Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4 Registration of Securities Issued in a 138 825K
Business-Combination Transaction
2: EX-2.1 Exhibit 2.1 Merger Agreement 102 369K
3: EX-2.2 Exhibit 2.2 Amendment to Merger Agreement 5 28K
4: EX-2.3 Exhibit 2.3 Articles of Merger 4 24K
5: EX-2.4 Exhibit 2.4 Stock Purchase Agreement 4/22/97 30 119K
6: EX-2.6 Exhibit 2.6 Asset Purchase Agreement 4/25/97 124 395K
7: EX-2.7 Exhibit 2.7 Asset Purchase Agreement 4/17/96 67 222K
8: EX-2.8 Amendment to Asset Purchase Agreement 4/26/96 9 37K
9: EX-3.1 Certificate of Amended and Restated of Inc. 4 23K
10: EX-3.2 Exhibit 3.2 By-Laws 4 25K
11: EX-4.1 Exhibit 4.1 Indenture 105 465K
12: EX-4.3 Exchange and Registration Rights Agreement 19 85K
13: EX-4.4 Exhibit 4.4 Global Note 14 61K
14: EX-10.1 Exhibit 10.1 Distribution Agreement 18 62K
23: EX-10.10 Exhibit 10.10 Term Note (5/21/97)(First Source Fin 4 26K
24: EX-10.11 Exhibit 10.11 Term Note (5/21/97) Nationsbank 4 26K
25: EX-10.12 Exhibit 10.12 Acquisition Note(Bankboston) 4 27K
26: EX-10.13 Exhibit 10.13 Acquisition Note (First Source Fin) 4 27K
27: EX-10.14 Exhibit 10.14 Acquisition Note (Southtrust) 4 27K
28: EX-10.15 Exhibit 10.15 Acquisition Note(Nationsbank) 4 27K
29: EX-10.16 Exhibit 10.16 Credit Agreement 250 877K
30: EX-10.17 Exhibit 10.17 Guarantee and Collateral Agreement 59 225K
31: EX-10.18 Exhibit 10.18 Consent and Release of Lenders 9 31K
32: EX-10.19 Exhibit 10.19 Consent and Release of Pnc 5 30K
15: EX-10.2 Exhibit 10.2 License Agreement 11 46K
33: EX-10.20 Exhibit 10.20 Statement of Understanding 23 76K
34: EX-10.21 Supp #1 to Statement of Understanding 5/31/89 3 21K
35: EX-10.22 Supp #2 to Statement of Understanding 11/27/90 2 21K
36: EX-10.23 Supp #3 to Statement of Understanding 11/18/92 2 21K
37: EX-10.24 Supp #4 to Statement of Understanding 11/9/94 2 21K
38: EX-10.25 Supp #5 to Statement of Understanding 1/16/97 2 21K
39: EX-10.26 Statement of Understanding 1/28/88 Merrick 12 55K
40: EX-10.27 Joint Venture Agreement (Mfa) 24 67K
41: EX-10.28 Joint Venture Agreement (J.R. Simplot) 31 112K
42: EX-10.29 Joint Venture Agreement (Flint River) 20 86K
16: EX-10.3 Exhibit 10.3 Guaranty Agreement 6 31K
43: EX-10.30 Statement of Understanding (8/10/93) (Phelps) 22 69K
44: EX-10.31 Purchase Agreement (5/16/97) 29 129K
45: EX-10.32 Trademark License and Option Agreement 27 93K
46: EX-10.33 Trademark License Agreement 11 46K
47: EX-10.34 License Agreement 12 50K
48: EX-10.35 Transition Storage and Handling Agreement 9 38K
49: EX-10.36 Transition Services Agreement 13 52K
50: EX-10.37 Lease Agreement (W. Fred Williams) 24 102K
51: EX-10.38 Lease Agreement (Eastpark) 24 101K
52: EX-10.39 Software License Agreement 4 24K
17: EX-10.4 Exhibit 10.4 Memorandum of Agreement 7 44K
53: EX-10.40 Employment (Dale) 8 45K
54: EX-10.41 Employment Agreement (Gadd) 8 45K
55: EX-10.42 Employment Agreement (Cowan) 8 45K
56: EX-10.43 Employment Agreement (Oakley) 8 45K
57: EX-10.44 Amended and Restated Management Services Agreement 5 32K
58: EX-10.45 Agreement (Windy & Bruckmann) 3 21K
59: EX-10.46 Exhibit 10.46 (Whpf, Windy & Bruckman) Agreement 3 20K
18: EX-10.5 Exhibit 10.5 Assignment of Trademarks 11 47K
19: EX-10.6 Exhibit 10.6 Employee Benefits Agreements 1 17K
20: EX-10.7 Exhibit 10.7 Disbursing Agreement 21 79K
21: EX-10.8 Exhibit 10.8 Term Note (5/21/97) (Bankboston) 4 26K
22: EX-10.9 Exhibit 10.9 Term Note (5/21/97) (Southtrust) 4 27K
60: EX-12.1 Statement of Computation of Ratios 1 17K
61: EX-25.1 Statement of Eligibility on Form T-1 30 103K
62: EX-99.1 Form of Exchange Agent Agreement 14 55K
63: EX-99.2 Form of Letter of Transmittal 8 41K
64: EX-99.3 Form of Notice of Guarantee Delivery 3 22K
EX-4.4 — Exhibit 4.4 Global Note
| EX-4.4 | 1st Page of 14 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
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UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), NEW YORK, NEW YORK, 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 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF
THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY
AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR
SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL ACCREDITED
INVESTOR (WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT) THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR
THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A
MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT
PURPOSES AND NOT
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WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT
TO THE ISSUER'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSES (D), (E) AND (F) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM, AND IN THE CASE OF THE FOREGOING CLAUSE (E), A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE ISSUER AND THE TRUSTEE. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
THIS SECURITY IS SUBORDINATED TO SENIOR INDEBTEDNESS, AS DEFINED
IN THE INDENTURE (AS DEFINED HEREIN), AND THE OBLIGATIONS OF EACH SUBSIDIARY
GUARANTOR UNDER THE SUBSIDIARY GUARANTEE CONTAINED IN THE INDENTURE ARE
SUBORDINATED TO GUARANTOR SENIOR INDEBTEDNESS, AS DEFINED IN THE INDENTURE,
OF SUCH SUBSIDIARY GUARANTOR.
No.1 Principal Amount $120,000,000
CUSIP NO. 973818AA5
9 3/4% Senior Subordinated Note due 2007
Windy Hill Pet Food Company, Inc., a Minnesota corporation,
promises to pay to CEDE & CO., or registered assigns, the principal sum of
One Hundred Twenty Million Dollars on May 15, 2007.
Interest Payment Dates: May 15 and November 15 commencing
November 15, 1997.
Record Dates: May 1 and November 1.
Additional provisions of this Security are set forth on the other
side of this Security.
Dated: May 21, 1997 WINDY HILL PET FOOD COMPANY, INC.
by /s/ Ray Chung
--------------------------
/s/ M. Laurie Cummings
-----------------------------
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
WILMINGTON TRUST COMPANY
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
By /s/ Donald G. McKelcan
--------------------------
Authorized Signatory
[REVERSE SIDE]
9 3/4% Senior Subordinated Note due 2007
1. Interest
Windy Hill Pet Food Company, Inc., a Minnesota corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "Company"), promises to pay interest on
the principal amount of this Security at the rate per annum shown above.
The Company will pay interest semiannually on May 15 and November
15 of each year commencing November 15, 1997. Interest on the Securities will
accrue from the most recent date to which interest has been paid on the
Securities or, if no interest has been paid, from May 21, 1997. The Company
shall pay interest on overdue principal or premium, if any, at the rate borne
by the Securities to the extent lawful. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
2. Method of Payment
By at least 10:00 a.m. (New York City time) on the date on which
any principal of or interest on any Security is due and payable, the Company
shall transfer by wire to the accounts specified by the Trustee or the Paying
Agent money sufficient to pay such principal, premium, if any, and/or
interest. The Company will pay interest (except defaulted interest) to the
Persons who are registered Holders of Securities at the close of business on
the May 1 or November 1 (whether or not a Business Day) next preceding the
interest payment date even if Securities are cancelled, repurchased or
redeemed after the record date and on or before the interest payment date.
Holders must surrender Securities to a Paying Agent to collect principal
payments. The Company will pay principal and interest in money of the United
States that at the time of payment is legal tender for payment of public and
private debts. However, the Company may pay principal and interest by check
payable in such money. It may mail an interest check to a Holder's registered
address.
3. Paying Agent and Registrar
Initially, Wilmington Trust Company, a Delaware banking
corporation ("Trustee"), will act as Paying Agent and Registrar. The Company
may appoint and change any Paying Agent, Registrar or co-registrar without
notice to any Securityholder. The Company or any of its domestically
incorporated Wholly-Owned Subsidiaries may act as Paying Agent, Registrar or
co-registrar.
4. Indenture
The Company issued the Securities under an Indenture dated as of
May 21, 1997 (as it may be amended or supplemented from time to time in
accordance with the terms thereof, the "Indenture"), between the Company and
the Trustee. The terms of the Securities include
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those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939 (15 U.S.C. ss.ss. 77aaa-77bbbb)
as in effect on the date of the Indenture (the "Act"). Capitalized terms used
herein and not defined herein have the meanings ascribed thereto in the
Indenture. The Securities are subject to all such terms, and Securityholders
are referred to the Indenture and the Act for a statement of those terms.
The Securities are general unsecured senior subordinated
obligations of the Company limited to $120 million aggregate principal amount
(subject to Section 2.7 of the Indenture). This Security is one of the
Initial Notes referred to in the Indenture. The Securities include the
Initial Notes and any Exchange Notes issued in exchange for the Initial Notes
pursuant to the Indenture and the Registration Rights Agreement. The Initial
Notes and the Exchange Notes are treated as a single class of securities
under the Indenture. The Indenture imposes certain limitations on the
Incurrence of Indebtedness by the Company and its Subsidiaries, the payment
of dividends and other distributions on the Capital Stock of the Company and
its Subsidiaries, the purchase or redemption of Capital Stock of the Company
and Capital Stock of such Subsidiaries, certain purchases or redemptions of
Subordinated Obligations, the sale or transfer of assets and Capital Stock of
Subsidiaries, the issuance or sale of Capital Stock of Subsidiaries, the
business activities and investments of the Company and its Subsidiaries and
transactions with Affiliates. In addition, the Indenture limits the ability
of the Company and its Subsidiaries to restrict distributions and dividends
from Subsidiaries.
In addition, the Indenture requires Subsidiaries of the Company
(in the circumstances specified in Section 4.10 of the Indenture and on the
terms and conditions specified in Article XI of the Indenture), to enter into
a supplement to the Indenture providing for a guarantee by such Subsidiaries
(on a senior subordinated basis) of the due and punctual payment of the
principal of, premium (if any) and interest on the Securities and all other
amounts payable by the Company under the Indenture and the Securities when
and as the same shall be due and payable, whether at maturity, by
acceleration or otherwise, according to the terms of the Securities and the
Indenture.
5. Optional Redemption
Except as set forth in this paragraph 5, the Securities will not
be redeemable at the option of the Company prior to May 15, 2002. On and
after such date, the Securities will be redeemable, at the Company's option,
in whole or in part, upon not less than 30 nor more than 60 days' prior
notice mailed by first class mail to each Holder's registered address, at the
following redemption prices (expressed as percentages of principal amount)
plus accrued and unpaid interest to the redemption date (subject to the right
of Holders of record on the relevant record date to receive interest due on
the relevant interest payment date):
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If redeemed during the 12-month period commencing on May 15 of the years set
forth below:
Year Redemption Price
---- ----------------
2002 .......................... 104.875%
2003 .......................... 103.250%
2004 .......................... 101.625%
2005 and thereafter ........... 100.000%
Notwithstanding the foregoing, at any time or from time to time
prior to May 15, 2000 the Company may redeem up to $42 million of the
aggregate original principal amount of the Securities with the cash proceeds
of one or more Equity Offerings received by or invested in, the Company at a
redemption price (expressed as a percentage of principal amount) of 109.750%
plus accrued and unpaid interest, if any, to the redemption date (subject to
the right of Holders of record on the relevant record date to receive
interest due on the relevant interest payment date); provided, however, that
after giving effect of such redemption, at least $78 million of the aggregate
principal amount of the Securities remain outstanding after each such
redemption.
At any time on or prior to May 15 2002, the Securities may also
be redeemed in whole, but not in part, at the option of the Company upon the
occurrence of a Change of Control, upon not less than 30 nor more than 60
days' prior notice (but in no event more than 90 days after the occurrence of
such Change of Control) mailed by first-class mail to each Holder's
registered address, at a redemption price equal to 100% of the principal
amount thereof plus the Applicable Premium as of, and accrued and unpaid
interest, if any, to, the date of redemption (subject to the right of holders
of record on the relevant record date to receive interest due on the relevant
interest payment date).
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days but not more
than 60 days before the redemption date to each Holder of Securities to be
redeemed at such Holder's registered address. Securities in denominations of
principal amount larger than $1,000 may be redeemed in part but only in
integral multiples of $1,000. If money sufficient to pay the redemption price
of and accrued and unpaid interest in all Securities (or portions thereof) to
be redeemed on the redemption date is deposited with the Paying Agent on or
before the redemption date and certain other conditions are satisfied, on and
after such date interest ceases to accrue on such Securities (or such
portions thereof) called for redemption.
7. Put Provisions
Upon a Change of Control, unless the Company shall have exercised
its right to redeem the Securities pursuant to paragraph 5 of the Securities
in connection with such Change of Control, any Holder of Securities will have
the right to cause the Company to repurchase all or any part of the
Securities of such Holder at a repurchase price equal to 101% of the
principal
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amount thereof plus accrued interest to the date of repurchase as provided
in, and subject to the terms of, the Indenture.
8. Subordination
The Securities are subordinated to Senior Indebtedness, as
defined in the Indenture, and the obligations of each Subsidiary Guarantor
under the Subsidiary Guarantee contained in Article XI of the Indenture are
subordinated to Guarantor Senior Indebtedness, as defined in the Indenture,
of such Subsidiary Guarantor. To the extent provided in the Indenture, Senior
Indebtedness must be paid before the Securities may be paid, and Guarantor
Senior Indebtedness of a Subsidiary Guarantor must be paid before such
Subsidiary Guarantor may make payments under the Subsidiary Guarantee. The
Company agrees, and each Securityholder by accepting a Security agrees, to
the subordination provisions contained in the Indenture and authorizes the
Trustee to give them effect and appoints the Trustee as attorney-in-fact for
such purpose.
9. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of principal amount of $1,000 and whole multiples of $1,OOO. A
Holder may transfer or exchange Securities in accordance with the Indenture.
The Registrar may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange (i) any Securities selected for
redemption (except, in the case of a Security to be redeemed in part, the
portion of the Security not to be redeemed) for a period beginning 15 days
before a selection of Securities to be redeemed and ending on the date of
selection or (ii) any Securities for a period beginning 15 days before an
interest payment date and ending on such interest payment date.
10. Persons Deemed Owners
The registered holder of this Security may be treated as the
owner of it for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back
to the Company at its request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must
look only to the Company and not to the Trustee for payment.
5
12. Defeasance
Subject to certain conditions set forth in the Indenture, the
Company at any time may terminate some or all of its obligations under the
Securities and the Indenture if the Company deposits with the Trustee money
or U.S. Government Obligations for the payment of principal and interest on
the Securities to redemption or maturity, as the case may be.
13. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in outstanding principal amount of the
Securities and (ii) any default or noncompliance with any provision may be
waived with the written consent of the Holders of a majority in outstanding
principal amount of the Securities. Subject to certain exceptions set forth
in the Indenture, without the consent of any Securityholder, the Company, the
Subsidiary Guarantors and the Trustee may amend the Indenture or the
Securities to cure any ambiguity, omission, defect or inconsistency, or to
comply with Article 5 of the Indenture, or to provide for uncertificated
Securities in addition to or in place of certificated Securities, or to add
guarantees with respect to the Securities or to secure the Securities or to
add additional covenants for the benefit of the Holders or surrender rights
and powers conferred on the Company, or to comply with any request of the SEC
in connection with qualifying the Indenture under the Act, or to make any
change that does not adversely affect the rights of any Securityholder, or to
provide for the issuance of Exchange Notes.
14. Defaults and Remedies
Under the Indenture, Events of Default include: (i) default for
30 days in payment of interest on the Securities when the same becomes due
and payable; (ii) default in payment of principal on the Securities when the
same becomes due and payable at maturity, upon redemption pursuant to
paragraph 5 of the Securities, upon required repurchase, upon declaration or
otherwise; (iii) failure by the Company to comply with other agreements in
the Indenture or the Securities, in certain cases subject to notice and lapse
of time; (iv) certain accelerations (including failure to pay within any
grace period after final maturity) of other Indebtedness of the Company or
its Subsidiaries if the amount accelerated (or so unpaid) exceeds $5 million
and such acceleration or failure to pay is not rescinded or cured within a
10-day period; (v) certain events of bankruptcy or insolvency with respect to
the Company or any Significant Subsidiary; (vi) certain final, non-appealable
judgments or decrees for the payment of money in excess of $5 million; and
(vii) the failure of any Subsidiary Guarantee to be in full force and effect
or the denial or disaffirmation by any Subsidiary Guarantor of its
obligations under the Indenture or the Securities in certain cases. If an
Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the Securities may declare all the
Securities to be due and payable immediately. Certain events of bankruptcy or
insolvency are Events of Default which will result in the Securities being
due and payable immediately upon the occurrence of such Events of Default.
6
Securityholders may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee may refuse to enforce the
Indenture or the Securities unless it receives reasonable indemnity or
security. Subject to certain limitations, Holders of a majority in principal
amount of the Securities may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Securityholders notice of any
continuing Default or Event of Default (except a Default or Event of Default
in payment of principal or interest) if it determines that withholding notice
is in their interest.
15. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, the
Trustee under the Indenture, in its individual or any other capacity, may
become the owner or pledgee of Securities and may otherwise deal with and
collect obligations owed to it by the Company or its affiliates and may
otherwise deal with the Company or its affiliates with the same rights it
would have if it were not Trustee.
16. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Company or any Subsidiary Guarantor shall not have any liability for any
obligations of the Company or any Subsidiary Guarantor under the Securities
or the Indenture or for any claim based on, in respect of or by reason of
such obligations or their creation. By accepting a Security, each
Securityholder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities.
17. Authentication
This Security shall not be valid until an authorized signatory of
the Trustee (or an authenticating agent acting on its behalf) manually signs
the certificate of authentication on the other side of this Security.
18. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entirety), JT TEN (=joint tenants with rights of
survivorship and not as tenants in common), CUST (=custodian) and U/G/M/A
(=Uniform Gift to Minors Act).
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19. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Company has caused CUSIP
numbers to be printed on the Securities and has directed the Trustee to use
CUSIP numbers in notices of redemption as a convenience to Securityholders.
No representation is made as to the accuracy of such numbers either as
printed on the Securities or as contained in any notice of redemption and
reliance may be placed only on the other identification numbers placed
thereon.
20. Governing Law
This Security shall be governed by and construed in accordance
with, the laws of the State of New York but without giving effect to
applicable principles of conflicts of law to the extent that the application
of the laws of another jurisdiction would be required thereby.
The Company will furnish to any Securityholder upon written
request and without charge to the Securityholder a copy of the Indenture
which has in it the text of this Security in larger type. Requests may be
made to: Windy Hill Pet Food Company, Inc., Two Maryland Farms, Suite 301,
Brentwood, Tennessee 37027. Attention: President.
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint __________ agent to transfer this Security on the
books of the Company. The agent may substitute another to act for him.
________________________________________________________________________________
Date: ____________________________ Your Signature:_____________________
Signature Guarantee:___________________________________________
(Signature must be guaranteed)
________________________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
In connection with any transfer or exchange of any of the Securities
evidenced by this certificate occurring prior to the date that is three years
after the later of the date of original issuance of such Securities and the
last date, if any, on which such Securities were owned by the Company or any
Affiliate of the Company, the undersigned confirms that such Securities are
being:
CHECK ONE BOX BELOW:
1 |_| acquired for the undersigned's own account, without
transfer; or
2 |_| transferred to the Company; or
3 |_| transferred pursuant to and in compliance with Rule 144A
under the Securities Act of 1933; or
4 |_| transferred pursuant to an effective registration statement
under the Securities Act; or
5 |_| transferred pursuant to and in compliance with Regulation S
under the Securities Act of 1933; or
6 |_| transferred to an "accredited investor" (within the meaning
of Rule 501(a)(1), (2), (3) or (7) under the Securities Act
of 1933) that is an institutional investor and that has
furnished to the Trustee a signed letter
2
containing certain representations and agreements (the form
of which letter appears as Exhibit C to the Indenture); or
7 |_| transferred pursuant to another available exemption from the
registration requirements of the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any
of the Securities evidenced by this certificate in the name of any person
other than the registered holder thereof; provided, however, that if box (5),
(6) or (7) is checked, the Trustee or the Company may require, prior to
registering any such transfer of the Securities, in their sole discretion,
such legal opinions, certifications and other information as the Trustee or
the Company may reasonably request to confirm that such transfer is being
made pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933, such as the
exemption provided by Rule 144 under such Act.
This certificate and the statements contained herein are made for the benefit
of the Company, the Guarantors, Wilmington Trust Company as Trustee, and
Chase Securities Inc. and Credit Suisse First Boston Corporation, the Initial
Purchasers of such Notes being transferred, and each of you are entitled to
rely upon this letter and are irrevocably authorized to produce this letter
or a copy hereof to any interested party in any administrative or legal
proceeding with respect to the materials covered hereby.
---------------------------------
Signature
Signature Guarantee:
---------------------------------- ---------------------------------
Signature
(Signature must be guaranteed)
------------------------------------------------------------------
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SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have
been made:
[Enlarge/Download Table]
Date of Amount of decrease in Amount of increase in Principal Amount of this Signature of authorized
Exchange Principal Amount of this Principal Amount of this Global Security following officer of Trustee or
Global Security Global Security such decrease or increase Securities Custodian
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.6 or 4.8 of the Indenture, check the box:
|_|
If you want to elect to have only part of this Security purchased
by the Company pursuant to Section 4.6 or 4.8 of the Indenture, state the
amount in principal amount (must be integral multiple of $1,000): $
Date: ____________ Your Signature ___________________________________
(Sign exactly as your name appears on the
other side of the Security)
Signature Guarantee:_________________________________________
(Signature must be guaranteed)
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-4’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 5/15/07 | | 3 | | | | | None on these Dates |
| | 5/15/02 | | 5 |
| | 5/15/00 | | 6 |
| | 11/15/97 | | 3 | | 4 |
| Filed on: | | 6/27/97 |
| | 5/21/97 | | 3 | | 4 |
| List all Filings |
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Filing Submission 0000912057-97-022279 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
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