FORM OF SUBORDINATED DEBT
SECURITY
[Face of
Subordinated Security]
[If applicable,
insert – FOR PURPOSES OF THE ORIGINAL ISSUE DISCOUNT
PROVISIONS OF THE INTERNAL REVENUE CODE OF 1986, THE ISSUE PRICE OF
THIS SUBORDINATED SECURITY IS ___% OF ITS PRINCIPAL AMOUNT AT
STATED MATURITY SET FORTH BELOW (ITS “PRINCIPAL
AMOUNT”), THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS ___% OF
ITS PRINCIPAL AMOUNT, THE YIELD TO MATURITY IS ___% AND THE ISSUE
DATE IS
]
[IF THE
SUBORDINATED SECURITY IS A GLOBAL SUBORDINATED SECURITY, INSERT
– THIS NOTE IS A GLOBAL SUBORDINATED SECURITY. IT IS
EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY (AS HEREINAFTER DEFINED) OR ITS NOMINEE ONLY IN
THE LIMITED CIRCUMSTANCES HEREINAFTER DESCRIBED AND MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR A NOMINEE
OF THE DEPOSITARY TO A SUCCESSOR OF THE DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY.]
[Unless this
Subordinated Security is presented by an authorized representative
of The Depositary Trust Company (55 Water Street, New York, New
York) to the issuer 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 requested by an
authorized representative of The Depository Trust Company and any
payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
since the registered owner hereof, Cede & Co., has an interest
herein.]
Diamond Foods,
Inc., a Delaware Corporation (herein called the
“Company”, which term includes any successor
corporation under the Indenture referred to on the reverse hereof),
for value received, hereby promises to pay to, or registered
assigns, the principal sum of ___ Dollars on ------- [if
Subordinated Security is to bear interest prior to maturity, insert
==, and to pay interest thereon from ------- or from the most
recent Interest Payment Date to which interest has been paid or
duly provided for, semi-annually on ------- and -------- in each
year, commencing -----------, at the rate of ___% per annum, until
the principal hereof is paid or made available for payment [if
applicable, insert ---, provided that any principal and premium,
and any such installment of interest, which is overdue shall bear
interest at the rate of ___% per annum (to the extent that the
payment of such interest shall be legally enforceable), from the
dates such
amounts are due
until they are paid or made available for payment, and such
interest shall be payable on demand]. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose
name this Subordinated Security (or one or more Predecessor
Subordinated Securities) is registered at the close of business on
the Record Date for such interest, which shall be the --------- or
------- (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Record Date and may either be paid to
the Person this Subordinated Security (or one or more Predecessor
Subordinated Securities) is registered at the close of business on
a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders
of Subordinated Securities of this series not less than
10 days prior to such Special Record Date, or be paid at any
time in any other lawful manner not inconsistent with the
requirements of any Subordinated Securities exchange on which the
Subordinated Securities of this series may be listed, and upon such
notice as may be required by such exchange, all as more fully
provided in said Indenture. [If the Subordinated Security is not to
bear interest prior to maturity, insert === The principal of this
Subordinated Security shall not bear interest except in the case of
a default in payment of principal upon acceleration, upon
redemption or at Stated Maturity and in such case the overdue
principal and any overdue premium shall bear interest at the rate
of ___% per annum (to the extent that the payment of such interest
shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any
overdue principal or premium shall be payable on demand. [Any such
interest on overdue principal or premium which is not paid on
demand shall bear interest at the rate of ___% per annum (to the
extent that the payment of such interest on interest shall be
legally enforceable), from the date of such demand until the amount
so demanded is paid or made available for payment. Interest on any
overdue interest shall be payable on demand.]].
Payment of the
principal of (and premium, if any, on) and [any such] interest on
this Subordinated Security will be made at the office or agency of
the Company maintained for that purpose in
, in such coin or currency of [the United States of America] as at
the time of payment is legal tender for payment of public and
private debts [; provided, however, that at the option of the
Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear
in the Register].
Reference is
hereby made to the further provisions of this Subordinated Security
set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this
place.
Unless the
certificate of authentication hereon has been manually executed by
or on behalf of the Trustee under the Indenture referred to on the
reverse hereof, this Subordinated Security shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any
purpose.
2
IN WITNESS
WHEREOF, the Company has caused this instrument to be duly executed
under its corporate seal.
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Dated:
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Diamond Foods,
Inc.
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By:
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[Title]
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3
[Reverse of
Subordinated Security.]
This Subordinated
Security is one of a duly authorized issue of Subordinated
Securities of the Company (herein called the “Subordinated
Securities”), issued and to be issued in one or more series
under an Indenture dated as of
, (herein called the “Indenture,” which term shall have
the meaning assigned to it in such instrument), between the Company
and Wells Fargo Bank, N.A., as trustee (herein called the
“Trustee”, which term includes any successor trustee
under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of
the respective rights, limitations or rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the
Subordinated Securities and of the terms upon which the
Subordinated Securities are, and are to be, authenticated and
delivered. This Subordinated Security is one of the series
designated on the face hereof [, limited in aggregate principal
amount to $
].
[If the
Subordinated Security is to be subordinated, insert—The
indebtedness evidenced by this Subordinated Security is, to the
extent and in the manner set forth in the Indenture, expressly
subordinated and subject in right of payment to the prior payment
in full of all Senior Indebtedness (as defined in the Indenture) of
the Company. This Subordinated Security is issued subject to such
provisions of the Indenture, and each Holder of this Subordinated
Security, by accepting the same, agrees to and shall be bound by
such provisions and authorizes and directs the Trustee on the
Holder’s behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate such subordination as
provided in the Indenture and appoints the Trustee such
Holder’s attorney-in-fact for any and all such
purposes.]
[If the
Subordinated Security is to be subject to redemption only at the
option of the Company or any sinking fund redemption will be at the
same prices, insert—The Subordinated Securities of this
series are subject to redemption upon not less than
30 days’ notice provided in the manner set forth in the
Indenture, [(1) on
in any year commencing with the year
and ending with the year
through operation of the sinking fund for this series at the
Redemption Price equal to 100% of the principal amount, and (2)] at
any time [on or after
,
], as a whole or in part, at the election of the principal the
following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [on or before
, ___%, and if redeemed] during the 12-month period beginning
of the years indicated,
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Redemption
Price
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Year
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Redemption
Price
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and thereafter
at a Redemption Price equal to ___% of the principal amount
together in the case of any such redemption [(whether through
operation of the sinking fund or otherwise)] with accrued interest
to the Redemption Date, but interest installments whose Stated
Maturity is on or
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