Flowers Foods Inc 8-K, filed Mar 9, 2021
Flowers Foods Inc (FLO)
About this 8-K
Flowers Foods Inc filed this 8-K on March 9, 2021.
Items reported
- Item 2.03: New debt or off-balance-sheet obligation
- Item 7.01: Regulation FD disclosure
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of report (Date of earliest event reported):
(Exact name of registrant as specified in its charter)
| (State or other jurisdiction of incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) | ||
| (Address of principal executive offices) |
(Zip Code) | |||
Registrant’s telephone number, including area code:
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered | ||
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 2.03. | Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement of a Registrant. |
The information provided in Item 8.01 of this Current Report on Form 8-K is incorporated by reference into this Item 2.03.
| Item 7.01. | Regulation FD Disclosure |
On March 9, 2021, Flowers Foods, Inc. (the “Company”) instructed Wells Fargo Bank, National Association (the “Trustee”), the trustee for the Company’s 4.375% Notes due 2022 (the “2022 Notes”), to deliver a notice of redemption to the holders of the 2022 Notes. Pursuant to the notice of redemption, the Company will redeem the entire aggregate principal amount of the 2022 Notes currently issued and outstanding under the Indenture, in accordance with the terms for redemption contained in the Indenture. The Company will redeem the 2022 Notes, which are subject to a customary make-whole premium, on April 9, 2021 for a redemption price set forth in the redemption notice.
| Item 8.01. | Other Events. |
On March 2, 2021, the Company entered into an underwriting agreement (the “Underwriting Agreement”) with BofA Securities, Inc. and Deutsche Bank Securities Inc., as representatives of the several underwriters named therein, in connection with the offer and sale of the Company’s 2.400% Senior Notes due 2031 (the “Notes”). The Underwriting Agreement includes the terms and conditions of the offer and sale of the Notes, indemnification and contribution obligations and other terms and conditions customary in agreements of this type. The Company will use the net proceeds from this offering to redeem its outstanding 2022 Notes and the balance of the net proceeds for general corporate purposes.
Some of the underwriters and their affiliates have engaged in, and may in the future engage in, investment banking and other commercial dealings in the ordinary course of business with us. They have received customary fees and commissions for these transactions. In particular, affiliates of Deutsche Bank Securities Inc., BofA Securities, Inc. and certain other underwriters are parties to, and lenders under, our existing revolving credit facility. Our existing revolving credit facility was negotiated on an arms’ length basis and contains customary terms pursuant to which the lenders receive customary fees.
The Notes were issued under an indenture, dated as of April 3, 2012 (the “Indenture”), by and between the Company, as issuer, and the Trustee. The terms and conditions of the Notes were established pursuant to, and are set forth in, the Officer’s Certificate of the Company (the “Officer’s Certificate”) and the form of 2.400% Senior Notes due 2031 (“Form of Note”), which are attached hereto as Exhibit 4.2 and Exhibit 4.3, respectively.
The Company will pay interest on the Notes on each March 15 and September 15, beginning on September 15, 2021. The Notes will mature on March 15, 2031. Before December 15, 2030, the Company may, at any time, redeem the Notes at a redemption price equal to 100% of the principal amount of such series, plus a “make-whole” premium described in the Indenture. On or after December 15, 2030, the Company may redeem the Notes at par, plus accrued and unpaid interest.
If a change of control triggering event (as defined in the Form of Note) occurs, unless we have exercised our option to redeem the Notes, we will be required to make an offer to each holder of the Notes to repurchase all or any part (equal to a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s notes. In a change of control offer, we will be required to offer payment in cash equal to 101% of the aggregate principal amount of the notes plus unpaid interest, if any, accrued to, but not including, the date of repurchase, subject to the rights of holders of notes on a record date to receive interest due to the related interest payment date.
The Notes are subject to the covenants in the Indenture and Officer’s Certificate, which include certain limitations on liens, sale and leaseback transactions, sales of assets, mergers and consolidations.
The Indenture contains customary events of default, including: (i) failure to pay principal or premium, if any, on any Note when due; (ii) failure to pay any interest on any Note for 30 days after the interest becomes due; (iii) failure to perform or breach of any other covenant in the Indenture for 60 days after written notice thereof; (iv) certain defaults under any mortgage, indenture or instrument of the Company securing or evidencing the Company’s indebtedness; and (v) specified events of bankruptcy, insolvency or reorganization involving the Company or any significant subsidiary (or group of subsidiaries that, taken together, would constitute a significant subsidiary) of the Company.
2
If an event of default resulting from specified events involving bankruptcy or insolvency occurs, the Indenture provides that the principal, premium, if any, and accrued interest on the Notes will become immediately due and payable without any declaration or other act on the part of the Trustee or any holder of the Notes. If any other event of default occurs and is continuing, the Indenture provides that either the Trustee or the holders of 25% in aggregate principal amount of the outstanding Notes may declare the principal amount of all the Notes to be due and payable immediately.
The foregoing disclosure is qualified in its entirety by reference to the Underwriting Agreement, the Indenture, Officer’s Certificate and Form of Note, which are attached hereto as Exhibit 1.1, Exhibit 4.1, Exhibit 4.2 and Exhibit 4.3, respectively, and are incorporated herein by reference.
| Item 9.01. | Financial Statements and Exhibits. |
| (d) Exhibits: |
3
SIGNATURE
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.
| FLOWERS FOODS, INC. | ||||||
| Dated: March 9, 2021 | By: | /s/ R. Steve Kinsey | ||||
| Name: | R. Steve Kinsey | |||||
| Title: | Chief Financial Officer and Chief Accounting Officer | |||||
Exhibit 1.1
Execution Version
FLOWERS FOODS, INC.
$500,000,000
2.400% Senior Notes due 2031
UNDERWRITING AGREEMENT
March 2, 2021
BofA Securities, Inc.
Deutsche Bank Securities Inc.
As Representatives of the
Several Underwriters
c/o BofA Securities, Inc.
One Bryant Park
New York, New York 10036
c/o Deutsche Bank Securities Inc.
60 Wall Street, 2nd Floor
New York, New York 10005
Ladies and Gentlemen:
Flowers Foods, Inc., a Georgia corporation (the “Company”), proposes to issue and sell to the several underwriters (the “Underwriters”) named in Schedule I hereto, for whom you are acting as representatives (the “Representatives”), $500,000,000 aggregate principal amount of its 2.400% Senior Notes due 2031 (the “Notes”). The respective principal amounts of the Notes to be so purchased by the several Underwriters are set forth opposite their names in Schedule I hereto. The Notes are to be issued under an indenture, dated as of April 3, 2012 (together with the officer’s certificate establishing the terms of the Notes, the “Indenture”), by and between the Company and Wells Fargo Bank, National Association, as Trustee (the “Trustee”).
As the Representatives, you have advised the Company (a) that you are authorized to enter into this Agreement on behalf of the several Underwriters, and (b) that the several Underwriters are willing, acting severally and not jointly, to purchase the principal amount of Notes set forth opposite their respective names in Schedule I.
In consideration of the mutual agreements contained herein and of the interests of the parties in the transactions contemplated hereby, the parties hereto agree as follows:
1. Representations and Warranties of the Company.
As of the date hereof, the Company represents and warrants to each of the Underwriters as follows:
(a) An “automatic shelf registration statement”, as defined in Rule 405 under the Securities Act of 1933, as amended (the “Act”), on Form S-3 (File No. 333-248233), in respect of the Notes, including a form of prospectus (the “Base Prospectus”), has been prepared and filed by the Company not earlier than three years prior to the date hereof, in conformity with the requirements of the Act and the rules and regulations (the “Rules and Regulations”) of the Securities and Exchange Commission (the “Commission”) thereunder. The Company and the transactions contemplated by this Agreement meet the requirements of, and comply with the conditions for the use of, an automatic shelf registration statement on Form S-3 under the Act and the Notes remain eligible for registration on such automatic shelf registration statement. Such registration statement, which shall be deemed to include all information omitted therefrom in reliance upon Rules 430A, 430B or 430C under the Act, is herein referred to as the “Registration Statement” and became effective under the Act upon filing with the Commission. No post-effective amendment to the Registration Statement has been filed as of the date of this Agreement. As used herein, the term “Prospectus” means the Base Prospectus and the final prospectus supplement relating to the Notes in the form first used to confirm sales of the Notes and filed with the Commission pursuant to and within the time limits described in Rule 424(b) under the Act and in accordance with Section 4(a) hereof. The Base Prospectus, as supplemented by each preliminary prospectus supplement relating to the Notes filed with the Commission pursuant to Rule 424(b) under the Act is herein referred to as a “Preliminary Prospectus.” Any reference herein to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act, as of the effective date of the Registration Statement or the date of such Preliminary Prospectus or the Prospectus, as the case may be, and any reference to “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to include any documents incorporated by reference therein, and any supplements or amendments thereto, filed with the Commission after the effective date of the Registration Statement or the date of such Preliminary Prospectus or the Prospectus, as the case may be, and prior to the completion of the public offer and sale of the Notes by the Underwriters.
(b) As of the Applicable Time (as defined below) and as of the Closing Date, neither (i) the General Use Free Writing Prospectus(es) (as defined below) issued at or prior to the Applicable Time and the Statutory Prospectus (as defined below), all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Limited Use Free Writing Prospectus (as defined below), nor (iii) any marketing materials relating to the offering of the Notes, including any roadshow or investor presentations made to investors by the Company (whether in person or electronically) (“Marketing Materials”), when considered together with the General Disclosure Package, included or will include any untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations or warranties as to information contained in or omitted from the General Disclosure Package or the Marketing Materials, in reliance upon, and in conformity with, written information furnished to the Company by or on behalf of any Underwriter through the Representatives, specifically for use therein, it being understood that the only such information is that described in Section 12.
As used in this Agreement:
“Applicable Time” means 3:45 P.M. (New York time) on the date of this Agreement.
“Statutory Prospectus” means the Base Prospectus and the preliminary prospectus supplement relating to the Notes immediately prior to the Applicable Time, including any document incorporated by reference therein at such time.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 under the Act, relating to the Notes, in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g) under the Act.
“General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is identified on Schedule II to this Agreement.
“Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not a General Use Free Writing Prospectus.
(c) The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Georgia, with corporate power and authority to own or lease its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus. Each of the Company’s subsidiaries that qualifies as a “significant subsidiary” under Section 1-02(w) of Regulation S-X (each, a “Significant Subsidiary” and, collectively, the “Significant Subsidiaries”) has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization, with requisite power and authority to own and lease its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus. The Company and each of the Significant Subsidiaries are duly qualified to transact business and are in good standing in all jurisdictions in which the conduct of their business requires such qualification, except where the failure to so qualify or be in good standing would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect (as defined herein). The outstanding equity interests of each of the Significant Subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company or another Significant Subsidiary free and clear of all liens, encumbrances and equities and claims and were not issued in violation of the preemptive or other similar rights of any security holder of the particular Significant Subsidiary or any other entity, with the exception of the lien on the Accounts Receivable Securitization Facility as further described in the Company’s Annual Report on Form 10-K. No options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligations into equity interests of the Significant Subsidiaries are outstanding.
(d) The Company has an authorized and outstanding capitalization as set forth in the Registration Statement, the Statutory Prospectus included in the General Disclosure Package and the Prospectus under the caption “Capitalization.” The outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable. None of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or other similar rights of any security holder of the Company or any other entity.
(e) Except as described in or contemplated by the Registration Statement, the General Disclosure Package and the Prospectus, there are no outstanding securities of the Company convertible or exchangeable into or evidencing the right to purchase or subscribe for any shares of capital stock of the Company and there are no outstanding or authorized options, warrants or rights of any character obligating the Company to issue any shares of its capital stock or any securities convertible or exchangeable into or evidencing the right to purchase or subscribe for any shares of such stock; and except as described in the Registration Statement, the General Disclosure Package and the Prospectus, no holder of any securities of the Company or any other person has the right, contractual or otherwise, which has not been satisfied or effectively waived, to cause the Company to sell or otherwise issue to it, or to permit it to underwrite the sale of, any securities of the Company, including the Notes, or the right to have any securities of the Company included in the Registration Statement or the right, as a result of the filing of the Registration Statement, to require registration under the Act of any securities of the Company.
(f) Neither the Commission nor any other governmental agency, authority or body has issued a stop order suspending the effectiveness of the Registration Statement or any part thereof or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus relating to the proposed offering of the Notes, and no proceeding for any such purpose or pursuant to Section 8A of the Act has been instituted, and no examination pursuant to Section 8(d) or (e) of the Act concerning the Registration Statement has commenced, and, to the Company’s knowledge, no such action has been threatened by the Commission or any other governmental agency, authority or body. Each of the Registration Statement and the Prospectus, as of the date hereof and the Closing Date, complied with or will comply as to form with the applicable requirements of the Act and the Rules and Regulations. The documents incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus, or any amendment or supplement thereto, at the time filed with the Commission, conformed or will conform to the requirements of the Securities Exchange Act of 1934, as amended (“Exchange Act”), and the rules and regulations of the Commission thereunder. The Registration Statement and any amendment thereto, as of each effective date and as of the Closing Date, did not contain and will not contain any untrue statement of a material fact and did not omit and will not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and the Prospectus and any amendments and supplements thereto, as of their respective issue dates and as of the Closing Date, did not include and will not include any untrue statement of a material fact and did not omit and will not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations or warranties as to information contained in or omitted from the Registration Statement or any amendment thereto or the Prospectus or any amendment or supplement thereto, as the case may be, in reliance upon, and in conformity with, written information furnished to the Company by or on behalf of any Underwriter through the Representatives, specifically for use therein, it being understood and agreed that the only such information is that described in Section 12.
(g) Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Notes did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement, the Statutory Prospectus included in the General Disclosure Package or the Prospectus or any amendment or supplement thereto, including any document incorporated by reference therein, that has not been superseded or modified.
(h) The Company has not, directly or indirectly, distributed and will not distribute any offering material in connection with the offering and sale of the Notes other than any Preliminary Prospectus, any General Use Free Writing Prospectus, the Prospectus and other materials, if any, permitted under the Act and consistent with Section 4(b) below. The Company will file with the Commission all Issuer Free Writing Prospectuses in the time and manner required under Rules 163(b)(2) and 433(d) under the Act.
(i) (i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Act) made any offer relating to the Notes in reliance on the exemption of Rule 163 under the Act and (iv) at the date hereof, the Company was and is a “well-known seasoned issuer,” as defined in Rule 405 under the Act. The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Act objecting to the use of the automatic shelf registration form.
(j) (i) At the time of filing the Registration Statement, (ii) at the earliest time after the filing the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Act) of the Notes and (iii) as of the date hereof (with such date being used as the determination date for purposes of this clause (iii)), the Company was not and is not an “ineligible issuer” (as defined in Rule 405 under the Act, without taking into account any determination by the Commission pursuant to Rule 405 under the Act that it is not necessary that the Company be considered an ineligible issuer), including, without limitation, for purposes of Rules 164 and 433 under the Act with respect to the offering of the Notes as contemplated by the Registration Statement.
(k) The historical consolidated financial statements of the Company, together with related notes and schedules thereto, included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, comply in all material respects with the Act, the Rules and Regulations, the Exchange Act and the rules and regulations of the Commission thereunder, and present fairly the financial position and the results of operations and cash flows of the Company and the consolidated Subsidiaries at the indicated dates and for the indicated periods. Such historical financial statements and related notes and schedules have been prepared in accordance with United States generally accepted principles of accounting (“GAAP”), consistently applied throughout the periods involved, except as disclosed therein, and all adjustments necessary for a fair presentation of results for such periods have been made. There are no financial statements (historical or pro forma) that are required to be included or incorporated by reference in the Registration Statement, the Statutory Prospectus included in the General Disclosure Package or the Prospectus that are not included or incorporated by reference as required. The interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(l) PricewaterhouseCoopers LLP, who has certified certain of the audited financial statements filed with the Commission as part of, or incorporated by reference in, the Registration Statement, the General Disclosure Package and the Prospectus, is an independent registered public accounting firm with respect to the Company and the Subsidiaries within the meaning of the Act and the applicable Rules and Regulations and the Public Company Accounting Oversight Board (United States) (the “PCAOB”).
(m) There is no action, suit, claim or proceeding pending or, to the knowledge of the Company, threatened against the Company or any of its subsidiaries before any court or administrative agency or otherwise which, if determined adversely to the Company or any of its subsidiaries, would reasonably be expected to either (i) have, individually or in the aggregate, a material adverse effect on the business, properties, financial condition, cash flows or results of operations of the Company and its subsidiaries taken as a whole, whether or not occurring in the ordinary course of business; or (ii) prevent the consummation of the transactions contemplated hereby (the occurrence of any such effect or any such prevention described in the foregoing clauses (i) and (ii) being referred to as a “Material Adverse Effect”), except, in each case, as set forth in the Registration Statement, the General Disclosure Package and the Prospectus.
(n) The Company and its subsidiaries have good and marketable title to or valid leasehold interests in all of the properties and assets reflected in the consolidated financial statements of the Company included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, subject to no lien, mortgage, pledge, charge or encumbrance of any kind except those described in the Registration Statement, the General Disclosure Package and the Prospectus or which would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Company and its subsidiaries occupy their leased properties under valid and binding leases conforming in all material respects to the description thereof set forth in the Registration Statement, the General Disclosure Package and the Prospectus.
(o) The Company and its subsidiaries have filed all federal, state, local and foreign tax returns which have been required to be filed and have paid all taxes indicated by such returns and all assessments received by them or any of them to the extent that such taxes have become due, except to the extent such taxes and assessments are being contested in good faith by appropriate proceedings and for which a reserve for accrual has been established in accordance with GAAP and except in each case where the failure to pay or file would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(p) Since the date of the most recent consolidated financial statements of the Company included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, there has not been any material adverse change or any development involving a prospective material adverse change in or affecting the business, properties, financial condition, cash flows or results of operations of the Company and its subsidiaries taken as a whole, whether or not occurring in the ordinary course of business.
(q) Neither the Company nor any Significant Subsidiary, is or with the giving of notice or lapse of time or both, will be, in violation of its certificate or articles of incorporation, by-laws, or other organizational documents. Neither the Company nor any of its Significant Subsidiaries are, or with the giving of notice or the lapse of time, or both, will be, in violation of or in default under any indenture, mortgage, deed of trust or other agreement or instrument to which it is a party or by which it, or any of its properties, is bound, except for any such violation or default that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The execution and delivery of this Agreement and the Indenture and the consummation of the transactions herein and therein contemplated and the fulfillment of the terms hereof and thereof (including, without limitation, the issuance and sale of the Notes to the Underwriters) will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any Significant Subsidiary is a party or by which the Company or any Significant Subsidiary or any of their respective properties is bound, or of the certificate or articles of incorporation, by-laws or other organizational document of the Company or any Significant Subsidiary or any law, order, rule, regulation, judgment, writ or decree applicable to the Company or any Significant Subsidiary of any court or any other governmental agency, authority or body.
(r) The execution and delivery of, and the performance by the Company of its obligations under, this Agreement has been duly authorized by all corporate action on the part of the Company, and this Agreement has been duly executed and delivered by the Company.
(s) The Company has the corporate power and authority to execute, deliver and perform each of its obligations under the Notes. The Notes, when issued, will be in substantially the form contemplated by the Indenture. The Notes have been duly authorized by the Company and, when executed by the Company and authenticated by the Trustee in accordance with the provisions of the Indenture and when delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will constitute valid and legally binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally; and (ii) general principles of equity regardless of whether considered in a proceeding in equity or law (collectively, the “Enforceability Exceptions”).
(t) The Company has all corporate power and authority to execute, deliver and perform its obligations under the Indenture. The Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”). The Indenture has been duly authorized by the Company and has been executed and delivered by the Company (assuming the due authorization, execution and delivery by the Trustee) and constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except that the enforcement thereof may be subject to the Enforceability Exceptions.
(u) The Notes and the Indenture will conform in all material respects to the descriptions thereof in the Registration Statement, the Statutory Prospectus included in the General Disclosure Package and the Prospectus and will be in substantially the respective forms filed or incorporated by reference, as the case may be, as exhibits to the Registration Statement.
(v) The statements under the caption “Certain Material United States Federal Income Tax Considerations” in the Registration Statement, the Statutory Prospectus included in the General Disclosure Package and the Prospectus, to the extent that they constitute matters of law, summaries of legal matters, legal proceedings or legal conclusions, are correct in all material respects.
(w) Each approval, consent, order, authorization, designation, declaration or filing by or with any court or other governmental agency, authority or body necessary in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions herein contemplated (except such additional steps as may be required by the Financial Industry Regulatory Authority, Inc. (“FINRA”) or such additional steps as may be necessary to qualify the Notes for public offering by the Underwriters under the securities or Blue Sky laws of any state or other jurisdiction) has been obtained or made and is in full force and effect.
(x) The Company and its subsidiaries hold all licenses, certificates and permits from governmental authorities which are necessary to the conduct of their consolidated business, except where the failure to possess such licenses, certificates or permits would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Company and its subsidiaries own or possess the right to use all patents, patent rights, trademarks, trade names, service marks, service names, copyrights, license rights, know-how (including trade secrets and other unpatented and unpatentable proprietary or confidential information, systems or procedures) and other intellectual property rights (“Intellectual Property”) necessary to carry on their consolidated business except where the failure to own or possess any Intellectual Property would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Neither the Company nor any of its subsidiaries have infringed or received notice of conflict with any Intellectual Property of any other person or entity, except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. There are no outstanding options, licenses or agreements of any kind relating to the Intellectual Property of the Company or any of its subsidiaries that are required to be described in the Registration Statement, the Statutory Prospectus included in the General Disclosure Package or the Prospectus and are not described in all material respects. Neither the Company nor any of its subsidiaries is a party to or bound by any options, licenses or agreements with respect to the Intellectual Property of any other person or entity that are required to be set forth in the Registration Statement, the Statutory Prospectus included in the General Disclosure Package or the Prospectus and are not so described in all material respects. None of the technology employed by the Company or any of its subsidiaries has been obtained or is being used by the Company or any of its subsidiaries in violation of any contractual obligation binding on the Company or any of its subsidiaries or any of their officers, directors
or employees or otherwise in violation of the rights of any persons, except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Company has not received any written communications alleging that the Company or any of its subsidiaries has violated, infringed or conflicted with, or, by conducting its business as set forth in the Registration Statement, the General Disclosure Package and the Prospectus, would violate, infringe or conflict with, any of the Intellectual Property of any other person or entity, and the Company knows of no infringement by others of Intellectual Property owned by or licensed to the Company or any of its subsidiaries, except where any such violation, infringement or conflict would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(y) Neither the Company, nor to the Company’s knowledge, any of its affiliates, has taken or may take, directly or indirectly, any action designed to cause or result in, or which has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Notes.
(z) Neither the Company nor any Significant Subsidiary is or, after giving effect to the offering and sale of the Notes contemplated hereunder and the application of the net proceeds from such sale as described in the Registration Statement, the General Disclosure Package and the Prospectus, will be required to register as an “investment company” within the meaning of such term under the Investment Company Act of 1940, as amended (the “1940 Act”), and the rules and regulations of the Commission thereunder.
(aa) The Company maintains a system of internal control over financial reporting (as such term is defined in Rule 13a-15(f) under the Exchange Act) that complies with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder and has been designed by the Company’s principal executive officer and principal financial officer, or under their supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there has been and are no material weaknesses in its internal control over financial reporting and there has been no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting. The Company’s auditors and the Audit Committee of the Board of Directors of the Company have been advised of: (i) all significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which have adversely affected or are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information; and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls over financial reporting.
(bb) The Company has established and maintains an effective system of “disclosure controls and procedures” (as defined in Rules 13a 14(c) and 15d 14(c) under the Exchange Act) that complies with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder. The Company’s “disclosure controls and procedures” are reasonably designed to ensure that all information (both financial and non-financial) required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Exchange Act, and that all such information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure and to make the certifications of the Chief Executive Officer and Chief Financial Officer of the Company required under the Exchange Act with respect to such reports.
(cc) The operations of the Company and of its subsidiaries are and have been conducted at all times in compliance with applicable financial record-keeping and reporting requirements, including without limitation, those of Title 18 U.S. Code section 1956 and 1957, the Bank Secrecy Act of 1970, otherwise known as the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions where the Company or any of its subsidiaries conducts business, the rules and regulations thereunder, and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental agency having jurisdiction over the Company or any of its subsidiaries, and any international anti-money laundering guidelines, principles or procedures issued by an intergovernmental group or organization, such as the Financial Action Task Force on Money Laundering, of which the United States is a member and with which designation the United States representative to the group or organization continues to concur, and any Executive Order, directive, or regulation pursuant to the authority or to the enforcement of any of the foregoing, or any orders or licenses issued thereunder (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or other governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the Company’s knowledge, threatened.
(dd) Neither the Company nor any of its subsidiaries, any director, officer, or employee of the Company or any of its subsidiaries, nor to the knowledge of the Company or any of its subsidiaries any agent, or any other person acting on behalf of the Company or any of its subsidiaries, (a) is, or is acting on behalf of an individual or entity (a “Person”), currently the subject of any sanctions administered or imposed by the U.S. Government (including, without limitation, the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”), the U.S. Department of Commerce, or the U.S. Department of State), the United Nations Security Council, the European Union, Her Majesty’s Treasury or any similar sanctions imposed by any governmental body to which the Company or any of its subsidiaries is subject (collectively, “Sanctions”) (including (i) parties designed, or owned 50 percent or more by parties designated, on the OFAC Specially Designated Nationals and Blocked Persons List, OFAC Consolidated Lists, or other similar lists maintained by the EU, UK, UN and other relevant governmental bodies, and (ii) governments subject to comprehensive sanctions imposed or administered by the U.S., UK, EU or UN (including at the time of this agreement Cuba, Iran, North Korea, Syria and Venezuela), including agencies, entities and instrumentalities owned or controlled by such) (collectively, “Sanctioned Persons”), (b) nor is the Company or any of its subsidiaries located, organized or resident in a country or territory that is the subject of comprehensive Sanctions (a “Sanctioned Country”) (at the time of this Agreement, Crimea Region of Ukraine, Cuba, Iran, North Korea, and Syria). Neither the Company nor its subsidiaries have engaged in during the past five years, are not now engaged
in, and will not engage in, any dealings or transactions in violation of Sanctions with any Sanctioned Persons or involving any Sanctioned Country; and the Company will not directly or indirectly use the proceeds of the offering of the Notes hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person, to fund or facilitate any activities of or business with any Sanctioned Persons or involving any Sanctioned Country; or in any manner that will result in a violation by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise) of Sanctions.
(ee) Except as would not reasonably be expected to result in a Material Adverse Effect, the Company and its subsidiaries carry, or are covered by, insurance in such amounts and covering such risks as is adequate for the conduct of their consolidated business and the value of their respective properties and as is customary for companies engaged in similar businesses.
(ff) No legal or labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent, which would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. No legal dispute with the independent distributors of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent, which would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, except as set forth in the Registration Statement, the General Disclosure Package and the Prospectus.
(gg) (i) Each employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), for which the Company or any member of its “Controlled Group” (defined as any trade or business which together with the Company would be treated as under common control for the purposes of Title IV of ERISA or Section 414 of the Internal Revenue Code of 1986, as amended (the “Code”)) would have any liability (each, a “Plan”) has been maintained in material compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, including, but not limited to, ERISA and the Code, except for noncompliance that could not reasonably be expected to result in material liability to the Company and any member of its Controlled Group taken as a whole; (ii) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code excluding transactions effected pursuant to a statutory or administrative exemption, has occurred with respect to any Plan that could reasonably be expected to result in a material liability to the Company and its subsidiaries taken as a whole; (iii) for each Plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, the Company is in material compliance with the minimum funding standard of Section 412 of the Code or Section 302 of ERISA, as applicable (without taking into account any waiver thereof or extension of any amortization period) and such standard is reasonably expected to be satisfied in the future (without taking into account any waiver thereof or extension of any amortization period); (iv) no “reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur that either has resulted, or could reasonably be expected to result, in material liability to the Company and its subsidiaries taken as a whole; (v) neither the Company nor any member of its Controlled Group has incurred, nor reasonably expects to incur, any liability under Title IV of ERISA (other than contributions to a Plan or premiums to the Pension Benefit Guaranty Corporation (“PBGC”), in
the ordinary course and without default) in respect of a Plan (including a “multiemployer plan,” within the meaning of Section 4001(a)(3) of ERISA) that could reasonably be expected to result in a material liability to the Company and its subsidiaries taken as a whole; and (vi) there is no pending audit or investigation by the Internal Revenue Service, the U.S. Department of Labor, the PBGC or any other governmental agency or any foreign regulatory agency with respect to any Plan that could reasonably be expected to result in material liability to the Company and its subsidiaries taken as a whole. None of the following events has occurred or is reasonably likely to occur: (x) a material increase in the aggregate amount of contributions required to be made to all Plans by the Company and any member of its Controlled Group taken as a whole in the current fiscal year of the Company compared to the amount of such contributions made in the Company’s most recently completed fiscal year; or (y) a material increase in the “accumulated post-retirement benefit obligations” (within the meaning of Statement of Financial Accounting Standards 106) of the Company and its subsidiaries compared to the amount of such obligations in the Company’s most recently completed fiscal year.
(hh) Neither the Company nor any of its subsidiaries is in violation of any statute, rule, regulation, decision or order of any court or other governmental agency, authority or body relating to the use, disposal or release of hazardous or toxic substances or relating to the protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively, “environmental laws”); owns or operates any real property contaminated with any substance that is subject to environmental laws; is liable for any off-site disposal or contamination pursuant to any environmental laws; or is subject to any claim relating to any environmental laws, which violation, contamination, liability or claim would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Company is not aware of any pending investigation which might lead to such a claim.
(ii) No Significant Subsidiary of the Company is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution on such Significant Subsidiary’s capital stock, from repaying to the Company any loans or advances to such Significant Subsidiary from the Company or from transferring any of such Significant Subsidiary’s property or assets to the Company or any other Significant Subsidiary of the Company.
(jj) Neither the Company nor any of its subsidiaries, any director, officer, or employee of the Company or any of its subsidiaries, nor to the knowledge of the Company or any of its subsidiaries any agent, affiliate or any other person acting on behalf of the Company or any of its subsidiaries: (i) has used any funds for any unlawful contribution, gift, property, entertainment or other unlawful expense related to political activity; (ii) has made, taken or will take any action to further or facilitate any offer, payment, gift, promise to pay, or any offer, gift or promise of anything else of value, directly or indirectly, to any person knowing that all or a portion of the payment will be offered, given or promised to anyone to improperly influence official action, to obtain or retain business for the Company or its subsidiaries, or to secure an improper advantage for the Company or its subsidiaries; (iii) has made, offered, taken, or will make, offer or take any act in furtherance of any bribe, unlawful rebate, payoff, influence payment, property, gift, kickback or other unlawful payment; or (iv) is aware of, has taken, or will take any action, directly or indirectly, that would result in a violation of any provision of the Bribery Act 2010 of the United Kingdom, the OECD Convention on Bribery of Foreign
Public Officials in International Business Transactions, the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), as applicable, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA. The Company, its subsidiaries and, to the knowledge of the Company, their affiliates have each conducted their businesses in compliance with all applicable anti-bribery and anti-corruption laws and/or regulations and the Company, its subsidiaries and their affiliates have each instituted and maintain policies and procedures reasonably designed to promote and ensure continued compliance with all applicable anti-bribery and anti-corruption laws and with the representations and warranties contained herein. The Company, its subsidiaries and their affiliates will not, directly or indirectly, use the proceeds of the offering and sale of the Notes or lend, contribute or otherwise make available such proceeds to any subsidiary, affiliate, joint venture partner or other person or entity for the purpose of financing or facilitating any activity that would violate the laws and regulations as referred to in section (iv) above.
2. (i) Except as disclosed in the General Disclosure Package and the Prospectus, to the Company’s knowledge, in the last three years, there has been no material security breach or other compromise of or relating to any of the Company’s or its subsidiaries’ information technology and computer systems, networks, hardware, software, data (including the data of their respective customers, employees, suppliers, vendors and any third party data maintained by or on behalf of them), equipment or technology (collectively, “IT Systems and Data”), except for those that have been remedied without material cost or liability or the duty to notify any other person; (ii) the Company and its subsidiaries have not been notified of, and have no knowledge of any event or condition that would reasonably be expected to result in, any material security breach or other compromise to their IT Systems and Data; (iii) the Company and its subsidiaries are presently in material compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations, in each case, relating to the privacy and security of IT Systems and Data; and (iv) the Company and its subsidiaries have implemented backup and disaster recovery plans or practices that are reasonably adequate for their businesses.
3. Purchase, Sale and Delivery of the Notes.
On the basis of the representations, warranties, agreements and covenants herein contained and subject to the terms and conditions herein set forth, the Company agrees to issue and sell to the Underwriters, and the Underwriters, acting severally and not jointly, agree to purchase the Notes in the respective principal amounts set forth on Schedule I hereto from the Company at 98.864% of their principal amount. Notes that the Underwriters have agreed to purchase hereunder, and in such denomination or denominations and registered in such name or names as the Underwriters request upon notice to the Company at least 36 hours prior to the Closing Date, shall be delivered by or on behalf of the Company to the Underwriters, against payment by or on behalf of the Underwriters of the purchase price therefor by wire transfer (same day funds), to such account or accounts as the Company shall specify prior to the Closing
Date, or by such means as the parties hereto shall agree prior to the Closing Date. Such delivery of and payment for the Notes shall be made at the offices of Sidley Austin LLP, 787 Seventh Avenue, New York, New York at 10:00 A.M., New York time, on March 9, 2021 or at such other place, time or date as the Underwriters, on the one hand, and the Company, on the other hand, may agree upon, such time and date of delivery against payment being herein referred to as the “Closing Date.” The Company will make such Notes available for inspection at least 24 hours prior to the Closing Date.
4. Offering by the Underwriters.
It is understood that the several Underwriters are to make a public offering of the Notes as soon as the Representatives deem it advisable to do so. The Notes are to be initially offered to the public at the initial public offering price set forth in the Prospectus. The Representatives may from time to time thereafter change the public offering price and other selling terms.
5. Covenants of the Company.
The Company covenants and agrees with the several Underwriters that:
(a) The Company will (A) prepare and timely file with the Commission under Rule 424(b) (without reliance on Rule 424(b)(8)) under the Act the Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (B) during the Prospective Delivery Period (as defined below), not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus or document incorporated by reference therein of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Act, the Rules and Regulations, the Exchange Act or the rules and regulations of the Commission thereunder and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and during the Prospectus Delivery Period.
(b) The Company will (i) not make any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed only to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule II hereto; (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus; (iii) comply with the requirements of Rules 163, 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping; and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder.
(c) The Company will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the Notes and shall file such Final Term Sheet as an Issuer Free Writing Prospectus pursuant to Rule 433 under the Act prior to the close of business two business days after the date hereof; provided that the Company shall provide the Representatives with copies of any such Final Term Sheet a reasonable amount of time prior to such proposed filing and will not use or file any such document to which the Representatives or counsel to the Underwriters shall reasonably object.
(d) The Company will advise the Representatives promptly (A) when any post-effective amendment to the Registration Statement or new registration statement relating to the Notes shall have become effective, or any amendment or supplement to the General Disclosure Package or the Prospectus or any document incorporated by reference therein shall have been filed; (B) of the receipt of any comments from the Commission relating to the Registration Statement, the General Disclosure Package or the Prospectus or any amendment or supplement thereto; (C) of any request of the Commission for amendment of the Registration Statement or the filing of a new registration statement related to the Notes or any amendment or supplement to the General Disclosure Package or the Prospectus; (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any part thereof or such new registration statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for any such purpose or pursuant to Section 8A of the Act; and (E) the commencement of any examination pursuant to Section 8(d) or (e) of the Act concerning the Registration Statement. The Company will use its best efforts to prevent the issuance of any such order and to obtain as soon as possible the lifting thereof, if issued.
(e) If, at any time during the Prospectus Delivery Period, the Company receives from the Commission a notice pursuant to Rule 401(g)(2) under the Act or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the Representatives; (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Notes, in a form and substance reasonably satisfactory to the Representatives; (iii) use its best efforts to cause such registration statement or post-effective amendment to be declared effective as soon as practicable (if such filing is not otherwise effective immediately pursuant to Rule 462 under the Act); and (iv) promptly notify the Representatives of such effectiveness. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Notes to continue as contemplated in the Registration Statement that was the subject of the notice under Rule 401(g)(2) under the Act or for which the Company has otherwise become ineligible. References herein to the Registration Statement relating to the Notes shall include such new registration statement or post-effective amendment, as the case may be.
(f) If, immediately prior to the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement, any of the Notes remain unsold by the Underwriters, the Company will, prior to the Renewal Deadline, file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Notes, in a form and substance reasonably satisfactory to the Representatives. If the Company is no longer eligible to file an automatic shelf registration statement, the Company will, prior to the Renewal Deadline, if it has not already done so, file a new shelf registration statement relating to the Notes, in a form and substance reasonably satisfactory to the Representatives, and will use its best efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Notes to continue as contemplated in the expired Registration Statement. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be.
(g) The Company agrees to pay the required filing fees to the Commission relating to the Notes within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act.
(h) The Company will cooperate with the Representatives in endeavoring to qualify the Notes for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, furnish such information, and take such action as may be reasonably required to so qualify the Notes and maintain such qualifications during the Prospectus Delivery Period; provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent.
(i) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a prospectus to investors (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required under the Act (the “Prospectus Delivery Period”) as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request.
(j) The Company will comply with the Act, the Rules and Regulations, the Exchange Act, the rules and regulations of the Commission under the Exchange Act, the Trust Indenture Act and the rules and regulations of the Commission under the Trust Indenture Act, so as to permit the completion of the public offer and sale of the Notes as contemplated in this Agreement and the Prospectus. If, during the Prospectus Delivery Period, any event shall occur or condition exist as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend the Registration Statement or amend or supplement the Prospectus so that the same does not include any untrue statement of a material fact and does not omit to state a material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectus, in the light of the
circumstances existing at the time the Prospectus is delivered to a purchaser) not misleading, or, if it is necessary at any time to amend the Registration Statement or amend or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Commission, in form and substance reasonably satisfactory to the Underwriters after furnishing it to the Underwriters, an appropriate amendment to the Registration Statement or amendment or supplement to the Prospectus or (ii) prepare and file with the Commission, in form and substance reasonably satisfactory to the Underwriters after furnishing it to the Underwriters, an appropriate filing under the Exchange Act, which shall be incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, that reflects such event or condition and related matters or complies with applicable law, as the case may be.
(k) If the General Disclosure Package is being used to solicit offers to buy the Notes at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package so that it does not include any untrue statement of material fact and does not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement, the Statutory Prospectus included in the General Disclosure Package or the Prospectus then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with applicable law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters an appropriate amendment or supplement to the General Disclosure Package; or (ii) prepare and file with the Commission, in form and substance reasonably satisfactory to the Underwriters after furnishing it to the Underwriters, an appropriate filing under the Exchange Act which shall be incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus that reflects such event or condition and related matters, eliminates such conflict or complies with applicable law, as the case may be.
(l) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 16 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, complying with the requirements of Section 11(a) of the Act and Rule 158 under the Act and will advise you in writing when such statement has been so made available.
(m) During the period beginning on the date hereof and continuing to and including the Closing Date, without the prior written consent of the Representatives, the Company will not offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any securities of the Company (or guaranteed by the Company) that are substantially similar to the Notes.
(n) The Company shall apply the net proceeds of its sale of the Notes as set forth in the Registration Statement, the General Disclosure Package and the Prospectus.
(o) The Company shall not invest, or otherwise use, the proceeds received by the Company from its sale of the Notes in such a manner as would require the Company or any of the Significant Subsidiaries to register as an investment company under the 1940 Act.
(p) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
6. Costs and Expenses.
The Company will pay all costs, expenses and fees incident to the performance of the obligations of the Company under this Agreement, including, without limiting the generality of the foregoing, the following: accounting fees of the Company; the fees and disbursements of counsel for the Company; any roadshow expenses incurred by the Company up to $50,000; the cost of printing and delivering to, or as requested by, the Underwriters copies of the Registration Statement, Preliminary Prospectuses, the Issuer Free Writing Prospectuses and the Prospectus and any supplements or amendments thereto; the filing fees of the Commission; any filing fees and expenses (including legal fees and disbursements) incident to securing any required review by FINRA of the terms of the sale of the Notes; any fees payable in connection with the rating of the Notes; the expenses, including the fees and disbursements of counsel for the Underwriters, incurred in connection with the qualification of the Notes under the securities or Blue Sky laws of any state or other jurisdiction; and the reasonable and documented fees and expenses of the Trustee, including fees and expenses of counsel for the Trustee. The Company shall not, however, be required to pay for any of the Underwriters’ expenses (other than those related to qualification under FINRA regulations and the securities or Blue Sky laws of any state or other jurisdiction) except that, if this Agreement shall not be consummated because the conditions in Section 6 hereof are not satisfied, or because this Agreement is terminated by the Representatives pursuant to Section 10 hereof, or by reason of any failure, refusal or inability on the part of the Company to perform any undertaking or satisfy any condition of this Agreement or to comply with any of the terms hereof on its part to be performed, unless such failure, refusal or inability is due primarily to the default or omission of any Underwriter, then the Company shall reimburse the several Underwriters for their documented out-of-pocket expenses, including the reasonable fees and disbursements of counsel upon the receipt by the Company of an invoice therefor, reasonably incurred in connection with investigating, marketing and proposing to market the Notes or in contemplation of performing their obligations hereunder; but the Company shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits from the sale by them of the Notes.
7. Conditions of Obligations of the Underwriters.
The several obligations of the Underwriters to purchase the Notes on the Closing Date are subject to the accuracy, as of the date hereof, as of the Applicable Time and as of the Closing Date, of the representations and warranties of the Company contained herein, and to the performance by the Company of its covenants and obligations hereunder and to the following additional conditions:
(a) The Registration Statement and all post-effective amendments thereto shall have become effective and each Preliminary Prospectus, each Issuer Free Writing Prospectus and the Prospectus required shall have been filed as required by Rules 424(b) (without reliance on Rule 424(b)(8)), 430A, 430B, 430C or 433 under the Act, as applicable, within the time period prescribed by, and in compliance with, the Rules and Regulations, and any request of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package or the Prospectus or otherwise) shall have been disclosed to the Representatives and complied with to their reasonable satisfaction. No stop order suspending the effectiveness of the Registration Statement or any part thereof, and no order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus shall have been issued and no proceedings for any such purpose or pursuant to Section 8A of the Act shall have been instituted, and no examination pursuant to Section 8(d) or (e) of the Act concerning the Registration Statement shall have commenced, and, to the knowledge of the Company, no such action shall be contemplated or threatened by the Commission or any other governmental agency, authority or body, and no injunction, restraining order or order of any nature by a Federal or state court of competent jurisdiction shall have been issued and in effect as of the Closing Date which would prevent the issuance of the Notes.
(b) The Representatives shall have received on the Closing Date the opinion of Jones Day, counsel for the Company, dated the Closing Date, addressed to the Underwriters, substantially in the form attached hereto as Exhibit A.
(c) The Representatives shall have received on the Closing Date the opinion of Sidley Austin LLP, counsel for the Underwriters, in form and substance satisfactory to the Representatives.
(d) The Representatives shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof and the Closing Date, in form and substance satisfactory to the Representatives, of PricewaterhouseCoopers LLP confirming that they are an independent registered public accounting firm with respect to the Company and its subsidiaries within the meaning of the Act and the applicable Rules and Regulations and the PCAOB and stating that in their opinion the financial statements and schedules examined by them and included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus comply in form in all material respects with the applicable accounting requirements of the Act, the Rules and Regulations, the Exchange Act and the rules and regulations of the Commission thereunder, and containing such other statements and information as are ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial and statistical information included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus.
(e) The Representatives shall have received on the Closing Date a certificate or certificates of the Chief Executive Officer and the Chief Financial Officer of the Company to the effect that, as of the Closing Date, each of them severally represents as follows:
(i) The Registration Statement has become effective under the Act and no stop order suspending the effectiveness of the Registration Statement or any part thereof and no order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus has been issued, and no proceedings for any such purpose or pursuant to Section 8A of the Act have been instituted and no examination pursuant to Section 8(d) or (e) of the Act concerning the Registration Statement has commenced and, to his or her knowledge, no such action is contemplated or threatened by the Commission or any other governmental agency, authority or body;
(ii) The representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date;
(iii) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and Prospectus, there has not been any material adverse change or any development involving a prospective material adverse change in or affecting the business, properties, financial condition, cash flows or results of operations of the Company and its subsidiaries taken as a whole, whether or not occurring in the ordinary course of business or the ability of the Company to consummate the transactions contemplated hereby, except as described in the Registration Statement, the General Disclosure Package and the Prospectus.
(f) The Representatives shall have been furnished with such further certificates and documents confirming the representations and warranties, covenants and conditions contained herein and related matters as the Representatives may reasonably have requested.
(g) Subsequent to the earlier of (A) the Applicable Time and (B) the execution and delivery of this Agreement, (i) no downgrading in or withdrawal of the rating of the Notes or any other debt securities of the Company or any Significant Subsidiary by any “nationally recognized statistical rating organization”, as such term is defined by the Commission for purposes of Section 3(a)(62) of the Exchange Act shall have occurred; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Notes or of any other debt securities of or guaranteed by the Company or any Significant Subsidiary (other than an announcement with positive implications of a possible upgrading).
The opinions and certificates mentioned in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in all material respects satisfactory to the Representatives.
If any of the conditions hereinabove provided for in this Section 6 shall not have been fulfilled when and as required by this Agreement to be fulfilled, the obligations of the Underwriters hereunder may be terminated by the Representatives by notifying the Company of such termination in writing or by telegram at or prior to the Closing Date.
In such event, the Company and the Underwriters shall not be under any obligation to each other (except to the extent provided in Sections 5 and 7 hereof).
8. Indemnification.
(a) The Company agrees:
(1) to indemnify and hold harmless each Underwriter and its officers, directors and affiliates and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act, against any losses, claims, damages or liabilities to which such Underwriter, officer, director, affiliate or controlling person may become subject under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement or any amendment thereto or any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto or any Marketing Materials relating to the offering of the Notes; (ii) with respect to the Registration Statement or any amendment thereto, the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; or (iii) with respect to any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto or any Marketing Materials relating to the offering of the Notes, the omission or alleged omission to state therein a material fact necessary in order to make the statements therein in the light of the circumstances under which they were made, not misleading; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement, or omission or alleged omission made in the Registration Statement or any amendment thereto or any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 12; and
(2) to reimburse each Underwriter and its officers, directors and affiliates and each controlling person, if any, with respect to such Underwriter upon demand for any legal or other out-of-pocket expenses reasonably incurred by any of them in connection with investigating or defending any such loss, claim, damage, liability, action or proceeding or in responding to a subpoena or governmental inquiry related to the offering of the Notes, whether or not such Underwriter, officer, director, affiliate or controlling person is a party to any action or proceeding. In the event that it is finally judicially determined that the Underwriters were not entitled to receive payments for legal and other expenses pursuant to this subparagraph, the Underwriters will promptly return all sums that had been advanced pursuant hereto. This indemnity agreement will be in addition to any liability which the Company may otherwise have to the Underwriters.
(b) Each Underwriter severally and not jointly will indemnify and hold harmless the Company, each of its directors, each of its officers who have signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, against any losses, claims, damages or liabilities to which the Company or any such director, officer or controlling person may become subject under the Act or otherwise, insofar as losses, claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement or any amendment thereto or any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto; (ii) with respect to the Registration Statement or any amendment thereto, the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; or (iii) with respect to any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto, the omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and will reimburse any legal or other out-of-pocket expenses reasonably incurred by the Company or any such director, officer or controlling person in connection with investigating or defending any such loss, claim, damage, liability, action or proceeding; provided, however, that each Underwriter will be liable in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission has been made in the Registration Statement or any amendment thereto or any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 12. This indemnity agreement will be in addition to any liability which such Underwriter may otherwise have to the Company.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to this Section 7, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing. No indemnification provided for in Section 7(a) or (b) shall be available to any party who shall fail to give notice as provided in this Section 7(c) if the party to whom notice was not given was unaware of the proceeding to which such notice would have related and was materially prejudiced by the failure to give such notice, but the failure to give such notice shall not relieve the indemnifying party or parties from any liability which it or they may have to the indemnified party for contribution or otherwise than on account of the provisions of Section 7(a) or (b). In case any such proceeding shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party and shall pay as incurred the documented fees and disbursements reasonably incurred by such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel at its own expense. Notwithstanding the foregoing, the indemnifying party shall pay as incurred (or within 30 days of presentation) the documented fees and expenses reasonably incurred by the counsel retained by the indemnified party only to the extent that (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel; or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them; or (iii) the
indemnifying party shall have failed to assume the defense and employ counsel satisfactory to the indemnified party within a reasonable period of time after notice of commencement of the action, provided however, that the indemnifying party shall not be responsible for the expenses of more than one separate counsel for all indemnified parties (in addition to one local counsel, if necessary, in the applicable jurisdiction) in connection with any one action or separate but similar or related actions arising out of the same general allegations or circumstances. Such firm shall be designated in writing by the Representatives in the case of parties indemnified pursuant to Section 7(a), and by the Company, in the case of parties indemnified pursuant to Section 7(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but if settled with such consent or if there be a final judgment against the indemnified party, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. In addition, the indemnifying party will not, without the prior written consent of the indemnified party, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding of which indemnification may be sought hereunder (whether or not any indemnified party is an actual or potential party to such claim, action or proceeding) unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such claim, action or proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) To the extent the indemnification provided for in this Section 7 is unavailable to or insufficient to hold harmless an indemnified party under Section 7(a) or (b) above in respect of any losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Notes. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions or proceedings in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering of the Notes (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or the Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable if contributions pursuant to this Section 7(d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred to above in this Section 7(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 7 (d), (i) no Underwriter shall be required to contribute any amount in excess of the underwriting discounts and commissions applicable to the Notes purchased by such Underwriter, and (ii) no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations in this Section 7(d) to contribute are several in proportion to their respective underwriting obligations and not joint.
(e) Any losses, claims, damages, liabilities or expenses for which an indemnified party is entitled to indemnification or contribution under this Section 7 shall be paid by the indemnifying party to the indemnified party as such losses, claims, damages, liabilities or expenses are incurred. The indemnity and contribution agreements contained in this Section 7 and the representations and warranties of the Company set forth in this Agreement shall remain operative and in full force and effect, regardless of (i) any investigation made by or on behalf of any Underwriter, its directors or officers or any person controlling any Underwriter, the Company, its directors or officers or any persons controlling the Company, (ii) acceptance of any Notes and payment therefor hereunder, and (iii) any termination of this Agreement. A successor to any Underwriter, its directors or officers or any person controlling any Underwriter, or to the Company, its directors or officers, or any person controlling the Company, shall be entitled to the benefits of the indemnity, contribution and reimbursement agreements contained herein.
9. Default by Underwriters.
If on the Closing Date any Underwriter shall fail to purchase and pay for the principal amount of the Notes which such Underwriter has agreed to purchase and pay for on such date (otherwise than by reason of any default on the part of the Company), you, as Representatives of the Underwriters, shall use your reasonable efforts to procure within 36 hours thereafter one or more of the other Underwriters, or any others, to purchase from the Company such principal amounts as may be agreed upon, and upon the terms set forth herein, the Notes which the defaulting Underwriter or Underwriters failed to purchase. If during such 36 hours you, as such Representatives, shall not have procured such other Underwriters, or any others, to purchase the principal amount of the Notes agreed to be purchased by the defaulting Underwriter or Underwriters, then (a) if the aggregate principal amount of Notes with respect to which such default shall occur does not exceed 10% of the aggregate principal amount of the Notes to be purchased on the Closing Date, the other Underwriters shall be obligated, severally, in proportion to the respective principal amounts of the Notes which they are obligated to purchase hereunder, to purchase the Notes which such defaulting Underwriter or Underwriters failed to purchase; or (b) if the aggregate principal amount of the Notes with respect to which such default shall occur
exceeds 10% of the aggregate principal amount of the Notes to be purchased on the Closing Date, the Company or you, as the Representatives of the Underwriters, will have the right, by written notice given within the next 36-hour period to the parties to this Agreement, to terminate this Agreement without liability on the part of the non-defaulting Underwriters or of the Company, except to the extent provided in Sections 5 and 7 hereof. In the event of a default by any Underwriter or Underwriters, as set forth in this Section 8, the Company or the Representatives may postpone the Closing Date for such period, not exceeding seven days, in order that the required changes in the Registration Statement, the General Disclosure Package or in the Prospectus or in any other documents or arrangements may be effected. The term “Underwriter” includes any person substituted for a defaulting Underwriter. Any action taken under this Section 8 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
10. Notices.
All communications hereunder shall be in writing and, except as otherwise provided herein, will be mailed, delivered, telecopied or telegraphed and confirmed as follows: if to the Underwriters, to BofA Securities, Inc., 1540 Broadway, NY8-540-26-02, New York, New York 10036; Attention: High Grade Debt Capital Markets Transaction Management/Legal, Facsimile: (212) 901-7881, Email: dg.hg_ua_notices@bofa.com, to Deutsche Bank Securities Inc., 60 Wall Street, 2nd Floor, New York, New York 10005; Attention: Syndicate Manager, with a copy to Deutsche Bank Securities Inc., 60 Wall Street, New York, New York 10005, Fax: (212) 797-4561, Attention: General Counsel; and if to the Company, to Flowers Foods, Inc., 1919 Flowers Circle, Thomasville, Georgia 31757, Fax (229) 227-2212, Attention: Stephanie Tillman, stephanie.tillman@flocorp.com.
11. Termination.
This Agreement may be terminated by you by notice to the Company (a) at any time prior to the Closing Date if any of the following has occurred: (i) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, any material adverse change or any development involving a prospective material adverse change in or affecting the business, properties, financial condition, cash flows or results of operations of the Company and its subsidiaries taken as a whole, whether or not occurring in the ordinary course of business; (ii) since the Applicable Time, there has been any outbreak or escalation of hostilities or declaration of war or national emergency or other national or international calamity or crisis if the effect of such outbreak, escalation, declaration, emergency, calamity or crisis on the financial markets of the United States that would, in your judgment, make it impracticable or inadvisable to market the Notes or to enforce contracts for the sale of the Notes; (iii) any material change in economic or political conditions if the effect of such change on the financial markets of the United States would, in your judgment, make it impracticable or inadvisable to market the Notes or to enforce contracts for the sale of the Notes,;(iv) since the Applicable Time, there has been a suspension of trading in securities generally on the New York Stock Exchange, the NYSE Amex Equities or the Nasdaq Stock Market or limitation on prices (other than limitations on hours or numbers of days of trading) for securities on any of such exchanges; (v) since the Applicable Time, there has been a declaration of a banking moratorium by United States or New York State authorities; (vi) since the
Applicable Time, any downgrading in or withdrawal of the rating of the Notes or any other debt securities or preferred stock of or guaranteed by the Company or any Significant Subsidiary by any nationally recognized statistical rating organization shall have occurred and no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Notes or any other debt securities of or guaranteed by the Company or any Significant Subsidiary (other than an announcement with positive implications of a possible upgrading); or (vii) since the Applicable Time, there has been a suspension of trading of the Company’s common stock by the New York Stock Exchange or the Commission or any other governmental agency, authority or body. This Agreement may also be terminated as contemplated under Sections 6 and 8 of this Agreement.
12. Successors.
This Agreement has been and is made solely for the benefit of the Underwriters and the Company and their respective successors, executors, administrators, heirs and assigns, and the affiliates, officers, directors and controlling persons referred to herein, and no other person will have any right or obligation hereunder. No purchaser of any of the Notes from any Underwriter shall be deemed a successor or assign merely because of such purchase.
13. Information Provided by Underwriters.
The Company and the Underwriters acknowledge and agree that the only information furnished or to be furnished by any Underwriter to the Company for inclusion in the Registration Statement or any amendment thereto or any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto consists of the information set forth in the fourth, eighth and ninth paragraphs under the caption “Underwriting” in the Preliminary Prospectus and the Prospectus.
14. No Advisory or Fiduciary Responsibility.
The Company acknowledges and agrees that (i) the purchase and sale of the Notes pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the Underwriters, on the other; (ii) in connection therewith and with the process leading to such transaction, each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company; (iii) no Underwriter has assumed an advisory or fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement; and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that any Underwriter has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty, to the Company in connection with such transaction or the process leading thereto.
15. Counterparts and Signatures.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The words “execution,” “execute”, “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Agreement and the transactions contemplated hereby (including without limitation assignment and assumptions, amendments, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Representatives, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
16. Survival Clause.
The reimbursement, indemnification and contribution agreements and the representations, warranties and covenants in this Agreement shall remain in full force and effect regardless of (a) any termination of this Agreement; (b) any investigation made by or on behalf of any Underwriter or any of its officers, directors or controlling persons, or by or on behalf of the Company or its officers, directors or controlling persons; and (c) delivery of and payment for the Notes under this Agreement.
17. Governing Law.
This Agreement shall be governed by, and construed in accordance with, the law of the State of New York, including, without limitation, Section 5-1401 of the New York General Obligations Law.
18. Recognition of the U.S. Special Resolution Regimes.
(i) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States. (ii) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
For purposes of this Section 17 a “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k). “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
If the foregoing letter is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicates hereof, whereupon it will become a binding agreement among the Company and the several Underwriters in accordance with its terms.
| Very truly yours, | ||||
| FLOWERS FOODS, INC. | ||||
| By | /s/ R. Steve Kinsey | |||
| The foregoing Underwriting Agreement is hereby confirmed and accepted as of the date first above written. | ||||
| BOFA SECURITIES, INC. | ||||
| DEUTSCHE BANK SECURITIES INC. | ||||
| As Representatives of the several | ||||
| Underwriters listed on Schedule I | ||||
| By: BofA Securities, Inc. | ||||
| By | /s/ Sandeep Chawla | |||
| Authorized Officer | ||||
| By: Deutsche Bank Securities Inc. | ||||
| By | /s/ John Han | |||
| Authorized Officer | ||||
| By | /s/ Ritu Kektar | |||
| Authorized Officer | ||||
SCHEDULE I
Schedule of Underwriters
| Underwriter |
Aggregate Principal Amount of Notes to be Purchased |
|||
| Deutsche Bank Securities Inc. |
$ | 166,000,000 | ||
| BofA Securities, Inc. |
$ | 124,500,000 | ||
| Wells Fargo Securities, LLC |
$ | 74,000,000 | ||
| Rabo Securities USA, Inc. |
$ | 39,000,000 | ||
| PNC Capital Markets LLC |
$ | 19,300,000 | ||
| RBC Capital Markets, LLC |
$ | 19,300,000 | ||
| Regions Securities LLC |
$ | 19,300,000 | ||
| Siebert Williams Shank & Co., LLC |
$ | 19,300,000 | ||
| Truist Securities, Inc. |
$ | 19,300,000 | ||
| Total |
$ | 500,000,000 | ||
|
|
|
|||
SCHEDULE II
Final Term Sheet relating to the Notes filed with the Commission pursuant to Rule 433 under the 1933 Act
Exhibit 4.2
FLOWERS FOODS, INC.
OFFICER’S CERTIFICATE
MARCH 9, 2021
Reference is made to the Indenture dated as of April 3, 2012, by and between Flowers Foods, Inc. (the “Company”) and Wells Fargo Bank, National Association, as Trustee (the “Indenture”), and the Underwriting Agreement dated March 2, 2021 (the “Underwriting Agreement”), by and among the Company and BofA Securities, Inc. and Deutsche Bank Securities Inc., acting as representatives of the several Underwriters named therein, relating to the offer and sale by the Company of $500,000,000 aggregate principal amount of its 2.400% Senior Notes due 2031. Capitalized terms used but not otherwise defined in this Certificate or the exhibits thereto shall have the respective meanings given such terms in the Indenture. The undersigned Chief Financial Officer and Chief Accounting Officer, R. Steve Kinsey, hereby certifies pursuant to Section 2.02 of the Indenture that, on behalf of the Company, there is hereby established a Series of Notes (as that term is defined the Indenture), the terms of which shall be as follows:
| (a) | Title: 2.400% Senior Notes due 2031 (the “2031 Notes”). |
| (b) | Principal Amount: $500,000,000. |
| (c) | Interest: Interest on the 2031 Notes will be 2.400%. Interest on the 2031 Notes will accrue from March 9, 2021 and will be payable semiannually in arrears on March 15 and September 15 of each year, beginning September 15, 2021. |
| (d) | Form and Denominations: Fully-registered book-entry form in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. |
| (e) | Form of Note: The 2031 Notes shall be in substantially the form attached hereto as Exhibit A. |
| (f) | Maturity: March 15, 2031. |
| (g) | Optional Redemption: Prior to December 15, 2030, the 2031 Notes are redeemable, in whole or in part, at the Company’s option at any time and from time to time under the circumstances described and on the terms specified in the Form of Note attached hereto as Exhibit A under “Optional Redemption.” In addition, on or after December 15, 2030, the 2031 Notes are redeemable, in whole or in part, at the Company’s option at any time and from time to time under the circumstances described and on the terms specified in the Form of Note attached hereto as Exhibit A under “Optional Redemption.” |
| (h) | Repurchase Upon Change of Control Triggering Event: If a Change of Control Triggering Event (as defined in the Form of Note) occurs, unless the Company has exercised its right to redeem the 2031 Notes in whole, it will be required to make an offer to repurchase all, or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof), of each Holder’s 2031 Notes under the circumstances described and on the terms specified in the Form of Note attached hereto as Exhibit A under “Repurchase Upon Change of Control Triggering Event.” |
| (i) | Sinking Fund: None. |
| (j) | Public Offering Price: 99.514% of principal amount of the 2031 Notes, plus accrued interest from March 9, 2021, if settlement occurs after that date. |
| (k) | Place of Payment: Payments of principal and interest on the 2031 Notes will be made to The Depository Trust Company as the registered owner of the global security. |
| (l) | Events of Default: Events of Default shall be set forth in Article 6 of the Indenture, as modified by the Form of Note attached hereto as Exhibit A under “Events of Default and Remedies.” |
| (m) | Cross Default: If an Event of Default with respect to the 2031 Notes shall occur and be continuing, the principal of the 2031 Notes may be declared, and in certain cases shall automatically become, due and payable in the manner and with the effect provided in the Indenture; provided that under Section 6.01(4)(A) and (B) of the Indenture, in each case, the principal amount of any such indebtedness, together with the principal amount of any other such indebtedness under which there has been a payment default or the maturity of which has been so accelerated, aggregates to $150,000,000 or more. |
| (n) | Restrictive Covenants: As set forth in Article 4 of the Indenture and clauses (p) and (q) below. |
| (o) | Limitations on Liens: As set forth in the Form of Note attached hereto as Exhibit A under “Limitation on Liens”. |
| (p) | Limitations on Sale and Leaseback Transactions: As set forth in the Form of Note attached hereto as Exhibit A under “Limitations on Sale and Leaseback Transactions”. |
| (q) | Defeasance: The Note shall be defeasible as provided in Article 8 of the Indenture, as modified by the Form of Note attached hereto as Exhibit A under “Defeasance”. |
| (r) | Trustee: Wells Fargo Bank, National Association. |
2
IN WITNESS WHEREOF, the undersigned have executed this Certificate as of the date first written above.
| FLOWERS FOODS, INC. | ||
| By: | /s/ R. Steve Kinsey | |
| Name: | R. Steve Kinsey | |
| Title: | Chief Financial Officer and | |
| Chief Accounting Officer | ||
[Officer’s Certificate Establishing Terms of Notes]
Exhibit A
Form of Note
Exhibit 4.3
THIS SECURITY IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”). THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF ANY PERSON OTHER THAN DTC OR A NOMINEE THEREOF, AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL NOTE SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
| No. 1 |
Principal Amount: $500,000,000 |
CUSIP No. 343498AC5
FLOWERS FOODS, INC.
2.400% Senior Notes due 2031
FLOWERS FOODS, INC., a Georgia corporation (hereinafter called the “Company,” which term shall include any successor Person under the Indenture), for value received, hereby promises to pay to Cede & Co., as nominee for DTC, or registered assigns, upon presentation, the principal amount of five hundred million dollars ($500,000,000) on March 15, 2031, unless subject to earlier redemption or repurchase in accordance with the terms of this Note and to pay interest on the outstanding principal amount from March 9, 2021 or from the most recent Interest Payment Date (as defined below) to which interest has been paid or duly provided for, semi-annually in arrears on March 15 and September 15 in each year (each, an “Interest Payment Date”), commencing September 15, 2021, at the rate of 2.400% per annum (calculated based on a 360 day year consisting of twelve 30-day months), until the entire principal amount hereof is paid or made available for payment.
The interest so payable, and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid, in immediately available funds, to the Person in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on the regular record date for such interest, which shall be March 1 or September 1 (whether or not a Business Day), as the case may be (each, a “Regular Record Date”), immediately preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date, and may either be paid to the Person in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on a Special Record Date for the payment of defaulted interest to be fixed by the Trustee, notice whereof shall be given to Holders of the Notes not more than 15 days prior to such Special Record Date and not less than 10 days prior to the related payment date for such defaulted interest, or may be paid at any time in any other lawful manner deemed practicable by the Trustee and not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture.
Payment of the principal of and premium, if any, and interest on this Global Note will be paid to DTC for the purpose of permitting DTC to credit the principal, premium, if any, and interest received by it in respect of this Global Note to the accounts of the beneficial owners thereof; provided, however, that if this Note is not a Global Note, payment of the principal of and premium, if any, and interest on this Note will be made at the office or agency of the Trustee in New York, New York, or elsewhere as provided in the Indenture, 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; and provided, further, that, if this Note is not a Global Note, at the option of the Company, payment of interest on an Interest Payment Date may be made by (a) check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register or (b) wire transfer to an account maintained by the Person entitled thereto as specified in the Security Register.
Additional provisions of this Note are set forth following the signature page hereof, which provisions shall for all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed this 9th day of March, 2021.
| FLOWERS FOODS, INC. | ||||
| By: |
| |||
| Name: | R. Steve Kinsey | |||
| Title: | Chief Financial Officer and Chief | |||
| Accounting Officer | ||||
[NOTE]
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This Note is one or all of the Securities of the Series designated as the “2.400% Senior Notes due 2031” pursuant to the within-mentioned Indenture.
Dated: March 9, 2021
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee
| By: |
| |
| Authorized Signatory |
[NOTE]
2.400% Senior Note due 2031
This Note is one or all of a duly authorized issue of securities of the Company (herein called the “Securities”) issued and to be issued in one or more series under an Indenture, dated as of April 3, 2012, between the Company and Wells Fargo Bank, National Association, as trustee (herein called the “Trustee”, which term includes any successor trustee thereunder), as supplemented by the Officer’s Certificate, dated as of March 9, 2021 (together, the “Indenture”) which Indenture reference is hereby made for a statement of the respective rights, limitation of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Note is one or all of the Securities of the Series designated as the “2.400% Senior Notes due 2031” (the “Notes”).
Optional Redemption
Prior to December 15, 2030, the Notes are redeemable, in whole or in part, at the Company’s option at any time and from time to time at a Redemption Price equal to the greater of (i) 100% of the principal amount of the Notes to be redeemed and (ii) an amount equal to the sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed that would be due if the Notes matured on December 15, 2030 (exclusive of interest accrued to, but not including, the date of redemption) discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at a rate equal to the sum of the applicable Treasury Rate plus 20 basis points; plus, in each case, unpaid interest accrued thereon to, but not including, the date of redemption.
In addition, at any time on or after December 15, 2030, the Company may also redeem the Notes at its option, in whole or in part, at a Redemption Price equal to 100% of the principal amount of the Notes being redeemed plus unpaid interest accrued thereon to, but not including, the Redemption Date.
Notwithstanding the foregoing, installments of interest on the Notes that are due and payable on an Interest Payment Date falling on or prior to a Redemption Date will be payable on that Interest Payment Date to the Holders as of the close of business on the relevant record date according to the Notes and the Indenture.
In connection with such optional redemption, the following defined terms apply:
“Comparable Treasury Issue” means the United States Treasury security selected by the Quotation Agent as having a maturity comparable to the remaining term of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such Notes assuming for this purpose that the Notes matured on December 15, 2030.
“Comparable Treasury Price” means, with respect to any Redemption Date, (i) the average of three Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations or (ii) if the Trustee obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations.
5
“Notice of Redemption” means a written notice identifying the Notes to be redeemed and describing the terms of such redemption in accordance with Section 3.03 of the Indenture.
“Quotation Agent” means the Reference Treasury Dealer appointed by the Company.
“Redemption Date,” when used with respect to any Note to be redeemed, means the date fixed for such redemption by or pursuant to the Indenture and specified in the Notice of Redemption.
“Redemption Price,” when used with respect to any Note to be redeemed, means the price (including premium, if any, and interest, if any) at which it is to be redeemed pursuant to the Indenture and specified in the Notice of Redemption.
“Reference Treasury Dealer” means any primary U.S. government securities dealer in the United States selected by the Company.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Company, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
Notice of Redemption will be mailed at least 15 days but not more than 45 days before the Redemption Date to each Holder of Notes to be redeemed. Unless the Company defaults in payment of the Redemption Price, on and after any Redemption Date, interest will cease to accrue on the Notes or any portion thereof called for redemption. If less than all the Notes are to be redeemed, the Trustee will select the Notes to be redeemed pro rata, or by lot, or by another method compliant with applicable legal and securities exchange requirements, if any, and that the Trustee deems to be fair and appropriate in accordance with DTC’s procedures.
Repurchase Upon Change of Control Triggering Event
If a Change of Control Triggering Event occurs, unless the Company has exercised its right to redeem the Notes in whole, it will be required to make an offer to repurchase all, or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof), of each Holder’s Notes (the “Change of Control Offer”) for a price in cash equal to 101% of the aggregate principal amount of the Notes to be repurchased plus unpaid interest, if any, accrued to, but not including, the Repurchase Date (the “Change of Control Payment”), subject to the rights of the Holders of the Notes on a Regular or Special Record Date to receive interest due to the related Interest Payment Date.
6
Within 30 days following any Change of Control Triggering Event or, at the Company’s option, prior to any Change of Control, but after public announcement of the transaction that constitutes or may constitute the Change of Control, the Company will be required to mail a notice to Holders of Notes, with a copy to the Trustee, describing the transaction that constitutes the Change of Control Triggering Event and offering to repurchase the Notes on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed to Holders (the “Change of Control Payment Date”). The notice, if mailed prior to the date of consummation of the Change of Control, will state that the Change of Control Offer is conditioned upon the Change of Control Triggering Event occurring on or prior to the Change of Control Payment Date.
On the Change of Control Payment Date, the Company will be required, to the extent lawful, to:
(1) accept for payment all of the Notes or portions of the Notes properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Agent an amount equal to the Change of Control Payment in respect of all of the Notes or portions of the Notes properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions of Notes being repurchased by the Company.
The Agent will promptly transmit to each Holder who properly tendered Notes the Change of Control Payment for such Notes being repurchased, and the Trustee will promptly authenticate and mail (or cause to be transferred by book entry) promptly to each such Holder a new Note equal in principal amount to any unpurchased portion, if any, of the Notes surrendered; provided that each new Note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.
The Company will not be required to make a Change of Control Offer upon the occurrence of a Change of Control Triggering Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for the Change of Control Offer otherwise to be made by the Company, and the third party purchases all of the Notes properly tendered and not withdrawn under such third party offer. In addition, the Company will not repurchase any Notes if there has occurred and is continuing on the Change of Control Payment Date an Event of Default under the Indenture, other than a Default in the payment of the Change of Control Payment upon a Change of Control Triggering Event.
The Company must comply with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Triggering Event. To the extent that the provisions of any applicable securities laws or regulations conflict with the Change of Control Offer provisions, the Company will be required to comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control Offer provisions herein by virtue of any such conflict.
7
The failure by the Company to comply with its obligations in the event of a Change of Control Triggering Event will constitute an Event of Default with respect to the Notes.
For purposes of the foregoing discussion of the Change of Control Offer provisions, the following definitions are applicable:
“Change of Control” means the occurrence of any one of the following:
| (1) | the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Company and its Subsidiaries taken as a whole to any “person” or “group” within the meaning of Section 13(d)(3) of the Exchange Act other than to the Company or its Subsidiaries; |
| (2) | the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any person or group becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of our outstanding voting stock or other voting stock into which the Company’s voting stock is reclassified, consolidated, exchanged or changed, measured by voting power rather than the number of shares; |
| (3) | the Company’s consolidation with, or merger with or into, any Person, or the consolidation with, or merger with or into, the Company by another Person, in any such event pursuant to a transaction in which any of the Company’s outstanding voting stock is converted into or exchanged for cash, securities or other property, other than any such transaction where the shares of the Company’s voting stock outstanding immediately prior to such transaction constitute, or are converted into or exchanged for, a majority of the voting stock of the surviving Person or any direct or indirect parent company of the surviving Person immediately after giving effect to such transaction; or |
| (4) | the adoption of a plan relating to the Company’s liquidation, dissolution or winding up (other than the Company’s liquidation into a newly formed holding company). |
Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control if (i) the Company becomes a direct or indirect wholly-owned subsidiary of a holding company and (ii)(A) the holders of the voting stock of such holding company immediately after giving effect to that transaction are substantially the same as the holders of the Company’s voting stock immediately prior to that transaction or (B) immediately after giving effect to that transaction, no person or group (other than a holding company) is the beneficial owner, directly or indirectly, of more than 50% of the voting stock of such holding company.
“Change of Control Triggering Event” means the occurrence of both a Change of Control and a Ratings Event.
“Fitch” means Fitch Ratings, Inc. and its successors.
8
“Investment Grade” means a rating equal to or higher than BBB- (or the equivalent) by Fitch, Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, and the equivalent investment grade credit rating from any Substitute Rating Agency or rating agencies selected by us.
“Moody’s” means Moody’s Investors Service, Inc., a subsidiary of Moody’s corporation, and its successors.
“Person” means any individual, partnership, corporation, limited liability company, joint stock company, business trust, trust, unincorporated association, joint venture or other entity, or a government or political subdivision or agency thereof.
“Rating Agencies” means (1) each of Fitch, Moody’s and S&P; and (2) if any of Fitch, Moody’s or S&P ceases to provide ratings services to issuers or investors, a Substitute Ratings Agency.
“Ratings Event” means the Notes cease to be rated as Investment Grade by at least two out of three of the Rating Agencies on any day within the period (which period will be extended so long as the rating of the Notes is under publicly announced consideration for a possible ratings change by any of the Rating Agencies other than solely with positive implications) commencing on the earlier of (1) the public announcement of an intention to effect a Change of Control or (2) the consummation of a Change of Control and ending 60 days following the consummation of a Change of Control; provided, however, that a Ratings Event will not be deemed to have occurred in respect of a particular Change of Control (and thus such Change of Control will not constitute a Change of Control Triggering Event) unless at least two of the Ratings Agencies publicly announce or confirm or inform the Trustee that their rating action was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, such Change of Control (whether or not the applicable Change of Control has occurred at the time of the Rating Event). If a Rating Agency is not providing a rating for the Notes at the commencement of such period, the Notes will be deemed to have ceased to be rated as Investment Grade by such Rating Agency during such period.
“S&P” means S&P Global Ratings Inc., a division of S&P Global Inc. and its successors.
“Substitute Rating Agency” means a “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected by the Company (as certified by its Chief Executive Officer or Chief Financial Officer) as a replacement agency for Fitch, Moody’s or S&P, or all of them, as the case may be, and acceptable to the Trustee.
“Voting Stock” means, with respect to any specified Person (as that term is used in Section 13(d)(3) of the Exchange Act) as of any date, the equity interests of such Person that are at the time entitled to vote generally in the election of directors to the board of directors (or members of a comparable body) of such Person.
9
Limitations on Liens
Neither the Company nor any of its Subsidiaries may incur or otherwise create in order to secure Indebtedness for borrowed money upon any Principal Facility or any shares of Capital Stock or other equity interests that any of the Company’s Subsidiaries owning any Principal Facility has issued to the Company or any of its other Subsidiaries. If the Company or any of its Subsidiaries incur such liens, then it must secure the Notes to the same extent and in the same proportion as the Indebtedness that is secured by such liens. This covenant does not apply, however, to any of the following:
(1) in the case of a Principal Facility, liens incurred in connection with the issuance by a state or political subdivision thereof of any securities the interest on which is exempt from United States federal income taxes by virtue of Section 103 of the Internal Revenue Code of 1986, as amended, or any other laws or regulations in effect at the time of such issuance;
(2) liens existing on the date of the Indenture;
(3) liens securing only the Securities of any Series issued under the Indenture equally and ratably with all Securities of all Series;
(4) liens on property or shares of Capital Stock or other equity interests existing at the time the Company or any of its Subsidiaries acquire such property or shares of Capital Stock or other equity interests, including through a merger, share exchange or consolidation, or securing the payment of all or part of such purchase price or construction or improvement of such property incurred prior to, at the time of, or within 180 days after the later of the acquisition, completion of construction or improvement or commencement of full operation of such property or within 180 days after the acquisition of such shares of Capital Stock or other equity interests for the purpose of financing all or a portion of such purchase price or construction or improvement on such property;
(5) liens on any Principal Facility in favor of a domestic or foreign governmental body to secure partial progress, advance or other payments pursuant to any contract with or statute of such governmental body;
(6) liens securing Indebtedness of a Subsidiary owing to the Company or one of its other Subsidiaries;
(7) liens on assets which are presented on the Company’s balance sheet or the balance sheet of any of its Subsidiaries because of the existence of a VIE Transaction; or
(8) liens for the sole purpose of extending, renewing or replacing in whole or in part the Indebtedness secured by any lien referred to in clauses (5), (6) and (7) or in this clause (8), provided that the principal amount of Indebtedness secured thereby shall not exceed the principal amount of Indebtedness so secured at the time of such extension, renewal or replacement and such extension, renewal or replacement is limited to all or a part of the property that was secured by the lien so extended, renewed or replaced (plus improvements on such property).
10
Notwithstanding the foregoing, the Company and/or any of its Subsidiaries may create, assume and incur liens that would otherwise be subject to the restriction described above, without securing the Notes equally and ratably, if the aggregate value of all outstanding Indebtedness secured by such liens and the value of all Sale and Leaseback Transactions does not at the time exceed the greater of 15% of its Consolidated Net Tangible Assets or 15% of its Consolidated Capitalization.
Notwithstanding the foregoing, any lien securing outstanding Notes granted pursuant to this covenant will be automatically and unconditionally released and discharged upon the release by all holders of the debt secured by the lien giving rise to the lien securing the outstanding Notes (including any deemed release upon payment in full of all obligations under such debt) or, with respect to any particular Principal Facility or Capital Stock, or equity interests of any of the Company’s Subsidiaries, securing outstanding Notes, upon any sale, exchange or transfer to any Person that is not one of its Affiliates of such Principal Facility or Capital Stock or equity interests, provided that no holder of debt secured thereby is secured by any other Principal Facility or Capital Stock or other equity interests of any of our subsidiaries upon such sale, exchange or transfer.
Limitations on Sale and Leaseback Transactions
A Sale and Leaseback Transaction of any Principal Facility by the Company or any of its Subsidiaries is prohibited unless, within 180 days of the effective date of the Sale and Leaseback Transaction, an amount equal to the greater of the proceeds of the sale of the property leased or the fair value of the property at the time of entering into the arrangement (as determined by the Company’s Board of Directors) (“value”) is applied by the Company to either (1) the acquisition, directly or indirectly, of one or more Principal Facilities or a portion thereof, or (2) the retirement of non-subordinated Indebtedness for money borrowed with a remaining maturity of more than one year, including the Notes, except that any such Sale and Leaseback Transaction is permitted to the extent that the value thereof plus the other outstanding Indebtedness secured by liens that would otherwise be subject to the restrictions described in the first paragraph under “—Limitations on Liens” does not exceed the amount stated in the penultimate paragraph under “— Limitations on Liens.” This covenant will also not apply to any Sale and Leaseback Transaction between the Company and one of its Subsidiaries or between any Subsidiaries.
“Consolidated Capitalization” means the total of all of the assets appearing on the Company’s most recent quarterly or annual consolidated balance sheet, less:
(1) current liabilities, including liabilities for Indebtedness maturing more than one year from the date of the original creation thereof, but maturing within one year from the date of such consolidated balance sheet; and
(2) deferred income tax liabilities appearing on such consolidated balance sheet.
“Consolidated Net Tangible Assets” means the excess of all assets over current liabilities appearing on the Company’s most recent quarterly or annual consolidated balance sheet, less goodwill and other intangible assets and the minority interests of others in its Subsidiaries.
11
“Principal Facility” means any individual facility, together with the land upon which it is erected and fixtures comprising a part thereof, used primarily for manufacturing, processing, production or distribution and located in the United States, now or hereafter owned or leased pursuant to a capital lease by the Company or any Subsidiary, that has a gross book value (without deduction of any depreciation reserve) on the date as of which the determination is being made exceeding 4% of the Company’s Consolidated Capitalization, other than any property which, in the opinion of its Board of Directors, is not of material importance to the business conducted by the Company and its Subsidiaries, taken as a whole.
“Sale and Leaseback Transaction” means the sale or transfer of a Principal Facility with the intention of taking back a lease of the property, except a lease for a temporary period of less than three years, including renewals, with the intent that the use by the Company or any Subsidiary will be discontinued on or before the expiration of such period.
“VIE Transaction” means a transaction between the Company or any of its Subsidiaries and a Person where such Person is, because of the nature of such transaction and the relationship of the parties, a variable interest entity under Financial Accounting Standards Board Accounting Standards Codification 810, Consolidation, as the same may be revised, modified, amended, supplemented or restated from time to time.
Defeasance
The Indenture contains provisions for defeasance of (a) the entire Indebtedness of the Company on this Note and (b) certain restrictive covenants and the related defaults and Events of Default applicable to the Company, in each case, upon compliance by the Company with certain conditions set forth in the Indenture, which provisions apply to this Note; provided that the Company will, subject to the satisfaction of the conditions set forth in Section 8.04 of the Indenture, also be released from its obligations under the covenants contained herein under “—Limitations on Liens” and “—Limitations on Sale and Leaseback Transactions.” Except in the case of a Change of Control Triggering Event, this Note is not subject to repayment at the Holder’s option.
Events of Default and Remedies
If an Event of Default with respect to the Notes shall occur and be continuing, the principal of the Notes may be declared, and in certain cases shall automatically become, due and payable in the manner and with the effect provided in the Indenture; provided that under Section 6.01(4)(A) and (B), in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates to $150,000,000 or more.
As provided in and subject to the provisions of the Indenture, the Holder of this Note shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Notes, the Holders of not less than 25% in principal amount of the Notes at the time outstanding shall have made written request to the Trustee to pursue a remedy in respect of such
12
Event of Default and the Holders offered the Trustee and, if requested, provided security or indemnity reasonably satisfactory to the Trustee against any loss, liability or expense and the Trustee shall not have received from the Holders of a majority in principal amount of the Notes at the time outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Note for the enforcement of any payment of principal hereof or any premium or interest hereon.
Amendments
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Notes under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the outstanding Notes. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Notes at the time outstanding, on behalf of the Holders of all Notes, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
Payment
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the times, place and rate, and in the coin or currency, herein prescribed.
Transfer, Registration and Exchange
As provided in the Indenture and subject to certain limitations herein and therein set forth, the transfer of this Note is registrable in the Security Register, upon surrender of this Note for registration of transfer at the office or agency of the Company in any office or agency of the Company where the principal of and premium, if any, and interest on this Note are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar for the Notes duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes, of authorized denomination and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations set forth herein and therein, the Notes are exchangeable for a like aggregate principal amount of Notes of a different authorized denomination, as requested by the Holder surrendering the same.
13
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or similar governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the Company, the Trustee and any Agent of the Company or the Trustee may treat the Person in whose name this Note is registered in the Security Register as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Company, the Trustee or any such Agent shall be affected by notice to the contrary.
Miscellaneous
The obligations of the Company under the Indenture and this Note and all documents delivered in the name of the Company in connection herewith and therewith do not and shall not constitute personal obligations of the directors, officers, employees, agents or shareholders of the Company or any of them, and shall not involve any claim against or personal liability on the part of any of them, and all persons, including the Trustee shall look solely to the assets of the Company for the payment of any claim thereunder or for the performance thereof and shall not seek recourse against such directors, officers, employees, agents or shareholders of the Company or any of them or any of their personal assets for such satisfaction. The performance of the obligations of the Company under the Indenture and this Note and all documents delivered in the name of the Company in connection therewith shall not be deemed a waiver of any rights or powers of the Company or its directors or its shareholders under the Company’s Restated Articles of Incorporation.
All terms used in this Note that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
The Indenture and the Notes, including this Note, shall be governed by and construed in accordance with the laws of the State of New York.
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused “CUSIP” numbers to be printed on the Notes as a convenience to the Holders of the Notes. No representation is made as to the correctness or accuracy of such CUSIP numbers as printed on the Notes, and reliance may be placed only on the other identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
14
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
(Please Print or Typewrite Name and Address, including Zip Code, of Assignee)
the within Note of Flowers Foods, Inc. and hereby does irrevocably constitute and appoint
Attorney to transfer said Note on the books of the within-named Company with full power of substitution in the premises
| Dated: |
|
| Signature |
|
NOTICE: The signature to this assignment must correspond with the name as it appears on the first page of the within Note in every particular, without alteration or enlargement or any change whatever.
| Signature Guaranteed: |
|
NOTICE: Signature(s) must be guaranteed by an “eligible guarantor institution” that is a member or participant in a “signature guarantee program” (e.g., the Securities Transfer Agents Medallion Program, the Stock Exchange Medallion Program and the New York Stock Exchange Medallion Program).
15
Exhibit 5.1
March 9, 2021
Flowers Foods, Inc.
1919 Flowers Circle
Thomasville, Georgia 31757
| Re: | $500,000,000 Aggregate Principal Amount of 2.400% Senior Notes due 2031 |
Ladies and Gentlemen:
We are acting as counsel for Flowers Foods, Inc., a Georgia corporation (the “Company”), in connection with the issuance and sale of $500,000,000 in aggregate principal amount of 2.400% senior notes due 2031 of the Company (the “Notes”), pursuant to the underwriting agreement, dated as of March 2, 2021 (the “Underwriting Agreement”), entered into by and among the Company and BofA Securities, Inc. and Deutsche Bank Securities Inc., acting as representatives of the several underwriters named therein (the “Underwriters”). The Notes will be issued under the indenture, dated as of April 3, 2012 (the “Indenture”), by and between the Company and Wells Fargo Bank, National Association, as trustee (the “Trustee”), and an Officer’s Certificate, dated March 9, 2021, setting forth the terms of the Notes.
In connection with the opinion expressed herein, we have examined such documents, records and matters of law as we have deemed relevant or necessary for purposes of such opinion. Based on the foregoing, and subject to the further limitations, qualifications and assumptions set forth herein, we are of the opinion that the Notes constitute valid and binding obligations of the Company.
For purposes of the opinion expressed herein, we have assumed that (i) the Trustee has authorized, executed and delivered the Indenture, (ii) the Notes will be duly authenticated by the Trustee in accordance with the Indenture, and (iii) the Indenture is the valid, binding and enforceable obligation of the Trustee.
The opinion expressed herein is limited by: (i) bankruptcy, insolvency, reorganization, fraudulent transfer and fraudulent conveyance, voidable preference, moratorium or other similar laws and related regulations and judicial doctrines from time to time in effect relating to or affecting creditors’ rights generally, and (ii) by general equitable principles and public policy considerations, whether such principles and considerations are considered in a proceeding at law or at equity.
Flowers Foods, Inc.
March 9, 2021
Page 2
As to facts material to the opinion and assumptions expressed herein, we have relied upon oral and written statements and representations of officers and other representatives of the Company and others. The opinion expressed herein is limited to the laws of the State of New York and the State of Georgia, in each case as currently in effect, and we express no opinion as to the effect of the laws of any other jurisdiction.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the Current Report on Form 8-K dated the date hereof and incorporated by reference into the Registration Statement on Form S-3 (Reg. No. 333-248233) (the “Registration Statement”), filed by the Company to effect the registration of the Notes under the Securities Act of 1933 (the “Act”) and to the reference to Jones Day under the caption “Legal Matters” in the prospectus constituting a part of such Registration Statement. In giving such consent, we do not hereby admit that we are included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.
| Very truly yours, |
| /s/ Jones Day |