Exhibit 4.5
1CUSIP: 902494 AE3
No. R - 1 $50,000,000
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the
Company (as defined below) 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 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.
TYSON FOODS, INC.
Floating Rate MandatOry Par Put Remarketed Securities_* ("MOPPRS_*)
due February 1, 2010
TYSON FOODS, INC., a Delaware corporation (the "Company", which term
includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to Cede & Co. or registered
assigns, at the office or agency of the Company in The City of New York,
New York, the principal sum of $50,000,000 (Fifty Million Dollars) on
February 1, 2010 (the "Stated Maturity Date"), in the coin or currency of
the United States, and to pay interest, quarterly in arrears on February 1,
May 1, August 1 and November 1 of each year (each, a "LIBOR Payment Date"),
commencing May 1, 1998 to February 1, 2000, in like coin or currency on
said principal sum at said office or agency, and thereafter on each
February 1 and August 1 (each, a "Reset Payment Date" and together with
each LIBOR Payment Date each, an "Interest Payment Date"), commencing
August 1, 2000, from the Interest Payment Date next preceding the date of
this MOPPRS to which interest has been paid or duly provided for, unless
the date hereof is a date to which interest has been paid or duly provided
for, in which case from the date of this MOPPRS, or unless no interest has
been paid or duly provided for on these MOPPRS, in which case from February
4, 1998, until payment of said principal sum has been made or duly provided
for; provided, that payment of interest may be made at the option of the
Company by check mailed to the address of the person entitled thereto as
such address shall appear on the Security Register of the Company or by
wire transfer as provided in the Indenture. Notwithstanding the foregoing,
if during the period from February 4, 1998 to February 2, 2000, the date
hereof is after the 17th day of January, July or October, or the 16th day
of April, as the case may be, and before the following February 1, May 1,
August 1 or November 1, this MOPPRS shall bear interest from such February
1, May 1, August 1 or November 1 and if, during the period from February 1,
2000 to the Stated Maturity Date, the date hereof is after the 16th day of
January or July, as the case may be, and before the following February 1 or
August 1, this MOPPRS shall bear interest from such February 1 or August 1;
provided, that if the Company shall default in the payment of interest due
on such Interest Payment Date, then this MOPPRS shall bear interest from
the next preceding Interest Payment Date to which interest has been paid or
duly provided for or, if no interest has been paid or duly provided for on
these MOPPRS, from February 4, 1998. The interest so payable on any
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February 1, May 1, August 1, or November 1 during the period from February
4, 1998 to February 2, 2000 will, subject to certain exceptions provided in
the Indenture referred to on the reverse hereof, be paid to the person in
whose name this MOPPRS is registered at the close of business on the
January 17, April 16, July 17 or October 17, as the case may be, next
preceding such February 1, May 1, August 1 or November 1, whether or not
such day is a Business Day and the interest so payable on any February 1 or
August 1 during the period from February 1, 2000 to the Stated Maturity
Date will, subject to such exceptions, be paid to the person in whose name
the MOPPRS is registered at the close of business 15 calendar days prior to
such payment date next preceding such February 1 or August 1, as the case
may be, whether or not such day is a Business Day.
The rate of interest on this MOPPRS shall be a floating rate per annum
determined as described in Section 2 on the reverse hereof to February 1,
2000 (the "Remarketing Date"). If, pursuant to the Remarketing Agreement,
dated as of the date hereof (the "Remarketing Agreement"), between Merrill
Lynch, Pierce, Fenner & Smith Incorporated, as Remarketing Dealer (the
"Remarketing Dealer"), and the Company, the Remarketing Dealer elects to
remarket the MOPPRS, then, except as otherwise set forth on the reverse
hereof, (i) this MOPPRS shall be subject to mandatory tender to the
Remarketing Dealer for remarketing on the Remarketing Date, on the terms
and subject to the conditions set forth on the reverse hereof, and (ii) on
and after the Remarketing Date, this MOPPRS shall bear interest at the rate
determined by the Remarketing Dealer in accordance with the procedures set
forth in Section 5 on the reverse hereof (the "Interest Rate to Maturity").
Reference is made to the further provisions of this MOPPRS set forth
on the reverse hereof. Such further provisions shall for all purposes have
the same effect as though fully set forth at this place.
This MOPPRS shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been manually
signed by the Trustee under the Indenture referred to on the reverse
hereof.
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IN WITNESS WHEREOF, TYSON FOODS, INC. has caused this instrument to be
signed manually or by facsimile by its duly authorized officers.
Dated:
TYSON FOODS, INC.
By:
------------------------
By:
------------------------
Attest:
- ---------------------------
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CERTIFICATE OF AUTHENTICATION
This is one of the MOPPRS of the series designated therein referred to
in the within-mentioned Indenture.
Dated:
THE CHASE MANHATTAN BANK,
as Trustee
By:
------------------------------
Authorized Signatory
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TYSON FOODS, INC.
Floating Rate MandatOry Par Put Remarketed Securities_ ("MOPPRS_")
due February 1, 2010
1. Indenture. This MOPPRS is one of the duly authorized issue of debt
securities of the Company (hereinafter called the "Securities") of the
series hereinafter specified, all issued or to be issued under and pursuant
to an indenture dated as of June 1, 1995 (herein called the "Indenture"),
duly executed and delivered by the Company to The Chase Manhattan Bank, as
Trustee (herein called the "Trustee"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description
of the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the Holders of the Securities.
The Securities may be issued in one or more series, which different series
may be issued in various aggregate principal amounts, 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 redemption provisions (if any) and may be subject to different
sinking, purchase or analogous funds (if any) and may otherwise vary as
provided in the Indenture. This Security is one of the series designated as
the Floating Rate MandatOry Par Put Remarketed Securities_ ("MOPPRS_") due
February 1, 2010 of the Company limited in aggregate principal amount to
$50,000,000.
2. Interest. The floating rate of interest on the Securities will be
a per annum rate determined by reference to LIBOR, described below, plus
0.19% (19 basis points) to February 1, 2000. Thereafter, if the Securities
are not redeemed, the interest rate will be determined as set forth below
in Section 5.
The floating rate of interest on the Securities will be reset
quarterly on February 1, May 1, August 1 and November 1 of each year (each,
an "Interest Reset Date") until the Remarketing Date. If any Interest
Reset Date would otherwise be a day that is not a Business Day, such
Interest Reset Date will be postponed to the next day that is a Business
Day, except that if such Business Day is in the next succeeding calender
month, such Interest Reset Date will be the immediately preceding Business
Day. The "LIBOR Determination Date" pertaining to an Interest Reset Date
for the Securities will be the second London Business Day preceding such
Interest Reset Date. The interest rate in effect on each day of an
Interest Period (as defined below) shall be (i) if such day is an Interest
Reset Date, the interest rate determined as of the LIBOR Determination Date
immediately preceding such Interest Reset Date, or (ii) if such day is not
an Interest Reset Date, the interest rate determined as of the LIBOR
Determination Date immediately preceding the most recent Interest Reset
Date.
Except as provided below, interest on the Securities will be payable
quarterly in arrears on each LIBOR Payment Date, commencing May 1, 1998 and
on the Remarketing Date. If any LIBOR Payment Date would otherwise be a
day that is not a Business Day, such LIBOR Payment Date will be postponed
to the next day that is a Business Day, except that if such Business Day is
in the next succeeding calendar month, such LIBOR Payment Date will be the
immediately preceding Business Day. If the Remarketing Date falls on a day
that is not a Business Day, principal and interest payable on the
46
Remarketing Date will be paid on the succeeding Business Day with the same
force and effect as if it were paid on the date such payment was due, and
no interest will accrue on the amount so payable for the period from and
after the Remarketing Date.
Interest payable on a LIBOR Payment Date or on the Remarketing Date,
as the case may be, will be the amount of interest accrued during the
applicable Interest Period. Interest payments for the Securities will
include accrued interest for each successive period (the "Interest Period")
from the date of issue or from the last date in respect of which interest
has been paid, as the case may be, to, but excluding the LIBOR Payment
Date, or the Remarketing Date, as the case may be. Accrued interest will
be calculated by multiplying the principal amount of a Security by an
accrued interest factor. This accrued interest factor will be computed by
adding the interest factors calculated for each day in the period for which
accrued interest is being calculated. The interest factor for each such
day during an Interest Period will be computed by dividing the interest
rate applicable to such day by 360.
The interest rate on the Securities in respect of an Interest Period
will be a per annum rate equal to LIBOR (determined by the Calculation
Agent (as described below) as of the applicable LIBOR Determination Date)
plus 0.19% (19 basis points); however, the interest rate in respect of an
Interest Period may not be higher than the maximum rate permitted by New
York law, as the same may be modified by United States law of general
application. The interest rate for the initial Interest Period will be
equal to 5.815%.
The Trustee will be the Calculation Agent with respect to the
Securities, unless and until the Company provides the holders of the
Security with 30 days' notice to the contrary. The Trustee will provide to
any holder of the Securities the current effective interest rate per annum.
"Business Day" means any day, other than a Saturday, a Sunday, or a
day on which banking institutions in The City of New York are authorized or
obligated by law, executive order or governmental decree to be closed.
"London Business Day" means any day on which dealings in deposits in
U.S. dollars are transacted in the London interbank market.
"LIBOR" applicable for an Interest Period will be determined by the
Calculation Agent as of the LIBOR Determination Date in accordance with the
following provisions:
(a) LIBOR will be determined on the basis of the offered rate for
three-month deposits in U.S. dollars, commencing on the second London
Business Day immediately following such LIBOR Determination Date,
which appears on Telerate page 3750 (as defined below) as of
approximately 11:00 a.m., London time, on such LIBOR Determination
Date. "Telerate Page 3750" means the display designated on page
"3750" on Dow Jones Markets Limited (or such other page as may replace
the 3750 page on that service or such other service or services as may
be nominated by the British Bankers' Association for the purpose of
displaying London interbank offered rates for U.S. dollar deposits).
If no rate appears on Telerate Page 3750, LIBOR for such LIBOR
Determination Date will be determined in accordance with the
provisions of paragraph (ii) below.
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(b) With respect to a LIBOR Determination Date on which no rate
appears on Telerate Page 3750 as of approximately 11:00 a.m., London
time, on such LIBOR Determination Date, the Calculation Agent shall
request the principal London offices of each of four major reference
banks in the London interbank market selected by the Calculation Agent
to provide the Calculation Agent with a quotation of the rate at which
three-month deposits in U.S. dollars, commencing on the second London
Business Day immediately following such LIBOR Determination Date, are
offered by it to prime banks in the London interbank market as of
approximately 11:00 a.m., London time, on such LIBOR Determination
Date and in a principal amount equal to an amount of not less than
U.S. $1,000,000 that is representative for a single transaction in
such market at such time. If at least two such quotations are
provided, LIBOR for such LIBOR Determination Date will be the
arithmetic mean of such quotations as calculated by the Calculation
Agent. If fewer than two quotations are provided, LIBOR for such
LIBOR Determination Date will be the arithmetic mean of the rates
quoted as of approximately 11:00 a.m., New York City time, on such
LIBOR Determination Date by three major banks in The City of New York
selected by the Calculation Agent (after consultation with the
Company) for loans in U.S. dollars to leading European banks, having a
three-month maturity commencing on the second London Business Day
immediately following such LIBOR Determination Date and in a principal
amount equal to an amount of not less than U.S. $1,000,000 that is
representative for a single transaction in such market at such time;
provided, however, that if the banks selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, LIBOR
for such LIBOR Determination Date will be LIBOR determined with
respect to the immediately preceding LIBOR Determination Date, or in
the case of the first LIBOR Determination Date, LIBOR for the initial
Interest Period.
All percentages resulting from any calculation in respect of the
Securities during any Interest Period will be rounded to the nearest one
hundred thousandth of a percentage point (with five one-millionths of a
percentage point rounded upwards) (e.g., 9.876545% (or .09876545) would be
rounded to 9.87655% (or .0987655)), and all dollar amounts used in or
resulting from such calculation will be rounded to the nearest cent (with
one-half cent rounded upwards).
3. Mandatory Tender on Remarketing Date; Purchase and Settlement. (a)
Provided that the Remarketing Dealer gives notice to the Company and the
Trustee on a Business Day not later than five Business Days prior to the
Remarketing Date of its intention to purchase the Securities for
remarketing (the "Notification Date"), each Security shall be automatically
tendered, or deemed tendered, to the Remarketing Dealer for purchase on the
Remarketing Date in accordance with Section 3(b) below, except as set forth
in Sections 6 and 7 below. The purchase price of such tendered Securities
shall be equal to 100% of the principal amount thereof. Upon such tender,
the Remarketing Dealer shall have the option, in its sole discretion, to
elect to remarket the Securities in accordance with the Remarketing
Agreement for its own account at varying prices to be determined by the
Remarketing Dealer at the time of each sale. If the Remarketing Dealer
makes such election, the obligation of the Remarketing Dealer to purchase
the Securities on the Remarketing Date shall be subject to the conditions
set forth in the Remarketing Agreement. No Holder or actual purchaser of
the Securities ("Beneficial Owner") shall have any rights or claims under
48
the Remarketing Agreement or against the Company or the Remarketing Dealer
as a result of the Remarketing Dealer not purchasing such Securities.
(b) Following the Notification Date, the tender and purchase of the
Securities provided for in Section 3(a) above shall be effected as follows,
subject to Sections 6 and 7 below:
(i) All of the tendered Securities shall be automatically
delivered to the account of the Trustee, by book-entry through DTC or
any successor thereto pending payment of the purchase price therefor,
on the Remarketing Date.
(ii) The Remarketing Dealer shall make or cause the Trustee to make
payment to DTC by book entry through DTC in accordance with the
procedures of DTC, by 1:00 p.m. New York City time on the Remarketing
Date against delivery through DTC of such Beneficial Owner's tendered
Securities, of the purchase price for tendered Securities that have
been purchased for remarketing by the Remarketing Dealer. The Company
shall make or cause the Trustee to make payment of interest to DTC on
the Remarketing Date by book entry through DTC by 2:30 p.m. New York
City time on the Remarketing Date.
4. Maintenance of Book-Entry System. (a) The tender and settlement
procedures set forth in Section 3(b) above, including provisions for
payment by purchasers of Securities in the remarketing or for payment to
selling Beneficial Owners of tendered Securities, shall be subject to
modification, notwithstanding any provision to the contrary set forth in
Article 9 of the Indenture, to the extent required by DTC or, if the book-
entry system is no longer available for the Securities at the time of the
remarketing, to the extent required to facilitate the tendering and
remarketing of Securities in certificated form. In addition, the
Remarketing Dealer may, notwithstanding any provision to the contrary set
forth in Article 9 of the Indenture, modify the settlement procedures set
forth herein in order to facilitate the settlement process.
(b) The Company hereby agrees with the Trustee and the holders of
Securities that at all times, notwithstanding any provision to the contrary
set forth in the Indenture, (i) it will use its best efforts to maintain
the Securities in book-entry form with DTC or any successor thereto and to
appoint a successor depository to the extent necessary to maintain the
Securities in book-entry form and (ii) it will waive any discretionary
right that it otherwise may have under the Indenture to cause the
Securities to be issued in certificated form.
5. Determination of Interest Rate to Maturity; Notification Thereof.
Subject to the Remarketing Dealer's election to remarket the Securities as
provided in Section 3(a), by 3:30 p.m., New York City time, on the third
Business Day immediately preceding the Remarketing Date (the "Determination
Date"), the Remarketing Dealer shall determine the Interest Rate to
Maturity to the nearest one hundred-thousandth (0.00001) of one percent per
annum. The Interest Rate to Maturity shall be equal to the sum of 5.712%
(the "Base Rate") and the Applicable Spread (as defined below), which will
be based on the Dollar Price (as defined below) of the Securities.
If any Interest Payment Date during the period from the Remarketing
Date to the Stated Maturity Date is not a Business Day, payment will be
made on the succeeding Business Day with the same force and effect as if it
49
were paid on the date such payment was due, and no interest will accrue on
the amount so payable for the period from and after such interest payment
date. Interest during such period will be computed on the basis of a 360-
day year consisting of twelve 30-day months.
The "Applicable Spread" shall be the lowest bid indication, expressed
as a spread (in the form of a percentage or in basis points) above the Base
Rate, obtained by the Remarketing Dealer on the Determination Date from the
bids quoted by five Reference Corporate Dealers (as defined below) for the
full aggregate principal amount of the Securities at the Dollar Price, but
assuming (i) an issue date that is the Remarketing Date, with settlement on
such date without accrued interest, (ii) a maturity date that is the Stated
Maturity Date of the Securities and (iii) a stated annual interest rate,
payable semi-annually, equal to the Base Rate plus the spread bid by the
applicable Reference Corporate Dealer. If fewer than five Reference
Corporate Dealers bid as described above, then the Applicable Spread shall
be the lowest of such bid indications obtained as described above. The
Interest Rate to Maturity announced by the Remarketing Dealer, absent
manifest error, shall be binding and conclusive upon the Beneficial Owners
and Holders of the Securities, the Company and the Trustee.
"Dollar Price" means, with respect to the Securities, the present
value, as of the Remarketing Date, of the Remaining Scheduled Payments (as
defined below) discounted to the Remarketing Date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Rate (as defined below).
"Reference Corporate Dealers" means each of Chase Securities Inc.,
Credit Suisse First Boston Corporation, Merrill Lynch, Pierce, Fenner &
Smith Incorporated, J.P. Morgan Securities Inc. and Salomon Brothers Inc
and their respective successors; provided, however, that if any of the
foregoing or their affiliates shall cease to be a leading dealer of
publicly traded debt securities of the Company in The City of New York (a
"Primary Corporate Dealer"), the Remarketing Dealer shall substitute
therefor another Primary Corporate Dealer.
"Remaining Scheduled Payments" means, with respect to the Securities,
the remaining scheduled payments of the principal thereof and interest
thereon, calculated at the Base Rate only, that would be due after the
Remarketing Date to and including the Stated Maturity Date; provided,
however, that if the Remarketing Date is not an Interest Payment Date with
respect to the Securities, the amount of the next succeeding scheduled
interest payment thereon, calculated at the Base Rate only, will be reduced
by the amount of interest accrued thereon, calculated at the Base Rate
only, to the Remarketing Date.
"Treasury Rate" means, with respect to the Remarketing Date, the rate
per annum equal to the semi-annual equivalent yield to maturity or
interpolated (on a day count basis) yield to maturity of the Comparable
Treasury Issues (as defined below), assuming a price for the Comparable
Treasury Issues (expressed as a percentage of its principal amount), equal
to the Comparable Treasury Price (as defined below) for such Remarketing
Date.
"Comparable Treasury Issues" means the United States Treasury security
or securities selected by the Remarketing Dealer as having an actual or
interpolated maturity or maturities comparable to the remaining term of the
Securities being purchased.
50
"Comparable Treasury Price" means, with respect to the Remarketing
Date, (a) the offer prices for the Comparable Treasury Issues (expressed in
each case as a percentage of its principal amount) on the Determination
Date, as set forth on "Telerate Page 500" (or such other page as may
replace Telerate Page 500) or (b) if such page (or any successor page) is
not displayed or does not contain such offer prices on such Determination
Date, (i) the average of the Reference Treasury Dealer Quotations for such
Remarketing Date, after excluding the highest and lowest of such Reference
Treasury Dealer Quotations, or (ii) if the Remarketing Dealer obtains fewer
than four such Reference Treasury Dealer Quotations, the average of all
such Reference Treasury Dealer Quotations. "Telerate Page 500" means the
display designated as "Telerate Page 500" on Dow Jones Markets Limited (or
such other page as may replace Telerate Page 500 on such service) or such
other service displaying the offer prices specified in (a) above as may
replace Dow Jones Markets Limited. "Reference Treasury Dealer Quotations"
means, with respect to each Reference Treasury Dealer and the Remarketing
Date, the offer prices for the Comparable Treasury Issues (expressed in
each case as a percentage of its principal amount) quoted in writing to the
Remarketing Dealer by such Reference Treasury Dealer by 3:30 p.m., on the
Determination Date.
"Reference Treasury Dealer" means each of Credit Suisse First Boston
Corporation, Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Morgan Stanley & Co. Incorporated and Salomon Brothers Inc
and their respective successors; provided, however, that if any of the
foregoing or their affiliates shall cease to be a primary U.S. Government
securities dealer in The City of New York (a "Primary Treasury Dealer"),
the Remarketing Dealer shall substitute therefor another Primary Treasury
Dealer.
6. Repurchase. If (a) the Remarketing Dealer for any reason does not
notify the Company of the Interest Rate to Maturity by 4:00 p.m., New York
City time, on the Determination Date, or (b) prior to the Remarketing
Date, the Remarketing Dealer has resigned and no successor has been
appointed on or before the Determination Date, or (c) since the
Notification Date, a material adverse change in the condition of the
Company and its subsidiaries, considered as one enterprise, shall have
occurred or an Event of Default, or any event which, with the giving of
notice or passage of time, or both, would constitute an Event of Default,
with respect to the Securities shall have occurred and be continuing, or
any other event constituting a termination event under the Remarketing
Agreement shall have occurred, or (d) the Remarketing Dealer elects not to
remarket the Securities, or (e) the Remarketing Dealer for any reason does
not purchase all tendered Securities on the Remarketing Date, then, in any
such case, the Company shall repurchase the Securities as a whole on the
Remarketing Date at a price equal to 100% of the principal amount thereof
plus all accrued and unpaid interest, if any, on the Securities to the
Remarketing Date. In any such case, payment shall be made by the Company to
the Participant of each tendering Beneficial Owner of Securities, by book-
entry through DTC, by 2:30 p.m., New York City time on the Remarketing Date
against delivery through DTC of such Beneficial Owner's tendered
Securities.
7. Redemption. (a) Notwithstanding any election by the Remarketing
Dealer to remarket the Securities on the Remarketing Date, the tendering of
the Securities for purchase by the Remarketing Dealer on such date as set
forth in Section 3(b) above shall be subject to the right of the Company to
51
redeem the Securities from the Remarketing Dealer as provided in Section
7(b) below.
(b) The Company, in its sole and absolute discretion, shall have the
right, upon notice to the Remarketing Dealer and the Trustee not later than
the Business Day immediately preceding the Determination Date, to
irrevocably elect to redeem the Securities, in whole but not in part, from
the Remarketing Dealer on the Remarketing Date at the Optional Redemption
Price. The "Optional Redemption Price" shall be the greater of (i) 100% of
the principal amount of the Securities and (ii) the sum of the present
values of the Remaining Scheduled Payments thereon, as determined by the
Remarketing Dealer, discounted to the Remarketing Date on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Rate, plus in either case accrued and unpaid interest from the
Remarketing Date on the principal amount being redeemed to the date of
redemption. If the Company elects to redeem the Securities, it shall pay
the redemption price therefor in same-day funds by wire transfer to an
account designated by the Remarketing Dealer on the Remarketing Date.
8. Effect of Event of Default. In case an Event of Default with
respect to the Securities shall have occurred and be continuing, the
principal hereof may be declared, and upon such declaration shall become,
due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
9. Amendments and Waivers. The Indenture contains provisions which
provide that without prior notice to any Holders, the Company and the
Trustee may amend the Indenture and the Securities of any series with the
written consent of the Holders of a majority in principal amount of the
outstanding Securities of all series affected by such supplemental
indenture (all such series voting as one class), and the Holders of a
majority in principal amount of the outstanding Securities of all series
affected thereby (all such series voting as one class) by written notice to
the Trustee may waive future compliance by the Company with any provision
of the Indenture or the Securities of such series; provided that without
the consent of each Holder of the Securities of each series affected
thereby, an amendment or waiver, including a waiver of past defaults, may
not: (i) extend the stated maturity of the principal of, or any sinking
fund obligation or any installment of interest on, such Holder's Security,
or reduce the principal amount thereof or the rate of interest thereon
(including any amount in respect of original issue discount), or any
premium payable with respect thereto, or adversely affect the rights of
such Holder under any mandatory repurchase provision or any right of
repurchase at the option of such Holder, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon an acceleration of the maturity or the amount thereof provable
in bankruptcy, or change any place of payment where, or the currency in
which, any Security of such series or any premium or the interest thereon
is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the stated maturity thereof (or, in the case
of redemption, on or after the redemption date or, in the case of mandatory
repurchase, the date therefor); (ii) reduce the percentage in principal
amount of outstanding Securities of such series the consent of whose
Holders is required for any such supplemental indenture, for any waiver of
compliance with certain provisions of the Indenture or certain Defaults and
their consequences provided for in the Indenture; (iii) waive a Default in
the payment of principal of or interest on any Security of such series;
(iv) cause any Security of such series to be subordinated in right of
52
payment to any obligation of the Company; or (v) modify any of the
provisions of the Indenture governing supplemental indentures with the
consent of Securityholders except to increase any such percentage or to
provide that certain other provisions of the Indenture cannot be modified
or waived without the consent of the Holder of each outstanding Security of
any series affected thereby.
It is also provided in the Indenture that, subject to certain
conditions, the Holders of at least a majority in principal amount of the
outstanding Securities of the series affected (all such series voting as a
single class), by notice to the Trustee, may waive an existing Default or
Event of Default with respect to the Securities of such series and its
consequences, except a Default in the payment of principal of or interest
on any Security or in respect of a covenant or provision of the Indenture
which cannot be modified or amended without the consent of the Holder of
each outstanding Security affected. Upon any such waiver, such Default
shall cease to exist, and any Event of Default with respect to the
Securities of such series arising therefrom shall be deemed to have been
cured, for every purpose of the Indenture; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereto.
The Indenture provides that a series of Securities may include one or
more tranches (each a "tranche") of Securities, including Securities issued
in a periodic offering. The Securities of different tranches may have one
or more different terms, including authentication dates and public offering
prices, but all the Securities within each such tranche shall have
identical terms, including authentication date and public offering price.
Notwithstanding any other provision of the Indenture, subject to certain
exceptions, with respect to sections of the Indenture concerning the
execution, authentication and terms of the Securities, redemption of the
Securities, Events of Default of the Securities, defeasance of the
Securities and amendment of the Indenture, if any series of Securities
includes more than one tranche, all provisions of such sections applicable
to any series of Securities shall be deemed equally applicable to each
tranche of any series of Securities in the same manner as though originally
designated a series unless otherwise provided with respect to such series
or tranche pursuant to a board resolution or a supplemental indenture
establishing such series or tranche.
10. Obligation of Company. No reference herein to the Indenture and no
provision of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay the
principal of and any premium and interest on this Security in the manner,
at the place, at the respective times, at the rate and in the coin or
currency herein prescribed.
11. Denominations, Transfer and Exchange. (a) The Securities are
issuable initially only in registered form without coupons in denominations
of $1,000 and any multiple of $1,000 at the office or agency of the Company
in The City of New York, and in the manner and subject to the limitations
provided in the Indenture, but without the payment of any service charge,
Securities may be exchanged for a like aggregate principal amount of
Securities of other authorized denominations.
(b) Upon due presentment for registration of transfer of this Security
at the office or agency of the Company in The City of New York, a new
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Security or Securities of authorized denominations for an equal aggregate
principal amount will be issued to the transferee in exchange therefor,
subject to the limitations provided in the Indenture, without charge except
for any tax or other governmental charge imposed in connection therewith.
(c) The Company, the Trustee and any authorized agent of the Company or
the Trustee may deem and treat the registered Holder hereof as the absolute
owner of this Security (whether or not this Security shall be overdue and
notwithstanding any notation of ownership or other writing hereon made by
anyone other than the Company or the Trustee or any authorized agent of the
Company or the Trustee), for the purpose of receiving payment of, or on
account of, the principal hereof and premium, if any, and, subject to the
provisions on the face hereof, interest hereon, and for all other purposes,
and neither the Company nor the Trustee nor any authorized agent of the
Company or the Trustee shall be affected by any notice to the contrary.
12. No Liability of Certain Persons. No recourse under or upon any
obligation, covenant or agreement of the Company in the Indenture or any
indenture supplemental thereto or in any Security, or because of the
creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, officer or director, as such, past, present, or
future, of the Company or of any successor corporation, either directly or
through the Company or any successor corporation, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment
or by any legal or equitable proceeding or otherwise, all such liability
being expressly waived and released by the acceptance hereof and as part of
the consideration for the issue hereof.
13. Definitions. Terms used herein which are defined in the Indenture
shall have the respective meanings assigned thereto in the Indenture.
THE FOLLOWING ABBREVIATIONS
SHALL BE CONSTRUED AS THOUGH
THE WORDS SET FORTH BELOW
OPPOSITE EACH ABBREVIATION
WERE WRITTEN OUT IN FULL
WHERE SUCH ABBREVIATION
APPEARS:
TEN COM --as tenants in (Name) CUST (Name) UNIF--(Name)
common as Custodian
TEN ENT --as tenants by the GIFT MIN ACT (state) for (Name)
entirety Under the (State)
JT TEN --as joint tenants Uniform Gifts to
with right of Minors Act
survivorship
and not as tenants
in common
ADDITIONAL ABBREVIATIONS MAY
ALSO BE USED THOUGH NOT IN
THE ABOVE LIST.
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FOR VALUE RECEIVED,
the undersigned
hereby sell(s),
assign(s) and
transfer(s)
unto
PLEASE INSERT TAXPAYER
IDENTIFICATION NUMBER OF
ASSIGNEE
PLEASE PRINT OR TYPEWRITE NAME
AND ADDRESS INCLUDING POSTAL
ZIP CODE OF ASSIGNEE
the within Security of Tyson Foods, Inc. and all rights
thereunder and hereby irrevocably constitutes and
appoints ________ attorney to transfer said Security on the
books of the Company, with full power of substitution in the
premises
Dated:
Signature
NOTICE: THE SIGNATURE(S) 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. THE SIGNATURE(S) SHOULD BE GUARANTEED
BY A COMMERCIAL BANK OR TRUST COMPANY, A MEMBER
ORGANIZATION OF A NATIONAL STOCK EXCHANGE OR BY
SUCH OTHER ENTITY WHOSE SIGNATURE IS ON FILE WITH
AND ACCEPTABLE TO THE TRANSFER AGENT.
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