-----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, GbPL5a3UjCdDh90TttcpHMk+gLlACu5iLDMRjeylMTXgjFmExv/aKStg4m6kqLpQ pOHmu3ZK/VyicHRGgNKJrA== 0000002852-01-500036.txt : 20010703 0000002852-01-500036.hdr.sgml : 20010703 ACCESSION NUMBER: 0000002852-01-500036 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20010701 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 20010702 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AGWAY INC CENTRAL INDEX KEY: 0000002852 STANDARD INDUSTRIAL CLASSIFICATION: GRAIN MILL PRODUCTS [2040] IRS NUMBER: 150277720 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 002-22791 FILM NUMBER: 1674004 BUSINESS ADDRESS: STREET 1: 333 BUTTERNUT DR CITY: DEWITT STATE: NY ZIP: 13214 BUSINESS PHONE: 3154496431 EX-2 1 certifownershipmerger.txt CERTIFOWNERSHIPAND MERGER CERTIFICATE OF OWNERSHIP AND MERGER MERGING AGWAY FINANCIAL CORPORATION WITH AND INTO AGWAY, INC. - -------------------------------------------------------------------------------- Pursuant to Section 253 of the General Corporation of Law of the State of Delaware - ------------------------------------------------------------------------------- Agway, Inc., a Delaware corporation (the "Company"), does hereby certify to the following facts relating to the merger (the "Merger") of Agway Financial Corporation, a Delaware corporation ("Financial"), with and into the Company, with the Company remaining as the surviving corporation: FIRST: The Company is incorporated pursuant to the General Corporation Law of the State of Delaware (the "DGCL"). Financial is incorporated pursuant to the DGCL. SECOND: The Company owns all (100%) of the outstanding shares of each class of capital stock of the Subsidiary. THIRD: The Board of Directors of the Company, by the following resolutions duly adopted on April 24, 2001, determined to merge the Company with and into the Subsidiary pursuant to Section 253 of the DGCL: WHEREAS, Agway, Inc., a Delaware corporation (the "Company"), owns all (100%) of the outstanding shares of the capital stock of Agway Financial Corporation, a Delaware corporation ("Financial"); and WHEREAS, the Board of Directors of the Company has deemed it advisable that Financial be merged with and into the Company pursuant to Section 253 of the General Corporation Law of the State of Delaware; NOW, THEREFORE, BE IT AND IT HEREBY IS RESOLVED, that Financial be merged with and into the Company (the "Merger"); and it is further RESOLVED, that by virtue of the Merger and without any action on the part of the holder thereof, each then outstanding share of capital stock of the Company shall remain unchanged and continue to remain outstanding as one share of capital stock of the Company, held by the person who was the holder of such share of capital stock of the Company immediately prior to the Merger; and it is further RESOLVED, that by virtue of the Merger and without any action on the part of the holder thereof, each then outstanding share of common stock of Financial shall be canceled and no consideration shall be issued in respect thereof; and it is further RESOLVED, that the proper officers of the Company be and they hereby are authorized and directed to make, execute and acknowledge, in the name and under the corporate seal of the Company, a certificate of ownership and merger for the purpose of effecting the Merger and to file the same in the office of the Secretary of State of the State of Delaware, and to do 2 all other acts and things that may be necessary to carry out and effectuate the purpose and intent of the resolutions relating to the Merger. FOURTH: The Company shall be the surviving corporation of the Merger. FIFTH: The certificate of incorporation of the Company as in effect immediately prior to the effective time of the Merger shall be the certificate of incorporation of the surviving corporation. SIXTH: The Merger shall be effective as of 12:02 a.m. Eastern Daylight Time, July 1, 2001. 3 IN WITNESS WHEREOF, the Company has caused this Certificate of Ownership and Merger to be executed by its duly authorized officer this 21 day of June 2001. AGWAY, INC. By: /s/ Peter J. O'Neill ------------------------------- Peter J. O'Neill Sr. Vice President, Finance & Control 4 EX-4 2 supplementalindenture.txt SUPPLEMENTALINDENTURE070101 EXECUTION COPY SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE dated as of July 1, 2001, between AGWAY FINANCIAL CORPORATION, a Delaware corporation (the "Company"), AGWAY INC., a Delaware corporation (the "Successor Company") and THE CHASE MANHATTAN BANK, a New York banking corporation (the "Trustee"). Background ---------- 1. The Company and the Trustee (as successor to the prior trustees, Mellon Bank, FSB and Key Bank of New York) are parties to (i) an indenture dated as of September 1, 1986 (the "First AFC Indenture"), (ii) an indenture dated as of August 24, 1987 (the "Second AFC Indenture"), (iii) an indenture dated as of August 23, 1988 amended by a supplemental indenture dated as of October 14, 1988 (the "Third AFC Indenture") and (iv) an indenture dated as of August 23, 1989 amended by a supplemental indenture dated as of August 24, 1992 (the "Fourth AFC Indenture") each relating to certain indenture securities issued by the Company (the First AFC Indenture, the Second AFC Indenture, the Third AFC Indenture and the Fourth AFC Indenture are collectively referred to as the "AFC Indentures"and the securities issued thereunder are referred to as the "Certificates"). 2. The Company and the Trustee (as successor to the prior trustees, Mellon Bank, FSB and Key Bank of New York) are also parties to a supplemental indenture dated as of October 1, 1986 (the "Agway Supplemental Indenture") which amends (a) an indenture dated as of September 1, 1976 (the "First Agway Indenture"), (b) an indenture dated as of September 1, 1978 (the "Second Agway Indenture") and (c) an indenture dated as of September 1, 1985 (the "Third Agway Indenture") each relating to certain indenture securities initially issued by the Successor Company but whose obligations were assumed by the Company pursuant to the Agway Supplemental Indenture (the First Agway Indenture, the Second Agway Indenture and the Third Agway Indenture are collectively referred to as the "Agway Indentures" and the securities issued thereunder are also referred to as the "Certificates"). 3. Section 5.01 of the AFC Indentures provides that the Company shall not consolidate or merge into, or transfer or lease all or substantially all of its assets to any person unless: (1) the person is a corporation; (2) the person assumes by supplemental indenture all the obligations of the Company under the Certificates and this AFC Indentures; and (3) immediately after the transaction no Default exists. 1 4. Section 12.01 of the Agway Indentures provides that nothing contained in the indenture or in any of the debentures shall prevent any consolidation or merger of the Company with or into any other corporation or corporations(whether or not affiliated with the Company), or successive consolidations or mergers in which the Company or its successor or successors shall be a party or parties, or shall prevent any sale or transfer (or successive sales or transfers) of the property and assets of the Company (or of its successor or successors) as an entirety or substantially as an entirety, to any other corporation (whether or not affiliated with the Company) authorized to acquire the same; provided, however, and the Company hereby covenants and agrees, that upon any such consolidation, merger, sale or transfer, the due and punctual payment of the principal of and interest on all of the debentures, according to their tenor, and the due and punctual payment of the principal of and interest on all of the terms, covenants and conditions of this indenture to be kept or performed by the Company, shall be expressly assumed, by indenture supplemental hereto, satisfactory in form to the Trustee, executed and delivered to the Company shall have been merged, or by the corporation which shall have acquired such property and assets. In the event of any such sale or transfer, the predecessor Company may be dissolved, wound up and liquidated at any time thereafter. 5. The Company and the Successor Company have entered into an agreement pursuant to which the Company will be merged with and into the Successor Company, with the Successor Company being the surviving entity. 6. In accordance with Section 5.01 of the AFC Indentures and Section 11.01 of the Agway Indentures, the Successor Company intends by this Supplemental Indenture to assume all of the obligations of the Company under the Certificates and the AFC Indentures. Each party agrees as follows for the benefit of the other party and to the equal and ratable benefit of the holders of the Certificates: Section 1. The Successor Company hereby assumes all the obligations of the Company under the Certificates, the AFC Indentures and the Agway Indentures. Section 2. The form of Certificate attached to the AFC Indentures as Exhibit A and the form of Certificate attached to the Agway Supplemental Indenture as Exhibits A and C are amended to substitute "Agway Inc." for "Agway Financial Corporation" wherever such words appear therein. Each reference to the Company in the AFC Indentures and the Certificates shall be deemed to refer to the Successor Company, as successor by merger to the Company. The term "Company" under Section 1.01 of the Agway Indentures shall refer hereafter to Agway Inc. as the successor to Agway Financial Corporation under the Agway Indentures and to Agway Financial Corporation's successors and assigns. Section 3. Section 2.14 of the AFC Indentures and Section 4 of the Agway Supplemental Indenture shall be deleted and the form of Certificates to be issued after the date hereof will not include the Guarantee of Agway Inc. 2 Section 4. From the date hereof, (i) all indenture securities hereafter issued, including those issued pursuant to the reinvestment options available under the Third Agway Indenture and the AFC Indentures, will be issued under such indenture as amended hereby and will be in the form of Exhibit A attached to this Supplemental Indenture and (ii) all indenture securities hereafter issued under the First Agway Indenture and the Second Agway Indenture will be issued under such indentures as amended hereby and will be in the form of Exhibit B, attached hereto. Section 5. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which are made solely by the Company. SIGNATURES: Dated: July 2, 2001 AGWAY INC. By: /s/ Peter J. O'Neill ----------------------------------- Peter J. O'Neill Its: Senior Vice President Attest: /s/ Barbara Saltsman - --------------------------------- Dated: July 2, 2001 AGWAY FINANCIAL CORPORATION By: /s/ Peter J. O'Neill ----------------------------------- Peter J. O'Neill Its: Senior Vice President Attest: /s/ Barbara Saltsman - --------------------------------- 3 Dated: July 2, 2001 THE CHASE MANHATTAN BANK, as Trustee By: /s/ Kathleen E. Perry ----------------------------------- Kathleen E. Perry Its: Vice President Attest: /s/ Diane Darconte - --------------------------------- 4 EXECUTION COPY AGWAY INC. AGWAY FINANCIAL CORPORATION OFFICER'S CERTIFICATE The undersigned, Peter J. O'Neill, formerly the Vice President of Agway Financial Corporation, a Delaware corporation which has been merged into Agway Inc., a Delaware corporation (the "Company"), and the current Senior Vice President of the Company, certifies the following at the request of The Chase Manhattan Bank ("Trustee") pursuant to Section 11.04 of the indentures dated as of September 1, 1986, August 24, 1987, August 23, 1988, and August 23, 1989, as amended, between Agway Financial Corporation and the Trustee (the "AFC Indentures") and pursuant to Section 12.03 of the indentures dated as of September 1, 1976, dated as of September 1, 1978, and September 1, 1985, as amended, between Agway Inc. and the Trustee (the "Agway Indentures"): 1. Attached hereto as Exhibits A-1 and A-2 are true and complete copies of ------------ --- the Certificate of Incorporation and Bylaws of Agway Financial Corporation in effect prior to the merger with the Company. 2. Attached hereto as Exhibits B-1 and B-2 are true and complete copies of -------- --- --- the Certificate of Incorporation and Bylaws of the Company in effect prior to and following the merger with Agway Financial Corporation together with all amendments thereto through the date hereof. 3. Attached hereto as Exhibit C is a true and complete copy of the ------- - resolution duly adopted by the Board of Directors of the Company at a Board meeting duly called and held and at which quorum was present at all times authorizing the execution, delivery and performance of the supplemental indenture dated as of July 1, 2001 (the "Supplemental Indenture"), allowing the succession of the Company to the obligations of Agway Financial Corporation under Section 5.01 of each of the AFC Indentures and Section 12.01 of each of the Agway Indentures. 4. Attached hereto as Exhibit D is the Certificate of Ownership and Merger ------- - Merging Agway Financial Corporation with and into Agway Inc. dated June 21, 2001. 5. The purpose of the Merger was to implement in part a corporate restructuring to increase the overall profitability of Agway Inc. and its subsidiaries. 6. Based upon my review and consideration of all of the documents referred to herein and such other documents as I have deemed necessary, including (i) the relevant provisions of the Indentures, and (ii) the opinion of Sutherland Asbill & Brennan LLP dated as of July 2, 2001 as it relates to compliance with Section 9.01 of the AFC Indentures and Section 11.01 of the Agway Indentures of the amendment to the AFC Indentures and the Agway Indentures by the Supplemental Indenture dated as of July 1, 2001, all conditions precedent to the amendment of the AFC Indentures and Agway Indentures by the Supplemental Indenture have been satisfied. IN WITNESS WHEREOF, the undersigned has executed this Certificate this 2nd day of July, 2001. AGWAY FINANCIAL CORPORATION By: /s/ Peter J. O'Neill --------------------- Peter J. O'Neill Its: Vice President AGWAY INC. By: /s/ Peter J. O'Neill --------------------- Peter J. O'Neill Its: Senior Vice President [SEAL] 2 EXHIBIT A (Face of Certificate) No. $ --------------- --------------- AGWAY INC. promises to pay to , ---------------------------------------------- or registered assigns, the principal sum of Dollars ($ ) on -------------- -------- SERIES ---------- Subordinated Series [If Sold to Agway, Inc. Cooperative Members only ----- ----------------------------------------------- Insert - Member] ------ Money Market Certificates (Minimum per annum) Due , 19 -- ------------------- -- Interest Payment (and Record) Dates: January 1 and July 1 Dated: , ----------- ----- Authenticated: THE CHASE MANHATTAN BANK AGWAY INC. as Trustee By: By: ------------------------- ----------------------------- Authorized Officer Treasurer Attest: ------------------------------ Assistant Secretary (Seal) (Back of Certificate) AGWAY INC. Subordinated [If applicable insert Member] ----- -------------------- Money Market Certificates (Minimum per annum) Due -- ------------------------ 1. Interest. Agway Inc. ("Company"), a Delaware corporation, promises to -------- pay interest on the principal amount of this Certificate at the rate of which is greater of percent per annum or [if applicable, insert - one-half --------- percent (1/2%) below] the "Treasury Bill Rate" or "Alternate Rate." In addition, the Company reserves the right to pay such additional amounts of interest as the Company, in its sole discretion, may determine. The Company will pay interest semiannually at January 1 and July 1 of each year. Interest on the Certificates will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the first day of the first full month following the date of issuance of this Certificate. Interest will be computed on the basis of a 364-day year of 52 weeks. The "Treasury Bill Rate" for each semi-annual interest payment date shall be the arithmetic average of the weekly per annum auction average discount rates at issue date for United States Treasury bills with maturity of twenty-six (26) weeks, during the period June 1 to November 30, inclusive, for the January 1 Interest Payment Date or during the period December 1 to May 31, inclusive, for the July 1 Interest Payment Date, as published weekly by the Federal Reserve Board. The Treasury Bill Rate will be rounded to the nearest one hundredth of a percentage point. If the Federal Reserve Board shall not publish the weekly per annum auction average discount rate, the Company shall select a publication of such rate by any Federal Reserve Bank or any U.S. Government department or agency. In the event that the Company determines in good faith that for any reason no Treasury Bill Rate, as provided above, can be determined for the periods June 1 to November 30, inclusive, or December 1 to May 31, inclusive, the "Alternate Rate" will be substituted. The "Alternate Rate" for each semi-annual Interest Payment Date shall be the arithmetic average of the weekly per annum auction average discount rates, market discount rates or stated interest rates for comparable issue(s) of securities as is selected by the Company, with the concurrence of the Trustee, during the period June 1 to November 30, inclusive, for the January 1 Interest Payment Date or during the period December 1 to May 31, inclusive for the July 1 Interest Payment Date. The Alternate Rate will be rounded to the nearest one hundredth of a percentage point. In the event that the Company determines in good faith that for any reason neither the Treasury Bill Rate nor Alternate Rate can be determined for the periods June 1 to November 30, inclusive, or December 1 to May 31, inclusive, then the rate of interest shall be percent ( %) per annum. --------- ----- 2. Optional Interest Reinvestment. At the time of application for the -------------------------------- purchase of the Certificate or at anytime thereafter, the Certificateholder may make a revocable election to have all semi-annual interest payments added to and increase the principal amount of the Certificates as of each interest payment date. The amount of interest due on each January 1 and July 1 will be computed based upon the principal amount of each Certificate plus any amounts previously added to the principal amount under this paragraph. The Certificateholder may revoke this election at any time, such revocation effective on the date when the revocation is actually received by the Company, and all subsequent payments of interest shall be paid to the registered Certificateholder. 3. Payment of Principal and Accrued Interest. Holders must surrender -------------------------------------------- Certificates to a Paying Agent to collect principal payments. Payment will be made in money of the United States that at the time of payment is legal tender for payment of public and private debts; however, payment may be made by check payable in such money mailed to the Certificateholder's registered address. 4. Paying Agent and Registrar.Initially, the Company will act as a Paying ---------------------------- Agent and Registrar. The Company may change any Paying Agent, Registrar, or co-registrar without notice. 5. Indenture. The Company issued the Certificates under an Indenture dated --------- as of August 23, 1989 ("Indenture") between the Company and the Trustee. The terms of the Certificates include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code sub section 77aaa et seq.) as in effect on the date of Indenture. The -- --- Certificate is subject to all such terms, and Certificateholders are referred to the Indenture and the Act for a statement of such terms. This Certificate is one of the series of unsecured general obligations of the Company designated on the face hereof limited to dollars ($ ) in aggregate principal amount --------- -------- (net of accrued interest). 6. Optional Redemption. The Company may redeem all the Certificates at any ------------------- time or some of them from time to time at the principal face amount, plus accrued interest to the redemption date. The notice of redemption to the Certificateholders of the Certificates to be redeemed in whole or in part under this paragraph shall be given by mailing a notice of such redemption not less than thirty nor more than ninety days prior to the date fixed for redemption to their last addresses as they shall appear on the registered books of the Company. 7. Subordination. The Certificates are subordinated to Senior Debt, which ------------- is any Debt of the Company except subordinated Debt specified in the Indenture and Debt that by its terms is not senior in right of payment to the Certificates. A Debt is any indebtedness for borrowed money or any guarantee of such indebtedness. To the extent provided in the Indenture, Senior Debt must be paid before the Certificates may be paid. The Company agrees, and each Certificateholder by accepting a Certificate agrees, to the subordination and authorizes the Trustee to give it effect. 8. Denominations, Transfer, Exchange. The Certificates are in registered ----------------------------------- form without coupons in denominations of $ and any integral multiple ------------ thereof or in amounts acceptable to the Company. [If the Certificate is a Subordinated Member Money Market Certificate, insert "This Certificate is not transferable by the registered holder thereof except by will or by operation of law.][If the Certificate is not a Subordinated Money Market Certificate but its transferability is limited by the applicable supplemental indenture or Board of Directors resolution, describe the limitation on transferability.] In the event of a permissible transfer, such transfer of Certificates may be registered and Certificates may be exchanged as provided in the Indenture. The Registrar may require a holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The Registrar need not exchange or register the transfer of any Certificate or portion of a Certificate selected for redemption. Also, it need not exchange or register the transfer of any Certificates for a period of 15 days before a selection of Certificates to be redeemed. 9. Persons Deemed Owners. The registered holder of a Certificate may be --------------------- treated as its owner for all purposes. 10. Amendments and Waivers. Subject to certain exceptions, the Indenture or ---------------------- the Certificates may be amended with the consent of the holders of at least 66-2/3% in principal amount of the Certificates, and any existing default may be waived with the consent of the holders of a majority in principal amount of the Certificates. Without the consent of any Certificateholder, the Indenture or the Certificates may be amended to cure any ambiguity, defect or inconsistency, to provide for assumption of Company obligations to Certificateholders or to make any change that does not adversely affect the rights of any Certificateholder. 11. Defaults and Remedies. If an Event of Default, as defined in the ----------------------- Indenture, occurs and is continuing, the Trustee or the holders of at least 25% in principal amount of the Certificates may declare all the Certificates to be due and payable immediately. Certificateholders may not enforce the Indenture or the Certificates except as provided in the Indenture. The Trustee may require indemnity satisfactory to it before it enforces the Indenture or the Certificates. Subject to certain limitations, holders of a majority in principal amount of the Certificates may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Certificateholders notice of any continuing default (except a default in payment of principal or interest) if it determines that withholding notice is in their interest. The Company must furnish an annual compliance certificate to the Trustee. 12. Trustee Dealings with Company. The Chase Manhattan Bank, the Trustee ------------------------------ under the Indenture, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not Trustee. 13. No Recourse Against Others. A director, officer, employee or ----------------------------- stockholder, as such, of the Company shall not have any liability for any obligations of the Company under the Certificates or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Certificateholder by accepting a Certificate waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Certificates. 14. Authentication. This Certificate shall not be valid until authenticated -------------- by the manual signature of the Trustee or an authenticating agent. 15. Abbreviations. Customary abbreviations may be used in the name of a ------------- Certificateholder or an assignee, such as: TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with right of survivorship and not as tenants in common), CUST (=Custodian), and U/G/M/A (=Uniform Gifts to MInors Act). THE COMPANY WILL FURNISH TO ANY CERTIFICATEHOLDER UPON WRITTERN REQUEST AND WITHOUT CHARGE A COPY OF THE INDENTURE, AS AMENDED WHICH HAS IN IT THE TEXT OF THE CERTIFICATE IN LARGER TYPE. REQUESTS MAY BE MADE TO: TREASURER, AGWAY INC., [100 WEST TENTH STREET, WILMINGTON, DELAWARE 19801.] EXHIBIT B (Face of Certificate) No. $ --------------- --------------- AGWAY INC. promises to pay to , ---------------------------------------------- or registered assigns, the principal sum of Dollars ($ ) on ------------- --------- [Insert appropriate description of Debt Securities] Interest Payment (and Record) Dates: January 1 and July 1 Dated: , ----------- ----- Authenticated: THE CHASE MANHATTAN BANK AGWAY INC. as Trustee By: By: ------------------------- ----------------------------- Authorized Officer Vice President Attest: ------------------------- Assistant Secretary (Seal) (Back of Certificate) AGWAY INC. [Insert appropriate description of Debt Securities] 1. Interest. Agway Inc. ("Company"), a Delaware corporation promises to pay -------- interest on the principal amount of this Certificate at the rate of [insert appropriate rate] per annum. In addition, the Company reserves the right to pay such additional amounts of interest as the Company, in its sole discretion, may determine. The Company will pay interest semiannually at January 1 and July 1 of each year. Interest on the Certificates will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the first day of the first full month following the date of issuance of this Certificate. Interest will be computed on the basis of a 364-day year of 52 weeks. 2. Payment of Principal and Accrued Interest. Holders must surrender -------------------------------------------- Certificates to a Paying Agent to collect principal payments. Payment will be made in money of the United States that at the time of payment is legal tender for payment of public and private debts; however, payment may be made by check payable in such money mailed to the Certificateholder's registered address. 3. Paying Agent and Registrar. Initially, the Company will act as a Paying --------------------------- Agent and Registrar. The Company may change any Paying Agent, Registrar, or co-registrar without notice. 4. Indenture. The Company issued the Certificates under an Indenture dated --------- as of [Insert appropriate date] ("Indenture") as amended by a Supplemental Indenture dated October 1, 1986 between the Company and the Trustee. The terms of the Certificates include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code sub section 77aaa et seq.)as in effect on the date of Indenture.The Certificates are subject to all such terms, and Certificateholders are referred to the Indenture and the Act for a statement of such terms. The Certificates are unsecured general obligations of the Company limited to dollars [Insert --------- Appropriate amount] ($ ) in aggregate principal amount (net of accrued ------- interest). 5. Optional Redemption. The Company may redeem all the Certificates at any -------------------- time or some of them from time to time at the principal face amount, plus accrued interest to the redemption date. The notice of redemption to the Certificateholders of the Certificates to be redeemed in whole or in part under this paragraph shall be given by mailing a notice of such redemption not less than thirty nor more than ninety days prior to the date fixed for redemption to their last addresses as they shall appear on the registered books of the Company. 6. Subordination. The Certificates are subordinated to Senior Debt, which ------------- is any Debt of the Company except subordinated Debt specified in the Indenture and Debt that by its terms is not senior in right of payment to the Certificates. A Debt is any indebtedness for borrowed money or any guarantee of such indebtedness. To the extent provided in the Indenture, Senior Debt must be paid before the Certificates may be paid. The Company agrees, and each Certificateholder by accepting a Certificate agrees, to the subordination and authorizes the Trustee to give it effect. 7. Denominations, Transfer, Exchange. The Certificates are in registered ----------------------------------- form without coupons in denominations of $ or in such incremental ------------ amounts in excess of $ as the Company shall accept, and multiples ---------- thereof. The transfer of Certificates may be registered and Certificates may be exchanged as provided in the Indenture. [Insert for Member Certificates only: The Certificate is not transferable by the registered holder except by will or by operation of law.] The Registrar may require a holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The Registrar need not exchange or register the transfer of any Certificate or portion of a Certificate selected for redemption. Also, it need not exchange or register the transfer of any Certificates for a period of 15 days before a selection of Certificates to be redeemed. 8. Persons Deemed Owners. The registered holder of a Certificate may be --------------------- treated as its owner for all purposes. 9. Amendments and Waivers. Subject to certain exceptions, the Indenture or ---------------------- the Certificates may be amended with the consent of the holders of at least 66-2/3% in principal amount of the Certificates, and any existing default may be waived with the consent of the holders of a majority in principal amount of the Certificates. Without the consent of any Certificateholder, the Indenture or the Certificates may be amended to cure any ambiguity, defect or inconsistency, to provide for assumption of Company obligations to Certificateholders or to make any change that does not adversely affect the rights of any Certificateholder. 10. Defaults and Remedies. If an Event of Default, as defined in the ----------------------- Indenture, occurs and is continuing, the Trustee or the holders of at least 25% in principal amount of the Certificates may declare all the Certificates to be due and payable immediately. Certificateholders may not enforce the Indenture or the Certificates except as provided in the Indenture. The Trustee may require indemnity satisfactory to it before it enforces the Indenture or the Certificates. Subject to certain limitations, holders of a majority in principal amount of the Certificates may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Certificateholders notice of any continuing default (except a default in payment of principal or interest) if it determines that withholding notice is in their interest. The Company must furnish an annual compliance certificate to the Trustee. 11. Trustee Dealings with Company. The Chase Manhattan Bank, the Trustee ------- -------- ---- -------- under the Indenture, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not Trustee. 12. No Recourse Against Others. A director, officer, employee or -- -------- ------- ------- stockholder, as such, of the Company shall not have any liability for any obligations of the Company under the Certificates or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Certificateholder by accepting a Certificate waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Certificates. 13. Authentication. This Certificate shall not be valid until authenticated --------------- by the manual signature of the Trustee or an authenticating agent. 14. Abbreviations. Customary abbreviations may be used in the name of a -------------- Certificateholder or an assignee, such as: TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with right of survivorship and not as tenants in common), CUST (=Custodian), and U/G/M/A (=Uniform Gifts to MInors Act). THE COMPANY WILL FURNISH TO ANY CERTIFICATEHOLDER UPON WRITTEN REQUEST AND WITHOUT CHARGE A COPY OF THE INDENTURE, AS AMENDED WHICH HAS IN IT THE TEXT OF THE CERTIFICATE IN LARGER TYPE. REQUESTS MAY BE MADE TO: TREASURER, AGWAY INC., [100 WEST TENTH STREET, WILMINGTON, DELAWARE 19801.] 8-K 3 afcahimerger.txt AFCAHI MERGER SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------------ FORM 8-K 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 1, 2001 AGWAY INC. ---------- (Exact name of registrant as specified in its charter) Delaware 2-22791 15-0277720 - -------------------------------------------------------------------------------- (State or other jurisdiction (Commission (IRS Employer of incorporation) File Number) Identification No.) 333 Butternut Drive, DeWitt, New York 13214 - -------------------------------------------------------------------------------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code (315) 449-6436 ITEM 5. OTHER EVENTS (IN 000's) On June 21, 2001, Agway Financial Corporation, a Delaware corporation ("AFC") and the owner of all the outstanding capital stock of Agway Holdings Inc., a Delaware corporation ("AHI"), filed with the Delaware Secretary of State a "certificate of ownership and merger" merging AHI with and into AFC (the "AHI Merger"). Also on that date, Agway Inc., a Delaware corporation ("Agway"), as the owner of all the issued and outstanding capital stock of AFC and the sole member of Milford Fertilizer Company LLC, a Delaware limited liability company ("Milford"), filed with the Delaware Secretary of State certificates of ownership and merger merging AFC and Milford with and into Agway (collectively with the AHI Merger, the "Mergers"). The Mergers were effective on July 1, 2001 (the "Effective Time"). As a result of the Mergers, Agway has assumed all of the assets and liabilities of AFC, AHI and Milford, and the companies that previously were direct wholly owned subsidiaries of AHI are now direct wholly owned subsidiaries of Agway. The Mergers are not expected to result in a material change to the consolidated financial position or results of operations of Agway. Prior to the Effective Time, AFC's principal activities consisted of securing financing for Agway and its subsidiaries through bank borrowings and the issuance of corporate debt instruments (collectively, the "Debt Securities"). Those Debt Securities were fully and unconditionally guaranteed by Agway. However, as a result of the Mergers, AFC's obligations under all Debt Securities were assumed by Agway. Accordingly, the guaranty of the Debt Securities by Agway is no longer necessary since Agway will be solely and primarily liable for repayment of the Debt Securities and satisfaction of all conditions thereunder. In connection with the assumption by Agway of the obligations under the Debt Securities, AFC, Agway and The Chase Manhattan Bank, a New York banking corporation (the "Trustee"), entered into a Supplemental Indenture dated as of July 1, 2001 which provides for the assumption by Agway of all rights, responsibilities and obligations of AFC under existing indentures and the Debt Securities to which they relate. A copy of the Supplemental Indenture is filed as an exhibit to this Report on Form 8-K. 2 ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS (a) Exhibit The following is a complete list of exhibits filed as part of this report: No. - --- 2 Plan of aquisition, reorganization, arrangement, liquidation, or succession 2(a) Certificate of Ownership and Merger 4 Instruments defining the rights of security holders, including indentures 4(a) Supplemental Indenture dated as of July 1, 2001 between Agway Financial Corporation, Agway Inc., and The Chase Manhattan Bank. As set forth in exhibit 4(a), certain schedules have been ommitted in accordance with Item 601(b)2) of Regulation S-K. Agway will furnish a copy of any such schedule to the Commission upon its request. 3 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. AGWAY INC. (Registrant) Date July 2, 2001 By /s/ PETER J. O'NEILL ---------------------------- ------------------------------------- Peter J. O'Neill Senior Vice President Finance & Control (Principal Financial Officer and Chief Accounting Officer) 4 -----END PRIVACY-ENHANCED MESSAGE-----