company") $3.75 Convertible Preferred Stock, Series B TERMS AGREEMENT July 22, 1996 CHIQUITA BRANDS INTERNATIONAL, INC. 250 East Fifth Street Cincinnati, Ohio 45202 Attention: Gerald R. Kondritzer Vice President and Treasurer Dear Sirs: On behalf of the several Underwriters named in Schedule A hereto and for their respective accounts, we offer to purchase, on and subject to the terms and conditions of the Underwriting Agreement Basic Provisions relating to the securities of Chiquita Brands International, Inc. dated January, 1996 ("Underwriting Agreement"), the following securities ("Securities") on the following terms: Equity Securities Title: $3.75 Convertible Preferred Stock, Series B, par value $1.00 per share (the "Series B Preferred Shares") Number of Shares to be Issued: 2,000,000 shares Voting Rights: As described in the Prospectus Supplement, dated July 22, 1996, pertaining to the Series B Preferred Shares (the "Prospectus Supplement") Preferred Stock Dividends: Cash dividends to accrue at an annual rate of $3.75 per share, cumulative and payable quarterly in arrears on March 7, June 7, September 7 and December 7, commencing September 7, 1996, except that if any such date is not a business day, then such dividend will be payable on the next succeeding business day Optional Redemption: Not applicable Mandatory Redemption/Sinking Fund: Not applicable Liquidation Preference: $50.00 per share plus dividends in arrears, if any Name of Exchange or Market: New York Stock Exchange 2 2 Period Designated Pursuant to Paragraph 5(m)(i) of the Underwriting Agreement: 90 days Period Designated Pursuant to Paragraph 8(j) of the Underwriting Agreement: 90 days Conversion Provisions: As described in the Prospectus Supplement Other Terms Price to Public: $50.00 per share Underwriting Discounts and Commission: $1.625 per share; $3,250,000 total Proceeds to Company: $48.375 per share; $96,750,000 total Over-Allotment Option: 300,000 shares Delivery Date: July 26, 1996 Method of Payment: Wire transfer of immediately available funds Name of Transfer Agent and Registrar: Securities Transfer Company Names and Addresses of Representatives: Lehman Brothers Inc. 3 World Financial Center New York, New York 10285 Bear, Stearns & Co. Inc. 245 Park Avenue New York, New York 10167 Prudential Securities Incorporated One New York Plaza New York, New York 10292 SBC Warburg Inc. 787 Seventh Avenue New York, New York 10019 The respective shares of the Securities to be purchased by each of the Underwriters are set forth opposite their names in Schedule A hereto. The provisions of the Underwriting Agreement are incorporated herein by reference except that (i) Schedules I and II thereto are hereby deleted in their entirety and replaced by Schedules B and C, respectively, hereto and (ii) certain issuances of common stock by the Company consented to by Lehman 3 3 Brothers Inc. shall be excluded from the restrictions contained in Paragraph 5(m)(i) of the Underwriting Agreement. In addition to the conditions set forth in Paragraph 8 to the Underwriting Agreement, the respective obligations of the Underwriters are subject to their receipt of (i) the opinion of McCarter & English, New Jersey counsel to the Company, addressed to the Underwriters and dated the Delivery Date and (ii) letters from each executive officer and director of the Company addressed to the Underwriters in form and substance satisfactory to counsel to the Underwriters. If Option Securities are purchased, at any date after the Delivery Date as specified herein, the respective obligations of the Underwriters are subject to their receipt of an additional opinion from such counsel, addressed to the Underwriters and dated such later date, confirming that the statements expressed as of the Delivery Date in such opinion remain valid as of such later date, in form and substance to be mutually agreed upon by such New Jersey counsel and the Representatives. The Securities will be made available for checking and packaging at the office of Lehman Brothers Inc. at least 24 hours prior to the Delivery Date. 4 4 Please signify your acceptance of our offer by signing the enclosed response to us in the space provided and returning it to us. Very truly yours, LEHMAN BROTHERS INC. BEAR, STEARNS & CO. INC. PRUDENTIAL SECURITIES INCORPORATED SBC WARBURG INC. As Underwriters By: LEHMAN BROTHERS INC. By: /s/ Michael Konigsberg ------------------------------- Authorized Representative 5 To: LEHMAN BROTHERS INC. Date: July 22, 1996 BEAR, STEARNS & CO. INC. PRUDENTIAL SECURITIES INCORPORATED SBC WARBURG INC. As Underwriters c/o Lehman Brothers Inc. 3 World Financial Center New York, New York 10285 We accept the offer contained in your letter, dated July 22, 1996, relating to 2,000,000 shares of our Convertible Preferred Stock, Series B, par value $1.00 per share (the "Terms Agreement"). We also confirm that, to the best of our knowledge after reasonable investigation, the representations and warranties of the undersigned in the Underwriting Agreement Basic Provisions filed as an exhibit to the undersigned's registration statement on Form S-3 (No. 333-00789) (together with the Terms Agreement, the "Underwriting Agreement") are true and correct, no stop order suspending the effectiveness of the Registration Statement (as defined in the Underwriting Agreement) or of any part thereof has been issued and, to the knowledge of the undersigned, no proceedings for that purpose have been instituted or are contemplated by the Securities and Exchange Commission and, subsequent to the respective dates of the most recent financial statements in the Prospectus (as defined in the Underwriting Agreement), there has been no material adverse change in the financial position or results of operations of the undersigned and its subsidiaries except as set forth in or contemplated by the Prospectus. Very truly yours, CHIQUITA BRANDS INTERNATIONAL, INC. By: /s/ Gerald R. Kondritzer ------------------------------------- Name: Gerald R. Kondritzer Title: Vice President and Treasurer 6 SCHEDULE A
Number of Underwriter Shares ----------- ------ Lehman Brothers Inc........................................... 500,000 Bear, Stearns & Co. Inc....................................... 500,000 Prudential Securities Incorporated............................ 500,000 SBC Warburg Inc............................................... 500,000 --------- Total............................................. 2,000,000 =========
7 SCHEDULE B SIGNIFICANT SUBSIDIARIES SUBSIDIARY JURISDICTION OF INCORPORATION Caribbean Enterprises, Inc. Delaware Great White Fleet Ltd. Bermuda DSF Ltd. Bermuda Chiquita Brands, Inc. Delaware Chiquita Europe B.V. Netherlands Chiquita Banana Company B.V. Netherlands Chiriqui Land Company Delaware Chiquita International Trading Company Delaware M.M. Holding Ltd. Bermuda Chiquita International Limited Bermuda Friday Canning Corporation Wisconsin Maritrop Trading Corporation Delaware Tela Railroad Company Delaware 8 SCHEDULE C DESIGNATED SUBSIDIARIES Caribbean Enterprises, Inc. Great White Fleet Ltd. Chiquita Brands, Inc. Chiriqui Land Company Chiquita International Trading Company Chiquita International Limited Friday Canning Corporation Maritrop Trading Corporation Tela Railroad Company EX-99.2 3 EXHIBIT 99.2 1 Exhibit 99.2 CERTIFICATE OF AMENDMENT TO THE SECOND RESTATED CERTIFICATE OF INCORPORATION OF CHIQUITA BRANDS INTERNATIONAL, INC. To: Secretary of State State of New Jersey Pursuant to the provisions of N.J.S. 14A:7-2(2) and 14A:9-1, the undersigned corporation, Chiquita Brands International, Inc. (the "Corporation"), executes the following Certificate of Amendment to its Second Restated Certificate of Incorporation (the "Certificate of Incorporation"). 1. The name of the corporation is Chiquita Brands International, Inc. 2. The following resolution, deleting the designation of a class of securities, was duly adopted by the Board of Directors of the Corporation by unanimous written consent as of the 15th day of July, 1996, pursuant to the authority vested in the Board of Directors by the Certificate of Incorporation: WHEREAS, none of the Corporation's Mandatorily Exchangeable Cumulative Preference Stock, Series C (the "Series C Stock"), is currently outstanding and none may be issued in the future because all of such shares have converted in accordance with the terms of the Series C Stock to Capital Stock, par value $0.33 per share ("Common Stock"); therefore, the Board of Directors desires to delete the classification and terms of the Series C Stock from the Corporation's Second Restated Certificate of Incorporation. RESOLVED, that the Corporation's Second Restated Certificate of Incorporation is hereby amended to delete the designation of the class of securities titled Mandatorily Exchangeable Cumulative Preference Stock, Series C, and eliminate Subsection E. of Section IV of the Second Restated Certificate of Incorporation titled "Special Provisions Applicable to the Series C Preference Stock;" and the proper officers of the Corporation are authorized to execute and file, as necessary, any documents or certificates with the Secretary of State of New Jersey to effect such amendment. 3. The following resolutions, establishing and designating a new series of shares and fixing and determining the relative rights and preferences thereof, were duly adopted by the Executive Committee of the Board of Directors of the Corporation as of the 22nd day of July, 1996, pursuant to the authority vested in the Board of Directors by the Certificate of Incorporation, exercised on behalf of the Board of Directors by the Executive Committee pursuant to resolutions of the Board of Directors so authorizing it to act: 2 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. 2 3 5. The Certificate of Incorporation is further amended so that the designation and number of shares of each class and series acted upon in the resolutions, and the relative rights, preferences and limitations of each such class and series are as stated in Exhibit 1 attached hereto, which is the same exhibit referred to in the foregoing resolutions. IN WITNESS WHEREOF, the undersigned has signed this Certificate of Amendment to the Certificate of Incorporation this __th day of July, 1996. CHIQUITA BRANDS INTERNATIONAL, INC. By: ___________________________________ William A. Tsacalis Vice President and Controller 3 4 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, 4 5 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 5 6 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: 6 7
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 7 8 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 8 9 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. 9 10 (D) If the Corporation shall pay a dividend or make a distribution consisting exclusively of cash (excluding any cash portion of distributions referred to in Subsection E(c)(iv)(C)) (collectively, "All-Cash Distributions") to all holders of Capital Stock, then, to the extent such All-Cash Distribution, combined with (A) all other All-Cash Distributions made within the preceding 12 months in respect of which no adjustment has been made, plus (B) any cash and the fair market value of other consideration payable in respect of any Corporation Tender Offer (as defined in Subsection E(c)(viii)) concluded within the preceding 12 months in respect of which no adjustment has been made, exceed ten percent (10%) of the product of (x) the Current Market Price of the Capital Stock, times (y) the number of issued and outstanding shares of Capital Stock (assuming the conversion into Capital Stock of each outstanding security or debt instrument which is by its terms convertible into Capital Stock at the option of the holder, without the payment of additional consideration therefor, regardless of whether or not such security or debt instrument shall be so convertible on such date), each as measured on the record date for such All-Cash Distribution (such excess being herein called the "Excess Distribution"), then the Conversion Rate shall be adjusted by multiplying the Conversion Rate in effect immediately prior to the date of such All-Cash Distribution by a fraction, of which the numerator shall be the Current Market Price of the Capital Stock, and of which the denominator shall be the Current Market Price of the Capital Stock less the quotient of the Excess Distribution divided by the number of issued and outstanding shares of Capital Stock (measured as described in clause "(y)" above), each as measured on the record date. Such adjustment shall become effective on the opening of business on the business day next following the record date for the determination of shareholders entitled to receive such All-Cash Distribution (provided, however, that no such adjustment shall be made in respect of any All-Cash Distribution described in this Subsection which was also paid or made to holders of shares of Series B Preferred Stock in which such holders shall receive, with respect to each share of Series B Preferred Stock, the same All-Cash Distribution as shall be paid or made with respect to the maximum number of shares of Capital Stock into which each share of Series B Preferred Stock shall be convertible at the option of the Corporation pursuant to Subsection E(c)(ii) or at the option of the holder pursuant to Subsection E(c)(iii), whichever is greater). (E) If the Corporation shall make payment of any cash or other consideration payable in respect of any Corporation Tender Offer, then, to the extent such Corporation Tender Offer involves payment of an aggregate consideration that combined with (A) all All-Cash Distributions made within the preceding 12 months in respect of which no adjustment has been made, plus (B) any cash and the fair market value of other consideration payable in respect of any Corporation Tender Offer concluded within the preceding 12 months in respect of which no adjustment has been made, exceeds ten percent (10%) of the product of (x) the Current Market Price of the Capital Stock, times (y) the number of issued and outstanding shares of Capital Stock (assuming the conversion into Capital Stock of each outstanding security or debt instrument which is by its terms convertible into Capital Stock at the option of the holder, without the payment of additional consideration therefor, regardless of whether or not such security or debt instrument shall be so convertible on such date), each as measured on the expiration date of such Corporation Tender Offer (such excess being herein called the "Excess Consideration"), then the Conversion Rate shall be adjusted by multiplying the Conversion Rate in effect immediately prior to the expiration date of such Corporation Tender Offer by a fraction, of which the numerator shall be the Current Market Price of the Capital Stock, and of which the denominator shall be the Current Market Price of the Capital Stock less the quotient of the Excess Consideration divided by the number of issued and outstanding shares of Capital Stock (measured as described in clause "(y)" 10 11 above), each as measured on such expiration date (provided, however, that no such adjustment shall be made in respect of any Corporation Tender Offer described in this Subsection which was also made to holders of shares of Series B Preferred Stock in which such holders shall receive, with respect to each share of Series B Preferred Stock, the same payment in respect of a Corporation Tender Offer with respect to the maximum number of shares of Capital Stock into which each share of Series B Preferred Stock shall then be convertible at the option of the Corporation pursuant to Subsection E(c)(ii) or at the option of the holder pursuant to Subsection E(c)(iii), whichever is greater). (F) From time to time, to the extent permitted by law, the Corporation may make temporary upward adjustments to the Conversion Rate by any amount for any period of at least 20 days, in which case the Corporation shall give not less than 15 nor more than 60 days' notice of such adjustment, if the Board of Directors has made a determination that such adjustment would be in the best interests of the Corporation, which determination shall be conclusive. (G) Anything in this Subsection E(c)(iv) notwithstanding, the Board of Directors shall be entitled to make such upward adjustments in the Conversion Rate, in addition to those required by this Subsection E(c)(iv), (1) as the Board of Directors in its discretion shall determine to be advisable, in order that any stock dividends, subdivision of shares, distribution of rights to purchase stock or securities, or a distribution of securities convertible into or exchangeable for stock (or any transaction which could be treated as any of the foregoing transactions pursuant to Section 305 of the Internal Revenue Code of 1986, as amended, or any successor section thereto) hereafter made by the Corporation to its shareholders shall not be taxable; and (2) as the Board of Directors in its discretion shall determine to be necessary or appropriate in order to preserve the relative rights of the holders of Capital Stock, on the one hand, and the holders of Series B Preferred Stock, on the other hand, as such rights are set forth in this Certificate of Incorporation. (H) In any case in which this Subsection E(c)(iv) shall require that an adjustment as a result of any event become effective at the opening of business on the business day next following a record date, and the date fixed for conversion pursuant to Subsection E(c)(i), (ii) or (iii) occurs after such record date, but before the occurrence of such event, the Corporation may in its sole discretion elect to defer the following until after the occurrence of such event: (1) issuing to the holder of any shares of the Series B Preferred Stock surrendered for conversion the additional shares of Capital Stock issuable upon such conversion over and above the shares of Capital Stock issuable upon such conversion on the basis of the Conversion Rate prior to adjustment; and (2) paying to such holder any amount in cash in lieu of a fractional share of Capital Stock pursuant to Subsection E(c)(vi). (v) Notice of Adjustments. Whenever the Conversion Rate is adjusted as herein provided, the Corporation shall: (A) forthwith compute the adjusted Conversion Rate in accordance with Subsection E(c)(iv) and prepare a certificate signed by the Chief Executive Officer, the Chairman, the President, any Vice President or the Treasurer of the Corporation setting forth the adjusted 11 12 Conversion Rate, the Maximum Conversion Rate and, if applicable, the Strike Price, and the method of calculation thereof in reasonable detail and the facts requiring such adjustment and upon which such adjustment is based, and file such certificate forthwith with the transfer agent or agents for the Series B Preferred Stock and the Capital Stock; and (B) mail a notice stating that the Conversion Rate, the Maximum Conversion Rate and, if applicable, the Strike Price have been adjusted, the facts requiring such adjustment and upon which such adjustment is based and setting forth the adjusted Conversion Rate. the Maximum Conversion Rate and, if applicable, the Strike Price to the holders of record of the outstanding shares of the Series B Preferred Stock at or prior to the time the Corporation mails a financial statement to its shareholders covering the quarterly fiscal period during which the facts requiring such adjustment occurred, but in any event within 120 days after a fourth quarter/fiscal year-end period or 60 days after the end of any other quarterly fiscal period. In addition to the foregoing, the Corporation will calculate and provide notice to the transfer agent or agents for the Series B Preferred Stock and the Capital Stock within 30 days after (1) the date of initial issuance of the shares of Series B Preferred Stock, or (2) the occurrence of any event triggering an adjustment of the Maximum Conversion Rate, of the number of shares of Capital Stock required to be reserved for issuance upon conversion of the issued and outstanding shares of Series B Preferred Stock; provided that no such notice need be sent if the number of shares of Capital Stock then reserved is in excess of the number of shares of Capital Stock required to be reserved as so calculated. (vi) No Fractional Shares. No fractional shares of Capital Stock shall be issued upon conversion of shares of Series B Preferred Stock but, in lieu of any fraction of a share of Capital Stock which would otherwise be issuable in respect of the aggregate number of shares of the Series B Preferred Stock surrendered by the same holder for conversion on any conversion date, the holder shall have the right to receive an amount in cash equal to the same fraction of the Current Market Price of the Capital Stock on the date of conversion. (vii) Cancellation. All Shares of Series B Preferred Stock which shall have been converted into shares of Capital Stock or which shall have been purchased or otherwise acquired by the Corporation shall assume the status of authorized but unissued shares of Non-Voting Cumulative Preferred Stock undesignated as to series. (viii) Definitions. As used in this Subsection E: (A) The term "business day" shall mean any day other than a Saturday, Sunday or a day on which banking institutions in the States of New York or Ohio are authorized or obligated by law or executive order to close. (B) The term "Corporation Tender Offer" shall mean a tender offer (as such term has been defined by the applicable rules, regulations and interpretations of the Securities and Exchange Commission and by courts interpreting the relevant provisions of the Securities Exchange Act of 1934, as amended) by the Corporation and/or any of its subsidiaries for Capital Stock. (C) The term "Current Market Price" per share of Capital Stock on any date shall mean the average of the daily Market Prices for the fifteen consecutive Trading Dates 12 13 ending on the second Trading Date immediately preceding such date (appropriately adjusted to take into account the occurrence during such fifteen-day period, or following such fifteen-day period and prior to such date, of any event that results in an adjustment of the Conversion Rate). (D) The term "Market Price" for any day shall mean (1) if the Capital Stock is listed or admitted for trading on the New York Stock Exchange (or any successor to such exchange) or, if not so listed or admitted, on any national or regional securities exchange, the last sale price, or the closing bid price if no sale occurred, of the Capital Stock on the principal securities exchange on which the Capital Stock is listed, or (2) if not listed or traded as described in clause (1), the last reported sales price of the Capital Stock on the National Market System of the National Association of Securities Dealers Automated Quotations System, or any similar system of automated dissemination of quotations of securities prices then in common use, if so quoted, or (3) if not quoted as described in clause (2), the mean between the high bid and the low asked quotations for the Capital Stock as reported by the National Quotation Bureau Incorporated if at least two securities dealers have inserted both bid and asked quotations for the Capital Stock on at least five of the ten preceding days. If the Capital Stock is quoted on a national securities or central market system in lieu of a market or quotation system described above, then the closing price shall be determined in the manner set forth in clause (1) of the preceding sentence if actual transactions are reported and in the manner set forth in clause (3) of the preceding sentence if bid and asked quotations are reported but actual transactions are not. If none of the conditions set forth above is met, the closing price of Capital Stock on any day or the average of such closing prices for any period shall be the fair market value of the Capital Stock as determined by a member firm of the New York Stock Exchange, Inc. (or any successor to such exchange) selected by the Corporation. (E) The term "Notice Date" shall mean the following: with respect to any notice given by the Corporation in connection with a conversion (including any potential conversion upon the effectiveness of a Merger or Consolidation) of any of the Series B Preferred Stock, the date of mailing of such notice to the holders of Series B Preferred Stock. (F) The term "Trading Date" shall mean (1) a date on which the New York Stock Exchange (or any successor to such exchange) is open for the transaction of business, or (2) if the Capital Stock is not at such time listed or admitted for trading on the New York Stock Exchange (or any successor to such Exchange), a date upon which the principal national or regional securities exchange upon which the Capital Stock is listed or admitted to trading is open for the transaction of business, or (3) if not listed or admitted to trading as described in clauses (1) or (2), and if at such time the sales price of Capital Stock is quoted on the National Market System of the National Association of Securities Dealers Automated Quotations System, or any similar system of automated dissemination of quotations of securities prices then in common use, a date for which such system provides quotations with respect to securities upon which it reports, or (4) if not so quoted, and if at such time the bid and asked prices of the Capital Stock are reported by the National Quotation Bureau Incorporated, a date for which the National Quotation Bureau Incorporated provides bid and asked prices with respect to securities upon which it reports, or (5) if not so quoted, any business day. (ix) Notice of Conversion. The Corporation shall provide notice of any exercise of its right to convert shares of Series B Preferred Stock to holders of record of the Series B Preferred 13 14 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 14 15 (if required) shall have been duly given, then, notwithstanding that the certificates evidencing any shares of Series B Preferred Stock subject to conversion shall not have been surrendered, the shares represented thereby subject to conversion shall be deemed no longer outstanding, dividends with respect to the shares of Series B Preferred Stock subject to conversion shall cease to accrue after the date fixed for conversion and all rights with respect to such shares subject to conversion shall forthwith after such date cease and terminate, except for the right of the holders to receive the shares of Capital Stock and/or any applicable cash amounts without interest upon surrender of their certificates therefor; provided that if on the date fixed for conversion shares of Capital Stock and cash, if applicable, necessary for the conversion shall have been deposited by the Corporation in trust for the account of the holders of the shares of Series B Preferred Stock so to be converted as provided above, then the holder or holders of such shares of Series B Preferred Stock so converted shall look only to such bank or trust company for delivery of shares of Capital Stock and cash, if applicable, unless and until such shares of Capital Stock and cash are repaid and released to the Corporation. No holder of a certificate of shares of Series B Preferred Stock shall be, or have any rights as, a holder of the shares of Capital Stock issuable in connection with the conversion thereof, including, without limitation, voting rights or the right to receive any dividend from the Corporation with respect to such shares of Capital Stock, until surrender of such certificate for a certificate representing such Capital Stock. Upon such surrender, there shall be paid to the holder the amount of any dividend or other distribution (without interest) which became payable in respect of the number of whole shares of Capital Stock issuable upon such surrender on or after the conversion date, but which was not paid by reason of any earlier failure to surrender certificates that represented shares of Series B Preferred Stock. If fewer than all the outstanding shares of Series B Preferred Stock are to be converted at the option of the Corporation, shares to be converted shall be selected by the Corporation from outstanding shares of Series B Preferred Stock by lot, pro rata (as nearly as may be) or by any other method reasonably determined by the Board of Directors of the Corporation to be appropriate and fair to the holders of Series B Preferred Stock. (x) Corporation's Option to Pay Accumulated Unpaid Dividends in Common Stock Upon Conversion on or after September 10, 1999. Notwithstanding anything to the contrary contained herein, if the effective date of any conversion is on or after September 10, 1999 and if on such date there are accumulated unpaid dividends with respect to the Series B Preferred Stock to be so converted, then on such effective date the Corporation may deliver, in lieu of any cash payment in respect of accumulated unpaid dividends and, if applicable, any additional payment pursuant to Subsection E(c)(ii)(C), that number of shares of Capital Stock the aggregate Current Market Price of which on such date shall equal the amount of such cash payment. Such option may be exercised by the Corporation for all or part of such cash payment. (xi) No Interest on Accumulated Unpaid Dividends. Any payment with respect to accumulated unpaid dividends upon conversion of shares of Series B Preferred Stock, whether such payment is made in cash or, pursuant to Subsection E(c)(x), in shares of Capital Stock, shall not provide for any interest on such accumulated unpaid dividends. (d) Voting Rights. (i) Holders of Series B Preferred Stock shall have no right to vote on any matter submitted to a vote of shareholders of the Corporation, except as otherwise provided by applicable law and this Subsection E(d). In addition to any voting rights to which the holders of shares of Series B Preferred Stock shall be entitled pursuant to applicable law, whenever, at any time, Preferential Dividends payable on the Series B Preferred Stock shall be in arrears with respect to six (6) or more Preferential Dividend Payment Dates, whether or not consecutive, the holders of shares of Series 15 16 B Preferred Stock shall have the right, voting separately as a class with holders of shares of any one or more series of Non-Voting Cumulative Preferred Stock, Series Preference Stock and/or any other class or series of shares ranking on a parity with shares of Series B Preferred Stock as to dividends and upon which like voting rights have been conferred and are exercisable, to elect two directors of the Corporation at the Corporation's next meeting of shareholders at which directors are to be elected and at each subsequent meeting of shareholders at which directors are to be elected until such right is terminated as provided in this Subsection E(d). Upon the vesting of such voting right in the holders of shares of Series B Preferred Stock, the maximum authorized number of members of the Board of Directors shall automatically be increased by two and the two vacancies so created shall be filled by vote of the holders of shares of Series B Preferred Stock (voting as a class with the holders of shares of any one or more other class or series of shares ranking on such a parity and upon which like voting rights have been conferred and are exercisable) as set forth herein. The right of the holders of shares of Series B Preferred Stock to elect members of the Board of Directors of the Corporation as aforesaid shall continue until such time as all dividends accumulated on shares of Series B Preferred Stock shall have been paid or deposited for payment in full, at which time such right shall terminate, except as by law expressly provided, subject to revesting in the event of each and every subsequent default of the character above mentioned. (ii) Upon any termination of the right of the holders of Series B Preferred Stock and, if applicable, the holders of shares of any one or more other series of Non-Voting Cumulative Preferred Stock, Series Preference Stock and/or other class or series of shares ranking on such a parity to vote as a class for directors as herein provided, the term of office of all directors then in office elected by shares of Series B Preferred Stock and such other series voting as a class shall terminate immediately. If the office of any director elected by the holders of shares of Series B Preferred Stock and, if applicable, the holders of shares of one or more other series of Non-Voting Cumulative Preferred Stock, Series Preference Stock and/or other class or series of shares on such a parity, voting as a class, becomes vacant by reason of death, resignation, retirement, disqualification, removal from office, or otherwise, the remaining director elected by the holders of shares of Series B Preferred Stock and, if applicable, the holders of shares of any one or more other series of Non-Voting Cumulative Preferred Stock, Series Preference Stock and/or other class or series of shares ranking on such a parity, voting as a class, may choose a successor who shall hold office for the unexpired term in respect of which such vacancy occurred. Whenever the special voting powers vested in the holders of shares of Series B Preferred Stock and the holders of shares of any one or more other series of Non-Voting Cumulative Preferred Stock, Series Preference Stock and/or other class or series of shares ranking on such a parity to vote as a class for directors as provided in this Subsection E(d)(ii) shall have expired, the number of directors shall become such number as may be provided for in the By-Laws, or resolution of the Board of Directors thereunder, irrespective of any increase made pursuant to the provisions of this Subsection E(d)(ii). (iii) While any Series B Preferred Stock is outstanding, the Corporation shall not, without the affirmative consent (given in writing or at a meeting duly called for that purpose) of the holders of at least two-thirds (2/3rds) of the aggregate number of votes entitled to be exercised by holders of all affected series of Non-Voting Cumulative Preferred Stock then outstanding (provided that each other series shall have voting rights similar or identical to the voting rights set forth in this Subsection E(d)(iii)): (A) amend the Certificate of Incorporation of the Corporation to authorize the creation of any class or series of stock having a preference as to dividends or upon liquidation senior to or on a parity with the Series B Preferred Stock (hereinafter in this Subsection (E)(d)(iii) referred to as "Senior Stock"); provided, however, that no such approval of holders of Series B Preferred Stock (or other affected series of Non-Voting Cumulative Preferred Stock having similar voting rights) shall be required to amend the Certificate of Incorporation of the Corporation to authorize the 16 17 creation of any series of Senior Stock that may be authorized out of the Non-Voting Cumulative Preferred Stock or the Series Preference Stock, the terms of which may be established by any amendment to the Certificate of Incorporation of the Corporation which may be adopted by the Board of Directors of the Corporation without shareholder approval, or (B) amend, alter or repeal the Certificate of Incorporation of the Corporation in a manner that would materially adversely affect the terms of Series B Preferred Stock. (iv) With respect to any matter upon which holders of shares of Series B Preferred Stock shall be entitled to vote pursuant to this Subsection E(d), each such holder shall be entitled to exercise the number of votes equal to the maximum number of shares of Capital Stock into which the shares of Series B Preferred Stock held by such holder shall then be convertible at the option of the Corporation pursuant to Subsection E(c)(ii) or at the option of the holder pursuant to Subsection (E)(c)(iii), whichever is greater, on the record date for determining the shareholders of the Corporation entitled to vote. (e) Increase in Shares. The number of shares of Series B Preferred Stock may, to the extent of the Corporation's authorized and unissued Non-Voting Cumulative Preferred Stock, be increased by further resolution duly adopted by the Board of Directors and the filing of an amendment to the Certificate of Incorporation of the Corporation. (f) Exclusive Rights. Each holder of shares of Series B Preferred Stock shall hold such Series B Preferred Stock subject to the right of the Corporation to effect a conversion in accordance with the provisions of Subsection E(c) hereof and, in the event of such a conversion, shall have the right to receive, as full payment, discharge and satisfaction of the obligations of the Corporation with respect to such Series B Preferred Stock, only those shares of Capital Stock and cash, if applicable, delivered as provided in accordance with Subsection E(c) hereof. (g) Equal Rank. All shares of Series B Preferred Stock shall be identical in all respects, and all shares of Series B Preferred Stock shall be of equal rank with shares of $2.875 Non-Voting Cumulative Preferred Stock, Series A, in respect of the preference as to dividends and to payments upon the Liquidation of the Corporation. 17 EX-99.4 4 EXHIBIT 99.4 1 EXHIBIT 99.4 CHIQUITA BRANDS INTERNATIONAL, INC. ("Company") 10-1/4% Senior Notes due 2006 TERMS AGREEMENT July 23, 1996 CHIQUITA BRANDS INTERNATIONAL, INC. 250 East Fifth Street Cincinnati, Ohio 45202 Attention: Gerald R. Kondritzer Vice President and Treasurer Dear Sirs: We offer to purchase, on and subject to the terms and conditions of the Underwriting Agreement Basic Provisions relating to the securities of Chiquita Brands International, Inc. dated January, 1996 ("Underwriting Agreement"), the following securities ("Securities") on the following terms: Debt Securities Title: 10-1/4% Senior Notes due 2006 Rank: Senior Debt Securities Principal Amount: $150,000,000 Interest Rate: 10-1/4% from July 26, 1996, payable: semi-annually on May 1 and November 1, commencing November 1, 1996 Maturity: November 1, 2006 Form: The Securities are to be issued in the form of one or more global securities registered in the name of the Depository Trust Company or its nominee Optional Redemption: As described in the Prospectus Supplement Sinking Fund: Not applicable Indenture: Indenture, dated as of February 15, 1994, between the Company and The Fifth Third Bank, as trustee as supplemented by the First Supplemental Indenture, dated as of June 15, 1994, and the Second Supplemental Indenture dated as of July 15, 1996 Delayed Delivery Contracts: Not authorized 2 2 Delivery Date: July 26, 1996 Method of Payment: Wire transfer of immediately available funds Underwriting Fees and Discounts: 2.75% Purchase Price to Underwriters: 96.657%, plus accrued interest from July 26, 1996 Expected Reoffering Price to Public: 99.407%, plus accrued interest, if any, from July 26, 1996 Names and Addresses of Underwriters: Lehman Brothers Inc. 3 World Financial Center New York, New York 10285 Bear, Stearns & Co. Inc. 245 Park Avenue New York, New York 10167 Furman Selz LLC 230 Park Avenue New York, New York 10169 The respective principal amounts of the Debt Securities to be purchased by each of the Underwriters are set forth opposite their names in Schedule A hereto. The provisions of the Underwriting Agreement are incorporated herein by reference except that Schedules I and II thereto are hereby deleted and replaced in their entirety by Schedules B and C hereto, respectively. The Closing will take place at 10:00 A.M., New York City time, on July 26, 1996, at the offices of Simpson Thacher & Bartlett, 425 Lexington Avenue, New York, New York 10017. 3 3 Please signify your acceptance by signing the enclosed response to us in the space provided and returning it to us. Very truly yours, LEHMAN BROTHERS INC. BEAR, STEARNS & CO. INC. FURMAN SELZ LLC As Underwriters By: LEHMAN BROTHERS, INC. By /s/ David H. Jeffries ------------------------------- Authorized Representative 4 To: LEHMAN BROTHERS INC. Date: July 23, 1996 BEAR, STEARNS & CO. INC. FURMAN SELZ LLC As Underwriters c/o Lehman Brothers Inc. 3 World Financial Center New York, New York 10285 We accept the offer contained in your letter, dated July 23, 1996, relating to $150,000,000 principal amount of our 10-1/4% Senior Notes due 2006 (the "Terms Agreement"). We also confirm that, to the best of our knowledge after reasonable investigation, the representations and warranties of the undersigned in the Underwriting Agreement Basic Provisions filed as an exhibit to the undersigned's registration statement on Form S-3 (No. 333-00789) (together with the Terms Agreement, the "Underwriting Agreement") are true and correct, no stop order suspending the effectiveness of the Registration Statement (as defined in the Underwriting Agreement) or of any part thereof has been issued and, to the knowledge of the undersigned, no proceedings for that purpose have been instituted or are contemplated by the Securities and Exchange Commission and, subsequent to the respective dates of the most recent financial statements in the Prospectus (as defined in the Underwriting Agreement), there has been no material adverse change in the financial position or results of operations of the undersigned and its subsidiaries except as set forth in or contemplated by the Prospectus. Very truly yours, CHIQUITA BRANDS INTERNATIONAL, INC. By: /s/ Gerald R. Kondritzer ------------------------------------ Name: Gerald R. Kondritzer Title: Vice President and Treasurer 5 SCHEDULE A 10-1/4% Senior Notes due 2006
Underwriter Principal Amount Lehman Brothers Inc............................................................. $ 82,500,000 Bear, Stearns & Co. Inc......................................................... 33,750,000 Furman Selz LLC................................................................. 33,750,000 ------------ Total.................................................................. $150,000,000 ============
6 SCHEDULE B SIGNIFICANT SUBSIDIARIES SUBSIDIARY JURISDICTION OF INCORPORATION Caribbean Enterprises, Inc. Delaware Great White Fleet Ltd. Bermuda DSF Ltd. Bermuda Chiquita Brands, Inc. Delaware Chiquita Europe B.V. Netherlands Chiquita Banana Company B.V. Netherlands Chiriqui Land Company Delaware Chiquita International Trading Company Delaware M.M. Holding Ltd. Bermuda Chiquita International Limited Bermuda Friday Canning Corporation Wisconsin Maritrop Trading Corporation Delaware Tela Railroad Company Delaware 7 SCHEDULE C DESIGNATED SUBSIDIARIES Caribbean Enterprises, Inc. Great White Fleet Ltd. Chiquita Brands, Inc. Chiriqui Land Company Chiquita International Trading Company Chiquita International Limited Friday Canning Corporation Maritrop Trading Corporation Tela Railroad Company EX-99.5 5 EXHIBIT 99.5 1 Exhibit 99.5 CHIQUITA BRANDS INTERNATIONAL, INC. and THE FIFTH THIRD BANK, Trustee -------------------------------------------- SECOND SUPPLEMENTAL INDENTURE -------------------------------------------- Dated as of July 15, 1996 To INDENTURE Dated as of February 15, 1994 Amending the Indenture, dated as of February 15, 1994, as previously supplemented with respect to the 9-1/8% Senior Notes due 2004 issued thereunder by a Board Resolution dated February 8, 1994 and by the First Supplemental Indenture dated as of June 15, 1994. 2 SECOND SUPPLEMENTAL INDENTURE (the "Second Supplemental Indenture"), dated as of July 15, 1996, between CHIQUITA BRANDS INTERNATIONAL, INC., a New Jersey corporation (the "Company"), and THE FIFTH THIRD BANK, an Ohio banking corporation, as Trustee (the "Trustee"). RECITALS The Company and the Trustee are parties to an Indenture, dated as of February 15, 1994, relating to the issuance from time to time by the Company of its Senior Debt Securities on terms to be specified at the time of issuance. The Indenture has been previously supplemented (as so supplemented, the "Indenture") by (a) a Board of Resolution dated February 8, 1994, pursuant to which the Company issued its 9 1/8% Senior Notes due 2004 in the aggregate principal amount of $175,000,000 (the "9 1/8% Senior Notes") and (b) the First Supplemental Indenture dated as of June 15, 1994 relating to the 9 1/8% Senior Notes. The 9 1/8% Senior Notes are the sole series of Debt Securities outstanding under the Indenture. Capitalized terms used herein, not otherwise defined herein, shall have the meanings assigned to them in the Indenture. The Company has duly authorized the execution and delivery of this Second Supplemental Indenture in order to provide for the issuance of Global Securities in connection with future series of Debt Securities, which may be issued under the Indenture, but not the 9 1/8% Senior Notes. The Company has requested the Trustee and the Trustee has agreed to join with it in the execution and delivery of this Second Supplemental Indenture. Section 901 (4) of the Indenture provides that the Company, acting pursuant to a Board Resolution, and the Trustee, at any time and from time to time, may enter into an indenture supplemental to the Indenture to add to, change or eliminate any of the provisions of the Indenture; provided, however, that any such additions, changes or eliminations shall become effective only when there is no Debt Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision and as to which such supplemental indenture would apply. The Company has determined that this Second Supplemental Indenture complies with Section 901 (4) and does not require the consent of any Holders of Debt Securities. On the basis of the foregoing, the Trustee has determined that this Second Supplemental Indenture is in form satisfactory to it. The Company has furnished the Trustee with an Opinion of Counsel complying with the requirements of Section 903 of the Indenture, stating that the execution of this Second Supplemental Indenture is authorized or permitted by the Indenture, and has delivered to the Trustee a Board Resolution authorizing the execution and delivery of this Second Supplemental Indenture, together with such other documents as may have been required by Section 102 of the Indenture. 1 3 All things necessary to make this Second Supplemental Indenture a valid agreement of the Company and the Trustee and a valid amendment of and supplement to the Indenture have been done. NOW, THEREFORE, it is agreed that the Indenture is amended for the equal and proportionate benefit of all Holders of Debt Securities issued under the Indenture after the date hereof: ARTICLE 1 AMENDMENTS TO THE INDENTURE SECTION 1.1. Section 101 of the Indenture is hereby amended by amending and adding the following definitions: The definition of "Debt Securities" is amended to read in its entirety as follows: "Debt Securities" means securities, including Global Securities (unless the context indicates otherwise), evidencing unsecured indebtedness of the Company authenticated and delivered under this Indenture. The following definition is added after the definition of "Exchange Act": "Global Security" means a Debt Security in global form established pursuant to Section 203. The following definition is added after the definition of "Trust Indenture Act": "U.S. Depositary" means a clearing agency registered under the Exchange Act, or any successor thereto, which shall in either case be designated by the Company pursuant to Section 301, until a successor U.S. Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "U.S. Depositary" shall mean or include each Person who is then a U.S. Depositary hereunder, and if at any time there is more than one such Person, "U.S. Depositary" as used with respect to the Debt Securities of any series shall mean the U.S. Depositary with respect to the Debt Securities of that series. SECTION 1.2. Article Two of the Indenture is hereby amended by adding Section 203 as follows: Section 203. DEBT SECURITIES IN GLOBAL FORM. If any Debt Security of a series is issuable in global form, such Debt Security may provide that it shall represent the aggregate amount of Outstanding Debt Securities from time to time endorsed thereon and may also provide that the aggregate amount of Outstanding Debt Securities represented thereby may from time to time be reduced to reflect exchanges. Any endorsement of a Global Security to reflect the amount, or any increase or decrease in the amount, of Outstanding Debt Securities represented thereby shall be made by the Trustee and in such manner as shall be specified 2 4 in such Global Security. Any instructions by the Company with respect to a Global Security, after its initial issuance, shall be in writing but need not comply with Section 102. Global Securities may be issued in either temporary or permanent form. None of the Company, the Trustee, any Paying Agent or the Debt Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. SECTION 1.3. Section 301 of the Indenture is hereby amended by deleting the word "and" from the end of Section 301(14), by renumbering Section 301(15) as Section 301(16), and by inserting new Section 301(15) as follows: (15) whether the Debt Securities of the series shall be issued in whole or in part in the form of one or more Global Securities and, in such case, the U.S. Depositary for such Global Security or Securities; whether such global form shall be permanent or temporary; the manner in which and the circumstances under which Global Securities representing Debt Securities of the series may be exchanged for Debt Securities in definitive form, if other than, or in addition to, the manner and circumstances specified in Section 305 hereof; the extent to which, or the manner in which, any interest payable on any Global Security on an Interest Payment Date will be paid, if other than in the manner provided in Section 307; the manner in which the principal of, or premium, if any, on, any Global Security will be paid, if other than as set forth elsewhere herein; and SECTION 1.4. Section 303 of the Indenture is hereby amended by adding the following paragraph at the end thereof: If the Company shall establish pursuant to Section 301 that the Debt Securities of a series are to be issued in whole or in part in the form of one or more Global Securities, then the Company shall execute and the Trustee shall, in accordance with Section 303 and the Company Order with respect to such series, authenticate and deliver one or more Global Securities in temporary or permanent form that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of the Outstanding Debt Securities of such series to be represented by one or more Global Securities, (ii) shall be registered in the name of the U.S. Depositary for such Global Security or Securities or the nominee of such depositary, and (iii) shall bear a legend substantially to the following effect: "This Debt Security may not be transferred except as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary, unless and until this Debt Security is exchanged in whole or in part for Debt Securities in definitive form" and such other legend as may be required by the U.S. Depositary. SECTION 1.5. Section 305 of the Indenture is hereby amended by adding the following paragraphs at the end thereof: Notwithstanding any other provision of this Section, unless and until it is exchanged in whole or in part for Debt Securities in definitive form, a Global Security representing all or a 3 5 portion of the Debt Securities of a series may not be transferred except as a whole by the U.S. Depositary for such series to a nominee of such U.S. Depositary or by a nominee of such U.S. Depositary to such depositary or another nominee of such U.S. Depositary or by such U.S. Depositary or any other such nominee to a successor U.S. Depositary for such series or a nominee of such successor U.S. Depositary. If at any time the U.S. Depositary for the Debt Securities of a series notifies the Company that it is unwilling or unable to continue as U.S. Depositary for the Debt Securities of such series or if at any time the U.S. Depositary for Debt Securities of such series shall no longer be a clearing agency registered and in good standing under the Exchange Act or other applicable statute or regulation, the Company shall appoint a successor U.S. Depositary with respect to the Debt Securities of such series. If a successor U.S. Depositary for the Debt Securities of such series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such condition, the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Debt Securities of such series, will authenticate and deliver, Debt Securities of such series in definitive form in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security or Securities. The Company may at any time and in its sole discretion determine that the Debt Securities of any series issued in the form of one or more Global Securities shall no longer be represented by such Global Security or Securities. In such event, the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Debt Securities of such series, will authenticate and deliver, Debt Securities of such series in definitive form and in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security or Securities. If the Debt Securities of any series shall have been issued in the form of one or more Global Securities and if an Event of Default with respect to the Debt Securities of such series shall have occurred and be continuing, the Company will promptly execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Debt Securities of such series, will authenticate and deliver Debt Securities of such series in definitive form and in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security or Securities. If specified by the Company pursuant to Section 301 with respect to the Debt Securities of a series, the U.S. Depositary for such series of Debt Securities may surrender a Global Security for such series of Debt Securities in exchange in whole or in part for Debt Securities of such series of like tenor and terms and in definitive form on such terms as are acceptable to the Company and such U.S. Depositary. Thereupon, the Company shall execute and the Trustee shall authenticate and deliver, without charge: (i) to each Person specified by the U.S. Depositary a new Debt Security or Securities of the same series, of like tenor and terms and of any authorized denomination as requested by such Person in an aggregate principal amount equal to 4 6 and in exchange for such Person's beneficial interest in the Global Security; and (ii) to the U. S. Depositary a new Global Security in a denomination equal to the difference, if any, between the principal amount of the surrendered Global Security and the aggregate principal amount of the Debt Securities delivered to Holders thereof. Upon the exchange of a Global Security for Debt Securities in definitive form, such Global Security shall be canceled by the Trustee. Definitive Debt Securities issued in exchange for a Global Security pursuant to this Section shall be registered in such names and in such authorized denominations as the U.S. Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such definitive Debt Securities to the Persons in whose names such Debt Securities are so registered. ARTICLE 2 MISCELLANEOUS SECTION 2.1. This Second Supplemental Indenture may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts together shall constitute but one and the same instrument. SECTION 2.2. All provisions of this Second Supplemental Indenture shall be deemed to be incorporated in, and made part of, the Indenture; and the Indenture, as supplemented by this Second Supplemental Indenture, shall be read, taken and construed as one and the same instrument. SECTION 2.3. In case any provision in this Second Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. SECTION 2.4. Nothing in this Second Supplemental Indenture, express or implied, shall give to any Person (other than the parties hereto, any Debt Security Registrar, any Paying Agent, and Authenticating Agent and their successors under the Indenture, and the Holders of the Debt Securities), any benefit or any legal or equitable right, remedy or claim under the Indenture. SECTION 2.5. This Second Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of New York. 5 7 IN WITNESS WHEREOF, the parties have caused this Second Supplemental Indenture to be signed and acknowledged by their respective officers thereunto duly authorized as of the day and year first above written. CHIQUITA BRANDS INTERNATIONAL, INC. [Seal] By:_____________________________________ Title:__________________________________ [Attest] [Seal] THE FIFTH THIRD BANK, Trustee By:_____________________________________ Title:__________________________________ [Attest] 6 8 STATE OF OHIO ) ) S.S.: COUNTY OF HAMILTON ) On the ___ day of __________, 1996, before me personally came to me known, who being by me duly sworn, did depose and say that he resides at , that he is a of THE FIFTH THIRD BANK, one of the corporations described in and which executed the above instrument; that he knows the corporate seal of said corporation; that one of the seals affixed to the said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation; and that he signed his name thereto by like authority. IN WITNESS WHEREOF, I have hereunto set my hand and affixed by official seal the day and year in this certificate first above written. ________________________________________ Notary Public Commission Expires:_____________________ [Seal] 7 9 STATE OF OHIO ) ) S.S.: COUNTY OF HAMILTON ) On the ___ day of __________, 1996, before me personally came to me known, who being by me duly sworn, did depose and say that he resides at , that he is a of CHIQUITA BRANDS INTERNATIONAL, INC., one of the corporations described in and which executed the above instrument; that he knows the corporate seal of said corporation; that one of the seals affixed to the said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation; and that he signed his name thereto by like authority. IN WITNESS WHEREOF, I have hereunto set my hand and affixed by official seal the day and year in this certificate first above written. ________________________________________ Notary Public Commission Expires:_____________________ [Seal] 8 EX-99.6 6 EXHIBIT 99.6 1 EXHIBIT 99.6 Terms of 10-1/4% Senior Notes due 2006 Pursuant to and as part of a Unanimous Written Consent dated as of July 23, 1996, the Executive Committee of the Board of Directors of Chiquita Brands International, Inc. (the "Company") approves the following terms of its 10-1/4% Senior Notes due 2006: The Company is authorized to issue, pursuant to Registration Statement Nos. 33-51995 and 333-00789 of the Company, under the Securities Act of 1933 and in accordance with the Indenture dated as of February 15, 1994 (the "Indenture") between the Company and The Fifth Third Bank, as Trustee (the "Trustee"), as supplemented to date, a series of $150,000,000 aggregate principal amount of senior debt securities with the following terms: (1) The title of the series of senior debt securities shall be 10-1/4% Senior Notes due 2006 (the "Senior Notes"). (2) The aggregate principal amount of the Senior Notes which may be authenticated and delivered under the Indenture pursuant to the terms of this resolution shall be $150,000,000. (3) The Senior Notes shall mature on November 1, 2006. (4) Interest in respect of the Senior Notes shall accrue at the rate of 10-1/4% per annum. Interest in respect of the Senior Notes shall accrue from July 26, 1996, and shall be payable on Interest Payment Dates of May 1 and November 1 of each year, commencing November 1, 1996. The Regular Record Dates for interest payable on Interest Payment Dates shall be April 15 and October 15, respectively. (5) In addition to payment by means provided in the Indenture, and subject to the provisions of Section (8) below, payments in respect of the principal of, premium, if any, and interest on any Senior Notes shall be payable at, and the Senior Notes may be surrendered for registration of transfer or for exchange at, the office or agency of the Company maintained for such purposes, which initially shall be Securities Transfer Company, Cincinnati, Ohio. Notices and demands to or upon the Company in respect of the Senior Notes and the Indenture may be addressed to the Company at its principal executive offices, 250 East Fifth Street, Cincinnati, Ohio 45202, Attn: General Counsel. (6) The Senior Notes are not subject to redemption at the option of the Company prior to November 1, 2001. Thereafter, the Senior Notes will be subject to redemption at the option of the Company, in whole or in part, upon not less than 30 nor more than 60 days' notice, at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest thereon to but not including the applicable redemption date, if redeemed during the twelve-month period beginning on November 1 of the years indicated below: 1 2
Year Percentage 2001 . . . . . . . . . . . . . . . . . . . . . . . . 105.125% 2002 . . . . . . . . . . . . . . . . . . . . . . . . 103.417% 2003 . . . . . . . . . . . . . . . . . . . . . . . . 101.708% 2004 and thereafter . . . . . . . . . . . . . . . 100.000%
The provisions of Article XI of the Indenture shall apply to any redemption described above. The Senior Notes may be subject to purchase by the Company prior to maturity, at the option of holders, pursuant to Section 1014 of Exhibit B attached to this resolution. (7) The Company shall have no sinking fund or analogous obligations in respect of the Senior Notes. (8) The Senior Notes initially shall be issued in the form of one Global Note held in book-entry form; however, beneficial ownership interests in the Senior Notes may be held by purchasers ("Beneficial Owners") in amounts of $1,000 and multiples thereof. The Global Note shall be issued in permanent form and shall be deposited with the Depository Trust Company or its nominee ("DTC",) as U.S. Depositary. For so long as DTC serves as U.S. Depositary, the provisions of the Letter of Representations, to be entered into between the Company and DTC, shall be applicable to the Senior Notes. Beneficial Owners of Senior Notes evidenced by the Global Note will not be considered Holders thereof under the Indenture for any purpose, including with respect to the giving of any directions, instructions or approvals to the Trustee thereunder. (9) The Senior Notes shall rank pari passu with other existing and future unsecured senior indebtedness of the Company. (10) Each of the definitions set forth in Exhibit A attached to this resolution shall apply to the Senior Notes and shall be deemed to be incorporated by reference into and made a part of this resolution and, with respect to the Senior Notes, of the Indenture. (11) Each of the covenants set forth in Exhibit B attached to this resolution shall apply to the Senior Notes and shall be deemed to be incorporated by reference into and made a part of this resolution and, with respect to the Senior Notes, of the Indenture. (12) The Global Note representing the Senior Notes shall be substantially in the form attached hereto as Exhibit C, with such changes as the officer executing the Global Note may approve, such approval to be conclusively evidenced by the execution thereof by manual or facsimile signature. All capitalized terms used but not defined in this resolution, including Exhibits A, B, and C to this resolution, shall have the meanings set forth in the Indenture. 2 3 Exhibit A Definitions "Acquired Indebtedness" means Indebtedness of a Person (i) existing at the time such Person becomes a Subsidiary or (ii) assumed in connection with the acquisition of assets of such Person. "Adjusted Consolidated Assets" on any date means the amount of (i) all assets of the Company and the Subsidiaries on a consolidated basis less (ii) all Indebtedness of Subsidiaries on a consolidated basis, in each case as determined as of the last day of the immediately preceding fiscal quarter in accordance with GAAP. "Calculation Date" has the meaning specified in the definition "Change of Control." "Change of Control" means an event or series of events by which (i) any "person" (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) other than Permitted Lindner Holders is or becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a person shall be deemed to have "beneficial ownership" of all shares that such person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 40% of the total voting power of all Voting Shares of the Company then outstanding, provided that the Permitted Lindner Holders "beneficially own" (as so defined) a lesser percentage of the Voting Shares than such other person and do not have the right or ability by voting power, contract or otherwise to elect or designate for election a majority of the Board of Directors of the Company; (ii) the Company consolidates with or merges into another corporation or conveys, transfers or leases all or substantially all of its assets to any Person, or any corporation consolidates with or merges into the Company, in either event pursuant to a transaction in which or as a result of which the outstanding Voting Shares of the Company are changed into or exchanged for cash, securities or other property, other than any such transaction between the Company and a wholly-owned Subsidiary; (iii) the Company or any Subsidiary purchases or otherwise acquires, directly or indirectly, beneficial ownership of 30% or more of the Company's capital stock within any 12-month period; (iv) on any date, the individuals who at the beginning of the two-year period immediately preceding such date constituted the Company's Board of Directors (together with any new directors whose election by the Company's Board of Directors, or whose nomination for election by the Company's shareholders, was approved by a vote of at least 66 2/3% of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the directors then in office; or (v) on any day (a "Calculation Date") the Company makes any distribution or distributions of cash, property or securities (other than regular quarterly dividends, Common Stock, preferred stock which is substantially equivalent to Common Stock or rights to acquire such stock) to holders of Capital Stock of the Company or purchases or otherwise acquires Capital Stock (other than upon the conversion of a security convertible into Capital Stock) of the Company and the sum of the Fair Market Value of such distribution or purchase, plus the Fair Market Value of all other such distributions and purchases which have occurred during the preceding 12-month period, exceeds 30% of the Fair Market Value of the Company's outstanding Capital Stock. This percentage is calculated on each Calculation Date by determining the percentage of the Fair Market Value of the Company's outstanding Capital Stock as of such Calculation Date which is represented by the Fair Market Value of the distributions and purchases which have occurred on such date and adding to that percentage all of the percentages which have been similarly calculated on the dates of all such distributions and purchases during the preceding 12-month period. "Change of Control Triggering Event" means the occurrence of both a Change of Control and a Rating Decline. "Consolidated Interest Expense" means for any period the sum of (i) the aggregate of the interest expense on Indebtedness of the Company and its Subsidiaries for such period, on a consolidated basis, plus (ii), A 1 4 without duplication, that portion of capital lease rentals of the Company and its Subsidiaries representative of the interest factor for such period, in each case as determined in accordance with GAAP. "Consolidated Net Income" means for any period the net income or loss of the Company and its Subsidiaries for such period on a consolidated basis as determined in accordance with GAAP adjusted by excluding the after-tax effect of (i) net gains or losses in respect of dispositions of assets other than in the ordinary course of business, (ii) any gains or losses from currency exchange transactions not in the ordinary course of business consistent with past practice, (iii) the net income of any Subsidiary to the extent that dividends or distributions by such Subsidiary in the amount of such net income are restricted or prohibited and (iv) any gains or losses attributable to write-ups or write-downs of assets or liabilities other than in the ordinary course of business. "Consolidated Net Worth" of any Person means the consolidated stockholders' equity of such Person and its Subsidiaries, as determined in accordance with GAAP. "Consolidated Tax Expense" of the Company means for any period the aggregate of the federal, state, local and foreign income tax expense of the Company and its consolidated Subsidiaries for such period, determined in accordance with GAAP. "Disqualified Stock" has the meaning specified in the covenant numbered 1012 and entitled "Limitation on Restricted Payments". "Fair Market Value" means, with respect to any asset or property, the price which could be negotiated in an arm's length free market transaction, for cash, between a willing seller and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the transaction. Fair Market Value shall be determined by the Board of Directors acting in good faith and shall be evidenced by a Board Resolution delivered to the Trustee. "Fixed Charge Coverage Ratio" means for any period the ratio of (i) the sum of Consolidated Net Income, Consolidated Interest Expense and Consolidated Tax Expense, plus all depreciation and, without duplication, all amortization, in each case, for such period, of the Company and its Subsidiaries on a consolidated basis, all as determined in accordance with GAAP, to (ii) Consolidated Interest Expense for such period; provided, however, that in making such computation, the Consolidated Interest Expense attributable to interest on any Indebtedness computed on a pro forma basis and bearing a floating interest rate shall be computed as if the rate in effect on the date of computation had been the applicable rate for the entire period. "Food-Related Businesses" means businesses or operations involving food or food products, including, without limitation, sourcing, processing, transportation, shipping and distribution, and related assets and infrastructure. "GAAP" or "generally accepted accounting principles" means generally accepted accounting principles as in effect and as implemented by the Company on the date of the Indenture. "Intercompany Debt Obligations" means any Indebtedness of the Company or any Subsidiary which, in the case of the Company, is owing to any Subsidiary and which, in the case of any Subsidiary, is owing to the Company or any other Subsidiary. "Investment Grade" means BBB- or higher by S&P or Baa3 or higher by Moody's or the equivalent of such ratings by S&P or Moody's or any other Rating Agency permitted to be used. A 2 5 "Moody's" means Moody's Investors Services, Inc. "Permitted Indebtedness" means (i) Indebtedness of the Company or any Subsidiary outstanding on the date of issuance of the Senior Notes; (ii) the Senior Notes; (iii) Indebtedness of the Company not in excess of $250 million in principal amount outstanding at any time under revolving credit or similar bank facilities and any refinancings, replacements, renewals, extensions, substitutions, refundings, deferrals, restructurings, amendments, supplements or modifications of such Indebtedness; provided, however, that the proceeds of such Indebtedness referred to in this clause (iii) shall be invested in, or used in connection with, Food-Related Businesses; (iv) Indebtedness of a Subsidiary (including Acquired Indebtedness), which is non-recourse to the Company, the proceeds of which are or have been used for working capital purposes or for capital expenditures in Food-Related Businesses; (v) Acquired Indebtedness of a Subsidiary incurred in the acquisition of a Food-Related Business; provided, however, that (A) such Acquired Indebtedness is non-recourse to the Company and not incurred in contemplation of such acquisition and (B) the Company's Fixed Charge Coverage Ratio for the four full fiscal quarters immediately preceding such acquisition, on a pro forma basis after giving effect to such acquisition, exceeds the Company's Fixed Charge Coverage Ratio for the four full fiscal quarters immediately preceding such acquisition; (vi) Indebtedness of (A) the Company or any Subsidiary denominated in or measured by the currency of any country other than the United States, which Indebtedness is incurred for hedging purposes in the ordinary course of business consistent with past practice or (B) the Company or any other Subsidiary (in either case, other than for borrowed money), incurred in connection with Indebtedness of a Subsidiary referred to in clause (A) above which is (y) a guarantee of such Subsidiary Indebtedness, or (z) a reimbursement obligation relating to a letter of credit supporting such Subsidiary Indebtedness; (vii) Intercompany Debt Obligations; provided, however, that the obligations of the Company with respect to such Indebtedness shall be evidenced by an intercompany note and shall be subordinated in right of payment from and after such time as all Senior Notes issued and outstanding shall become due and payable (whether at Stated Maturity, by acceleration or otherwise) to the payment and performance of the Company's obligations under the Senior Notes; (viii) guarantees by a Subsidiary, which are non-recourse to the Company, of Indebtedness of a Person that is not the Company, another Subsidiary nor a Related Person; provided, however, that the aggregate amount of Indebtedness so guaranteed at any time shall not exceed $15 million principal amount outstanding; and provided, further, that the proceeds of such Indebtedness are or have been used by such Person in Food-Related Businesses; and (ix) additional Indebtedness of the Company (including Acquired Indebtedness) the aggregate principal amount of which outstanding at any time does not exceed 5% of Adjusted Consolidated Assets. "Permitted Liens" means (i) Liens existing on the date of the issuance of the Senior Notes on assets of the Company or any Subsidiary; (ii) Liens on assets acquired after the date of the issuance of Senior Notes or Liens to secure the purchase price of assets to be acquired; (iii) Liens on properties of any Subsidiary securing Indebtedness the proceeds of which are or have been used for working capital purposes or capital expenditures relating to Food-Related Businesses; (iv) Liens securing Indebtedness of (A) the Company or any Subsidiary denominated in or measured by the currency of any country other than the United States, which Indebtedness is incurred for hedging purposes in the ordinary course of business consistent with past practice and (B) the Company or any other Subsidiary, to the extent permitted under clause (vi)(B) of Permitted Indebtedness; (v) Liens of a Person existing at the time such Person becomes a Subsidiary or assumed in connection with the acquisition of assets of such Person; (vi) Liens on working capital assets; (vii) any extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of the foregoing; (viii) carriers', warehousemen's, mechanics', materialmen's, repairmen's or other like Liens arising in the ordinary course of business and with respect to amounts not overdue for a period of more than 90 days or being contested in good faith by appropriate proceedings; (ix) judgment Liens and other similar Liens arising in the ordinary course of business; provided, however, that the execution or other enforcement thereof is being effectively stayed and the claims secured thereby are being actively contested in good faith and by appropriate proceedings; (x) Liens securing Intercompany Debt Obligations; (xi) Liens for taxes not yet due or payable under law or being A 3 6 contested in good faith; (xii) Liens upon property of a foreign Subsidiary to secure Indebtedness of that foreign Subsidiary; (xiii) Liens in accordance with customary banking practice to secure Indebtedness in connection with foreign trade; (xiv) easements, rights-of-way, restrictions and other similar encumbrances to the extent incurred in the ordinary course of business; (xv) pledges or deposits in connection with workers' compensation, unemployment insurance and other social security legislation; and (xvi) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds, interest rate, foreign exchange and commodity hedging transactions and other obligations of a like nature incurred in the ordinary course of business. "Permitted Lindner Holders" means, collectively, Carl H. Lindner, Robert D. Lindner, Carl H. Lindner III, S. Craig Lindner and Keith E. Lindner, the respective estates, spouses, heirs, ancestors, lineal descendants, legatees and legal representatives of any of the foregoing and the trustee or other representative of any bona fide trust or other entity formed for estate or tax-planning purposes of which one or more of the foregoing are the sole beneficiaries or the grantors thereof or contributors thereto, American Financial Group, Inc., an Ohio corporation, or any entity of which any of the foregoing, individually or collectively, beneficially own more than 50% of the Voting Shares. "Purchase Date" means a date fixed by the Company that is no earlier than 30 days and no later than 60 days after the mailing of notice to bondholders of a Change of Control Triggering Event. "Rating Agencies" means S&P and Moody's or, if S&P or Moody's or both shall not make a rating of the Senior Notes publicly available, a nationally recognized securities rating agency or agencies, as the case may be, selected by the Company, which shall be substituted for S&P or Moody's or both, as the case may be. "Rating Category" means (i) with respect to S&P, any of the following categories: BB, B, CCC, CC, C and D (or equivalent successor categories); (ii) with respect to Moody's, any of the following categories: Ba, B, Caa, Ca, C and D (or equivalent successor categories); and (iii) the equivalent of any such category of S&P or Moody's used by another Rating Agency. In determining whether the rating of the Senior Notes has decreased by one or more gradations, gradations within Rating Categories (+ and - for S&P, 1, 2, and 3 for Moody's or the equivalent gradations for another Rating Agency) shall be taken into account (e.g., with respect to S&P, a decline in a rating from BB+ to BB, as well as from BB- to B+ will constitute a decrease of one gradation). "Rating Date" means the date which is 90 days prior to the earlier of (i) a Change of Control and (ii) public notice of the occurrence of a Change of Control or of the intention by the Company to effect a Change of Control. "Rating Decline" means the occurrence of the following on, or within 90 days after, the earlier of (i) the occurrence of a Change of Control and (ii) the date of public notice of the occurrence of a Change of Control or of the public notice of the intention of the Company to effect a Change of Control (which 90 day period shall be extended so long as the rating of the Senior Notes is under publicly announced consideration for possible downgrading by any of the Rating Agencies): (a) in the event the Senior Notes are rated by either Rating Agency on the Rating Date as Investment Grade, the rating of the Senior Notes shall be reduced below Investment Grade by both Rating Agencies; or (b) in the event the Senior Notes are rated below Investment Grade by both Rating Agencies on the Rating Date, the rating of the Senior Notes by either Rating Agency shall be decreased by one or more gradations (including gradations within Rating Categories as well as between Rating Categories). "Refinancing" has the meaning specified in the definition "Refinancing Indebtedness." A 4 7 "Refinancing Indebtedness" means any renewals, extensions, substitutions, refundings, refinancings, replacements, deferrals, restructurings, amendments, supplements or modifications of any Indebtedness (each, a "Refinancing") of the Company or any of its Subsidiaries outstanding on the date of the issuance of Senior Notes or other Indebtedness permitted to be incurred by the Company or any of its Subsidiaries pursuant to the terms of the Indenture (other than Indebtedness referred to in clauses (iii), (iv), (v), (vi),(vii) or (viii) of the definition of Permitted Indebtedness), but only to the extent that (i) the aggregate amount of Indebtedness represented thereby is not increased by such Refinancing, (ii) the Indebtedness incurred in such Refinancing is not incurred by a Subsidiary if the Company initially incurred the Indebtedness being renewed, extended, substituted, refunded, refinanced, replaced, deferred, restructured, amended, supplemented or modified and (iii) the Indebtedness incurred in such Refinancing is not incurred by the Company if a Subsidiary initially incurred the Indebtedness being renewed, extended, substituted, refunded, refinanced, replaced, deferred, restructured, amended, supplemented or modified, and such Indebtedness was non-recourse to the Company. "Related Person" means (i) any Affiliate of the Company, (ii) any Person who directly or indirectly holds 10% or more of any class of Capital Stock of the Company, (iii) with respect to any such Person who is a natural Person, any other natural Person having a relationship with such Person by blood, marriage or adoption not more remote than first cousin and (iv) any officer or director of the Company. "Restricted Payments" has the meaning specified in the covenant numbered 1012 entitled "Limitation on Restricted Payments." "S&P" means Standard and Poor's Rating Services, a division of McGraw Hill, Inc. "Senior Notes" means the Company's 10-1/4% Senior Notes due 2006 issued under the Indenture. "Subordinated Indebtedness" means the Company's 7% Convertible Subordinated Debentures due March 28, 2001 and 11-1/2% Subordinated Notes due June 1, 2001 which are outstanding on the date of this Indenture. "Surviving Entity" means in connections with a consolidation, merger, conveyance or transfer described in Article VIII, the Person (if other than the Company) referred to in clause (ii) of Section 801(1). "Voting Shares" means stock of the class or classes having general voting power under ordinary circumstances to elect the board of directors, managers or trustees of a corporation (irrespective of whether or not at the time stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency). A 5 8 Exhibit B Covenants SECTION 803. Consolidation, Merger, Conveyance or Transfer - Additional Provisions. In addition to the provisions set forth in Section 801, the Company shall not consolidate with or merge into any other corporation or sell, convey, assign, transfer, lease or otherwise dispose of all or substantially all of its properties and assets as an entirety to any Person unless: (1) immediately after giving effect to such transaction (and treating any Indebtedness not previously an obligation of the Company or a Subsidiary which becomes the obligation of the Company or any of its Subsidiaries in connection with or as a result of such transaction as having been incurred at the time of such transaction), the Company (in the case of clause (i) of Section 801 (1) of the Indenture) or the Surviving Entity (in the case of clause (ii) thereof) could incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness or Refinancing Indebtedness) pursuant to Section 1011; (2) immediately after giving effect to such transaction (and treating any Indebtedness not previously an obligation of the Company or a Subsidiary which becomes the obligation of the Company or any of its Subsidiaries in connection with or as a result of such transaction as having been incurred at the time of such transaction), the Company (in the case of clause (i) of Section 801 (1) of the Indenture) or the Surviving Entity (in the case of clause (ii) thereof) shall have a Consolidated Net Worth equal to or greater than the lesser of (A) the Consolidated Net Worth of the Company immediately prior to such transaction or (B) 80% of the Consolidated Net Worth of the Company immediately prior to such transaction provided that such amount shall not be less than $500 million; and (3) immediately after giving effect to such transaction on a pro forma basis, the Fixed Charge Coverage Ratio of the Company (in the case of clause (i) of Section 801 (1) of the Indenture) or of the Surviving Entity (in the case of clause (ii) thereof) shall be at least 2.0 to 1 for the four full fiscal quarters immediately preceding such transaction; provided, however, that if the Fixed Charge Coverage Ratio of the Company for the four full fiscal quarters immediately preceding such transaction is within the range set forth in column (A) below, then the Fixed Charge Coverage Ratio of the Company (in the case of clause (i) of Section 801 (1) of the Indenture) or of the Surviving Entity (in the case of clause (ii) thereof) for the four full fiscal quarters immediately preceding such transaction on a pro forma basis shall be at least equal to the lesser of (x) the ratio determined by multiplying the percentage set forth in column (B) below by the Fixed Charge Coverage Ratio of the Company for the four full fiscal quarters immediately preceding such transaction or (y) the ratio set forth in column (C) below:
A B C 2.2222:1 to 2.9999:1............................... 90% 2.4:1 3.00:1 to 3.9999:1................................. 80% 2.8:1 4.00:1 or greater.................................. 70% 3.0:1
and provided, further, that, if immediately after giving effect to such transaction on a pro forma basis, the Fixed Charge Coverage Ratio of the Company (in the case of clause (i) of Section 801(1) of the Indenture) or the Surviving Entity (in the case of clause (ii) thereof), as the case may be, for the four full B 1 9 fiscal quarters immediately preceding such transaction is 3.0 to 1 or more, the calculation in the preceding proviso shall be inapplicable and such transaction shall be deemed to have complied with the requirements of this Section 803. Notwithstanding the foregoing, if the Company effects a consolidation, merger or sale, conveyance, assignment, transfer, lease or other disposition of assets, the conditions set forth in clauses (1) and (3) above shall not apply to a transaction involving a Surviving Entity which is otherwise subject to the foregoing provisions if the Surviving Entity (i) was formed for the purpose of effecting such transaction, (ii) did not engage in any business prior to such transaction and, (iii) immediately prior to such transaction, had no Indebtedness or liabilities, contingent or otherwise, of any kind whatsoever. SECTION 1009. Limitations on Liens. (a) The Company will not, and will not permit any Subsidiary to, create, assume, incur or suffer to be created, assumed or incurred any Lien upon any of their respective assets without making effective provision whereby all the Senior Notes shall be directly secured equally and ratably with the Indebtedness or other obligations secured by such Lien, so long as any such Indebtedness or other obligations shall be so secured, except for (i) Permitted Liens and (ii) Liens securing an aggregate amount of Indebtedness, which together with the aggregate value of Sale and Leaseback Transactions permitted by the provisions of Subsection (b) of Section 1010 hereof (other than such transactions in which debt has been retired in accordance with the provisions of Subsection (b) of Section 1010 hereof), does not at the time exceed 5% of Adjusted Consolidated Assets. (b) The Certificate of a Firm of Independent Public Accountants shall be conclusive evidence as to the amount, at the date specified in such Certificate, of Adjusted Consolidated Assets. SECTION 1010. Limitation on Sale and Leaseback Transactions. (a) The Company will not sell or transfer, in any transaction or series of related transactions, any assets with an aggregate fair market value of $10 million or more relating to Food-Related Business, to any Person (other than a Subsidiary) with the intention of taking back a lease of such assets (any transaction or series of transactions subject to the provisions of this Section 1010 being herein referred to as a "Sale and Leaseback Transaction"), except a Sale and Leaseback Transaction for a period of less than three years with the intent that the use of the assets by the Company will be discontinued on or before the expiration of such period. (b) The Company may enter into a Sale and Leaseback Transaction which would otherwise be prohibited by Subsection (a) of this Section 1010, provided, that (i) the Company shall apply an amount equal to the value of the assets subject to the Sale and Leaseback Transaction (A) to build or purchase capital assets used in the Company's business or (B) to retire long-term Indebtedness for money borrowed (including the Senior Notes) of the Company or (ii) the value thereof plus the aggregate Indebtedness permitted to be secured under the provisions of clause (ii) of Subsection (a) of Section 1009 does not at the time exceed 5% of Adjusted Consolidated Assets. (c) The term "value" shall, for the purpose of this Section 1010 and Section 1009(a), mean, with respect to a Sale and Leaseback Transaction, as of any particular time, the amount equal to the greater of (i) the net proceeds of the sale of the property leased pursuant to such Sale and Leaseback Transaction or (ii) the fair value of such property at the time of entering into such Sale and Leaseback Transaction, as determined by the Board of Directors, in each such case divided first by the number of full years of the term of the lease and then B 2 10 multiplied by the number of full years of such term remaining at the time of determination, without regard to any renewal or extension options contained in the lease. (d) The Certificate of a Firm of Independent Public Accountants shall be conclusive evidence as to the amount, at the date specified in such Certificate, of Adjusted Consolidated Assets. SECTION 1011. Limitation on Indebtedness. (a) The Company shall not, and shall not permit any Subsidiary to, create, incur, assume, or guarantee the payment of any Indebtedness (including Acquired Indebtedness) other than Permitted Indebtedness or Refinancing Indebtedness, unless after giving effect to such event on a pro forma basis the Company's Fixed Charge Coverage Ratio for the four full fiscal quarters immediately preceding such event, taken as one period, is not less than 2.0 to 1. For the purposes of determining any particular amount of Indebtedness, there shall not be included the amount of any guarantees of (or obligations with respect to letters of credit supporting, or joint or joint and several obligations in respect of) Indebtedness, the amount of which is otherwise included. (b) For purposes of determining compliance with this Section 1011, (i) in the event that an item of Indebtedness meets the criteria of more than one of the clauses of the definition of Permitted Indebtedness or Refinancing Indebtedness, the Company, in its sole discretion, shall classify such item of Indebtedness and shall be required to include the amount and type of such Indebtedness in only one of such clauses and (ii) the amount of Indebtedness issued at a price which is less than the principal amount thereof shall be equal to the amount of the liability in respect thereof determined in accordance with GAAP. SECTION 1012. Limitation on Restricted Payments. (a) The Company shall not, directly or indirectly, (i) declare or pay any dividend on, or make any distribution in respect of, or purchase, redeem or retire for value, or permit any of its Subsidiaries, directly or indirectly, to so purchase, redeem or retire for value, any Capital Stock of the Company, other than through the issuance solely of the Company's own Capital Stock or rights thereto, (ii) make any principal payment on, or redeem, repurchase, defease or otherwise acquire or retire for value, prior to scheduled principal payment or maturity, Indebtedness of the Company (excluding Indebtedness of Subsidiaries) which is expressly subordinate in right of payment to the Senior Notes or permit any of its Subsidiaries, directly or indirectly, to do so or (iii) make any loan to, incur, create, assume or suffer to exist any guarantee of Indebtedness of, or make advancement to, or other investment in, or permit any of its Subsidiaries to make any loan, incur, create, assume or suffer to exist any guarantee of Indebtedness of, or make advancement to, or other investment in, any Related Person of the Company (other than a Subsidiary of the Company) except for any transaction with an officer or director of the Company entered into in the ordinary course of business of the Company (including compensation or employee benefit arrangements with any officer or director of the Company) (such payments or any other actions described in (i), (ii) and (iii), collectively, "Restricted Payments") provided, that the term "Restricted Payment" shall not include the making of any principal payment on, or redemption, repurchase, defeasance or other acquisition or retirement for value, prior to scheduled principal payment or maturity, of (A) any of the Company's Subordinated Indebtedness existing at the date of the Indenture as long as no such acquisition or retirement is made with the proceeds of Indebtedness which has a maturity date earlier than the existing Subordinated Indebtedness being acquired or retired or (B) Indebtedness of the Company which is incurred after the date of the Indenture and expressly subordinated in right of payment to the Senior Notes if such acquisition or retirement is made with the proceeds of Indebtedness which is subordinate in right of payment to the Senior Notes and has a maturity date no earlier than that of the latest maturity date of any Outstanding Senior Notes. B 3 11 (b) The Company may make a Restricted Payment which would otherwise be prohibited by Subsection (a) of this Section 1012, provided, that (1) at the time of and after giving effect to the proposed Restricted Payment no Event of Default (and no event that, after notice or lapse of time, or both, would become an Event of Default) shall have occurred and be continuing, and (2) at the time of and after giving effect to the proposed Restricted Payment (the value of any such payment, if other than cash, as determined by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution), the aggregate amount of all Restricted Payments declared or made after March 31, 1996 shall not exceed the sum of (A) 50% of the aggregate cumulative Consolidated Net Income of the Company accrued on a cumulative basis during the period beginning on April 1, 1996 and ending on the last day of the Company's last fiscal quarter ending prior to the date of such proposed Restricted Payment (or, if such aggregate cumulative Consolidated Net Income shall be a loss, minus 100% of such loss) plus (B) the aggregate proceeds received by the Company as capital contributions to the Company after March 31, 1996, or from the issuance and sale (other than to a Subsidiary) after March 31, 1996 of Capital Stock (excluding the issuance or sale of preferred stock that is mandatorily redeemable, or redeemable at the option of the holder of such preferred stock, in either case, prior to the Stated Maturity of the Senior Notes (collectively, the "Disqualified Stock")) and any Indebtedness or other securities of the Company convertible into or exercisable for Capital Stock (other than Disqualified Stock) of the Company which has been so converted or exercised, as the case may be, plus (C) the aggregate proceeds received by the Company from the issuance in February 1994 of its $2.875 Non-Voting Cumulative Preferred Stock, Series A, plus (D) $70 million; provided, however, that the foregoing provisions of this Subsection and Subsection (a) will not prevent the payment of any dividend within 60 days after the date of its declaration if at the date of declaration such payment would be permitted by such provisions. SECTION 1013. Transactions with Related Persons. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with any Related Person (other than a Subsidiary) unless (i) such transaction or series of transactions is on terms that are no less favorable to the Company or such Subsidiary, as the case may be, than would be available in a comparable transaction with an unrelated third party and (ii)(A) with respect to a transaction or series of related transactions involving aggregate payments in excess of $10 million but less than $20 million, the Company delivers an Officer's Certificate to the Trustee certifying that such transaction complies with clause (i) above and (B) with respect to a transaction or series of related transactions involving aggregate payments equal to or greater than $20 million, such transaction or series of related transactions is approved by a majority of the Board of Directors of the Company including the approval of at least two disinterested directors; provided that in the event that the Company has only one disinterested director a transaction or series of related transactions involving aggregate payments equal to or exceeding $20 million shall be approved by a majority of the Board of Directors of the Company including the approval of the disinterested director. Notwithstanding the foregoing, the restrictions set forth in the preceding sentence shall not apply to (y) any transaction with an officer or director of the Company entered into in the ordinary course of business (including compensation or employee benefit arrangements with any officer or director of the Company) and (z) any transaction entered into in the ordinary course of business with a Subsidiary. SECTION 1014. Purchase of Senior Notes upon a Change of Control Triggering Event. (a) In the event that there occurs at any time a Change of Control Triggering Event, each Holder of Senior Notes shall have the right, at such Holder's option, to require the Company to purchase all or any part (in integral multiples of $1,000) of such Holder's Senior Notes on the Purchase Date at a purchase price B 4 12 (the "Purchase Price") payable in cash of 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to the Purchase Date, in accordance with the procedures set forth in Subsections (b) and (c) of this Section. (b) Within thirty days following any Change of Control Triggering Event, the Company shall send by first-class mail, postage prepaid, to the Trustee and to each Holder of the Senior Notes, at his address appearing in the Debt Security Register, a notice stating: (1) that a Change of Control Triggering Event has occurred and that such Holder has the right to require the Company to purchase such Holder's Senior Notes at the Purchase Price, together with such information as the Company deems relevant or as may be required to be disclosed pursuant to applicable securities or other laws regarding such Change of Control Triggering Event; (2) the Purchase Date; (3) the Purchase Price; (4) the place at which Senior Notes are to be presented and surrendered for purchase; and (5) that interest accrued to the Purchase Date will be paid as specified in such notice and that, unless the Company shall default in payment of the Purchase Price, after the Purchase Date interest thereon will cease to accrue with respect to any Senior Notes presented and surrendered for purchase. (c) Holders of Senior Notes electing to have such Senior Notes purchased will be required to surrender such Senior Notes to the Company at the address specified in the notice by the close of business on the fifteenth day prior to the Purchase Date. Any such surrender of Senior Notes for purchase by the Company shall be irrevocable. No Senior Notes shall be deemed to have been presented and surrendered until such Senior Notes are actually received by the Company or its designated agent. Holders of Senior Notes whose Senior Notes are purchased only in part will be issued new Senior Notes equal in principal amount to the unpurchased portion of the Senior Notes surrendered. (d) Notwithstanding anything to the contrary herein or in the Debt Securities of any series, the Company shall not be obligated to give notice to Holders of Debt Securities of any series or to purchase Debt Securities with respect to more than one Change of Control Triggering Event. SECTION 1015. Defeasance of Certain Obligations. The Company may omit to comply with any term, provision or condition set forth in Section 801 of the Indenture and in Sections 803, 1009, 1010, 1011, 1012, 1013 and 1014 hereof and any such omission with respect to such Sections shall not be an Event of Default, in each case with respect to the Senior Notes, provided, that the following conditions have been satisfied: (1) with respect to all Outstanding Senior Notes not theretofore delivered to the Trustee for cancellation, the Company shall have deposited or caused to be deposited with the Trustee for the Senior Notes as trust funds or obligations in trust an amount of cash, U.S. Government Obligations or a combination of cash and U.S. Government Obligations, in each case in an amount which, together with, as evidenced by a Certificate of a Firm of Independent Public Accountants delivered to such Trustee, the predetermined and certain income to accrue on any U.S. Government Obligations when due (without the consideration of any reinvestment thereof) is sufficient to pay and discharge when due the entire B 5 13 indebtedness on all such Outstanding Senior Notes of such series for unpaid principal (and premium, if any) and interest to the Stated Maturity or any Redemption Date, as the case may be; (2) such deposit will not result in a breach or violation of, or constitute a default under, the Indenture or any other agreement or instrument to which the Company is a party or by which it is bound; (3) no Event of Default or event which with the giving of notice or lapse of time, or both, would become an Event of Default with respect to the Senior Notes shall have occurred and be continuing on the date of such deposit and no Event of Default under Section 501(6) or Section 501(7) of the Indenture or event which with the giving of notice or lapse of time, or both, would become an Event of Default under Section 501(6) or Section 501(7) of the Indenture shall have occurred and be continuing on the 91st day after such date; and (4) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the defeasance contemplated in this Section have been complied with. All the obligations of the Company under the Indenture with respect to the Senior Notes, other than with respect to Section 801 of the Indenture and Sections 803 and 1009 through 1014 hereof, shall remain in full force and effect. Anything in this Section 1015 to the contrary notwithstanding, the Trustee for the Senior Notes shall deliver or pay to the Company, from time to time upon Company Request, any money or U.S. Government Obligations held by it as provided in this Section 1015 which, as expressed in a Certificate of a Firm of Independent Public Accountants delivered to such Trustee, are in excess of the amount thereof which would then have been required to be deposited for the purpose for which such money or U.S. Government Obligations were deposited or received, provided such delivery can be made without liquidating any U.S. Government Obligations. B 6 14 EXHIBIT C Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to the Company or its agent for registration of transfer, exchange, or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein. This Debt Security may not be transferred except as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary, unless and until this Debt Security is exchanged in whole or in part for Debt Securities in definitive form. NOTE NO. __ $150,000,000 CHIQUITA BRANDS INTERNATIONAL, INC. 10-1/4% SENIOR NOTE DUE 2006 CUSIP 170032 AL 0 CHIQUITA BRANDS INTERNATIONAL, INC., a New Jersey corporation (herein called the "Company") which term includes any successor corporation under an Indenture hereinafter referred to, for value received, hereby promises to pay to Cede & Co. or registered assigns upon presentation and surrender of this Senior Note the principal sum of ONE HUNDRED FIFTY MILLION (U.S. $150,000,000) on November 1, 2006, and to pay interest thereon on November 1, 1996 and thereafter on May 1 and November 1 in each year, accruing from July 26, 1996 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, at the rate of 10-1/4% per annum, until the principal hereof is paid or duly provided for. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Senior Note (or one or more Predecessor Debt Securities) is registered at the close of business on a Regular Record Date for such interest which shall be the April 15 or October 15 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for, and interest on such Defaulted Interest at the then applicable interest rate borne by the Senior Notes, to the extent lawful, shall forthwith cease to be payable to the Holder on such Regular Record Date, and may be paid to the Person in whose name this Senior Note (or one or more Predecessor Debt Securities) is registered at the close of business on a Special Record Date to be fixed by the Trustee for the payment of such Defaulted Interest, notice whereof shall be given to Holders of Senior Notes not less than 10 days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Senior Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture. Payment of the principal of (and premium, if any) and interest on this Senior Note will be made at the office or agency of the Company maintained for that purpose in Cincinnati, Ohio, or at such other office or agency of the Company as may be maintained for such purpose, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. Interest shall be computed on the basis of a 360-day year of four 90-day quarters or twelve 30-day months. C 1 15 Chiquita Brands International, Inc. 10-1/4% Senior Note due 2006 This Senior Note (as defined herein) is one of a duly authorized issue of Senior Debt Securities of the Company (herein called the "Debt Securities") of the series hereinafter specified, which series is limited (except as otherwise provided in the Indenture referred to below) in an aggregate principal amount to $150,000,000, all such Debt Securities issued and to be issued under the Indenture dated as of February 15, 1994, between the Company and The Fifth Third Bank, as trustee (herein called the "Trustee," which term includes any successor Trustee under the Indenture) as supplemented by a First Supplemental Indenture dated as of June 15, 1994, and a Second Supplemental Indenture dated as of July 15, 1996, and by Board Resolutions dated February 8, 1994 and July 23, 1996 (herein called the "Indenture"), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the rights and limitations of rights thereunder of the Holders of the Debt Securities and of the rights, duties, obligations and immunities and the Company and the Trustee for each series of Debt Securities, and of the terms upon which the Debt Securities are, and are to be, authenticated and delivered. As provided in the Indenture, the Debt Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, in various authorized denominations, may mature at different times, may bear interest, if any, at different rates, may be subject to different redemption provisions, if any, may be subject to different sinking funds, if any, may be subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided or permitted. This Senior Note is one of a series of Debt Securities designated therein as 10-1/4% Senior Notes due 2006 (the "Senior Notes"). The Indenture contains provisions for defeasance at any time of (a) the entire principal amount of all of the Debt Securities and (b) certain restrictive covenants and certain Events of Default, in each case upon compliance with certain conditions set forth therein. The Senior Notes are subject to redemption upon not less than 30 days prior notice by first-class mail, at any time on or after November 1, 2001 as a whole or in part, at the election of the Company, at a Redemption Price equal to the percentage of the principal amount set forth below if redeemed during the twelve-month period beginning November 1 of the years indicated below:
Redemption Year Price 2001..................................................... 105.125% 2002..................................................... 103.417% 2003..................................................... 101.708%
and thereafter at 100% of the principal amount, in each case together with accrued interest to the redemption date (subject to the right of Holders of record on relevant record dates to receive interest due on an Interest Payment Date). If less than all of the Senior Notes are to be redeemed, the Trustee shall select the Senior Notes or portions thereof to be redeemed by lot. If a Change of Control Triggering Event occurs at any time, each Holder of the Senior Notes shall have the right to require that the Company purchase such Holder's Senior Notes in whole or in part in integral multiples of $1,000 at a purchase price in cash in an amount equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to the Purchase Date. If the case of a purchase of Senior Notes in connection with a Change of Control Triggering Event, interest accrued to the Purchase Date will be paid as specified in a notice from the Company and, unless the C 2 16 Chiquita Brands International, Inc. 10-1/4% Senior Note due 2006 Company shall default in payment of the Purchase Price, after the Purchase Date interest will cease to accrue with respect to any Senior Notes presented and surrendered for purchase. If an Event of Default with respect to the Senior Notes shall occur and be continuing, there may be declared due and payable in the manner and with the effect provided in the Indenture the principal of this Senior Note, plus all accrued and unpaid interest to and including the date the Senior Notes become due and payable. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of any series of Debt Securities under the Indenture at any time by the Company and the Trustee of any series of Debt Securities with the consent of the Holders of more than 50% in the aggregate principal amount of the Outstanding Debt Securities of each series of Debt Securities to be affected thereby. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Debt Securities of any series at the time Outstanding, on behalf of the Holders of all the Debt Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences with respect to such series. Any such consent or waiver by or on behalf of the Holder of this Senior Note shall be conclusive and binding upon such Holder and upon all future Holders of this Senior Note and of any Senior Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Senior Note. No reference herein to the Indenture and no provision of this Senior Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest on this Senior Note at the times, place and rate herein prescribed. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Senior Note is registrable on the Debt Security Register of the Company, upon surrender of this Senior Note for registration of transfer at the office or agency of the Company maintained for such purpose in Cincinnati, Ohio or at such other office or agency of the Company as may be maintained for such purpose, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Debt Security Registrar duly executed by, the Holder hereof or his or her attorney duly authorized in writing, and thereupon one or more new Senior Notes, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. The Senior Notes are issuable only in registered form without coupons; beneficial owners may hold denominations of $1,000 and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, the Senior Notes are exchangeable for a like aggregate principal amount of Senior Notes of a like tenor and of a different authorized denomination, as requested by the Holder or beneficial owner surrendering the same. No service charge shall be made to the Holders for any registration of transfer or exchange or redemption of Senior Notes, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. C 3 17 Chiquita Brands International, Inc. 10-1/4% Senior Note due 2006 Prior to and at the time of due presentment of this Senior Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Senior Note is registered as the owner hereof for all purposes, whether or not this Senior Note be overdue, and neither the Company, the Trustee nor any agent shall be affected by notice to the contrary. All terms used in this Senior Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture. Unless the certificate of authentication hereon has been duly executed by the Trustee by manual signature, this Senior Note shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose. IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal. Dated: July ___, 1996 CHIQUITA BRANDS INTERNATIONAL, INC. [Corporate Seal] ____________________________________ Gerald R. Kondritzer Vice President and Treasurer Attest: - -------------------------- Donna K. Leonard Assistant General Counsel and Assistant Secretary CERTIFICATE OF AUTHENTICATION This is one of the Debt Securities of the series designated herein described in the within mentioned Indenture. THE FIFTH THIRD BANK, as Trustee By:____________________________ Authorized Officer C 4 18 Chiquita Brands International, Inc. 10-1/4% Senior Note due 2006 FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE - ------------------------------------------------------------------------------- Please print or typewrite name and address including postal zip code of assignee - ------------------------------------------------------------------------------- the within Senior Note of Chiquita Brands International, Inc. and does hereby irrevocably constitute and appoint - ------------------------------------------------------------------------------- to transfer the said Senior Note on the books of the Company, will full power of substitution in the premises. Dated:_________________________________ ------------------------------------ NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within instrument in every particular, without alteration or enlargement or any change whatever. C 5 -----END PRIVACY-ENHANCED MESSAGE-----