1
EXHIBIT 10.5
THIS COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EXEMPTION FROM REGISTRATION OR AN EFFECTIVE
REGISTRATION STATEMENT.
OTHER THAN AS PROVIDED IN THE DECLARATION (AS DEFINED HEREIN), THIS
SECURITY MAY NOT BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED EXCEPT TO A RELATED
PARTY (AS DEFINED IN THE DECLARATION) OF SUIZA FOODS CORPORATION OR TO A
CREDITOR PURSUANT TO A BONA FIDE PLEDGE OR GRANT OF A SECURITY INTEREST.
Certificate Number Number of Common Securities
0001 100
Common Securities
of
Suiza Capital Trust
Trust Common Securities
(liquidation amount $50 per Trust Common Security)
Suiza Capital Trust, a statutory business trust formed under the laws
of the State of Delaware (the "Trust"), hereby certifies that Suiza Foods
Corporation, a Delaware corporation (the "Holder"), is the registered owner of
One Hundred (100) common securities of the Trust representing undivided
beneficial interests in the assets of the Trust designated the Trust Common
Securities (liquidation amount $50 per Trust Common Security) (the "Common
Securities"). The Common Securities are transferable on the books and records
of the Trust, in person or by a duly authorized attorney, upon surrender of
this certificate duly endorsed and in proper form for transfer. The
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities represented hereby are issued and shall in
all respects be subject to the provisions of the Amended and Restated
Declaration of Trust dated as of February 20, 1998, as the same may be amended
from time to time (the "Declaration"), including the designation of the terms
of the Common Securities as set forth in Annex I to the Declaration.
Capitalized terms used herein but not defined shall have the meaning given them
in the Declaration. The Sponsor will provide a copy of the Declaration and the
Indenture to a Holder without charge upon written request to the Sponsor at its
principal place of business.
The Common Securities shall be redeemable as provided in the Declaration.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
1
2
By acceptance hereof, the Holder agrees to treat for United States
federal income tax purposes the Debentures as indebtedness and the Common
Securities as evidence of indirect beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate on
February 20, 1998.
SUIZA CAPITAL TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Regular Trustee
2
3
ASSIGNMENT FORM
To assign this Common Security, fill in the form below:
(I) or (we) assign and transfer this Common Security to
--------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code
and irrevocably appoint
---------------------------------------------------------
agent to transfer this Common Security on the books of the Company. The agent
may substitute another to act for him.
Your Signature:
--------------------------
(Sign exactly as your name appears on
the other side of this Security)
Date:
------------------------------------
Signature Guarantee:*
--------------------
[Include the following if the Common Security bears a Restricted Securities
Legend --
In connection with any transfer of any of the Common Securities evidenced by
this certificate, the undersigned confirms that such Common Securities are
being:
CHECK ONE BOX BELOW
(1) [ ] exchanged for the undersigned's own account without transfer;
or
(2) [ ] transferred pursuant to and in compliance with Rule 144A under
the Securities Act of 1933; or
(3) [ ] transferred pursuant to and in compliance with Regulation S
under the Securities Act of 1933; or
------------------------
* Signature must be guaranteed by a commercial bank, trust company or
member firm of the NYSE.
3
4
(4) [ ] transferred pursuant to another available exemption from the
registration requirements of the Securities Act of 1933; or
(5) [ ] transferred pursuant to an effective Shelf Registration
Statement.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Common Securities evidenced by this certificate in the name of any person
other than the registered Holder thereof; PROVIDED, HOWEVER, that if box (3) or
(4) is checked, the Trustee may require, prior to registering any such transfer
of the Common Securities such legal opinions, certifications and other
information as the Company has reasonably requested 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.
----------------------------------
Signature
[TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Common Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule 144A or
has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated:
--------------------------- -----------------------------------
NOTICE: To be executed by an
executive officer.]
--------------------
* Signature must be guaranteed by a commercial bank, trust company or member
firm of the NYSE.
4
