Jbs N.V F-4, filed Oct 16, 2026
Jbs N.V. (JBS)
JBS N.V. is offering to exchange US$1,500,000,000 of 5.625% Senior Notes due 2037 and US$1,000,000,000 of 6.400% Senior Notes due 2057 for registered notes of the same series, originally issued on April 13, 2026. AI summary
As filed with the Securities and Exchange Commission on October 16, 2026
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________________________
Form F-4
REGISTRATION STATEMENT
under
the securities act of 1933
__________________________________________
JBS N.V.
(Exact Name of Registrant as Specified in Its Charter)
__________________________________________
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Netherlands |
2011 |
98-1861274 |
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(State of Other Jurisdiction of |
(Primary Standard Industrial |
(IRS Employer |
Stroombaan 16, 5th Floor,
1181 VX, Amstelveen, Netherlands
+31 20 656 47 00
(Address, including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
__________________________________________
JBS USA Food Company Holdings
1770 Promontory Circle
Greeley, Colorado 80634
+1 (970) 506-8000
(Name, Address, including Zip Code, and Telephone Number, including Area Code, of Agent for Service)
__________________________________________
Copies to:
Donald E. Baker, Esq.
Karen Katri, Esq.
White & Case LLP
1221 Avenue of the Americas
New York, New York 10020
+1 (212) 819-8200
__________________________________________
Approximate date of commencement of proposed sale to the public: As soon as practicable following the effective date of this registration statement.
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act of 1933, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act of 1933, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:
Exchange Act Rule 13(e)-4(i) (Cross-Border Issuer Tender Offer) ☐
Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) ☐
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933. Emerging growth company ☐
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, 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 7(a)(2)(B) of the Securities Act. ☐
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† The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.
Schedule A — Table of Co-Registrants
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Exact Name as Specified in its Charter |
State or Other |
I.R.S. Employer |
Address, including Zip Code, |
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JBS USA Foods Group Holdings, Inc.* |
Delaware |
99-0802532 |
1770 Promontory Circle Greeley, Colorado 80634 +1 (970) 506-8000 |
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JBS USA Food Company Holdings* |
Delaware |
58-1034573 |
1770 Promontory Circle Greeley, Colorado 80634 +1 (970) 506-8000 |
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* JBS N.V., JBS USA Foods Group Holdings, Inc. and JBS USA Food Company Holdings (collectively, the “Co-Issuers”) are the co-issuers of the new notes offered hereby.
Each Registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until each Registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until this registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. We may not complete this exchange offer or issue these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED , 2026
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PROSPECTUS |
Filed Pursuant to Rule 424(b)(3) Registration No. 333- |
JBS N.V.
Offers to Exchange
All Outstanding Unregistered Notes of the Series Specified Below
For New Notes which have been Registered under the Securities Act of 1933
Expiration Date: 5:00 p.m., New York City Time, , 2026, unless extended
We are conducting these exchange offers (each, an “Exchange Offer” and, collectively, the “Exchange Offers”) in order to provide you with an opportunity to exchange your unregistered notes for new notes that have been registered under the Securities Act.
The Exchange Offers
• We will exchange all outstanding Old Notes (as defined below) that are validly tendered (and not validly withdrawn) and accepted for an equal principal amount of New Notes (as defined below) that are registered under the Securities Act.
• The Exchange Offers for the Old Notes expire at 5:00 p.m., New York City time, on , 2026, unless extended (such date, the “Expiration Date”).
• You may withdraw tenders of Old Notes at any time prior to the Expiration Date of the Exchange Offers.
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Outstanding Aggregate |
Title of Series of |
CUSIP/ISIN No. |
Title of Series of |
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US$1,500,000,000 |
5.625% Senior Notes due 2037 |
46590X BA3 and L56608 US46590XBA37 and |
5.625% Senior Notes due 2037 |
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US$1,000,000,000 |
6.400% Senior Notes due 2057 |
46590X BC9 and L56608 US46590XBC92 and |
6.400% Senior Notes due 2057 |
We do not intend to list the New Notes on any securities exchange or any automated quotation system.
The terms of the New Notes to be issued in the Exchange Offers will have substantially identical terms to the corresponding series of Old Notes, except that the New Notes will be registered under the Securities Act and will not be subject to transfer restrictions or registration rights. The New Notes will have the same financial terms and covenants as the Old Notes, and are subject to the same business and financial risks.
All untendered Old Notes will continue to be subject to the restrictions on transfer set forth in the Old Notes and in the applicable Indenture (as defined herein). In general, the Old Notes may not be offered or sold, unless registered under the Securities Act, except pursuant to an exemption from, or in a transaction not subject to, the Securities Act and applicable state securities laws. Other than in connection with the Exchange Offers, we do not currently anticipate that we will register the Old Notes under the Securities Act.
We have undertaken the Exchange Offers for the old 5.625% Senior Notes due 2037 and the old 6.400% Senior Notes due 2057 (together, the “Old Notes”) that were issued on April 13, 2026, pursuant to the terms of the Registration Rights Agreement (as defined herein), which requires us to consummate an exchange offer for the Old Notes pursuant to an effective registration statement.
The old 5.625% Senior Notes due 2037 were, and the new 5.625% Senior Notes due 2037 will be, issued under an indenture, dated as of April 13, 2026 (the “2037 Notes Indenture”), by and among the Co-Issuers and Regions Bank, as trustee.
The old 6.400% Senior Notes due 2057 were, and the new 6.400% Senior Notes due 2057 will be, issued under an indenture, dated as of April 13, 2026 (the “2057 Notes Indenture” and, together with the 2037 Notes Indenture, the “Indentures”), by and among the Co-Issuers and Regions Bank, as trustee.
References to the “trustee” herein are in respect to Regions Bank in its respective capacity as trustee under each of the applicable Indentures. Each series of New Notes will be exchanged for Old Notes of the corresponding series in minimum denominations of US$2,000 and integral multiples of US$1,000 in excess thereof. We will not receive any proceeds from the issuance of the New Notes in the Exchange Offers.
__________________________________________
See the section entitled “Risk Factors” in this prospectus and “Item 3. Key Information — D. Risk Factors” in our Form 20-F (as defined in this prospectus), which is incorporated by reference into this prospectus, for a discussion of risk factors that you should consider prior to tendering your Old Notes in the Exchange Offers.
__________________________________________
Neither the SEC nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
__________________________________________
The date of this prospectus is , 2026
This prospectus may only be used where it is legal to make the Exchange Offers and by a broker-dealer for resales of New Notes acquired in the Exchange Offers where it is legal to do so.
In making a decision regarding the Exchange Offers, you should rely only on the information contained in this prospectus. We have not authorized anyone to provide you with any other information. If you receive any other information, you should not rely on it.
None of the Co-Issuers, D.F. King & Co., Inc. (the “Exchange Agent”) or any affiliate of any of their respective affiliates makes any recommendation as to whether or not holders of Old Notes should exchange their series of Old Notes for the corresponding series of New Notes in response to the Exchange Offers.
You should not assume that the information contained in this prospectus is accurate as of any date other than the date on the front cover of this prospectus. Neither the delivery of this prospectus nor any exchange made hereunder shall under any circumstances imply that the information herein is correct as of any date subsequent to the date on the cover of this prospectus. Our business, financial condition, results of operations and prospects may have changed since that date.
Each broker-dealer that receives New Notes for its own account pursuant to the Exchange Offers must acknowledge that it will deliver a prospectus in connection with any resale of such New Notes. By so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of New Notes received in exchange for Old Notes where such New Notes were acquired by such broker-dealer as a result of market-making activities or other trading activities. We have agreed that, for a period of 90 days after the Expiration Date, to make this prospectus available, upon request, to any broker-dealer for use in connection with any such resale. See “Plan of Distribution.”
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i
Except where the context otherwise requires, in this prospectus:
• “Co-Issuers” or “issuers” refers to JBS N.V., JBS USA Foods Group Holdings and JBS USA Food Company Holdings. JBS USA Foods Group Holdings and JBS USA Food Company Holdings are indirect wholly-owned subsidiaries of JBS N.V.
• “JBS N.V.” refers to JBS N.V., a public limited liability company (naamloze vennootschap) incorporated and existing under the laws of the Netherlands.
• “JBS Group,” “JBS,” “we,” “our,” “us,” “our company” or like terms refer to JBS N.V. and its consolidated subsidiaries, unless the context otherwise requires or otherwise indicated.
In addition, in this prospectus, except where otherwise indicated or where the context requires otherwise:
• “Australia” means the Commonwealth of Australia.
• “Brazil” means the Federative Republic of Brazil.
• “Brazilian real,” “Brazilian reais” or “R$” means the Brazilian real, the official currency of Brazil.
• “EUR” or “€” means the Euro, the official currency of the European Economic Area.
• “Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.
• “Form 20-F” means our annual report on Form 20-F for the year ended December 31, 2025, as filed with the SEC on March 25, 2026.
• “IASB” means the International Accounting Standards Board.
• “IFRS — Accounting Standards” means International Financial Reporting Standards (IFRS) — Accounting Standards, as issued by the IASB.
• “J&F” means J&F S.A., a corporation (sociedade por ações) incorporated under the laws of Brazil. J&F is controlled by our ultimate controlling shareholders. See “Principal Shareholders” in this prospectus and “Item 7. Major Shareholders and Related Party Transactions — A. Major Shareholders” in our Form 20-F, which is incorporated by reference into this prospectus.
• “JBS Australia” means Baybrick Pty Limited, an Australian proprietary limited company. JBS Australia is an indirect wholly-owned subsidiary of JBS N.V.
• “JBS S.A.” means JBS S.A., a Brazilian corporation (sociedade anônima). JBS S.A. is an indirect wholly-owned subsidiary of JBS N.V.
• “JBS USA” means JBS USA Holding Lux S.à r.l., a private limited liability company (société à responsabilité limitée) under the laws of Luxembourg. JBS USA is an indirect wholly-owned subsidiary of JBS N.V.
• “JBS USA Food Company Holdings” means JBS USA Food Company Holdings, a corporation incorporated under the laws of the State of Delaware. JBS USA Food Company Holdings is an indirect wholly-owned subsidiary of JBS N.V.
• “JBS USA Foods Group Holdings” means JBS USA Foods Group Holdings, Inc., a corporation incorporated under the laws of the State of Delaware. JBS USA Foods Group Holdings is an indirect wholly-owned subsidiary of JBS N.V.
• “Luxembourg” means the Grand Duchy of Luxembourg.
• “Mexico” means the United Mexican States.
• “the Netherlands” means the European part of the Kingdom of the Netherlands.
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• “PPC” means Pilgrim’s Pride Corporation, a Delaware corporation. JBS N.V. beneficially owns approximately 82% of PPC’s outstanding common stock.
• “Seara” means Seara Alimentos Ltda., a Brazilian limited liability company (sociedade limitada). Seara and its subsidiaries produce poultry, pork and processed foods in Brazil. Seara is an indirect wholly-owned subsidiary of JBS N.V.
• “SEC” means the United States Securities and Exchange Commission.
• “Second Quarter Form 10-Q” means our quarterly report on Form 10-Q for the quarterly period ended June 30, 2026, as filed with the SEC on August 10, 2026.
• “Securities Act” means the U.S. Securities Act of 1933, as amended.
• “U.K.” or “United Kingdom” means the United Kingdom of Great Britain and Northern Ireland.
• “ultimate controlling shareholders” means Messrs. Joesley Mendonça Batista and Wesley Mendonça Batista.
• “U.S.” or “United States” means the United States of America.
• “U.S. dollars,” “US$” or “$” means U.S. dollars, the official currency of the United States.
iii
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This prospectus includes statements reflecting assumptions, expectations, intentions or beliefs about future events that are intended as “forward-looking statements” as defined under the Private Securities Litigation Reform Act of 1995. All statements included in this prospectus, other than statements of historical fact, that address activities, events or developments that we or our management expect, believe or anticipate will or may occur in the future are forward-looking statements. These statements represent our reasonable judgment on the future based on various factors and using numerous assumptions and are subject to known and unknown risks, uncertainties and other factors that could cause our actual results and financial position to differ materially from those contemplated by the statements. You can identify these statements by the fact that they do not relate strictly to historical or current facts. They use words such as “anticipate,” “estimate,” “project,” “forecast,” “plan,” “may,” “will,” “should,” “could,” “expect” and other words of similar meaning. In particular, these include, but are not limited to, statements of our current views and estimates of future economic circumstances, industry conditions in domestic and international markets and our performance and financial results.
Among the factors that may cause actual results and events to differ from the anticipated results and expectations expressed in such forward-looking statements are the following:
• the risk of outbreak of animal diseases, more stringent trade barriers in key export markets and increased regulation of food safety and security;
• product contamination or recall concerns;
• fluctuations in the prices of live cattle, hogs, chicken, corn and soymeal;
• fluctuations in the selling prices of beef, pork and chicken products;
• developments in, or changes to, the laws, regulations and governmental policies governing our business and products or failure to comply with them, including environmental and sanitary liabilities;
• currency exchange rate fluctuations, trade barriers, exchange controls, political risk and other risks associated with export and foreign operations;
• changes in international trade regulations;
• our strategic direction and future operation;
• deterioration of economic conditions globally and more specifically in the principal markets in which we operate;
• our ability to implement our business plan, including our ability to arrange financing when required and on reasonable terms and the implementation of our financing strategy and capital expenditure plan;
• the successful integration or implementation of mergers and acquisitions, joint ventures, strategic alliances or divestiture plans;
• the competitive nature of the industry in which we operate and the consolidation of our customers;
• customer demands and preferences;
• our level of indebtedness;
• adverse weather conditions in our areas of operations;
• continued access to a stable workforce and favorable labor relations with employees;
• our dependence on key members of our management;
• the interests of our ultimate controlling shareholders;
• reputational risk in connection with U.S. and Brazilian civil and criminal actions and investigations involving our ultimate controlling shareholders, and the outcome of these actions;
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• economic instability in Brazil and a resulting reduction in market confidence in the Brazilian economy;
• political crises in Brazil;
• the declaration or payment of dividends or interest attributable to shareholders’ equity;
• the ongoing war between Russia and Ukraine and the ongoing conflict involving Israel, the United States and Iran in the Middle East, including higher prices for commodities, such as food products, ingredients and energy products, increasing inflation in some countries, and disrupted trade and supply chains as a result of disruptions caused by these conflicts;
• unfavorable outcomes in legal and regulatory proceedings and government investigations that we are, or may become, a party to;
• other risks described under the heading “Risk Factors” in this prospectus and “Item 3. Key Information — D. Risk Factors” in our Form 20-F, which is incorporated by reference into this prospectus;
• other factors or trends affecting our financial condition, liquidity or results of operations; and
• other statements contained in this prospectus regarding matters that are not historical facts.
In addition, there may be other factors and uncertainties, many of which are beyond our control, that could cause our actual results and events to be materially different from the results referenced in the forward-looking statements. Many of these factors will be important in determining our actual future results. Consequently, any or all of our forward-looking statements may turn out to be inaccurate.
We caution investors not to place undue reliance on any forward-looking statements, which speak only as of the date made. Except as required by law, we undertake no obligation to publicly update any forward-looking statements, whether as a result of new information, future events or otherwise.
All forward-looking statements contained in this prospectus are qualified in their entirety by this cautionary statement.
v
PRESENTATION OF FINANCIAL AND OTHER INFORMATION
Financial Statements
JBS N.V.
JBS N.V.’s consolidated financial statements are presented in U.S. dollars. JBS N.V. selected the U.S. dollar as its presentation currency to facilitate a more direct comparison to other competitors. The financial information of each entity included in the consolidation of JBS N.V.’s consolidated financial statements are prepared using the functional currency of the primary economic environment in which it operates. At the entity level, transactions in foreign currencies other than the functional currency of the entity are initially measured using the exchange rates prevailing at the dates of each transaction. Foreign currency monetary items in the statement of financial position are translated using the closing exchange rate as of the reporting date. Foreign exchange gains and losses resulting from the settlement of such transactions and from the remeasurement at period end of foreign currency monetary assets and liabilities are recognized in the consolidated statement of income, under the captions “Finance income” or “Finance expense.” For consolidation purposes, the financial statements of subsidiaries whose functional currency is different from the JBS N.V.’s presentation currency are translated into U.S. dollars. Assets and liabilities are translated at the exchange rates prevailing at the reporting date, while income and expenses are translated at average exchange rates for the period. Exchange differences arising from the translation of foreign subsidiaries’ financial statements are recognized in other comprehensive income and accumulated in equity as a cumulative translation adjustment.
This prospectus includes financial information derived from:
(1) JBS N.V.’s unaudited condensed consolidated interim financial statements, as of June 30, 2026 and for the three- and six-month periods ended June 30, 2026 and 2025, and the related notes thereto, included in our Second Quarter Form 10-Q (as defined in this prospectus), which is incorporated by reference into this prospectus. We refer to these as “JBS N.V.’s unaudited interim financial statements;” and
(2) JBS N.V.’s audited consolidated financial statements as of December 31, 2025 and 2024 and for each of the years in the three-year period ended December 31, 2025, and the related notes thereto, included in our Form 20-F, which is incorporated by reference into this prospectus. We refer to these as “JBS N.V.’s audited consolidated financial statements” and, together with JBS N.V.s unaudited interim financial statements, “JBS N.V.’s financial statements.”
JBS N.V.’s audited financial statements have been prepared in accordance with IFRS — Accounting Standards. JBS N.V.’s unaudited interim financial statements have been prepared in accordance with IAS 34 — Interim Financial Reporting, as issued by the IASB.
Corporate Restructuring
Following the completion of a corporate restructuring in June 2025 (the “Corporate Restructuring”), JBS N.V. became the holding entity of JBS S.A. and its consolidated subsidiaries. Prior to the completion of the Corporate Restructuring, JBS N.V. had no revenues or business operations or material assets, liabilities or contingencies, apart from its non-controlling stake in JBS S.A. Accordingly, the business of JBS N.V. following the completion of the Corporate Restructuring is the same as the business of JBS S.A. and its consolidated subsidiaries prior to the completion of the Corporate Restructuring. For more information about the Corporate Restructuring, see “Item 4. Information on the Company — A. History and Development of the Company — History and Development — Corporate Restructuring and Dual Listing” in our Form 20-F, which is incorporated by reference into this prospectus.
The JBS Group accounted for the Corporate Restructuring as a common control transaction, and the pre-reorganization carrying amounts of JBS S.A. were included in the consolidated financial statements of JBS N.V. at book value. Accordingly, JBS N.V.’s financial statements reflect the following:
• the historical operating results and financial position of JBS S.A. prior to the Corporate Restructuring;
• the consolidated financial performance and position of JBS N.V. subsequent to the completion of the Corporate Restructuring;
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• the assets and liabilities of JBS N.V. and its subsidiaries are stated at historical cost;
• the number of common shares issued by JBS N.V. as a result of the Corporate Restructuring, is reflected retrospectively from January 1, 2023, for the purpose of calculating earnings per share;
• the shares of JBS S.A. were contributed to JBS N.V. at their carrying amount in three tranches: December 27, 2023; May 23, 2025; and June 9, 2025; and
• the remaining retained earnings of JBS S.A., no longer applicable to JBS N.V., were reclassified to the opening balance of capital reserves. For more information, see note 20 to JBS N.V.’s audited consolidated financial statements.
Non-GAAP Financial Measures
We have disclosed certain non-GAAP financial measures in this prospectus, including Adjusted EBITDA and Adjusted EBITDA Margin. These non-GAAP financial measures are used as measures of performance by our management and should not be considered as measures of financial performance in accordance with IFRS — Accounting Standards. You should rely on non-GAAP financial measures in a supplemental manner only in making your investment decision. There is no standard definition of non-GAAP financial measures, and JBS N.V.’s definitions may not be comparable to those used by other companies.
Adjusted EBITDA and Adjusted EBITDA Margin
Adjusted EBITDA is calculated by making the following adjustments to our net income (loss), as further described in this prospectus (see “Summary — Summary Historical Financial Data”): exclusion of current and deferred income taxes; exclusion of share of profit of equity-accounted investees, net of tax; exclusion of net finance expense; exclusion of depreciation and amortization expenses; exclusion of antitrust agreements expenses; exclusion of donations and social programs expenses; exclusion of impairment of assets; exclusion of restructuring expenses; exclusion of fiscal payments and installments; exclusion of Rio Grande do Sul claim losses; exclusion of extemporaneous litigation expenses; exclusion of reversal of tax credits; exclusion of avian influenza impacts; exclusion of certain tax assessments; exclusion of closure of plants expenses; and exclusion of certain other operating income (expense), net.
Adjusted EBITDA Margin is calculated by dividing Adjusted EBITDA by net revenue.
The use of Adjusted EBITDA, instead of net income, and Adjusted EBITDA Margin, instead of net margin, have limitations as analytical tools, including the following:
• Adjusted EBITDA and Adjusted EBITDA Margin do not reflect changes in, or cash requirements for, working capital needs;
• Adjusted EBITDA and Adjusted EBITDA Margin do not reflect interest expense, or the cash requirements necessary to service interest or principal payments, on debt;
• Adjusted EBITDA and Adjusted EBITDA Margin do not reflect income tax expense or the cash requirements to pay taxes;
• Although depreciation and amortization are non-cash charges, the assets being depreciated and amortized will often have to be replaced in the future, and Adjusted EBITDA and Adjusted EBITDA Margin do not reflect any cash requirements for such replacements;
• Adjusted EBITDA and Adjusted EBITDA Margin do not reflect historical cash expenditures or future requirements for capital expenditures or contractual commitments; and
• Adjusted EBITDA and Adjusted EBITDA Margin include adjustments that represent cash expenses or that represent non-cash charges that may relate to future cash expenses.
For more information about Adjusted EBITDA and Adjusted EBITDA Margin and the adjusting items JBS N.V. used to calculate Adjusted EBITDA and Adjusted EBITDA Margin, see “Summary — Summary Historical Financial Data.”
vii
Industry and Market Data
Certain market and industry data included in this prospectus have been obtained from third-party sources that we believe to be reliable, such as the United States Department of Agriculture. We have not independently verified such third-party information and cannot assure you of its accuracy or completeness. While we are not aware of any misstatements regarding any market, industry or similar data presented herein, such data involves risks and uncertainties and is subject to change based on various factors, including those discussed under “Cautionary Statement Regarding Forward-Looking Statements” and “Risk Factors” in this prospectus, and “Item 3. Key Information — D. Risk Factors” in our Form 20-F, which is incorporated by reference into this prospectus. Nothing in this prospectus should be interpreted as a market forecast.
Brands
This prospectus includes trademarks, trade names and trade dress of other companies. Use or display by us of other parties’ trademarks, trade names or trade dress or products is not intended to and does not imply a relationship with, or endorsement or sponsorship of us by, the trademark, trade name or trade dress owners. Solely for the convenience of investors, in some cases we refer to our brands in this prospectus without the ® symbol, but these references are not intended to indicate in any way that we will not assert our rights to these brands to the fullest extent permitted by law.
Rounding
Certain figures and some percentages included in this prospectus have been subject to rounding adjustments. Accordingly, the totals included in certain tables contained in this prospectus may not correspond to the arithmetic aggregation of the figures or percentages that precede them.
viii
The following summary highlights some of the information contained in this prospectus but does not contain all of the information that may be important to you. We urge you to read the entire prospectus carefully, including the information that is incorporated by reference into this prospectus. See the sections entitled “Where You Can Find Additional Information” and “Incorporation of Certain Information by Reference” for a further discussion on incorporation by reference.
Overview
We are the largest protein company and one of the largest food companies in the world in terms of net revenue for the year ended December 31, 2025, according to Bloomberg’s Food Index and publicly available sources. Our net revenue was US$45.5 billion and US$40.5 billion for the six-month periods ended June 30, 2026 and 2025, respectively, and US$86.2 billion, US$77.2 billion and US$72.9 billion for the years ended December 31, 2025, 2024 and 2023, respectively. We recorded a net income of US$0.1 billion and US$1.2 billion for the six-month periods ended June 30, 2026 and 2025, respectively. We recorded a net income of US$2.2 billion for the year ended December 31, 2025, a net income of US$2.0 billion for the year ended December 31, 2024 and a net loss of US$0.1 billion for the year ended December 31, 2023. Our Adjusted EBITDA was US$2.6 billion and US$3.3 billion for the six-month periods ended June 30, 2026 and 2025, respectively, and US$6.8 billion, US$7.2 billion and US$3.5 billion for the years ended December 31, 2025, 2024 and 2023, respectively. Through strategic acquisitions and capital investment, we have created a diversified global platform that allows us to prepare, package and deliver fresh and frozen, value-added and branded beef, poultry, pork, fish and lamb products to leading retailers and foodservice customers. We sell our products to more than 320,000 customers worldwide in approximately 180 countries on six continents.
As of June 30, 2026, we were:
• the #1 global beef producer in terms of capacity, according to Nebraska Public Media, with operations in the United States, Australia, Canada and Brazil and an aggregate daily processing capacity of approximately 78,000 heads of cattle;
• the #1 global poultry producer in terms of capacity, with operations in the United States, Brazil, United Kingdom, Mexico, Puerto Rico and Europe, and an aggregate daily processing capacity of more than 14.0 million chickens according to WATT Poultry, a global resource for the poultry meat industries;
• the #2 largest global pork producer in terms of capacity, with operations in the United States, Brazil, the United Kingdom, Australia and Europe, and an aggregate daily processing capacity of approximately 149,000 hogs according to WATT Poultry;
• a leading lamb producer in terms of capacity, according to Levante, with operations in Australia and Europe and an aggregate daily processing capacity of approximately 23,500 heads;
• a leading regional fish producer in terms of capacity, according to Forbes, with operations in Australia and an aggregate daily processing capacity of approximately 200 tons;
• a leading table eggs producer in Brazil, with operation in six Brazilian states, and an aggregate capacity of approximately four billion table eggs per year; and
• a significant global producer of value-added and branded meat products.
We primarily sell protein products, which include fresh and frozen cuts of beef, pork, lamb, fish, whole chickens, chicken parts and egg, to retailers (such as supermarkets, club stores and other retail distributors), and foodservice companies (such as restaurants, hotels, foodservice distributors and additional processors). Our food products are marketed under a variety of national and regional brands, including: in North America, “Swift,” “Just Bare,” “Pilgrim’s Pride,” “1855,” “Grass Run Garm,” “Gold Kist Farms,” “Gold’n Plump,” “Del Dia,” “La Herencia,” “Mantiqueira,” “Principe,” “Sampco” and premium brands “Sunnyvalley,” and “Imperial American Wagiu Beef;” in Brazil, “Swift,” “Seara,” “Friboi,” “Maturatta,” “Massa Leve,” “Marba,” “Doriana,” “Delícia,” “Primor,” “Incrível,” “Rezende,” “Mantiqueira,” and premium brands “1953 Friboi,” “Black Friboi,” “Seara Gourmet,” “Hans” and “Eder”; in Australia, “Swift” and “Great Southern”; and in Europe, “Moy Park,” “Richmond,” “Fridge Riders,” “Denny,”
1
“Rollover” and “Oak House Foods”. We also produce value-added and branded products marketed, primarily under our portfolio of widely recognized consumer brands in some of our key markets, including “Seara” in Brazil, “Primo,” “Rivalea” and “Huon” in Australia and “Beehive” in New Zealand.
We are geographically diversified. In the six-month periods ended June 30, 2026 and 2025 and in the year ended December 31, 2025, we generated 73%, 75% and 74%, respectively, of our net revenue from sales in the countries where we operate our facilities, which we classify as domestic sales, and 27%, 25% and 26%, respectively, of our net revenue represented export sales. The United States, Brazil and Australia are leading exporters of protein to many fast-growing markets, including Asia, Africa and the Middle East. Asia represented 51%, 49% and 50% of our net revenue from export sales in the six-month periods ended June 30, 2026 and 2025 and in the year ended December 31, 2025, respectively, primarily from sales in China, Japan and South Korea. Africa and the Middle East collectively represented 11%, 12% and 12% of our net revenue from export sales in the six-month periods ended June 30, 2026 and 2025 and in the year ended December 31, 2025, respectively.
Recent Developments
PPC Notes Offering
On September 23, 2026, PPC and Pilgrim’s Europe Finance PLC, a wholly-owned subsidiary of PPC, completed a sale of €500 million aggregate principal amount of 4.750% senior notes due 2034 (the “PPC Notes Offering”). PPC intends to use the net proceeds from the offering of the notes for general corporate purposes, including to fund the consideration in connection with PPC’s recently announced acquisition of Walkers Deli & Sausage Company and to pay costs and expenses related thereto.
JBS N.V. Announces Proposal to Acquire Remaining Publicly Traded Shares of PPC
On August 18, 2026, JBS N.V. announced that it has submitted a non-binding proposal to PPC’s board of directors to acquire all of the outstanding shares of common stock of PPC that are not owned by JBS N.V. or its affiliates for a fixed exchange ratio of 2.086 JBS Class A common shares for each PPC share of common stock (the “Proposed Transaction”), based on the JBS N.V. and PPC closing share prices on August 18, 2026 of $13.66 and $28.49, respectively. JBS N.V. currently owns approximately 82% of PPC’s common stock.
The Proposed Transaction is subject to the approval of a special committee of independent and disinterested directors expected to be appointed by the PPC board of directors, advised by independent legal and financial advisors.
In addition, JBS N.V. expects that the Proposed Transaction will also require the approval of a majority of the votes cast by the shares of PPC common stock that are not owned by JBS N.V. or its affiliates, as well as customary closing conditions. The Proposed Transaction does not require approval by JBS N.V.’s shareholders.
Following completion of the Proposed Transaction, shares of PPC common stock would no longer be quoted on Nasdaq and shares of PPC common stock would be deregistered.
Management Changes
On August 10, 2026, JBS N.V. announced that Wesley Batista Filho will become Global CEO of JBS N.V., effective January 2027. The appointment is part of a planned leadership transition and reflects JBS N.V.’s commitment to thoughtful succession planning. Batista Filho began his career at the JBS Group 15 years ago and has held leadership roles across JBS N.V.’s global operations, including as chief executive officer of JBS S.A., President of Seara and, since 2023, chief executive officer of JBS USA.
Gilberto Tomazoni will step down after 14 distinguished years with JBS N.V., including eight years as Global CEO. Having led JBS N.V. through one of the most transformative periods in its history, Tomazoni will oversee the leadership transition over the next five months before assuming the role of Vice Chairman of the board of directors of JBS N.V. and senior advisor. He will also continue to serve as Chairman of the board of directors of PPC and will become Chairman of the J&F Institute, an institution dedicated to developing the next generation of business leaders.
2
Joint Venture with PT Danantara Investment Management
On August 7, 2026, our indirect subsidiary JBS USA Holding Lux S.à r.l. entered into an agreement with PT Danantara Investment Management (“DIM”), the investment arm of Indonesia’s sovereign wealth fund, to form a joint venture. As part of the transaction, our Australia and New Zealand businesses will be transferred to a Dutch holding company, in which DIM will hold a 25% interest through a US$2.5 billion (equivalent to R$12.9 billion) investment. Of this amount, US$800 million (equivalent to R$4.1 billion) will be invested at the completion of the transaction, with the remaining amount to be invested within the following three years. The joint venture will pursue investment opportunities in the protein production sector in Indonesia, other Southeast Asian markets, Australia and New Zealand. Completion of the transaction is subject to the satisfaction of certain conditions.
Amendment to JBS Senior Unsecured Revolving Facility
On July 31, 2026, JBS N.V., JBS USA Food Company Holdings, JBS USA Foods Group Holdings, JBS Australia Pty Limited, JBS Food Canada ULC, JBS S.A. and Seara entered into a Sixth Amendment to the JBS Senior Unsecured Revolving Facility Agreement with Bank of Montreal, as administrative agent, and the lenders party thereto, amending and restating the prior 2021 facility. The amended and restated facility provides for a senior unsecured revolving credit commitment of up to US$2.65 billion, maturing in 2031, upsized from the prior facility’s US$1.5 billion commitment maturing in 2027, and includes a consolidated interest coverage ratio covenant of not less than 3.00 to 1.00, tested beginning with the fiscal quarter ending September 30, 2026. As of the date of this offering memorandum, there are no outstanding borrowings under the amended JBS Senior Unsecured Revolving Facility Agreement.
Also on July 31, 2026, JBS S.A. terminated its US$500.0 million revolving unsecured credit facility and all commitments thereunder. As a result of these changes, we have expanded the total availability under our revolving credit facilities by US$650.0 million, from US$3.5 billion to US$4.2 billion.
JBS Infrastructure Debentures
On July 29, 2026, our indirect subsidiary JBS S.A. announced the completion of an offering to professional investors of 400,000 simple, non-convertible debentures due 2036, guaranteed by JBS N.V., in a single series, corresponding to JBS S.A.’s 12th debenture issuance. The debentures have a unit face value of approximately R$1,000, totaling R$400.0 million, and bear interest at 8.3323% per annum. The total net proceeds will be used to reimburse costs already incurred and to fund future investments related to the Campo Verde, Lins, Mafra and JBS Terminais projects.
Transfer of Agribusiness Receivables Certificates (Certificados de Recebíveis do Agronegócio, or “CRAs”) Debt Obligations
On July 21, 2026, our indirect subsidiaries JBS S.A. and Seara Alimentos Ltda. approved the necessary measures to transfer to Seara the obligations arising from the 9th, 10th, and 11th issuances of debentures of JBS S.A., which are linked to the 122nd, 176th, and 204th issuances of CRAs, respectively. The transaction was approved by a special meeting of CRA holders. On August 31, 2026, upon fulfillment of the conditions and receipt of the approvals provided for in the transaction documents, Seara became the principal debtor of the aforementioned obligations, with JBS S.A. and JBS N.V. as guarantors.
3
Corporate Structure
The following diagram sets forth JBS N.V.’s simplified corporate structure as of the date of this prospectus. For information about the principal shareholders of JBS N.V., see “Item 7. Major Shareholders and Related Party Transactions — A. Major Shareholders” in our Form 20-F, which is incorporated by reference into this prospectus.
____________
(1) Includes approximately 82% of the outstanding common stock of PPC.
JBS N.V.’s headquarters are located at Stroombaan 16, 5th Floor, 1181 VX, Amstelveen, Netherlands, and our phone number is +31 20 656-4700. JBS N.V.’s website is https://ri.jbsglobal.com. Information contained on or obtainable through JBS N.V.’s website is not incorporated into, and does not constitute a part of, this prospectus.
You can get more information regarding our business by reading our Form 20-F, our Second Quarter Form 10-Q and the other reports JBS N.V. files with, or furnishes to, the SEC and that are incorporated by reference into this prospectus. See “Where You Can Find Additional Information” and “Incorporation of Certain Information by Reference.”
4
THE EXCHANGE OFFERS
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The Exchange Offers |
We are offering to exchange up to: • US$1,500,000,000 aggregate principal amount of newly issued and registered 5.625% Senior Notes due 2037 (the “New 2037 Notes”) for an equal principal amount of our outstanding 5.625% Senior Notes due 2037 (the “Old 2037 Notes”); and • US$1,000,000,000 aggregate principal amount of newly issued and registered 6.400% Senior Notes due 2057 (the “New 2057 Notes” and, together with the New 2037 Notes, the “New Notes”) for an equal principal amount of our outstanding 6.400% Senior Notes due 2057 (the “Old 2057 Notes” and, together with the Old 2037 Notes, the “Old Notes”). |
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Purpose of the Exchange Offers |
The New Notes are being offered to satisfy our obligations under the registration rights agreement, dated as of April 13, 2026, by and among JBS N.V. and certain initial purchasers (the “Registration Rights Agreement”). Subject to limited exceptions, after the Exchange Offers are complete, you will not have any further rights under the Registration Rights Agreement, including any right to require us to register any of the Old Notes that you do not exchange, to file a shelf registration statement to cover resales of the Old Notes or to pay you the additional interest we agreed to pay to holders of Old Notes if we failed to satisfy our obligations under the Registration Rights Agreement governing the Old Notes. |
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The Notes |
Each series of New Notes to be issued in the Exchange Offers will have substantially identical terms to corresponding series of Old Notes, except that the New Notes will be registered under the Securities Act and will not be subject to transfer restrictions or registration rights. The New Notes will have the same financial terms and covenants as the Old Notes, and are subject to the same business and financial risks. Each series of New Notes will be part of the same corresponding series of the Old Notes and will be issued under the same applicable Indenture. Holders of Old Notes do not have any appraisal or dissenters’ rights in connection with the Exchange Offers. |
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Denomination |
Each series of New Notes will only be issued in minimum denominations of US$2,000 and integral multiples of US$1,000 in excess thereof. No tender of Old Notes will be accepted if it results in the issuance of less than US$2,000 principal amount of New Notes. |
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Expiration Date |
Each Exchange Offer will expire at 5:00 p.m., New York City time, on , 2026, unless we extend it in our sole discretion. The time and date of expiration of each Exchange Offer, as each such time and date may be extended is referred to, in each case, as the “Expiration Date.” |
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Settlement Date |
The Settlement Date for the Exchange Offers will be promptly after the Expiration Date. |
5
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Procedures for Tendering the Old Notes |
If you wish to accept the applicable Exchange Offer, you must tender your Old Notes in accordance with the book-entry procedures described under “The Exchange Offers — Book-Entry Delivery Procedures for Tendering Old Notes Held with DTC,” and transmit an agent’s message to the Exchange Agent through the Automated Tender Offer Program (“ATOP”) of DTC. See “The Exchange Offers — Procedures for Tendering.” |
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Consequences of Failure to Exchange the Old Notes |
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Conditions to the Exchange Offers |
The Exchange Offers are subject to several customary conditions. We will not be required to accept for exchange, or to issue any New Notes in exchange for, any Old Notes, and we may terminate or amend the Exchange Offers with respect to one or more series of the Old Notes if we determine in our reasonable judgment at any time before the Expiration Date that the Exchange Offers would violate applicable law or any applicable interpretation of the staff of the SEC. The foregoing conditions are for our sole benefit and may be waived by us at any time. See “The Exchange Offers — Conditions to the Exchange Offers.” In addition, we will not accept for exchange any Old Notes tendered, and no New Notes will be issued in exchange for any such Old Notes, if at any time any stop order is threatened or in effect. With respect to each Exchange Offer, we reserve the right to terminate or amend such Exchange Offer at any time prior to the applicable Expiration Date upon the occurrence of any of the foregoing events. With respect to each Exchange Offer, if we make a material change to the terms of such Exchange Offer, we will, to the extent required by law, disseminate additional offer materials and extend such Exchange Offer. |
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Registration Rights Agreement |
We have undertaken the Exchange Offers for the Old Notes pursuant to the terms of the Registration Rights Agreement. Under the Registration Rights Agreement, we agreed, among other things, to consummate an exchange offer for the Old Notes pursuant to an effective registration statement or to cause resales of the Old Notes to be registered. We have filed the registration statement related to this prospectus to meet our obligations under the Registration Rights Agreement. If we fail to satisfy certain obligations under the Registration Rights Agreement with respect to the Old Notes, we are required to pay additional interest to holders of such series of Old Notes under specified circumstances. See “Registration Rights.” |
6
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Resale of the New Notes |
We believe the New Notes that will be issued in the Exchange Offers may be resold by most investors without compliance with the registration and prospectus delivery provisions of the Securities Act, subject to certain conditions. Each broker-dealer that receives New Notes for its own account in exchange for Old Notes, where such Old Notes were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of such New Notes. See “Plan of Distribution.” By so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act. You should read the discussions under “The Exchange Offers” and “Plan of Distribution” for further information regarding the Exchange Offers and resale of the New Notes. |
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Acceptance of Old Notes for Exchange and Delivery of New Notes |
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Exchange Agent |
D.F. King & Co., Inc. is serving as Exchange Agent. |
7
THE NEW NOTES
The following is a brief summary of the principal terms of the New Notes. The terms of each series of the New Notes are identical in all material respects to those of the corresponding series of the Old Notes except that the New Notes will be registered under the Securities Act and will not be subject to transfer restrictions or registration rights, and the New Notes will bear different CUSIP numbers from the Old Notes of the corresponding series. Certain of the terms and conditions described below are subject to important limitations and exceptions. For a more complete description of the terms of the New Notes and the terms and provisions of the applicable Indenture that govern the Old Notes and will govern the New Notes, see “Description of the New Notes.”
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Issuers |
JBS N.V., JBS USA Foods Group Holdings, Inc. and JBS USA Food Company Holdings |
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Securities Offered |
Up to: • US$1,500,000,000 aggregate principal amount of New 2037 Notes; and • US$1,000,000,000 aggregate principal amount of New 2057 Notes. |
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Maturity Date |
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New 2037 Notes |
March 10, 2037 |
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New 2057 Notes |
May 10, 2057 |
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Interest |
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New 2037 Notes |
The New 2037 Notes will bear interest at the annual rate of 5.625%, payable semi-annually in arrears on March 10 and September 10 of each year, commencing March 10, 2027. |
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New 2057 Notes |
The New 2057 Notes will bear interest at the annual rate of 6.400%, payable semi-annually in arrears on May 10 and November 10 of each year, commencing May 10, 2027. |
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The New Notes of each series will accrue interest from (and including) the most recent date on which interest has been paid on the corresponding series of Old Notes accepted in the Exchange Offers. If your Old Notes are accepted for exchange, you will receive interest on the corresponding New Notes and not on the Old Notes. Any Old Notes not tendered will remain outstanding and continue to accrue interest according to their terms. |
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Optional Redemption |
We may redeem each series of New Notes, in whole or in part, at any time or from time to time at the redemption prices set forth under “Description of the New Notes — Optional Redemption.” |
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Change of Control Triggering Event |
Upon the occurrence of a Change of Control Triggering Event (as defined under “Description of the New Notes”), we will be required to make an offer to purchase the New Notes at a purchase price equal to 101% of the aggregate principal amount of the New Notes being repurchased plus accrued and unpaid interest, if any, to, but excluding, the date of repurchase. See “Description of the New Notes — Change of Control Triggering Event.” |
8
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Certain Covenants |
The applicable Indenture governing each series of New Notes will restrict our ability and the ability of our significant subsidiaries that guarantee such series of New Notes to create certain liens on future Principal Properties (as defined under “Description of the New Note — Certain Definitions”) and our ability to merge, consolidate, sell or otherwise dispose of all or substantially all of our assets. However, these restrictions are subject to certain significant exceptions, as further described under the heading “Description of the New Notes — Certain Covenants of the Company” in this prospectus. |
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Ranking |
The New Notes will be our unsecured senior obligations and will rank equally with all of our existing and future unsecured senior debt and rank senior to all of our existing and future subordinated debt. The New Notes will be effectively junior to our existing and future secured debt to the extent of the value of the collateral securing such debt. The New Notes will be structurally subordinated to all existing and future liabilities (including trade payables) of our subsidiaries (other than JBS USA Foods Group Holdings, Inc. and JBS USA Food Company Holdings). |
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DTC Eligibility |
The New Notes of each series will be represented by global certificates deposited with, or on behalf of, DTC or its nominee. See “Book-Entry Settlement and Clearance.” |
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Same-Day Settlement |
Beneficial interests in the New Notes will trade in DTC’s same-day funds settlement system until maturity. Therefore, secondary market trading activity in such beneficial interests will be settled in immediately available funds. See “Book-Entry Settlement and Clearance.” |
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No listing of the New Notes |
We do not intend to apply to list the New Notes on any securities exchange or to have the New Notes quoted on any automated quotation system. |
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Governing Law |
Each series of New Notes and the applicable Indenture will be governed by, and construed in accordance with, the laws of the State of New York. |
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Trustee, Registrar and Paying Agent |
Regions Bank. |
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Risk Factors |
See “Risk Factors” in this prospectus and “Item 3. Key Information — D. Risk Factors” in our Form 20-F, which is incorporated by reference into this prospectus, and the other information contained in, or incorporated by reference into, this prospectus for a discussion of factors that should be carefully considered by holders of Old Notes before tendering their Old Notes pursuant to the Exchange Offers and investing in the New Notes. |
9
SUMMARY HISTORICAL FINANCIAL DATA
The following summary historical financial data of JBS N.V. is being provided to help you in your analysis of the financial aspects of the Exchange Offers. You should read and analyze this information in conjunction with the rest of this prospectus, including the section entitled “Presentation of Financial and Other Information,” included elsewhere in this prospectus and the section entitled “Item 5. Operating and Financial Review and Prospects” in our Form 20-F, the corresponding section of our Second Quarter Form 10-Q, as well as the JBS N.V.’s financial statements, which are incorporated by reference into this prospectus.
The summary historical consolidated financial information presented below has been derived from JBS N.V.’s financial statements. The summary historical consolidated financial information of JBS N.V. presented in this prospectus is not necessarily indicative of JBS N.V.’s future consolidated operating results. The tables below present a summary of JBS N.V.’s consolidated financial performance for the periods indicated.
Items Affecting Comparability of Financial Results
The comparability of our financial results is affected by our acquisitions and fluctuations in foreign exchange rates, principally the Brazilian real against the U.S. dollar. For more information, see “Item 5. Operating and Financial Review and Prospects — A. Operating Results — Items Affecting Comparability of Financial Results” in our Form 20-F, “Items Affecting Comparability of Financial Results” in our Second Quarter. Form 10-Q, and the JBS N.V.’s financial statements, which are incorporated by reference into this prospectus.
10
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As of and for the six-month |
As of and for the year ended |
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2026 |
2025 |
2025 |
2024 |
2023 |
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(in millions of US$) |
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Consolidated statement of income information: |
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|
|
|
|
||||||||||
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Net revenue |
45,508.2 |
|
40,524.2 |
|
86,184.2 |
|
77,182.5 |
|
72,918.1 |
|
|||||
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Cost of sales |
(40,595.7 |
) |
(35,067.1 |
) |
(74,884.9 |
) |
(65,594.3 |
) |
(64,951.0 |
) |
|||||
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Gross profit |
4,912.5 |
|
5,457.1 |
|
11,299.3 |
|
11,588.2 |
|
7,967.2 |
|
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General and administrative expenses |
(1,143.7 |
) |
(1,078.7 |
) |
(2,187.3 |
) |
(2,278.4 |
) |
(2,315.1 |
) |
|||||
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Selling expenses |
(2,713.5 |
) |
(2,394.6 |
) |
(4,988.7 |
) |
(4,827.3 |
) |
(4,594.3 |
) |
|||||
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Other expenses |
(43.4 |
) |
(43.8 |
) |
(75.5 |
) |
(189.3 |
) |
(122.2 |
) |
|||||
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Other income |
69.8 |
|
48.1 |
|
111.9 |
|
84.5 |
|
148.6 |
|
|||||
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Net operating expenses |
(3,830.9 |
) |
(3,469.1 |
) |
(7,139.6 |
) |
(7,210.4 |
) |
(6,883.0 |
) |
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Operating profit |
1,081.6 |
|
1,988.0 |
|
4,159.7 |
|
4,377.8 |
|
1,084.1 |
|
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Finance income |
307.8 |
|
305.1 |
|
565.2 |
|
719.4 |
|
584.2 |
|
|||||
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Finance expense |
(1,317.6 |
) |
(873.0 |
) |
(2,121.5 |
) |
(2,389.1 |
) |
(1,937.6 |
) |
|||||
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Net finance expense |
(1,009.8 |
) |
(568.0 |
) |
(1,556.3 |
) |
(1,669.8 |
) |
(1,353.4 |
) |
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Share of profit of equity-accounted investees, net of tax |
14.8 |
|
10.6 |
|
16.9 |
|
2.9 |
|
9.5 |
|
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Profit (loss) before taxes |
86.6 |
|
1,430.6 |
|
2,620.3 |
|
2,711.0 |
|
(259.7 |
) |
|||||
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Current income taxes |
(51.9 |
) |
(390.5 |
) |
(450.2 |
) |
(870.5 |
) |
(69.5 |
) |
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Deferred income taxes |
110.7 |
|
110.5 |
|
59.7 |
|
127.1 |
|
197.5 |
|
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Total income taxes |
58.8 |
|
(280.0 |
) |
(390.5 |
) |
(743.4 |
) |
128.0 |
|
|||||
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Net income (loss) |
145.4 |
|
1,150.6 |
|
2,229.8 |
|
1,967.6 |
|
(131.7 |
) |
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Attributable to: |
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|
|
|
|
||||||||||
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Company shareholders |
118.5 |
|
1,028.3 |
|
2,024.3 |
|
1,766.9 |
|
(198.9 |
) |
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|
Non-controlling interest |
26.9 |
|
122.3 |
|
205.5 |
|
200.7 |
|
67.1 |
|
|||||
|
145.4 |
|
1,150.6 |
|
2,229.8 |
|
1,967.6 |
|
(131.7 |
) |
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|
|
|
|
|
|||||||||||
|
Consolidated statement of financial position information at period/year end: |
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|
|
|
|
||||||||||
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Cash and cash equivalents |
3,469.1 |
|
2,518.8 |
|
4,565.1 |
|
5,613.7 |
|
2,526.4 |
|
|||||
|
Trade accounts receivable |
3,555.4 |
|
3,653.5 |
|
4,231.9 |
|
3,735.5 |
|
3,878.1 |
|
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|
Inventories |
6,996.2 |
|
6,287.9 |
|
6,107.2 |
|
5,016.0 |
|
5,393.5 |
|
|||||
|
Property, plant and equipment |
14,416.0 |
|
12,897.6 |
|
13,645.7 |
|
11,780.9 |
|
11,915.3 |
|
|||||
|
Goodwill |
5,983.9 |
|
5,860.2 |
|
5,852.6 |
|
5,417.1 |
|
5,828.7 |
|
|||||
|
Total assets |
45,838.4 |
|
41,816.5 |
|
45,156.5 |
|
40,685.4 |
|
39,885.5 |
|
|||||
|
Total loans and financings(1) |
22,650.7 |
|
19,491.8 |
|
21,090.6 |
|
19,326.8 |
|
17,700.1 |
|
|||||
|
Total equity |
9,059.1 |
|
9,246.4 |
|
9,522.8 |
|
8,134.4 |
|
9,546.1 |
|
|||||
|
|
|
|
|
|
|||||||||||
|
Consolidated cash flow information: |
|
|
|
|
|
||||||||||
|
|
|
|
|
|
|||||||||||
|
Net cash flows provided by (used in): |
|
|
|
|
|
||||||||||
|
Operating activities |
62.8 |
|
(43.1 |
) |
2,932.0 |
|
4,229.5 |
|
2,378.8 |
|
|||||
|
Investing activities |
(1,128.2 |
) |
(837.6 |
) |
(2,311.4 |
) |
(1,417.7 |
) |
(1,408.4 |
) |
|||||
|
Financing activities |
(141.4 |
) |
(2,334.8 |
) |
(1,771.9 |
) |
(1,414.8 |
) |
1,022.1 |
|
|||||
|
|
|
|
|
|
|||||||||||
|
Other consolidated financial information |
|
|
|
|
|
||||||||||
|
Adjusted EBITDA(2) |
2,562.7 |
|
3,281.4 |
|
6,831.4 |
|
7,191.9 |
|
3,457.9 |
|
|||||
____________
(1) Current loans and financings plus non-current loans and financings.
11
(2) Adjusted EBITDA is used as a measure of performance by our management. Adjusted EBITDA is calculated by making the following adjustments to our net income (loss), as further described below: exclusion of current and deferred income taxes; exclusion of share of profit of equity-accounted investees, net of tax; exclusion of net finance expense; exclusion of depreciation and amortization expenses; exclusion of antitrust agreements expenses; exclusion of donations and social programs expenses; exclusion of impairment of assets; exclusion of restructuring expenses; exclusion of fiscal payments and installments; exclusion of Rio Grande do Sul claim losses; exclusion of extemporaneous litigation expenses; exclusion of reversal of tax credits; exclusion of avian influenza impacts; exclusion of certain tax assessments; exclusion of closure of plants expenses; and exclusion of certain other operating income (expense), net. Adjusted EBITDA is not a measure required by or calculated in accordance with IFRS — Accounting Standards and should not be considered as a substitute for income from continuing operations, net income or any other measure of financial performance reported in accordance with IFRS — Accounting Standards or as measures of operating cash flows or liquidity. You should rely primarily on our financial information prepared in accordance with the IFRS — Accounting Standards and use of Adjusted EBITDA in a supplemental manner in making your investment decision. For more information about the limitations of Adjusted EBITDA, see “Presentation of Financial and Other Information — Non-GAAP Financial Measures.”
Adjusted EBITDA is reconciled to net income (loss) as follows:
|
For the six-month period |
For the year ended |
||||||||||||||
|
2026 |
2025 |
2025 |
2024 |
2023 |
|||||||||||
|
(in millions of US$) |
|||||||||||||||
|
Net income (loss) |
145.4 |
|
1,150.6 |
|
2,229.8 |
|
1,967.6 |
|
(131.7 |
) |
|||||
|
Income Taxes – current and deferred |
(58.8 |
) |
280.0 |
|
390.5 |
|
743.4 |
|
(128.0 |
) |
|||||
|
Share of profit of equity-accounted investees, net of tax |
(14.8 |
) |
(10.6 |
) |
(16.9 |
) |
(2.9 |
) |
(9.5 |
) |
|||||
|
Net finance expense |
1,009.8 |
|
568.0 |
|
1,556.3 |
|
1,669.8 |
|
1,353.4 |
|
|||||
|
Depreciation and amortization |
1,256.6 |
|
1,100.8 |
|
2,308.5 |
|
2,189.5 |
|
2,149.1 |
|
|||||
|
Antitrust agreements(a) |
157.4 |
|
133.6 |
|
182.3 |
|
253.7 |
|
102.5 |
|
|||||
|
Donations and social programs(b) |
0.5 |
|
1.1 |
|
1.8 |
|
22.5 |
|
18.2 |
|
|||||
|
Impairment of assets(c) |
— |
|
12.8 |
|
21.1 |
|
— |
|
26.3 |
|
|||||
|
Restructuring(d) |
20.1 |
|
21.5 |
|
33.4 |
|
95.6 |
|
52.2 |
|
|||||
|
Fiscal payments and installments(e) |
9.6 |
|
2.4 |
|
2.4 |
|
81.8 |
|
— |
|
|||||
|
Rio Grande do Sul claim(f) |
— |
|
— |
|
— |
|
19.3 |
|
— |
|
|||||
|
Extemporaneous litigation(g) |
— |
|
— |
|
20.7 |
|
61.0 |
|
— |
|
|||||
|
Reversal of tax credits(h) |
— |
|
— |
|
— |
|
58.7 |
|
— |
|
|||||
|
Avian influenza(i) |
— |
|
5.6 |
|
17.1 |
|
— |
|
— |
|
|||||
|
Tax assessment notice(j) |
— |
|
— |
|
43.2 |
|
— |
|
— |
|
|||||
|
Closure of plants(k) |
24.1 |
|
— |
|
— |
|
— |
|
— |
|
|||||
|
Other operating income (expense), net(l) |
12.7 |
|
15.5 |
|
41.2 |
|
32.0 |
|
25.5 |
|
|||||
|
Adjusted EBITDA |
2,562.7 |
|
3,281.4 |
|
6,831.4 |
|
7,191.9 |
|
3,457.9 |
|
|||||
|
|
|
|
|
|
|||||||||||
|
Adjusted EBITDA by segment: |
|
|
|
|
|
||||||||||
|
Brazil |
436.9 |
|
359.7 |
|
955.1 |
|
965.0 |
|
469.3 |
|
|||||
|
Seara |
749.7 |
|
817.5 |
|
1,553.4 |
|
1,538.6 |
|
364.5 |
|
|||||
|
Beef North America |
(345.0 |
) |
(333.5 |
) |
(319.5 |
) |
247.3 |
|
114.2 |
|
|||||
|
Pork USA |
390.8 |
|
500.9 |
|
898.9 |
|
1,071.2 |
|
526.9 |
|
|||||
|
Pilgrim’s Pride |
952.6 |
|
1,477.9 |
|
2,804.5 |
|
2,703.4 |
|
1,536.0 |
|
|||||
|
Australia |
363.5 |
|
450.5 |
|
916.0 |
|
664.3 |
|
454.7 |
|
|||||
|
Miscellaneous |
n.a. |
|
n.a. |
|
23.0 |
|
3.5 |
|
(5.2 |
) |
|||||
|
Total reportable segments |
2,548.5 |
|
3,273.1 |
|
6,831.4 |
|
7,193.2 |
|
3,460.4 |
|
|||||
|
All other segments |
14.2 |
|
8.3 |
|
N/A |
|
N/A |
|
N/A |
|
|||||
|
Eliminations |
— |
|
— |
|
— |
|
(1.3 |
) |
(2.6 |
) |
|||||
|
Adjusted EBITDA |
2,562.7 |
|
3,281.4 |
|
6,831.4 |
|
7,191.9 |
|
3,457.9 |
|
|||||
____________
(a) Refers to antitrust agreements entered into by JBS USA and its subsidiaries. For more information, see “Item 8. Financial Information — A. Consolidated Statements and Other Financial Information — Legal Proceedings” in our Form 20-F, which is incorporated by reference into this prospectus.
12
(b) Refers to donations made to (i) the Instituto J&F for improvements to the school’s building, and (ii) the JBS Fund for The Amazon, a fund established by JBS S.A. to finance and support innovative, long-term initiatives that build on JBS S.A.’s legacy of conservation and sustainable development in the Amazon biome.
(c) Refers mainly to the impairment of fixed assets and the impairment of recoverable tax credits.
(d) Refers to multiple restructuring initiatives, primarily those in our indirect subsidiary PPC, which are registered as other expenses, as well as other non-significant restructuring projects that are registered as general and administrative expenses.
(e) Refers to the special payment program for installment plans of tax proceedings with exemption from fines and reduction of interest of our indirect subsidiary JBS S.A.
(f) Refers to losses incurred in connection with a claim related to the floods that occurred in the Brazilian State of Rio Grande do Sul.
(g) Refers to extemporaneous litigation arising from debts of companies acquired by the JBS Group and recognizes these settlement expenses within general and administrative.
(h) Refers to the reversal of ICMS credits on sales operations disallowed in the Brazilian State of Santa Catarina.
(i) Refers to the impacts related to the avian influenza incurred by our indirect subsidiary Seara.
(j) Refers to tax assessments related to the acquisition of Tyson de México by our indirect subsidiary PPC. For more information, see “Item 8. Financial Information — A. Consolidated Statements and Other Financial Information — Legal Proceedings” in our Form 20-F, which is incorporated by reference into this prospectus.
(k) Refers to the costs associated with the permanent closure of the Memphis, Souderton, and Chattanooga plants, owned by our indirect subsidiary JBS USA.
(l) Refers to several adjustments in JBS USA’s jurisdiction, such as third-party advisory expenses related to acquisitions and insurance recovery, among others.
13
You should carefully consider the risks described below, together with all of the other information included in this prospectus, as well as the risks under “Item 3. Key Information — D. Risk Factors” of our Form 20-F, which is incorporated by reference into this prospectus, provided that such risks apply equally to the New Notes, before making an investment decision. Our business, financial condition and results of operations could be materially and adversely affected by any of these risks or uncertainties. In that case, the trading prices of the New Notes could decline, and you may lose all or part of your investment. The risks described below are those that we currently believe may materially affect us. Additional risks not presently known to us, or that we currently consider immaterial, may also materially adversely affect us.
For purposes of this section, when we state that a risk, uncertainty or problem may, could or will have an “adverse effect” on us or “adversely affect” us, we mean that the risk, uncertainty or problem could have an adverse effect on our business, financial condition, results of operations, cash flow and/or prospects, and/or the price of the New Notes, except as otherwise indicated. You should view similar expressions in this section as having similar meaning.
Risks Related to the Exchange Offers
The Exchange Offers may not be consummated.
The Exchange Offers are subject to the satisfaction of certain conditions, including if we determine in our reasonable judgment at any time before the Expiration Date that the Exchange Offers would violate applicable law or any applicable interpretation of the staff of the SEC (the “Staff”). Even if the Exchange Offers are completed, any or all of them may not be completed on the schedule described in this prospectus.
Accordingly, holders participating in the Exchange Offers may have to wait longer than expected to receive the New Notes, during which time those holders will not be able to effect transfers of their Old Notes tendered in the applicable Exchange Offer.
If you fail to exchange your Old Notes, they will continue to be restricted securities and will likely become less liquid.
Old Notes that you do not tender, or we do not accept, will, following the Exchange Offers, continue to be restricted securities, and you may not offer to sell them except pursuant to an exemption from, or in a transaction not subject to, the Securities Act and applicable state securities laws. We will issue each series of New Notes in exchange for the Old Notes of the corresponding series pursuant to the applicable Exchange Offer only following the satisfaction of the procedures and conditions set forth in “The Exchange Offers — Procedures for Tendering” and “The Exchange Offers — Conditions to the Exchange Offers.”
Because we anticipate that all or substantially all holders of Old Notes will elect to exchange their Old Notes in these Exchange Offers, we expect that the market for any Old Notes remaining after the completion of the Exchange Offers will be substantially limited. Any Old Notes tendered and exchanged in the Exchange Offers will reduce the aggregate principal amount of the Old Notes of the applicable series outstanding. If you do not tender your Old Notes following the Exchange Offers, you generally will not have any further registration rights, and your Old Notes will continue to be subject to certain transfer restrictions. Accordingly, the liquidity of the market for the Old Notes of each series is likely to be adversely affected.
Late deliveries of Old Notes could prevent a holder from exchanging its Old Notes.
Holders are responsible for complying with all procedures of the Exchange Offers. The issuance of New Notes in exchange for Old Notes will only occur upon completion of the procedures described in this prospectus under “The Exchange Offers.” Therefore, holders of each series of Old Notes who wish to exchange them for New Notes of the corresponding series should allow sufficient time for timely completion of the applicable Exchange Offer procedures. Neither we nor the Exchange Agent are obligated to extend the offer or notify you of any failure to follow the proper procedures or waive any defect if you fail to follow the proper procedures.
14
If you are a broker-dealer, your ability to transfer the New Notes may be restricted.
A broker-dealer that purchased Old Notes for its own account as part of market-making or trading activities must comply with the prospectus delivery requirements of the Securities Act when it sells the New Notes. Our obligation to make this prospectus available to broker-dealers is limited. Consequently, we cannot guarantee that a proper prospectus will be available to broker-dealers wishing to resell their New Notes. See “Plan of Distribution.”
15
We will not receive any cash proceeds from the issuance of the New Notes. In consideration for issuing the series of New Notes as contemplated by this prospectus, we will receive, in exchange, an equal principal amount of the corresponding series of Old Notes. Old Notes surrendered in exchange for New Notes will be retired and cannot be reissued.
16
The following table sets forth JBS N.V.’s consolidated loans and financings, equity and total capitalization as of June 30, 2026:
• on an actual historical basis derived from JBS N.V.’s unaudited interim financial statements; and
• on an as adjusted basis to give effect to the issuance of €500 million aggregate principal amount of notes in the PPC Notes Offering without giving effect to the application of the net proceeds therefrom.
You should read this table in conjunction with “Item 5. Operating and Financial Review and Prospects” in our Form 20-F, our Second Quarter Form 10-Q and JBS N.V.’s unaudited interim financial statements, which are incorporated by reference into this prospectus.
|
As of June 30, 2026 |
||||
|
Actual |
As Adjusted |
|||
|
(in millions of US$) |
||||
|
Loans and financings: |
||||
|
Total current loans and financings |
1,334.9 |
1,334.9 |
||
|
Total non-current loans and financings(1) |
21,315.8 |
21,877.8 |
||
|
Total loans and financing |
22,650.7 |
23,212.7 |
||
|
Total equity |
9,059.1 |
9,059.1 |
||
|
Total capitalization(2) |
31,709.8 |
32,271.8 |
||
____________
(1) Solely for the convenience of the reader, the €500 million aggregate principal amount of the notes in the PPC Notes Offering has been translated into U.S. dollars at a rate of US$1.138 per €1.00, which was the European Central Bank reference rate in effect on June 30, 2026, resulting in a gross amount of US$568.2 million. This amount has been reduced by US$6.3 million of estimated issuance costs associated with the PPC Notes Offering. The euro/U.S. dollar exchange rate used for this translation should not be construed as implying that the euro amount represents, or could have been or could be converted into, U.S. dollars at such rate or at any other rate as of that or any other date. These U.S. dollar amounts have not been audited.
(2) Total capitalization is the sum of total current and non-current loans and financings and total consolidated equity. There is no standard definition of total capitalization, and JBS N.V.’s definition of total capitalization may not be comparable to those used by other companies.
17
Purpose of the Exchange Offers
Pursuant to the Registration Rights Agreement, we agreed, for the benefit of the holders of Old Notes, at our cost, to use our commercially reasonable efforts to prepare and file with the SEC a registration statement with respect to registered offers to exchange the Old Notes of each series for New Notes of the same series, which will have terms identical in all material respects to such Old Notes, except that the New Notes will be registered under the Securities Act and will not be subject to transfer restrictions or registration rights, and the New Notes will bear different CUSIP numbers from the Old Notes of the corresponding series. See “Registration Rights.”
General
Under existing interpretations of the Staff of the SEC, the Old Notes would generally be freely tradable after the completion of the Exchange Offers without further compliance with the registration and prospectus delivery requirements of the Securities Act. However, each holder of Old Notes who is an affiliate of ours or who intends to participate in the Exchange Offers for the purposes of distributing the New Notes:
• will not be able to rely on the interpretations of the Staff;
• will not be entitled to participate in the Exchange Offers; and
• must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any sale or transfer of the New Notes, unless that sale or transfer is made pursuant to an exemption from those requirements.
Each holder of Old Notes that participates in the Exchange Offers will be required to represent to us at the time it transmits an agent’s message through ATOP and the consummation of the Exchange Offers that:
• it is not an affiliate of ours;
• it is not a broker-dealer tendering Old Notes acquired directly from us for its own account;
• the New Notes to be received by it will be acquired in the ordinary course of its business; and
• it is not engaged and does not intend to engage in, and has no arrangement or understanding with any person, to participate in the distribution, within the meaning of the Securities Act, of the New Notes.
Our consummation of the Exchange Offers with respect to the Old Notes is subject to certain conditions described in the Registration Rights Agreement, including, without limitation, our receipt of the representations from participating holders as described above and in the Registration Rights Agreement.
In connection with any resales of the New Notes, any broker-dealer that acquired New Notes for its own account as a result of market-making or other trading activities (“exchanging broker-dealers”) must deliver a prospectus meeting the requirements of the Securities Act. The SEC has taken the position that exchanging broker-dealers may fulfill their prospectus delivery requirements with respect to the New Notes with the prospectus contained in the exchange offer registration statement. Under the Registration Rights Agreement, we will be required for a limited period to allow exchanging broker-dealers and other persons, if any, subject to similar prospectus delivery requirements to use the prospectus contained in the exchange offer registration statement in connection with the resale of New Notes.
Terms of the Exchange Offers
We are offering holders of the Old Notes the opportunity to exchange any and all of their series of Old Notes for the corresponding series of New Notes. This prospectus contains the terms and conditions of the Exchange Offers. Upon the terms and subject to the conditions included in this prospectus, we will accept for exchange the series of Old Notes which are properly tendered on or prior to the Expiration Date, unless you have previously withdrawn them.
18
When you tender your Old Notes as provided below, our acceptance of the Old Notes will constitute a binding agreement between you and us upon the terms and subject to the conditions in this prospectus. In tendering Old Notes, you should also note the following important information:
• The Old Notes may be tendered only in principal amounts equal to minimum denominations of US$2,000 and integral multiples of US$1,000 in excess thereof. No alternative, conditional or contingent tenders will be accepted. Holders who do not tender all of their Old Notes should ensure that they retain a principal amount of Old Notes amounting to at least the minimum denomination equal to US$2,000. The New Notes will only be issued in minimum denominations of US$2,000 and integral multiples of US$1,000 in excess thereof. No tender of Old Notes will be accepted if it results in the issuance of less than US$2,000 principal amount of New Notes.
• Each Exchange Offer will remain open for 20 business days after the date notice is sent to the holders of the Old Notes, or longer if required by applicable law. We are sending this prospectus on , 2026, to all of the registered holders of Old Notes.
• Each Exchange Offer expires at 5:00 p.m., New York City time, on , 2026; provided, however, that we, in our sole discretion, may extend the period of time for which an Exchange Offer is open.
• None of the Exchange Offers is conditioned upon any minimum principal amount of the Old Notes being tendered.
• Our obligation to accept the Old Notes for exchange in the Exchange Offers is subject to the conditions described under “— Conditions to the Exchange Offers.”
• We expressly reserve the right, at any time, to extend the period of time during which an Exchange Offer is open, and thereby delay acceptance of any Old Notes, by giving oral (promptly followed in writing) or written notice of an extension to the Exchange Agent and notice of that extension to the holders of the Old Notes as described below. During any extension, all Old Notes of a series previously tendered will remain subject to the applicable Exchange Offer unless withdrawal rights are exercised as described under “— Withdrawal.” Any Old Notes of a series not accepted for exchange for any reason will be returned without expense to the tendering holder of such series of Old Notes promptly after the expiration or termination of the applicable Exchange Offer.
• We expressly reserve the right to amend or terminate any Exchange Offer, and to not accept for exchange any series of Old Notes that we have not yet accepted for exchange, at any time prior to the Expiration Date. If we make a material change to the terms of an Exchange Offer, including the waiver of a material condition, we will, to the extent required by law, disseminate additional offer materials and extend the period of time during which such Exchange Offer is open so that at least five business days remain in such Exchange Offer following notice of a material change.
• Old Notes which are not tendered for exchange, or are tendered but not accepted, in connection with the Exchange Offers will remain outstanding and be entitled to the benefits of the applicable Indentures, but, in the case of the Old Notes, will not be entitled to any further registration rights under the Registration Rights Agreement.
• We intend to conduct the Exchange Offers in accordance with the applicable requirements of the Exchange Act and the rules and regulations of the SEC thereunder.
• By exchanging your Old Notes for New Notes, you will be making to us the representations described under “— Resale of the New Notes.”
Expiration Date; Extensions; Termination; Amendments
The Exchange Offers expire on the Expiration Date, which is 5:00 p.m., New York City time, on , 2026, subject to our right to extend that time and date in our sole discretion (which right is subject to applicable law), in which case the Expiration Date means the latest time and date to which the Expiration Date is extended. To extend the Expiration Date for an Exchange Offer, we will notify the Exchange Agent and will make a public announcement
19
thereof before 9:00 a.m., New York City time, on the next business day after the previously scheduled Expiration Date. During any extension of the Expiration Date for an Exchange Offer, all Old Notes previously tendered in such extended Exchange Offer will remain subject to such Exchange Offer and may be accepted for exchange by us.
Subject to applicable law, we expressly reserve the right, in our sole discretion and with respect to any or all of the Exchange Offers, to:
• delay accepting any series of the Old Notes, to extend any or all Exchange Offers or to terminate any or all Exchange Offers and not accept any Old Notes;
• extend the Expiration Date for any or all Exchange Offers;
• terminate any or all Exchange Offers and return all tendered Old Notes to the respective tendering holders; and
• amend, modify or waive, in whole or in part, at any time, or from time to time, the terms any or all Exchange Offers in any respect, including waiver of any conditions to consummation of any or all Exchange Offers.
If any termination or material amendment occurs, we will notify the Exchange Agent in writing and will either issue a press release or give written notice to the holders of the Old Notes as promptly as practicable. Additionally, in the event of a material amendment or change in any or all Exchange Offers, which would include any waiver of a material condition hereof, we will extend the applicable Exchange Offer, if necessary, so that at least five business days remain in such Exchange Offer following notice of the material amendment or change, as applicable. Unless we terminate any or all Exchange Offers prior to 5:00 p.m., New York City time, on the Expiration Date, we will exchange the series of New Notes for the tendered Old Notes of the corresponding series promptly after the Expiration Date and will issue to the Exchange Agent the series of New Notes for Old Notes of the corresponding series validly tendered, not withdrawn and accepted for exchange. Old Notes not accepted for exchange for any reason will be returned without expense to the tendering holder promptly after expiration or termination of the Exchange Offers. See “— Acceptance of Old Notes for Exchange and Delivery of New Notes.”
Settlement Date
The Settlement Date for the Exchange Offers will be promptly after the Expiration Date. We will not be obligated to deliver New Notes unless the applicable Exchange Offer is consummated.
Procedures for Tendering
If you wish to participate in the Exchange Offers and your Old Notes are held by a custodial entity such as a commercial bank, broker, dealer, trust company or other nominee, you must instruct that custodial entity to tender your Old Notes on your behalf pursuant to the procedures of that custodial entity. Please ensure you contact your custodial entity as soon as possible to give them sufficient time to meet your requested deadline. Beneficial owners are urged to appropriately instruct their commercial bank, broker, dealer, trust company or other nominee at least five business days prior to the Expiration Date in order to allow adequate processing time for their instruction. It is your responsibility to properly tender your Old Notes.
To participate in the Exchange Offers, you must comply with the ATOP procedures for book-entry transfer described below prior to the Expiration Date.
The Exchange Agent and DTC have confirmed that the Exchange Offers are eligible for ATOP with respect to book-entry notes held through DTC.
The method of delivery of Old Notes and all other required documents to the Exchange Agent, including delivery through DTC and any acceptance or agent’s message delivered through ATOP, is at the election and risk of the holder of the Old Notes.
20
No Letter of Transmittal
No letter of transmittal needs to be executed in relation to the Exchange Offers. The valid electronic tendering of Old Notes in exchange for New Notes in accordance with DTC’s ATOP procedures shall constitute a valid tender of Old Notes.
Book-Entry Delivery Procedures for Tendering Old Notes Held with DTC
If you wish to tender Old Notes held on your behalf by a nominee with DTC, you must:
• inform your nominee of your interest in tendering your Old Notes pursuant to the applicable Exchange Offer; and
• instruct your nominee to tender all Old Notes you wish to be tendered in the applicable Exchange Offer into the Exchange Agent’s account at DTC prior to the Expiration Date.
Any financial institution that is a nominee of DTC, including Euroclear Bank S.A./N.V. (“Euroclear”) and Clearstream Banking, société anonyme (“Clearstream”), must tender Old Notes by effecting a book-entry transfer of Old Notes to be tendered in the applicable Exchange Offer into the account of the Exchange Agent at DTC by electronically transmitting its acceptance of the applicable Exchange Offer through the ATOP procedures for transfer. DTC will then verify the acceptance, execute a book-entry delivery to the Exchange Agent’s account at DTC and send an agent’s message to the Exchange Agent. An “agent’s message” is a message, transmitted by DTC to, and received by, the Exchange Agent and forming part of a book-entry confirmation, that states that DTC has received an express acknowledgement from an organization that participates in DTC (a “participant”) tendering Old Notes, that the participant has received and agrees to be bound by the terms of this prospectus as set forth herein and that we may enforce such agreement against the participant.
Conditions to the Exchange Offers
Notwithstanding any other provisions of the Exchange Offers, we will not be required to accept for exchange, or to issue the New Notes in exchange for, any of the Old Notes and may terminate or amend any or all Exchange Offers, if we determine in our reasonable judgment at any time before the Expiration Date that any or all Exchange Offers would violate applicable law or any applicable interpretation of the staff of the SEC.
In addition, we will not be obligated to accept for exchange the Old Notes of any holder that has not made to us the representations described under “— Resale of the New Notes,” in “Plan of Distribution” and such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to allow us to use an appropriate form to register the New Notes under the Securities Act.
The foregoing conditions are for our sole benefit and may be waived by us regardless of the circumstances giving rise to that condition. Our failure at any time to exercise the foregoing rights shall not be considered a waiver by us of that right. The rights described in the prior paragraphs are ongoing rights which we may assert at any time and from time to time.
All questions as to the validity, form, eligibility, including time of receipt, and acceptance and withdrawal of tendered Old Notes will be determined by us in our sole discretion, which determination will be final and binding. We reserve the absolute right to reject any and all tendered Old Notes determined by us not to be in proper form or not to be tendered validly or any tendered Old Notes acceptance of which by us would, in the opinion of our counsel, be unlawful. We also reserve the right to waive, in our sole discretion, any defects, irregularities or conditions of tender as to particular Old Notes, whether or not waived in the case of other Old Notes. Our interpretation of the terms and conditions of the Exchange Offers will be final and binding on all parties. Unless waived, any defects or irregularities in connection with tenders of Old Notes must be cured within the time we determine. Although we intend to notify holders of Old Notes of defects or irregularities with respect to tenders of Old Notes, none of us, the Exchange Agent, or any other person will be under any duty to give that notification or shall incur any liability for failure to give that notification. Tenders of Old Notes will not be deemed to have been made until any defects or irregularities therein have been cured or waived.
21
Withdrawal
You can withdraw your tender of Old Notes at any time on or prior to 5:00 p.m., New York City time, on the Expiration Date.
Tenders of any series of Old Notes in the Exchange Offers may be validly withdrawn at any time prior to the applicable Withdrawal Deadline, but will thereafter be irrevocable, even if we otherwise extend the Exchange Offers beyond the Expiration Date, except in certain limited circumstances where additional withdrawal rights are required by law. Tenders submitted in the Exchange Offers after the Withdrawal Deadline will be irrevocable, except in the limited circumstances where additional withdrawal rights are required by law.
For a withdrawal of a tender to be effective, a notice of withdrawal must be received by the Exchange Agent prior to the Withdrawal Deadline in accordance with the customary procedures of DTC’s ATOP. The withdrawal notice must:
• specify the name of the tendering holder of Old Notes;
• bear a description of the series of Old Notes to be withdrawn;
• specify the aggregate principal amount represented by such series of Old Notes; and
• specify the name and number of the account at DTC to be credited with the withdrawn Old Notes.
Withdrawal of tenders of Old Notes may not be rescinded, and any Old Notes validly withdrawn will thereafter be deemed not to have been validly tendered for purposes of the applicable Exchange Offer. Validly withdrawn Old Notes may, however, be retendered by again following the procedures described in “— Procedures for Tendering” above prior to the Expiration Date.
Resale of the New Notes
Under existing interpretations of the Staff of the SEC contained in several no-action letters to third parties, the New Notes would in general be freely transferable by holders thereof (other than affiliates of us) after the Exchange Offers without further registration under the Securities Act (subject to certain representations required to be made by each holder of Old Notes participating in the Exchange Offers, as set forth below). The relevant no-action letters include the Exxon Capital Holdings Corporation letter, which was made available by the SEC on May 13, 1988, the Morgan Stanley & Co. Incorporated letter, which was made available by the SEC on June 5, 1991, the K-111 Communications Corporation letter, which was made available by the SEC on May 14, 1993, and the Shearman & Sterling letter, which was made available by the SEC on July 2, 1993. Neither we nor any of our affiliates, have entered into any arrangement or understanding with any person to distribute the securities to be received in the Exchange Offers and, to the best of our information and belief, each person participating in the Exchange Offers is (i) neither an “affiliate” of JBS N.V. within the meaning of Rule 405 under the Securities Act, nor a broker-dealer acquiring the securities in exchange for securities acquired directly from JBS N.V. for its own account, (ii) acquiring the securities in its ordinary course of business, and (iii) is not engaged in, and does not intend to engage in, the distribution of the securities to be received in the Exchange Offers and has no arrangement or understanding with any person to participate in the distribution of the securities to be received in the Exchange Offers.
However, any holder of Old Notes who is an “affiliate” of ours or who intends to participate in the Exchange Offers for the purpose of distributing the New Notes:
• will not be able to rely on such SEC interpretation;
• will not be able to tender its Old Notes in the Exchange Offers; and
• must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any sale or transfer of Old Notes unless such sale or transfer is made pursuant to an exemption from those requirements.
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We acknowledge that such secondary resale transactions should be covered by an effective registration statement containing the selling security holder information required by Item 507 of Regulation S-K promulgated under the Securities Act.
By tendering Old Notes in exchange for New Notes and transmitting an agent’s message through ATOP, each holder of the Old Notes will represent that:
• it is not an affiliate of ours;
• it is not a broker-dealer tendering Old Notes acquired directly from us for its own account;
• the New Notes to be received by it will be acquired in the ordinary course of its business; and
• it is not engaged and does not intend to engage in, and has no arrangement or understanding with any person, to participate in the distribution, within the meaning of the Securities Act, of the New Notes.
We have not sought, and do not intend to seek, a no-action letter from the SEC with respect to the effects of the Exchange Offers, and there can be no assurance that the SEC staff would make a similar determination with respect to the New Notes as it has made in previous no-action letters.
In addition, in connection with any resales of those Old Notes, each exchanging broker-dealer, as defined below, receiving the New Notes for its own account in exchange for the Old Notes, where such Old Notes were acquired by such exchanging dealer as a result of market-making activities or other trading activities, must acknowledge that it may be a statutory underwriter and that it must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such New Notes. See “Plan of Distribution.”
The SEC has taken the position in the Shearman & Sterling no-action letter, which it made available on July 2, 1993, that exchanging broker-dealers may fulfill their prospectus delivery requirements with respect to the New Notes, other than a resale of an unsold allotment from the original sale of the Old Notes, by delivery of the prospectus contained in the Exchange Offers registration statement.
In addition, each holder of Old Notes validly tendered in an Exchange Offer upon transmission of an “agent’s message” to the Exchange Agent will be deemed to represent, warrant and agree that:
• it has received this prospectus and has reviewed it;
• it is the beneficial owner of, or a duly authorized representative of one or more beneficial owners of, the Old Notes tendered thereby, and it has full power and authority to tender such Old Notes and deliver the related “agent’s message”;
• the Old Notes being tendered thereby were owned as of the date of tender, free and clear of any liens, restrictions, charges and encumbrances of any kind, and we will acquire good title to those Old Notes, free and clear of all liens, restrictions, charges and encumbrances of any kind, when we accept the same;
• it will not sell, pledge, hypothecate or otherwise encumber or transfer any Old Notes tendered thereby from the date of such tender unless such Old Notes are validly withdrawn or such Exchange Offer is terminated, and any purported sale, pledge, hypothecation or other encumbrance or transfer will be void and of no effect;
• it is not a person to whom it is unlawful to make an invitation to tender pursuant to the applicable Exchange Offer under applicable law, and it has observed (and will observe) the laws of all relevant jurisdictions in connection with its tender;
• it will, upon request, execute and deliver any additional documents reasonably deemed by the Exchange Agent or us to be necessary or desirable to complete the sale, assignment and transfer of the Old Notes tendered hereby;
• in evaluating the applicable Exchange Offer and in making its decision whether to participate in such Exchange Offer by tendering its Old Notes and transmitting an “agent’s message” to the Exchange Agent, it has made its own independent appraisal of the matters referred to in this prospectus and in
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any related communications and it is not relying on any statement, representation or warranty, express or implied, made to it by us or the Exchange Agent, other than those contained in this prospectus, as amended or supplemented through the Expiration Date; and
• it hereby irrevocably constitutes and appoints the Exchange Agent as the true and lawful agent and attorney-in-fact of the undersigned (with full knowledge that the Exchange Agent also acts as the agent of JBS N.V.), with full powers of substitution and revocation (such power-of-attorney being deemed to be an irrevocable power coupled with an interest), to (i) present the Old Notes and all evidences of transfer and authenticity to, or transfer ownership of, the Old Notes on the account books maintained by Euroclear, Clearstream, or DTC to, or upon the order of, JBS N.V., (ii) present the Old Notes for transfer of ownership on the books of the relevant security register and (iii) receive all benefits and otherwise exercise all rights of beneficial ownership of the Old Notes all in accordance with the terms of and conditions to the Exchange Offers as set forth in this prospectus.
The representations, warranties and agreements of a holder tendering Old Notes will be deemed to be repeated and reconfirmed on and as of the Expiration Date and the Settlement Date. All authority conferred or agreed to by a tender of Old Notes and transmission of an “agent’s message” to the Exchange Agent shall not be affected by, and shall survive, the death or incapacity of the person making such tender and transmission, and every obligation of such person shall be binding upon such person’s heirs, personal representatives, executors, administrators, successors, assigns, trustees in bankruptcy and other legal representatives.
Absence of Appraisal and Dissenters’ Rights
Holders of the Old Notes do not have any appraisal or dissenters’ rights in connection with the Exchange Offers.
Acceptance of Old Notes for Exchange and Delivery of New Notes
On the Settlement Date, the New Notes to be issued in exchange for the Old Notes tendered and accepted in the applicable Exchange Offer will be delivered in book-entry form.
We will be deemed to accept the Old Notes that have been validly tendered by holders and that have not been validly withdrawn before the Withdrawal Deadline as provided in this prospectus when, and if, we give oral or written notice of acceptance to the Exchange Agent. Following receipt of that notice by the Exchange Agent and subject to the terms and conditions of the Exchange Offers, delivery of the New Notes will be made by the Exchange Agent on the Settlement Date. The Exchange Agent will act as agent for tendering holders of Old Notes for the purpose of receiving Old Notes and transmitting New Notes as of the Settlement Date. If any tendered Old Notes are not accepted for any reason described in the terms and conditions of the Exchange Offers, such unaccepted Old Notes will be returned without expense to the tendering holders promptly after the expiration or termination of the Exchange Offers.
If, for any reason, acceptance for exchange of tendered Old Notes, or issuance of New Notes in exchange for validly tendered Old Notes, pursuant to the applicable Exchange Offer is delayed, or we are unable to accept tendered Old Notes for exchange or to issue New Notes in exchange for validly tendered Old Notes pursuant to the Exchange Offers, then the Exchange Agent may, nevertheless, on our behalf, retain the tendered Old Notes, without prejudice to our rights described under “— Expiration Date; Extensions; Termination; Amendments” and “— Conditions to the Exchange Offers” and “— Withdrawal” above, but subject to Rule 14e-1 under the Exchange Act, which requires that we return the Old Notes tendered promptly after the termination or withdrawal of any exchange offer, and the tendered Old Notes may not be withdrawn.
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Exchange Agent
D.F. King & Co., Inc. has been appointed as the Exchange Agent for the Exchange Offers. All correspondence in connection with the Exchange Offers, including questions concerning tender procedures and requests for additional copies of this prospectus, should be sent or delivered by each holder of the Old Notes, or beneficial owner’s commercial bank, broker, dealer, trust company or other nominee, to the Exchange Agent at the address set forth below:
By Registered Certified or Regular Mail or Overnight Courier or Hand Delivery:
D.F. King & Co., Inc., as Exchange Agent
28 Liberty Street, 53rd Floor
New York, NY 10005
Attn: Michael Horthman
Email: jbs@dfking.com
Toll Free: (800) 488-8075
Banks and Brokers Call: (212) 596-7580
By Facsimile Transmission (eligible institutions only): (212) 709-3328
For Information or Confirmation by Telephone: (212) 232-3233
Holders of Old Notes may also contact their commercial bank, broker, dealer, trust company or other nominee for assistance concerning the applicable Exchange Offer. We will pay the Exchange Agent reasonable and customary fees for its services and will reimburse it for its reasonable out-of-pocket expenses.
Solicitation of Tenders; Fees and Expenses
We have not retained any dealer-manager or similar agent in connection with the Exchange Offers and we will not make any payments to brokers, dealers or others for soliciting acceptances of the Exchange Offers. We will, however, pay the Exchange Agent reasonable and customary fees for its services and will reimburse it for actual and reasonable out-of-pocket expenses.
We will bear the expenses of soliciting tenders of the Old Notes. Solicitations of holders may be made by mail, e-mail, telephone, facsimile transmission, in person and otherwise by any Exchange Agent, as well as by our officers and other employees and those of our affiliates. No additional compensation will be paid to any officers or employees who engage in soliciting exchanges.
Holders tendering their Old Notes accepted in the Exchange Offers will not be obligated to pay brokerage commissions or fees to us, the Exchange Agent or, except as set forth below, to pay transfer taxes with respect to the exchange of their Old Notes. If, however, a tendering holder handles the transaction through its broker, dealer, commercial bank, trust company or other institution, that holder may be required to pay brokerage fees or commissions.
The Exchange Offers are not being made to, nor will tenders be accepted from or on behalf of, holders of Old Notes in any jurisdiction in which the making of the Exchange Offers or the acceptance would not be in compliance with the laws of the jurisdiction.
Transfer Taxes
You will not be obligated to pay any transfer taxes in connection with the tender of Old Notes in the Exchange Offers unless you instruct us to issue or cause to be issued New Notes, or request that Old Notes not tendered or accepted in the Exchange Offers be returned, to a person other than the tendering holder. In those cases, you will be responsible for the payment of any applicable transfer taxes.
If satisfactory evidence of payment of or exemption from those transfer taxes is not submitted to us or the Exchange Agent, the amount of such transfer taxes will be billed directly to the tendering holder and/or withheld from any amounts due with respect to the Old Notes tendered by such holder.
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Consequences of Failure to Exchange
As a consequence of the offer or sale of the Old Notes pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and applicable state securities laws, holders of Old Notes who do not exchange Old Notes for New Notes in the applicable Exchange Offer will continue to be subject to the restrictions on transfer of the Old Notes. In general, the Old Notes may not be offered or sold unless such offers and sales are registered under the Securities Act, or exempt from, or not subject to, the registration requirements of the Securities Act and applicable state securities laws.
Upon completion of the Exchange Offers, due to the restrictions on transfer of the Old Notes and the absence of similar restrictions applicable to the New Notes, it is highly likely that the market, if any, for Old Notes will be relatively less liquid than the market for New Notes. Consequently, holders of Old Notes who do not participate in the applicable Exchange Offer could experience significant diminution in the value of their Old Notes compared to the value of the New Notes.
NONE OF JBS N.V. OR THE TRUSTEE WITH RESPECT TO THE OLD NOTES OR NEW NOTES, THE EXCHANGE AGENT, OR ANY AFFILIATE OF ANY OF THEM, MAKES ANY RECOMMENDATION AS TO WHETHER HOLDERS OF THE OLD NOTES SHOULD EXCHANGE THEIR OLD NOTES FOR NEW NOTES IN RESPONSE TO THE EXCHANGE OFFERS.
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General
The Old 2037 Notes were, and the New 2037 Notes will be, issued under the 2037 Notes Indenture. The terms of the Old 2037 Notes and the New 2037 Notes will include those expressly set forth in the 2037 Notes Indenture and those made part of the 2037 Notes Indenture by reference therein to the Trust Indenture Act. References to the “2037 Notes” include the Old 2037 Notes and the New 2037 Notes. The Old 2037 Notes constitute, and the New 2037 Notes will constitute, debt securities issued under the 2037 Notes Indenture. The New 2037 Notes will have terms identical in all material respects to the Old 2037 Notes, except that the New 2037 Notes will be registered under the Securities Act and will not be subject to transfer restrictions or registration rights, and the New 2037 Notes will bear different CUSIP numbers from the Old 2037 Notes.
The Old 2057 Notes were, and the New 2057 Notes will be, issued under the 2057 Notes Indenture. The terms of the Old 2057 Notes and the New 2057 Notes will include those expressly set forth in the 2057 Notes Indenture and those made part of the 2057 Notes Indenture by reference therein to the Trust Indenture Act. References to the “2057 Notes” include the Old 2057 Notes and the New 2057 Notes. The Old 2057 Notes constitute, and the New 2057 Notes will constitute, debt securities issued under the 2057 Notes Indenture. The New 2057 Notes will have terms identical in all material respects to the Old 2057 Notes, except that the New 2057 Notes will be registered under the Securities Act and will not be subject to transfer restrictions or registration rights, and the New 2057 Notes will bear different CUSIP numbers from the Old 2057 Notes.
References to the “Old Notes” include the Old 2037 Notes and the Old 2057 Notes.
References to the “New Notes” include the New 2037 Notes and the New 2057 Notes.
References to “the notes” include the 2037 Notes and the 2057 Notes.
Although, for convenience, the Old 2037 Notes and the Old 2057 Notes are referred to collectively as the “Old Notes,” they were issued each as a separate series and will not together have any class voting or other rights.
References to the “Indentures” include, as applicable, the 2037 Notes Indenture and the 2057 Notes Indenture.
All references in this “Description of the New Notes” to the holders of the notes mean (i) in the case of the 2037 Notes, the holders of the 2037 Notes, and (ii) in the case of the 2057 Notes, the holders of the 2057 Notes.
The following description of certain provisions of the Indentures does not purport to be complete and is subject, and is qualified in its entirety by reference, to all of the provisions of the applicable Indenture, including the definitions therein of certain terms, and to the New Notes. We urge you to read the applicable Indenture and the applicable New Notes in their entirety because they contain additional information and they, and not this description, define your rights as a holder of the New Notes. Copies of the applicable Indenture and forms of the New Notes will be made available without charge upon request in writing to us at the address set forth under “Where You Can Find Additional Information.”
You can find the definitions of capitalized terms used in this description and not otherwise defined under the subheading “— Definitions.” In this description, (i) the “Company” refers only to JBS N.V. (subject to the Substitution of the Company provisions below) and not to any of its Subsidiaries; and (ii) “Issuers” refers only to the Company, JBS USA Foods Group Holdings, Inc. and JBS USA Food Company Holdings (“JBS USA Food”).
The following description is a summary of the provisions of the Indentures that the Company believes to be material and of interest to you, and does not restate that agreement in its entirety. We encourage you to read the applicable Indenture because that agreement, and not this description, will define your rights as a holder of the New Notes. Any references in this summary to dollar amounts are to U.S. dollars and include the foreign currency equivalent of that amount determined at the relevant time to the extent proceeds, transactions or other amounts are denominated, in whole or in part, in a currency other than U.S. dollars.
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Brief Description of the New Notes
The New Notes will be:
• senior unsecured obligations of the Issuers;
• equal in ranking (“pari passu”) with all existing and future senior unsecured debt of the Issuers;
• senior in right of payment to any future subordinated debt of the Issuers;
• effectively subordinated in right of payment to existing and future secured debt of the Issuers to the extent of the value of the assets securing such obligations; and
• structurally subordinated in right of payment to all existing and future debt and other liabilities, including trade payables, of the Company’s Subsidiaries (other than JBS USA Foods Group Holdings, Inc. and JBS USA Food Company Holdings) to the extent of the value of the assets of these entities.
Principal, Maturity and Interest
The New 2037 Notes
The New 2037 Notes will be senior unsecured obligations of the Issuers. The New 2037 Notes will mature on March 10, 2037.
The New 2037 Notes will bear interest at the annual rate of 5.625%, payable semi-annually in arrears on March 10 and September 10 of each year, commencing March 10, 2027.
The New 2057 Notes
The New 2057 Notes will be senior unsecured obligations of the Issuers. The New 2057 Notes will mature on May 10, 2057.
The New 2057 Notes will bear interest at the annual rate of 6.400%, payable semi-annually in arrears on May 10 and November 10 of each year, commencing May 10, 2027.
The New Notes of each series will accrue interest from (and including) the most recent date on which interest has been paid on the corresponding series of Old Notes accepted in the Exchange Offers.
Interest on the notes will be computed on the basis of a 360-day year comprised of twelve 30-day months.
Except as set forth above, no accrued but unpaid interest will be paid with respect to New Notes tendered for exchange.
The Notes
The Issuers may issue additional notes of each series under the applicable Indenture. The notes of each series offered hereby, existing notes of such series and any additional notes that the Issuers subsequently issue under the applicable Indenture with the same terms will be treated as a single class for all purposes under the applicable Indenture, in each case including, without limitation, waivers, amendments, redemptions and offers to purchase; provided that, if any such additional notes subsequently issued are not fungible for U.S. federal income tax purposes with any such notes previously issued, such additional notes shall have a separate CUSIP number but shall otherwise be treated as a single class with all other notes issued under the applicable Indenture.
The Issuers will make all payments on the notes at the office or agency of the paying agent and registrar located in the United States of America (which may be the corporate trust office of the trustee). The trustee will initially act as paying agent and as registrar for the notes. The Company may change the paying agent or registrar without prior notice to the noteholders. Subject to compliance with any applicable laws or regulations, the Company or any of its Subsidiaries may act as paying agent or registrar.
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If a payment date is not a business day, payment may be made on the next succeeding day that is a business day with the same force and effect as if payment was made on such date and no interest shall accrue in respect of such payment for the intervening period.
Transfer and Exchange
A holder may transfer or exchange notes in accordance with the applicable Indenture, subject to compliance with applicable securities laws. The Issuers may require a holder to, among other things, furnish appropriate endorsements and transfer documents in connection with a transfer or exchange of notes. The Issuers may require a holder to pay any transfer or other taxes and governmental or other fees payable in connection with a transfer or exchange of notes. The Issuers are not required to transfer or exchange any note for a period of 15 days before a selection of notes to be redeemed.
The registered holder of a note will be treated as owning the note for all purposes.
Optional Redemption
The New 2037 Notes
Optional redemption with a make-whole premium
At any time prior to December 10, 2036 (which is the date that is three months prior to the maturity of the New 2037 Notes (the “2037 Notes Par Call Date”)), the Company may choose to redeem all or any portion of the New 2037 Notes at a redemption price calculated by the Company equal to the greater of:
(a) 100% of the principal amount of the New 2037 Notes to be redeemed; and
(b) the present values of the remaining scheduled payments of principal and interest on such New 2037 Notes that would have been due if the New 2037 Notes matured on the 2037 Notes Par Call Date (but excluding accrued and unpaid interest to but excluding the redemption date), computed using a discount rate equal to the applicable Treasury Yield (determined on the second business day immediately preceding the date of redemption) plus 20 basis points,
plus accrued and unpaid interest, if any, to but excluding the redemption date (subject to the right of holders of record on the relevant record date to receive interest due on the relevant interest payment date). The trustee shall have no obligation to calculate or verify any make-whole premium.
Optional redemption at par
At any time on or after the 2037 Notes Par Call Date, the Company may choose to redeem all or any portion of the New 2037 Notes at a redemption price equal to 100% of the principal amount of the New 2037 Notes being redeemed plus accrued and unpaid interest, if any, to but excluding the redemption date (subject to the right of holders of record on the relevant record date to receive interest due on the relevant interest payment date).
The New 2057 Notes
Optional redemption with a make-whole premium
At any time prior to November 10, 2056 (which is the date that is six months prior to the maturity of the New 2057 Notes (the “2057 Notes Par Call Date”)), the Company may choose to redeem all or any portion of the New 2057 Notes at a redemption price calculated by the Company equal to the greater of:
(a) 100% of the principal amount of the New 2057 Notes to be redeemed; and
(b) the present values of the remaining scheduled payments of principal and interest on such New 2057 Notes that would have been due if the New 2057 Notes matured on the 2057 Notes Par Call Date (but excluding accrued and unpaid interest to but excluding the redemption date), computed using a discount rate equal to the applicable Treasury Yield (determined on the second business day immediately preceding the date of redemption) plus 25 basis points,
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plus accrued and unpaid interest, if any, to but excluding the redemption date (subject to the right of holders of record on the relevant record date to receive interest due on the relevant interest payment date). The trustee shall have no obligation to calculate or verify any make-whole premium.
Optional redemption at par
At any time on or after the 2057 Notes Par Call Date, the Company may choose to redeem all or any portion of the New 2057 Notes at a redemption price equal to 100% of the principal amount of the New 2057 Notes being redeemed plus accrued and unpaid interest, if any, to but excluding the redemption date (subject to the right of holders of record on the relevant record date to receive interest due on the relevant interest payment date).
The Notes
Optional clean-up redemption
In connection with any tender offer (including any Change of Control Offer made in accordance with the terms of the applicable Indenture) for notes, if holders of not less than 90% in aggregate principal amount of the outstanding notes of such series validly tender and do not withdraw notes in such tender offer and the Company, or any third party making such tender offer in lieu of the Company, purchases all of the notes validly tendered and not withdrawn by such holders, the Company or such third party will have the right upon not less than 10 nor more than 60 days’ prior notice to the holders (with a copy to the trustee), given not more than 30 days following such purchase date, to redeem or purchase all the notes of each series that remain outstanding following such purchase at a price equal to the price paid to the holders in such tender offer plus, to the extent not included in the purchase price, accrued and unpaid interest and Additional Amounts, if any, on the notes that remain outstanding, to, but excluding, the date of redemption. The Company shall calculate the redemption price in connection with any redemption, and the trustee shall have no duty to calculate or verify any such calculation.
Tax Redemption
If, with respect to series of notes, as a result of any change in or amendment to the laws (or any rules or regulations thereunder) of any Taxing Jurisdiction (as defined below) or any political subdivision or Taxing Authority thereof or therein affecting taxation, or any amendment to or change in an official interpretation, administration or application of such laws, rules, or regulations (including a holding by a court of competent jurisdiction), which change or amendment becomes effective on or after the applicable Issue Date or, in the event there is a successor issuer or guarantor on the notes, on or after the date a successor assumes the obligations under the notes or there is a guarantor on the notes, as the case may be, the Company, any Guarantor which is not formed or incorporated under the laws of the United States or any State of the United States or the District of Columbia (each, a “non-U.S. Guarantor”) or any successor issuer or successor guarantor has or will become obligated to pay in respect of such notes Additional Amounts as described below under “— Additional Amounts” in excess of the Additional Amounts the Company, non-U.S. Guarantors or any successor issuer or successor guarantor would be obligated to pay if payments were subject to withholding or deduction for Taxes imposed by a Taxing Jurisdiction at a rate of 0% or, in the case of any successor issuer or successor guarantor the withholding rate in effect at the time such person becomes a successor issuer or successor guarantor (the “Minimum Withholding Level”), the Company, non-U.S. Guarantors or any successor issuer or successor guarantor may, at their or its option, redeem all, but not less than all, of the notes of each series, at a redemption price equal to 100% of their principal amount, together with any interest accrued to the date fixed for redemption, upon publication of irrevocable notice not less than 10 days nor more than 90 days prior to the date fixed for redemption. No notice of such redemption may be given earlier than 90 days prior to the earliest date on which the Company, non-U.S. Guarantors or any successor issuer or successor guarantor would, but for such redemption, be obligated to pay Additional Amounts above the Minimum Withholding Level. The Company, non-U.S. Guarantors or any successor issuer or successor guarantor will not have the right to so redeem the notes in the event the Company, non-U.S. Guarantors or any successor issuer or successor guarantor becomes obligated to pay Additional Amounts which are less than the Additional Amounts payable at the Minimum Withholding Level. Notwithstanding the foregoing, none of the Company, non-U.S. Guarantors or any successor issuer or successor guarantor will have the right to so redeem the notes unless it has taken reasonable measures to avoid the obligation to pay Additional Amounts. For the avoidance of doubt, reasonable measures will not include the Company, non-U.S. Guarantors or any successor issuer or successor guarantor changing or moving jurisdictions.
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In the event that the Company, non-U.S. Guarantors or any successor issuer or successor guarantor elects to so redeem the notes, they or it will deliver to the trustee: (1) a certificate, signed in the name of the Company, non-U.S. Guarantors or any successor issuer or successor guarantor by any two of its executive officers or by its attorney in fact or authorized signatories in accordance with its bylaws, stating that the Company, non-U.S. Guarantors or any successor issuer or successor guarantor, as the case may be, are or is entitled to redeem the notes pursuant to their terms and setting forth a statement of facts showing that the condition or conditions precedent to the right of the Company, non-U.S. Guarantors or any successor issuer or successor guarantor to so redeem have occurred or been satisfied; and (2) an Opinion of Counsel, to the effect that the Company, non-U.S. Guarantors or any successor issuer or successor guarantor has or will become obligated to pay Additional Amounts in excess of the Additional Amounts payable at the Minimum Withholding Level as a result of the change or amendment and that all governmental requirements necessary for the Company, non-U.S. Guarantors or any successor issuer or successor guarantor to effect the redemption have been complied with. For the avoidance of doubt, reasonable measures will not include the Company, non-U.S. Guarantors or any successor issuer or successor guarantor changing or moving jurisdictions.
General
Any redemption or notice of any redemption may, at the Company’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion of an offering or financing, Change of Control or other corporate transaction or event. In addition, if such redemption or notice is subject to satisfaction of one or more conditions precedent, such notice shall state that, in the Company’s discretion, the redemption date may be delayed until such time as any or all such conditions shall be satisfied and a new redemption date will be set by the Company in accordance with applicable DTC procedures, or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the redemption date, or by the redemption date as so delayed.
Any notice to the holders of notes of a series of such a redemption must include the appropriate calculation of the redemption price, but need not include the redemption price itself. The actual redemption price must be set forth in an officer’s certificate delivered to the trustee no later than two business days prior to the redemption date.
Selection and Notice
The Company will deliver a notice of redemption electronically or by first class mail (or otherwise in accordance with applicable DTC procedures) at least 10 days but not more than 60 days before the redemption date to each holder of notes of the series to be redeemed (with a copy to the trustee).
In the case of any partial redemption, selection of the notes of a series for redemption will be made in accordance with applicable DTC procedures, although no note of less than US$2,000 in original principal amount will be redeemed in part. If any note is to be redeemed in part only, the notice of redemption relating to that note will state the portion of the principal amount of that note to be redeemed. A new note in principal amount equal to the unredeemed portion of that note will be issued in the name of the holder of the note upon cancellation of the original note.
Mandatory Redemption; Offers to Purchase; Open Market Purchases
The Issuers are not required to make any mandatory redemption or sinking fund payments with respect to the notes. The Issuers may be required to offer to purchase the notes as described under the following heading entitled “— Change of Control.” The Issuers may at any time and from time to time purchase the notes of either series in the open market or otherwise. Any notes purchased in the open market or otherwise will be cancelled or remain outstanding as instructed in each case by the Company.
Additional Amounts
All payments made by the Company in respect of the notes will be made free and clear of and without withholding or deduction for or on account of any present or future Taxes imposed or levied by or on behalf of any Taxing Authority of the Netherlands or other jurisdiction in which the Company or any paying agent of the Company is organized or engaged in business for tax purposes (any of the aforementioned being a “Taxing Jurisdiction”),
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unless Taxes are required to be withheld or deducted by law or by the interpretation or administration thereof. If Taxes are required to be withheld or deducted by a Taxing Authority within any Taxing Jurisdiction, from any payment made by the Company, then the Company will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of notes (including Additional Amounts) after such withholding or deduction will equal the amount the holder would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to:
(1) any Tax imposed by the United States or by any political subdivision or Taxing Authority thereof or therein;
(2) any Taxes that would not have been so imposed, deducted or withheld but for the existence of any connection between the holder or beneficial owner of a note (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over, the holder or beneficial owner of such note, if the holder or beneficial owner is an estate, nominee, trust, partnership, limited liability company, or corporation) and the relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the relevant Taxing Jurisdiction), other than the mere receipt of such payment or the ownership or holding or enforcement of such note;
(3) any estate, inheritance, gift, sales, value-added, excise, transfer or personal property Tax or similar Tax;
(4) any Taxes payable otherwise than by deduction or withholding from payments under or with respect to the notes;
(5) any Taxes that would not have been so imposed, deducted or withheld if the holder or beneficial owner of a note had (i) made a declaration of non-residence, or any other claim or filing for exemption, to which it is entitled or (ii) complied with any certification, identification, information, documentation or other reporting requirement concerning the nationality, residence, identity or connection with the relevant Taxing Jurisdiction of such holder or beneficial owner of such note or any payment on such note (provided that (x) such declaration of non-residence or other claim or filing for exemption or such compliance is required by the applicable law, treaty, regulation, or official administrative practice of the Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of, the imposition, deduction or withholding of, such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption or such compliance is required under the applicable law of the Taxing Jurisdiction, holders at that time have been notified by any Person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption or such compliance is required to be made);
(6) any Taxes that would not have been so imposed, deducted or withheld if the beneficiary of the payment had presented the note for payment within 30 days after the date on which such payment or such note became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the holder would have been entitled to Additional Amounts had the note been presented on the last day of such 30-day period);
(7) any payment under or with respect to a note to any holder that is a fiduciary or partnership or any Person other than the sole beneficial owner of such payment or note, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such partnership or the beneficial owner of such payment or note would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual holder of such note;
(8) any Taxes imposed, deducted or withheld pursuant to the Dutch Withholding Tax Act 2021 (Wet Bronbelasting 2021); or
(9) any combination of items (1) through (8) above.
Notwithstanding any other provisions contained herein, each of the Issuers or any other person making payments on behalf of the Issuers shall be entitled to deduct and withhold as required, and shall not be required to pay, any Additional Amounts with respect to any such withholding or deduction imposed on or in respect of any
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Note pursuant to Sections 1471 through 1474 of the Code (commonly referred to as “FATCA”), any treaty, law, regulation or other official guidance enacted by any jurisdiction implementing FATCA, any agreement between any of the Issuers or any other person and the United States or any jurisdiction implementing FATCA, or any law of any jurisdiction implementing an intergovernmental approach to FATCA.
Whenever in an Indenture or in this “Description of the New Notes” there is mentioned, in any context, the payment of principal, premium, if any, interest or of any other amount payable under or with respect to any note, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Change of Control
Upon the occurrence of a Change of Control Triggering Event, each holder will have the right to require the Issuers to repurchase all or any part of that holder’s notes at a purchase price in cash equal to 101% of the aggregate principal amount of those notes, plus accrued and unpaid interest, if any, to the date of purchase (the “Change of Control Payment”).
Within 30 days following any Change of Control Triggering Event, unless the Issuers have delivered a redemption notice with respect to all the outstanding notes in accordance with the provisions described under “— Optional redemption,” the Issuers will deliver a notice to each holder (with a copy to the trustee) describing the transaction or transactions that constitute a Change of Control Triggering Event and offering to purchase the notes on a specified date (the “Change of Control Offer”), which date will be a business day no earlier than 30 days nor later than 60 days from the date the notice is delivered (the “Change of Control Payment Date”).
The Issuers will comply with the requirements of Rule 14e-1 under the Exchange Act, to the extent applicable, and any other securities laws or regulations 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 securities laws or regulations conflict with provisions of the Indentures, the Issuers will comply with the applicable securities laws and regulations and will not be deemed to have breached their obligations under the Change of Control Triggering Event provisions of the Indentures.
On the Change of Control Payment Date, the Issuers will, to the extent lawful:
(1) accept for payment all notes or portions of notes properly tendered pursuant to the Change of Control Offer; and
(2) deliver or cause to be delivered to the trustee or paying agent, on its behalf, the notes properly accepted together with an officer’s certificate stating the aggregate principal amount of notes or portions of notes being tendered and purchased by the Issuers.
The paying agent will promptly deliver to each holder of notes properly tendered the Change of Control Payment for those notes, and the trustee will promptly authenticate and deliver, or cause to be transferred by book-entry, to each holder a new note equal in principal amount to any unpurchased portion of the notes surrendered, if any; provided, however, that each new note will be in a principal amount of US$2,000 or an integral multiple of US$1,000 in excess thereof.
The provisions described above that require the Issuers to make a Change of Control Offer following a Change of Control Trigger Event will apply regardless of whether any other provisions of the applicable Indenture apply. The Indentures do not contain a provision that permits the noteholders to require the Issuers to repurchase or redeem the notes in the event of a takeover, recapitalization or similar transaction that does not involve a Change of Control.
The occurrence of a Change of Control would constitute a default under the Revolving Credit Agreement. Future debt of the Company may contain prohibitions of certain events which would constitute a Change of Control or require such debt to be repurchased upon a Change of Control Triggering Event. Moreover, the exercise by holders of notes of their right to require the Issuers to repurchase such notes could cause a default under the Revolving Credit Agreement or future debt of the Company, even if the Change of Control itself does not, due to the financial effect of such repurchase on the Company. Finally, the Issuers’ ability to pay cash to holders of notes upon a repurchase may be limited by the Issuers’ then existing financial resources. There can be no assurance that sufficient funds will be available when necessary to make any required repurchases. The Issuers’ failure
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to purchase notes in connection with a Change of Control Triggering Event would result in a default under the applicable Indenture. The Issuers’ obligation to make an offer to repurchase the notes as a result of a Change of Control Triggering Event may be waived or modified at any time prior to the occurrence of such Change of Control Triggering Event with the written consent of the holders of a majority in principal amount of the notes. See “— Amendments, Supplements and Waivers.”
The Issuers will not be required to make a Change of Control Offer upon a Change of Control Triggering Event if a third party offers to purchase the notes in the manner, at the times and otherwise in compliance with the requirements set forth in the Indentures applicable to a Change of Control Offer by the Issuers and that third party purchases all notes validly tendered to it in response to that offer. A Change of Control Offer may be made in advance of a Change of Control Triggering Event, and conditioned upon such Change of Control Triggering Event, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer.
The definition of “Change of Control” includes a phrase relating to the sale, lease, exchange or other transfer of “all or substantially all” of the Company’s properties or assets and the properties or assets of its Subsidiaries taken as a whole. Although there is a limited body of case law in New York interpreting the phrase “substantially all,” there is no precise established definition of the phrase under applicable law. Accordingly, the ability of a holder of notes to require the Issuers to purchase its notes as a result of a sale, lease, exchange or other transfer of less than all of the Company’s assets and the assets of its Subsidiaries taken as a whole to another Person may be uncertain.
Certain Covenants of the Company
The Indentures provide that all of the following restrictive covenants will be applicable to the Company and its Significant Subsidiaries:
Measuring Compliance
With respect to:
(i) whether any Lien is permitted to be Incurred in compliance with the applicable Indenture;
(ii) any calculation of the ratios, baskets or financial metrics, including the Secured Leverage Ratio, Consolidated Net Income, Consolidated EBITDA, Total Assets and/or pro forma cost savings, and whether a Default or Event of Default exists in connection with the foregoing; and
(iii) whether any condition precedent to the Incurrence of Liens is satisfied,
at the option of the Company, any of its Restricted Subsidiaries, any parent entity, any successor entity of any of the foregoing or a third party (the “Testing Party”), a Testing Party may select a date prior to the Incurrence of any such Lien if such Testing Party has a reasonable expectation that the Company and/or any of its Restricted Subsidiaries will Incur Liens at a future date in connection with a corporate event, including payment of a dividend, repurchase of equity, an acquisition, merger, amalgamation, or similar transaction or repayment, repurchase or refinancing of Debt, Disqualified Stock or Preferred Stock (any such date, the “Transaction Date”) as the applicable date of determination, as the case may be, in each case with such pro forma adjustments as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of “Secured Leverage Ratio.”
For the avoidance of doubt, if the Testing Party elects to use the Transaction Date as the applicable date of determination in accordance with the foregoing, (a) any fluctuation or change in the ratios, baskets or financial metrics, including the Secured Leverage Ratio, Consolidated Net Income, Consolidated EBITDA, Total Assets and/or pro forma cost savings of the Company, from the Transaction Date to the date of Incurrence of such Lien will not be taken into account for purposes of determining (i) whether any such Lien is permitted to be Incurred or (ii) in connection with compliance by the Company or any of its Restricted Subsidiaries with any other provision of the applicable Indenture or the notes, (b) if financial statements for one or more subsequent fiscal quarters shall have become available, the Testing Party may elect, in its sole discretion, to redetermine all such baskets, ratios and financial metrics on the basis of such financial statements, in which case such date of redetermination shall thereafter be deemed to be the applicable Transaction Date for purposes of such baskets, ratios and financial metrics, (c) until such corporate event is consummated or such definitive agreements relating to such corporate event are terminated, such corporate event and all transactions proposed to be undertaken in connection therewith (including the Incurrence of Liens) will be given pro forma effect when determining compliance of other transactions that
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are consummated after the Transaction Date and on or prior to the date of consummation of such corporate event and (d) Consolidated Interest Expense for purposes of the Secured Leverage Ratio will be calculated using an assumed interest rate based on the indicative interest margin (without giving effect to any step-ups) contained in any financing commitment documentation or, if no such indicative interest margin exists, as reasonably determined by the Company in good faith. In addition, the Indentures provide that compliance with any requirement relating to the absence of a Default or Event of Default may be determined as of the Transaction Date (including any new Transaction Date) and not as of any later date as would otherwise be required under the applicable Indenture.
Notwithstanding anything to the contrary herein, with respect to any amounts Incurred or transactions entered into (or consummated) in reliance on a provision of the applicable Indenture that does not require compliance with a financial ratio or financial test (including any Secured Leverage Ratio, Consolidated Net Income, Consolidated EBITDA, or Total Assets test) (any such amounts, the “Fixed Amounts”) substantially concurrently with any amounts Incurred or transactions entered into (or consummated) in reliance on a provision of the applicable Indenture that requires compliance with a financial ratio or financial test (including any Secured Leverage Ratio, Consolidated Net Income, Consolidated EBITDA, or Total Assets test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that the Fixed Amounts shall be disregarded in the calculation of the financial ratio or test applicable to the Incurrence-Based Amounts (and thereafter, Incurrence of the portion of such amount under the Fixed Amount shall be included in such calculation).
Substitution of the Company
The Company may, at its option and without the consent of any holder of the notes of a series, be substituted (a “Substitution”) by (i) any direct or indirect parent of the Company or (ii) any Subsidiary of the Company that owns, or after the Substitution, will own, a majority of the assets of the Company (in each case, the “Substituted Company”) for purposes of the applicable Indenture and have the covenants (and related definitions) apply to the Substituted Company and its Restricted Subsidiaries; provided that the following conditions are satisfied:
(1) the Substituted Company is a corporation or limited liability company organized (or the equivalents) and existing under the laws of the United States or any State of the United States or the District of Columbia or any other country member of the Organization for Economic Co-operation and Development (OECD);
(2) such Substituted Company, becomes a co-issuer of the notes pursuant to a supplemental indenture;
(3) immediately after giving effect to the Substitution, on a pro forma basis, no Event of Default shall have occurred and be continuing; and
(4) the Company delivers to the trustee an officer’s certificate stating that such Substitution complies with the applicable Indenture and that all conditions precedent in the applicable Indenture relating to such Substitution have been satisfied.
After the Substitution, all references to the Company shall be deemed to refer to the Substituted Company and if the Substitution is effectuated pursuant to clause (i) above, then the Company prior to the Substitution shall become a Restricted Subsidiary.
Release of JBS USA Food as an Issuer
The Company may, at its option and without the consent of any holder of the notes of a series, release JBS USA Food as an issuer for purposes of the applicable Indenture and the notes of such series; provided, that the following conditions are satisfied:
(1) concurrently with such release, the Company or a Restricted Subsidiary of the Company is an issuer of the notes and such issuer is a corporation (or the equivalent);
(2) immediately after giving effect to such release, on a pro forma basis, no Event of Default shall have occurred and be continuing;
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(3) JBS USA Food Company shall cease to be an issuer under each of the (i) Existing 2029 Notes, (ii) Existing 2031 Notes and (iii) Existing 2032 Notes, for any reason, including, without limitation, as a result of a consent solicitation, an exchange offer, the full repayment, redemption or defeasance thereof; and
(4) the Company delivers to the trustee an officer’s certificate stating that such release complies with the applicable Indenture and that all conditions precedent in the applicable Indenture relating to such release have been satisfied.
Limitation on Liens
The Company shall not, and shall not permit any Significant Subsidiary that guarantees the notes to, Incur or suffer to exist any Lien (other than Permitted Liens) securing Debt upon any of its Principal Property, whether owned at the applicable Issue Date or thereafter acquired, unless it has made or will make effective provision whereby the notes or the applicable Guarantee will be secured by a Lien on such Principal Property equally and ratably with (or prior to) all other Debt of the Company or any Significant Subsidiary that guarantees the notes secured by a Lien for so long as such other Debt is secured by such Lien; provided, however, that if the Debt is Subordinated Debt, the Lien on such Principal Property securing the Debt will be subordinated and junior to the Lien securing the notes with the same relative priority as such Debt has with respect to the notes. As of the date of this prospectus, the Company had no Principal Properties.
For purposes of determining compliance with this covenant, (A) a Lien securing an item of Debt need not be permitted solely by reference to one category of Permitted Liens (or any portion thereof) described in the definition of “Permitted Liens” or pursuant to the first paragraph of this covenant but may be permitted in part under any combination thereof and (B) in the event that a Lien securing an item of Debt (or any portion thereof) meets the criteria of one or more of the categories of Permitted Liens (or any portion thereof) described in the definition of “Permitted Liens” or pursuant to the first paragraph of this covenant, the Company shall, in its sole discretion, classify or reclassify, or later divide, classify or reclassify (as if Incurred at such later time), such Lien securing such item of Debt (or any portion thereof) in any manner that complies with this covenant and will be entitled to include the amount and type of such Lien or such item of Debt secured by such Lien (or portion thereof) in one of the categories of Permitted Liens (or any portion thereof) described in the definition of “Permitted Liens” or pursuant to the first paragraph of this covenant and, in such event, such Lien securing such item of Debt (or any portion thereof) will be treated as being Incurred or existing pursuant to only such clause or clauses (or any portion thereof) or pursuant to the first paragraph hereof without giving pro forma effect to such item (or portion thereof) when calculating the amount of Liens or Debt that may be Incurred pursuant to any other clause or paragraph.
With respect to any Lien securing Debt that was permitted to secure such Debt at the time of the Incurrence of such Debt, such Lien shall also be permitted to secure any Increased Amount of such Debt. The “Increased Amount” of any Debt shall mean any increase in the amount of such Debt in connection with any accrual of interest, the accretion of accreted value, the amortization of original issue discount, the payment of interest in the form of additional Debt with the same terms or in the form of common stock of the Company, the payment of dividends on Preferred Stock in the form of additional shares of Preferred Stock of the same class, accretion of original issue discount or liquidation preference and increases in the amount of Debt outstanding solely as a result of fluctuations in the exchange rate of currencies or increases in the value of property securing Debt described in clause (8) of the definition of “Debt.”
Limitations on Sale and Leaseback Transactions
The Company shall not, and shall not permit any Significant Subsidiary that guarantees the notes to, enter into any Sale and Leaseback Transaction with respect to any Principal Property, unless either (x) the Company or such Significant Subsidiary would be entitled pursuant to the provisions described above under “— Limitation on Liens” to Incur a Lien securing Debt on such Principal Property at least equal in amount to the Attributable Debt with respect to such Sale and Leaseback Transaction without equally and ratably securing the notes or (y) within 365 days after the closing date of such Sale and Leaseback Transaction, the Company or such Significant Subsidiary shall apply or cause to be applied, in the case of a sale or transfer for cash, an amount equal to the net proceeds thereof, (A) to the retirement of Debt of the Company ranking at least on a parity with the notes or Debt of any Subsidiary,
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in each case owing to a Person other than the Company or any of its Subsidiaries or (B) to the acquisition, purchase, construction, development, extension or improvement (including any capital expenditure) of any property or assets of the Company or any Subsidiary used or to be used by or for the benefit of the Company or any Subsidiary.
This restriction will not apply to: (i) transactions providing for a lease term of three years or less; and (ii) transactions between the Company and any of its Significant Subsidiaries or between any Significant Subsidiaries.
Guarantees of Debt by Restricted Subsidiaries
The Company will cause any of its Domestic Restricted Subsidiaries that are wholly-owned and that guarantee the Company’s obligations under the Revolving Credit Agreement that is not a special purpose Restricted Subsidiary formed in connection with a Receivables Facility to guarantee payment of the Issuers’ obligations under the applicable Indenture and related series of notes by causing such Domestic Restricted Subsidiary within 30 days to:
(1) execute and deliver a supplemental indenture providing for a Guarantee of payment of the Issuers’ obligations under the applicable Indenture and related series of notes by such Domestic Restricted Subsidiary, except that if such Debt is by its express terms subordinated in right of payment to the notes, any such Guarantee of such Domestic Restricted Subsidiary with respect to such Debt will be subordinated in right of payment to such Domestic Restricted Subsidiary’s Guarantee with respect to the notes substantially to the same extent as such Debt is subordinated to the notes; and
(2) deliver to the trustee an Opinion of Counsel to the effect that:
(a) such supplemental indenture has been duly executed and authorized; and
(b) such supplemental indenture constitutes an enforceable obligation of such Domestic Restricted Subsidiary (subject to customary exceptions and limitations), except insofar as enforcement thereof may be limited by bankruptcy, insolvency or similar laws (including, without limitation, all laws relating to fraudulent transfers) and except insofar as enforcement thereof is subject to general principles of equity;
provided, however, that the foregoing provisions of this covenant will not be applicable to any guarantee of any Domestic Restricted Subsidiary if the Company has reasonably determined that such guarantee would result in or create a material risk of tax or other liability.
Reports
Reports of the Company
Whether or not the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall provide the trustee and the holders of notes with the following:
(1) within 90 days following the end of each fiscal year of the Company, its annual audited consolidated financial statements prepared in accordance with GAAP; and
(2) within 45 days following the end of each fiscal quarter (other than the last fiscal quarter of its fiscal year) of the Company, its unaudited quarterly financial statements prepared in accordance with GAAP;
provided, however, that reports and information provided pursuant to clauses (1) and (2) shall not be required to be accompanied by any exhibits or financial statements other than those financial statements explicitly required pursuant to clauses (1) and (2).
In addition, for so long as any notes are outstanding, unless the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise complies with such reporting requirements, the Company shall either (1) maintain a website (which may be non-public, but shall not restrict the recipients of such information from trading in securities) to which holders of notes, prospective investors, securities analysts and market makers that certify that they are qualified institutional buyers or are otherwise eligible to hold the
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notes (collectively, “Permitted Parties”) are given access and to which the information required by the preceding paragraphs (the “Required Information”) is posted; or (2) distribute via electronic mail the Required Information to beneficial owners of the notes and prospective investors that certify that they are Permitted Parties who request to receive such distributions. If the Company makes available the reports described in clauses (1) or (2) on the Company’s website, it will be deemed to have satisfied the reporting requirement set forth in such applicable clause. The trustee shall have no responsibility whatsoever to determine whether the Required Information has been posted to any such website.
In addition, for so long as any notes are outstanding, the Company shall also:
(1) within 15 business days after providing the trustee and the holders with the annual and quarterly information required pursuant to clauses (1) and (2) above, hold a conference call for Permitted Parties to discuss such reports and the results of operations for the relevant reporting period; and
(2) issue a press release to any U.S. nationally recognized wire service, post to the website mentioned in the prior paragraph or employ other means commercially reasonably expected to reach Permitted Parties no fewer than three business days prior to the date of the conference call required to be held in accordance with clause (1) above, announcing the time and date of such conference call and either including all information necessary to access the call or directing Permitted Parties to contact the appropriate person at the Company to obtain such information.
The trustee shall have no duty to review or analyze reports delivered to it. Delivery of any information, documents and reports to the trustee is for informational purposes only, and the trustee’s receipt of such shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Issuers’ compliance with any of their covenants hereunder (as to which the trustee is entitled to rely exclusively on an officer’s certificate). The trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise, and shall have no responsibility or liability for the Issuers’ compliance or non-compliance with any covenants in the Indentures or notes, including with respect to any reports or other documents posted on any website or filed with the SEC, or participate in any conference calls.
The Issuers have agreed that, for so long as any notes remain outstanding, the Issuers will furnish to noteholders and securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
The Company’s obligations pursuant to this covenant may, at the Company’s option, be suspended and instead provided by any direct or indirect parent of the Company (any such entity, a “Parent Reporting Entity”) as of any date, and for so long as, all of the following conditions are satisfied:
(1) the Parent Reporting Entity beneficially owns directly or indirectly at least 95% (less any director’s qualifying shares or shares owned by foreign nationals to the extent mandated by applicable law) of the Voting Stock of the Company; and
(2) Parent Reporting Entity makes the reports and financial information referred to in the first paragraph of this covenant available on its website (or otherwise permitted above), or otherwise publicly available within the time periods specified in the first paragraph of this covenant, except that such reports and financial information may be with respect to Parent Reporting Entity instead of the Company; provided that, if the Parent Reporting Entity has material operating assets (other than the Company and its Subsidiaries), the quarterly and annual financial statements of Parent Reporting Entity shall include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Parent Reporting Entity (any period during which the reporting obligations pursuant to the first paragraph of this covenant are suspended pursuant to this clause being referred to herein as a “Reporting Suspension Period”). The requirements of the first paragraph of this covenant above shall resume as of the end of any Reporting Suspension Period, but no Default or Event of Default shall be deemed to have occurred or be continuing due to non-compliance during any Reporting Suspension Period with the requirements of the first paragraph of this covenant.
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Merger, Consolidation and Sale of Assets
The Company will not, in a single transaction or a series of related transactions, consolidate with or merge with or into, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its assets determined on a consolidated basis to, another Person unless:
(1) either
(a) the Company is the Surviving Person; or
(b) the Person, if other than the Company, formed by such consolidation or into which the Company is merged or the Person that acquires the properties and assets of the Company substantially as an entirety, the Person to which assets of the Company have been transferred, will be a corporation or limited liability company organized (or equivalent) and existing under the laws of the United States or any State of the United States or the District of Columbia or any other country member of the Organization for Economic Co-operation and Development (OECD) if such successor Person undertakes to pay such Additional Amounts as set forth under “— Additional Amounts” (collectively, the “Permitted Jurisdiction”); provided, however, that if the Person formed by such consolidation or into which the Company is merged or the person that acquires the properties and assets of the Company substantially as an entirety is a limited liability company, JBS USA Food shall be a co-obligor on the notes or the Company or such Surviving Person shall cause a Restricted Subsidiary of the Company that is a corporation to become a co-obligor on the notes;
(2) such Surviving Person, if other than the Company, assumes all of the obligations of the Company under the notes and the applicable Indenture pursuant to a supplemental indenture;
(3) no Event of Default shall have occurred and be continuing; and
(4) the Company delivers to the trustee an officer’s certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer complies with the applicable Indenture and that all conditions precedent in the applicable Indenture relating to such transaction have been satisfied.
For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of related transactions) of all or substantially all of the properties and assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties or assets of the Company, will be deemed to be the transfer of all or substantially all of the properties and assets of the Company. Notwithstanding the foregoing clause (3),
(A) any Restricted Subsidiary of the Company may consolidate with, merge into or transfer all or part of its properties and assets to the Company, and
(B) the Company may merge with one of its Affiliates solely for the purpose of reorganizing the Company in another Permitted Jurisdiction to realize tax or other benefits.
In the event of any transaction (other than a lease) described in and complying with the conditions listed in the second preceding paragraph in which the Company is not the Surviving Person and the Surviving Person is to assume all the obligations of the Company under the notes and the applicable Indenture pursuant to a supplemental indenture, that Surviving Person will succeed to, and be substituted for, and may exercise every right and power of the Company, and the Company will be discharged from its obligations under the applicable Indenture and the notes.
Events of Default
Each of the following constitutes an Event of Default under the Indentures:
(1) the failure to pay interest on the relevant series of notes when that interest becomes due and payable and the Default continues for 30 days;
(2) the failure to pay principal of or premium, if any, on the relevant series of notes when that principal or premium, if any, becomes due and payable, at maturity, upon redemption or otherwise;
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(3) the failure to comply with “— Merger, consolidation and sale of assets” above;
(4) failure by the Issuers or any Restricted Subsidiary of the Company to observe or perform (a) the provisions described under the caption “— Reports,” which failure is continuing for a period of 90 days (and may be cured by filing, furnishing or making available, as applicable, the delinquent report within such 90-day period) or (b) any other covenant or agreement contained in the relevant series of notes or the relevant Indenture, which failure continues for a period of 60 days after the Company receives a written notice specifying the default from the trustee or holders of at least 30% in outstanding aggregate principal amount of notes;
(5) Debt of an Issuer or any Significant Subsidiary of the Company is not paid within any applicable grace period after final maturity or is accelerated by the holders thereof because of a default and the total amount of such Debt unpaid or accelerated exceeds US$125.0 million;
(6) failure by the Company or any Significant Subsidiary of the Company to pay or discharge final and non-appealable judgments for the payment of money entered by a court or courts of competent jurisdiction aggregating in excess of US$125.0 million, which judgments are not discharged, waived or stayed (to the extent not covered by insurance) for a period of 60 consecutive days following entry of such final and non-appealable judgments or decrees during which a stay of enforcement of each such final and non-appealable judgment or decree, by reason of pending appeal or otherwise, is not in effect; and
(7) certain events of bankruptcy, insolvency or reorganization affecting an Issuer or any Significant Subsidiary of the Company.
If any Event of Default (other than those of the type described in clause (7) of the preceding paragraph with respect to the Company) occurs under the relevant series of notes and is continuing, the trustee or the holders of at least 30% in outstanding aggregate principal amount of the relevant series of notes then outstanding may declare the principal of all the relevant series of notes, together with all accrued and unpaid interest, premium, if any, to be due and payable by notice in writing to the Company and the trustee specifying the respective Event of Default and that such notice is a notice of acceleration, and the same shall become immediately due and payable.
The Company shall deliver to the trustee, within ten business days after becoming aware of the occurrence thereof, written notice in the form of an officer’s certificate of any event that with the giving of notice and the lapse of time would become an Event of Default, its status and what action the Company is taking or proposes to take with respect thereto.
If an Event of Default of the type described in clause (7) above relating to the Company occurs and is continuing, then such amount with respect to all the notes will become due and payable immediately without any declaration or other act on the part of the trustee or any holder of the notes.
The trustee shall not be deemed to have notice of any Default or Event of Default (other than a payment default) unless a written notice of default is received by a responsible officer of the trustee at the corporate trust office of the trustee, and such notice references the relevant series of notes and the relevant Indenture and states that it is a notice of default.
Each Indenture provides that the holders of a majority in aggregate principal amount of the relevant series of then outstanding notes issued thereunder by notice to the trustee may on behalf of the holders of all of the notes of the corresponding series waive any existing Default or Event of Default and its consequences (including any resulting non-payment Default or Event of Default) under the corresponding Indenture (except a continuing Default or Event of Default in the payment of principal, premium, if any, or interest on the notes held by a non-consenting holder that did not result from a non-payment Default or Event of Default) and rescind any acceleration and its consequences with respect to such series of notes; provided (i) such rescission would not conflict with any judgment of a court of competent jurisdiction and (ii) all sums paid or advanced by the trustee under the corresponding Indenture and the reasonable compensation, expenses, disbursements and advances of the trustee, its agents and its counsel have been paid.
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In the event of a declaration of acceleration of a series of notes because an Event of Default described in clause (5) above has occurred and is continuing, the declaration of acceleration of such series of notes shall be automatically annulled if the event of default or payment default triggering such Event of Default pursuant to clause (5) above shall be remedied or cured, or waived by the holders of the Debt, or the Debt that gave rise to such Event of Default shall have been discharged in full and if (i) the annulment of the acceleration of such series of notes would not conflict with any judgment or decree of a court of competent jurisdiction and (ii) all existing Events of Default, except nonpayment of principal, premium or interest on the relevant series of notes that became due solely because of the acceleration of such series of notes, have been cured or waived.
Each Indenture provides that (i) if a Default for a failure to report or failure to deliver a required certificate in connection with another default (the “Initial Default”) occurs, then at the time such Initial Default is cured, such Default for a failure to report or failure to deliver a required certificate in connection with another default that resulted solely because of that Initial Default will also be cured without any further action and (ii) any Default or Event of Default for the failure to comply with the time periods prescribed in the covenant entitled “Reports” or otherwise to deliver any notice or certificate pursuant to any other provision of the applicable Indenture shall be deemed to be cured upon the delivery of any such report required by such covenant or such notice or certificate, as applicable, even though such delivery is not within the prescribed period specified in the relevant Indenture.
The Company is required to deliver to the trustee, within 120 days after the end of the Company’s fiscal year, a certificate indicating such signing officer’s knowledge as to whether the Issuers have complied with all conditions and covenants under the relevant Indenture.
Subject to the provisions of the Indentures relating to the duties of the trustee in case an Event of Default should occur and be continuing, the trustee will be under no obligation to exercise any of the rights or powers vested in it by the Indentures at the request or direction of any of the holders unless those holders have offered to the trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction. Subject to such provision for security or indemnification and certain limitations contained in the Indentures, the holders of a majority in aggregate principal amount of the notes then outstanding will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred on the trustee.
Amendments, Supplements and Waivers
Subject to exceptions described below, the Company and the trustee may amend the relevant Indenture and series of notes with the consent of the holders of a majority in principal amount of the corresponding series of the notes, including additional notes, if any, then outstanding voting as a single class (including consents obtained in connection with a purchase of or tender offer or exchange offer for corresponding series of the notes) and any existing Default or Event of Default or compliance with any provision of the relevant Indenture or the notes may be waived (except for a continuing Default or Event of Default in the payment of principal, premium, if any, or interest on the notes held by a non-consenting holder). Without the consent of each holder of an outstanding note affected, however, no amendment may:
(1) reduce the amount of notes whose holders must consent to an amendment, supplement or waiver;
(2) reduce the rate of or change the time for payment of interest, including defaulted interest, on any notes;
(3) reduce the principal of or change the fixed maturity of any notes, or change the date on which any notes may be subject to redemption or repurchase (other than with respect to the minimum notice period to holders of notes), or reduce the redemption or repurchase price for those notes (except, in the case of repurchases, as would otherwise be permitted under clause (7) hereof);
(4) make any note payable in money other than that stated in the note and the relevant Indenture;
(5) impair the contractual right of any holder to receive payment of principal, premium, interest on that holder’s notes on or after the due dates for those payments, or to bring suit to enforce that payment on or with respect to such holder’s notes;
(6) modify the provisions contained in the relevant Indenture permitting holders of a majority in principal amount of the notes to waive a Default;
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(7) after the Issuers’ obligation to purchase the notes arises under the relevant Indenture, amend, modify or change the obligation of the Issuers to make or consummate a Change of Control Offer or waive any default in the performance of that Change of Control Offer or modify any of the provisions or definitions with respect to any such offer; or
(8) make any change to or modify the ranking of any such note that would adversely affect the holders of the notes.
Without the consent of any holder, the Company and the trustee may amend the applicable Indenture to:
(a) cure any ambiguity, omission, defect or inconsistency;
(b) provide for the assumption by a successor entity of the obligations of an Issuer under the relevant Indenture;
(c) provide for uncertificated notes in addition to or in place of certificated notes (provided that the uncertificated notes are issued in registered form for purposes of Section 163(f) of the Code, or in a manner such that the uncertificated notes are described in Section 163(f)(2)(B) of the Code);
(d) add Guarantees or additional obligors with respect to the notes;
(e) secure the notes;
(f) add to the covenants of the Issuers for the benefit of the holders or surrender any right or power conferred upon the Issuers;
(g) make any other change that does not adversely affect the rights of any holder in any material respect;
(h) comply with any requirement of the Commission in connection with the qualification of any Indenture under the Trust Indenture Act of 1939;
(i) provide for the issuance of additional notes in accordance with the limitations set forth in the relevant Indenture as of the date of such Indenture;
(j) conform the text of the relevant Indenture or the notes to any provision of this “Description of the New Notes”; or
(k) provide for any other event or action required or permitted by the relevant Indenture.
The consent of the noteholders of the relevant series of notes is not necessary under the Indentures to approve the particular form of any proposed amendment. It is sufficient if such consent approves the substance of the proposed amendment.
Defeasance
The Company may, at its option and at any time, elect to terminate all of the Issuers’ obligations with respect to any series of then outstanding notes and the applicable Indenture (“legal defeasance”), except for:
(1) the rights of holders of outstanding notes to receive payments in respect of the principal of, premium, if any, or interest on those notes when these payments are due from the defeasance trust referred to below;
(2) the Issuers’ obligations with respect to the issuance of temporary notes, the registration of notes, the status of mutilated, destroyed, lost or stolen notes and the maintenance of an office or agency for payment and money for security payments held in trust;
(3) the rights, powers, trusts, duties, indemnities and immunities of the trustee and the Issuers’ obligations in connection with those rights, powers, trusts, duties, indemnities and immunities; and
(4) the Issuers’ obligations under the defeasance provisions contained in the applicable Indenture.
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In addition, the Company may, at its option and at any time, elect to release the Issuers’ obligations with respect to specified covenants (“covenant defeasance”) with respect to the notes, and thereafter any failure by the Company or its Restricted Subsidiaries to comply with those covenants will not constitute a Default or an Event of Default with respect to the corresponding series of notes. Moreover, in the event the Company elects to exercise covenant defeasance, nearly all of the events, other than non-payment, described under “— Events of Default” will no longer constitute Events of Default with respect to the corresponding series of notes.
If the Company exercises legal defeasance, payment of the corresponding series of notes may not be accelerated as a result of an Event of Default. If the Company exercises its covenant defeasance option, payment of the corresponding series of notes may not be accelerated because of an Event of Default specified in clause (3) (with respect to any entity other than the Company), (4), (5), (6), (7) (with respect only to Significant Subsidiaries) or (8) under “— Events of Default” above or because of the failure of the Company to comply with clause (3) of the first paragraph under “— Merger, consolidation and sale of assets” above.
The Company may exercise its legal defeasance option with respect to any series of the notes notwithstanding its prior exercise of covenant defeasance.
In order to exercise either legal defeasance or covenant defeasance:
(1) the Company must irrevocably deposit with the trustee, in trust (the “defeasance trust”), for the benefit of the holders of such series, cash in U.S. dollars, non-callable U.S. Government Securities or a combination of cash and non-callable U.S. Government Securities, sufficient to pay the principal, premium, if any, and interest on the outstanding notes on the stated maturity or on an available redemption date, as the case may be, and the Company must specify whether the notes are being defeased to maturity or to that redemption date;
(2) in the case of legal defeasance only, the Company must deliver to the trustee an Opinion of Counsel confirming that:
(a) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or
(b) since the applicable Issue Date, there has been a change in the applicable federal income tax law, and
(c) based on the ruling obtained under clause (a) or the change in tax law referred to under clause (b), the beneficial owners of the outstanding notes will not recognize income, gain or loss for federal income tax purposes as a result of legal defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if legal defeasance had not occurred;
(3) in the case of covenant defeasance only, the Company must deliver to the trustee an Opinion of Counsel confirming that the beneficial owners of the outstanding notes will not recognize income, gain or loss for federal income tax purposes as a result of covenant defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if covenant defeasance had not occurred;
(4) no Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Debt, and, in each case the granting of Liens in connection therewith) with respect to the notes shall have occurred and be continuing on the date of such deposit;
(5) in the case of legal defeasance only, the legal defeasance will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than the applicable Indenture) to which the Company or any of its Restricted Subsidiaries is a party or by which the Company or any of its Restricted Subsidiaries is bound;
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(6) in the case of legal defeasance only, the Company must deliver to the trustee an Opinion of Counsel, subject to customary exceptions and assumptions, to the effect that on the 91st day following the deposit, the defeasance trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws generally affecting creditors’ rights;
(7) the Company must deliver to the trustee an officer’s certificate stating that the deposit was not made by the Company with the intent of preferring the holders of notes over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company; and
(8) the Company must deliver to the trustee an officer’s certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the legal defeasance or the covenant defeasance have been complied with.
Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) above with respect to a legal defeasance need not be delivered if all notes not theretofore delivered to the trustee for cancellation (a) have become due and payable, (b) will become due and payable on the maturity date within one year or (c) as to which a redemption notice has been given calling the notes for redemption within one year, under arrangements satisfactory to the trustee for the giving of notice of redemption by the trustee in the name, and at the expense, of the Company.
Satisfaction and Discharge
The Company may discharge the applicable Indenture with respect to any series of notes such that it will cease to be of further effect, except as to surviving rights of registration of transfer or exchange of the notes as to all outstanding notes of such series when:
(1) either
(a) all the notes of such series previously authenticated (except lost, stolen or destroyed notes that have been replaced or paid and notes for whose payment money has previously been deposited in trust or segregated and held in trust by the Company and is thereafter repaid to the Company or discharged from the trust) have been delivered to the trustee for cancellation; or
(b) all notes not previously delivered to the trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their maturity within one year, or
(iii) are to be called for redemption within one year under arrangements satisfactory to the trustee,
and in the case of (i), (ii) or (iii), the Company has deposited or caused to be deposited with the trustee as trust funds in trust solely for the benefit of the holders, cash in U.S. dollars, non-callable U.S. Government Securities, or a combination of such cash and non-callable U.S. Government Securities, in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire Debt on the notes not previously delivered to the trustee for cancellation for principal, premium, if any, and interest on the notes to the date of deposit, in the case of notes that have become due and payable, or to the stated maturity or redemption date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable by the Issuers under the applicable Indenture; and
(3) the Company delivers to the trustee an officer’s certificate and Opinion of Counsel stating that all conditions precedent under the applicable Indenture relating to the satisfaction and discharge of such Indenture have been satisfied.
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No Personal Liability of Directors, Officers, Employees and Stockholders
No past, present or future director, officer, employee, incorporator or stockholder, as such, of an Issuer shall have any liability for any obligations of the Issuers under the notes, the Indentures or for any claim based on, in respect of, or by reason of, those obligations or their creation. Each holder by accepting a note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the notes. This waiver may not be effective to waive liabilities under the federal securities laws, and it is the view of the Commission that such a waiver is against public policy.
Concerning the Trustee
Regions Bank is the trustee under each Indenture and has been appointed by the Issuers as registrar and paying agent with regard to the notes. The holders of a majority in outstanding aggregate principal amount of the then outstanding notes of a series will have the right to direct the time, method and place of conducting any proceeding for exercising any remedy available to the trustee under the applicable Indenture, subject to certain exceptions. Each Indenture provides that in case an Event of Default shall occur, the trustee will be required, in the exercise of its power, to use or exercise the degree of care of a prudent person in the conduct of such person’s own affairs. The trustee will be under no obligation to exercise any of its rights or powers under the Indentures at the request of any holder of notes, unless such holder shall have offered to the trustee security and indemnity satisfactory to it against any loss, liability or expense.
The trustee has not provided or approved any information in this prospectus, takes no responsibility for any information contained in this prospectus, and makes no representation as to the contents of this prospectus.
Governing Law
Each Indenture provides that the Indentures and the notes will be governed by, and construed in accordance with, the laws of the State of New York without giving effect to applicable principles of conflicts of law to the extent that the application of the law of another jurisdiction would be required thereby.
Definitions
“Affiliate” means, as to any Person, any other Person which, directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Attributable Debt” in respect of a Sale and Leaseback Transaction means, as at the time of determination, the present value (discounted using an implied interest rate of such transaction) of the total obligations of the lessee for rental payments during the remaining term of the lease included in such Sale and Leaseback Transaction.
“Batista Family” includes José Batista Sobrinho, together with his wife, sons and daughters, or any of their respective heirs and any Person established and controlled by any of the foregoing.
“Board of Directors” means:
(1) with respect to a corporation, the Board of Directors of the corporation;
(2) with respect to a partnership, the Board of Directors or similar board or committee or Person serving a similar function of the managing general partner of the partnership; and
(3) with respect to any other Person, the board or committee of that Person or any Person serving a similar function.
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“Capital Stock” means:
(1) with respect to any Person that is a corporation, any and all shares of corporate stock of that Person;
(2) with respect to any Person that is an association or business entity, any and all shares, interests, participations, rights or other equivalents, however designated, of capital stock of that Person;
(3) with respect to any Person that is a partnership or limited liability company, any and all partnership or membership interests, whether general or limited, of that Person; and
(4) with respect to any other Person, any other interest or participation that confers on a Person the right to receive a share of the profits and losses of or distributions of assets of, the issuing Person.
“Capitalized Lease Obligation” means, as to any Person, the obligation of such Person to pay rent or other amounts under a lease to which such Person is a party that is required to be classified and accounted for as a financing lease obligation under GAAP.
“Cash Management Services” means any of the following to the extent not constituting a line of credit (other than an overnight overdraft facility that is not in default): ACH transactions, treasury and/or cash management services, including, without limitation, controlled disbursement services, overdraft facilities, deposit and other accounts and merchant services.
“Change of Control” means the occurrence of any of the following events:
(1) the sale, lease, transfer, conveyance or other disposition (other than by way of merger, amalgamation, consolidation or other business combination transaction), in one or a series of related transactions, of all or substantially all of the assets of the Company and its Restricted Subsidiaries taken as a whole to a Person, other than a Restricted Subsidiary or one or more Permitted Holders; or
(2) the Company becomes aware of (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) any “person” or “group” of related persons (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act as in effect on the applicable Issue Date), other than one or more Permitted Holders, is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the applicable Issue Date) of more than 50% of the total voting power of the Voting Stock of the Company other than in connection with any transaction or series of transactions in which the Company shall become the wholly owned subsidiary (other than any director’s qualifying shares or shares owned by foreign nationals to the extent mandated by applicable law) of a direct or indirect parent entity of the Company of which no person or group, as noted above, holds 50% or more of the total voting power (other than a Permitted Holder).
For purposes of this definition, any direct or indirect holding company of the Company shall not itself be considered a “person” or “group”; provided that no “person” or “group” (other than one or more of the Permitted Holders) beneficially owns, directly or indirectly, more than a majority of the total voting power of the Voting Stock of such holding company.
“Change of Control Triggering Event” means the occurrence of a Change of Control that results in a Ratings Decline.
“Code” means the Internal Revenue Code of 1986, as amended, or any successor thereto.
“Commission” means the Securities and Exchange Commission.
“Commodity Agreement” means any commodity futures contract, commodity option or similar agreement or arrangement designed to protect against fluctuations in the price of commodities.
“Consolidated Depreciation and Amortization Expense” means with respect to any Person for any period, the total amount of depreciation and amortization expense, including the amortization of deferred financing fees or costs, capitalized expenditures, customer acquisition costs and incentive payments, conversion costs and contract acquisition costs of such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP.
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“Consolidated EBITDA” means, with respect to any Person for any period, the Consolidated Net Income of such Person for such period
(1) increased (without duplication) by:
(a) provision for taxes based on income or profits or capital, including, without limitation, state, franchise, excise and similar taxes and foreign withholding taxes of such Person paid or accrued during such period deducted, including any penalties and interest relating to any tax examinations (and not added back) in computing Consolidated Net Income, plus
(b) Consolidated Interest Expense of such Person for such period (including (x) net losses from Hedging Obligations or other derivative instruments entered into for the purpose of hedging interest rate risk and (y) costs of surety bonds in connection with financing activities, in each case, to the extent included in Consolidated Interest Expense), together with items excluded from the definition of “Consolidated Interest Expense” pursuant to clauses (1)(u) through (1)(z) thereof, to the extent the same were deducted (and not added back) in calculating such Consolidated Net Income; plus
(c) Consolidated Depreciation and Amortization Expense of such Person for such period to the extent the same were deducted in computing Consolidated Net Income, plus
(d) any expenses or charges (other than depreciation or amortization expense) related to any equity offering, investment, acquisition, disposition, recapitalization or the incurrence of Debt permitted to be incurred by the applicable Indenture (including a refinancing thereof) (whether or not successful), including, without limitation, (i) such fees, expenses or charges related to the offering of the notes and the Revolving Credit Agreement and (ii) any amendment or other modification of the notes, and, in each case, deducted in computing Consolidated Net Income, plus
(e) the amount of any restructuring charge or reserve or non-recurring integration costs deducted (and not added back) in such period in computing Consolidated Net Income, including any one-time costs incurred in connection with acquisitions after the applicable Issue Date and costs related to the closure and/or consolidation of facilities, including any lease termination costs, severance costs, facility shutdown costs and other restructuring charges related to or associated with a permanent reduction in capacity, closure of plans or facilities, cut-backs or plant closures or a significant reconfiguration of a facility, plus
(f) any other non-cash charges, including any write-off or write-downs, reducing Consolidated Net Income for such period, excluding any such charge that represents an accrual or reserve for a cash expenditure for a future period, plus
(g) the amount of any minority interest expense consisting of Subsidiary income attributable to minority equity interests of third parties in any non-Wholly Owned Subsidiary deducted (and not added back) in such period in calculating Consolidated Net Income, plus
(h) expenses consisting of internal software development costs that are expensed during the period but could have been capitalized under alternative accounting policies in accordance with GAAP, plus
(i) costs of surety bonds incurred in such period in connection with financing activities, plus
(j) the amount of net cost savings and synergies projected by such Person in good faith to be realized as a result of specified actions taken or to be taken prior to or during such period (which cost savings or synergies shall be subject only to certification by management of such Person and shall be calculated on a pro forma basis as though such cost savings or synergies had been realized on the first day of such period), net of the amount of actual benefits realized during such period from such actions; provided that (A) such cost savings or synergies are reasonably identifiable and factually supportable, (B) such actions have been taken or are to be taken within 18 months after the date of determination to take such action and (C) no cost savings or synergies shall be added pursuant to this clause (j) to the extent duplicative of any expenses or charges relating to such cost savings or revenue enhancements that are included in clause (k) below with respect to such period, plus
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(k) business optimization expenses (including consolidation initiatives, severance costs and other costs relating to initiatives aimed at profitability improvement), plus
(l) restructuring charges or reserves (including restructuring costs related to acquisitions after the applicable Issue Date and to closure and/or consolidation of facilities and to exiting lines of business), plus
(m) the amount of loss or discount on sale of receivables and related assets to a Receivables Subsidiary in connection with a Receivables Facility, plus
(n) any costs or expense incurred by such Person or a Restricted Subsidiary of such Person pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such cost or expenses are funded with cash proceeds contributed to the capital of the Issuer or net cash proceeds of an issuance of Equity Interest of such Person (other than Disqualified Capital Stock), plus
(o) the amount of expenses relating to payments made to option holders of any direct or indirect parent entity of such Person in connection with, or as a result of, any distribution being made to shareholders of such Person, which payments are being made to compensate such option holders as though they were shareholders at the time of, and entitled to share in, such distribution, in each case to the extent permitted under the applicable Indenture, plus
(p) with respect to any joint venture, an amount equal to the proportion of those items described in clauses (a) and (c) above relating to such joint venture corresponding to such Person’s and its Restricted Subsidiaries’ proportionate share of such joint venture’s Consolidated Net Income (determined as if such joint venture were a Restricted Subsidiary), plus
(q) the amount of any loss attributable to a new plant or facility until the date that is 18 months after the date of commencement of construction or the date of acquisition thereof, as the case may be; provided that (A) such losses are reasonably identifiable and factually supportable and certified by a responsible officer of such Person, (B) losses attributable to such plant or facility after 18 months from the date of commencement of construction or the date of acquisition of such plant or facility, as the case may be, shall not be included in this clause (q) and (C) no amounts shall be added pursuant to this clause (q) to the extent duplicative of any expenses or charges relating to such cost savings or revenue enhancements that are included in clauses (j) or (k) above with respect to such period;
(2) decreased by (without duplication) non-cash gains increasing Consolidated Net Income of such Person for such period, excluding any non-cash gains which represent the reversal of any accrual of, or cash reserve for, anticipated cash charges that reduced Consolidated EBITDA in any prior period; and
(3) increased (in the case of a loss) or decreased (in the case of a gain) by (without duplication) any net gain or loss resulting in such period from currency translation gains or losses related to currency remeasurements of Debt (including any net loss or gain resulting from hedge agreements for currency exchange risk and revaluations of intercompany balances, including, without limitation, Currency Protection Agreements).
“Consolidated Interest Expense” means, with respect to any Person for any period, the sum, without duplication of:
(1) consolidated interest expense of such Person and its Restricted Subsidiaries for that period, to the extent such expense was deducted in computing Consolidated Net Income, including (or plus, to the extent not included in such consolidated interest expense):
(a) amortization of debt discount;
(b) the interest component of Capitalized Lease Obligations;
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(c) commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing;
(d) interest actually paid by such Person or any of its Restricted Subsidiaries under any guarantee of Debt or other obligation of any other Person;
(e) interest expense on Debt guaranteed by the Company or any of its Restricted Subsidiaries (whether or not such interest is paid by the Company or any of its Restricted Subsidiaries);
(f) net payments (whether positive or negative) pursuant to Interest Rate Protection Agreements; and
(g) cash and Disqualified Capital Stock dividends in respect of all Preferred Stock of Restricted Subsidiaries and Disqualified Capital Stock of such Person held by Persons other than such Person or a Wholly Owned Restricted Subsidiary;
but excluding:
(t) accretion or accrual of discounted liabilities not constituting Debt;
(u) interest expense attributable to a parent entity resulting from push-down accounting;
(v) any expense resulting from the discounting of Debt in connection with the application of recapitalization or purchase accounting;
(w) any Additional Amounts and any comparable “additional amounts”;
(x) amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses, and original issue discount with respect to Debt issued on the applicable Issue Date;
(y) any expensing of bridge, commitment and other financing fees; and
(z) commissions, discounts, yield and other fees and charges (including any interest expense) related to any Receivables Facility;
(2) consolidated capitalized interest of such Person and its Restricted Subsidiaries for that period, whether paid or accrued.
“Consolidated Net Income” means, with respect to any Person for any period, the aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, and otherwise determined in accordance with GAAP; provided that, without duplication,
(1) any after-tax effect of extraordinary, non-recurring or unusual gains or losses (less all fees and expenses relating thereto) or expenses, severance, relocation costs, new product introductions, and one-time compensation charges shall be excluded,
(2) the Net Income for such period shall not include the cumulative effect of a change in accounting principles during such period,
(3) any after-tax effect of income (loss) from disposed, or discontinued operations and any net after-tax gains or losses on disposal of disposed, abandoned or discontinued operations shall be excluded,
(4) any after-tax effect of gains or losses (less all fees and expenses relating thereto) attributable to asset dispositions other than in the ordinary course of business, as determined by the Company, shall be excluded,
(5) the Net Income for such period of any Person that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be excluded; provided that Consolidated Net Income of the Company shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash (or to the extent converted into cash or cash equivalents) or that (as reasonably determined by the Company) could have distributed to the reference Person or a Restricted Subsidiary thereof in respect of such period,
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(6) [reserved],
(7) effects of adjustments (including the effects of such adjustments pushed down to such Person and its Restricted Subsidiaries) in any line item in such Person’s consolidated financial statements required or permitted by ASC 805 and ASC 350 (formerly Financial Accounting Standards Board Statement Nos. 141 and 142, respectively) resulting from the application of purchase accounting in relation to any acquisition that is consummated after the applicable Issue Date or the amortization or write-off of any amounts thereof, net of taxes, shall be excluded,
(8) any after-tax effect of income (loss) from the early extinguishment of Debt or Hedging Obligations or other derivative instruments (including deferred financing costs written off and premiums paid) shall be excluded,
(9) any impairment charge, asset write-off or write-down pursuant to ASC 350 and ASC 360 (formerly Financial Accounting Standards Board Statement Nos. 142 and No. 144, respectively) and the amortization of intangibles arising pursuant to ASC 805 (formerly Financial Accounting Standards Board Statement No. 141) shall be excluded,
(10) any non-cash compensation expense recorded from grants of stock appreciation or similar rights, phantom equity, stock options, restricted stock or other rights to officers, directors, consultants or employees shall be excluded,
(11) any fees and expenses incurred during such period, or any amortization thereof for such period, in connection with any acquisition, investment, recapitalization, asset sale, issuance or repayment of Debt, issuance of Equity Interests, refinancing transaction or amendment or modification of any debt instrument (in each case, including, without limitation, any such transaction consummated prior to the applicable Issue Date and any such transaction undertaken but not completed) and any charges or non-recurring merger costs incurred during such period as a result of any such transaction shall be excluded,
(12) changes in accruals or reserves as a result of adoption or modification of accounting policies shall be excluded, and
(13) to the extent covered by insurance and actually reimbursed, or, so long as such Person has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is (a) not denied by the applicable carrier in writing within 180 days and (b) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within 365 days), losses and expenses with respect to liability or casualty events or business interruption shall be excluded.
“Consolidated Total Indebtedness” of any Person means, as at any date of determination, an amount equal to the sum of (x) the aggregate amount of all outstanding Debt of such Person and its Restricted Subsidiaries on a consolidated basis described in clauses (1), (2), (3), (5) and (6) of the definition of “Debt” (provided that in the case of clause (6), such Debt relates to guarantees of Debt of another Person of the type referred to in clauses (1), (2) and (3) of the definition of “Debt”, other than Debt relating to purchases of raw materials or other supply-related obligations in the ordinary course of business, and including, for the avoidance of doubt, all obligations relating to Receivables Facilities) and (y) the aggregate amount of all outstanding Disqualified Capital Stock of such Person and all Disqualified Capital Stock and Preferred Stock of its Restricted Subsidiaries on a consolidated basis, with the amount of such Disqualified Capital Stock and Preferred Stock equal to the greater of their respective voluntary or involuntary liquidation preferences and maximum fixed repurchase prices, in each case determined on a consolidated basis in accordance with GAAP, and calculated on a pro forma basis in a manner consistent with the adjustments set forth in the definition of “Secured Leverage Ratio.” For purposes hereof, the “maximum fixed repurchase price” of any Disqualified Capital Stock or Preferred Stock that does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Capital Stock or Preferred Stock as if such Disqualified Capital Stock or Preferred Stock were purchased on any date on which Consolidated Total Indebtedness shall be required to be determined pursuant to the applicable Indenture.
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“Credit Facilities” or “Credit Facility” means one or more debt facilities (which may be outstanding at the same time and including, without limitation, the Revolving Credit Agreement) or other financing agreements or arrangements (including, without limitation, commercial paper facilities or indentures) providing for revolving credit loans, term loans, letters of credit, debt securities or other long-term indebtedness, including any notes, mortgages, guarantees, collateral documents, instruments and agreements executed in connection therewith, and, in each case, any amendments, supplements, modifications, extensions, renewals, restatements or refundings thereof and any indentures or credit facilities or commercial paper facilities that replace, refund or refinance any part of the loans, notes, other credit facilities or commitments thereunder, including any such replacement, refunding or refinancing facility or indenture that increases the amount permitted to be borrowed thereunder or alters the maturity thereof or adds Restricted Subsidiaries as additional borrowers or guarantors thereunder and whether by the same or any other agent, lender or group of lenders.
“Currency Protection Agreement” means any currency protection agreement entered into with one or more financial institutions that is designed to protect the Person or entity entering into the agreement against fluctuations in currency exchange rates with respect to Debt Incurred and not for purposes of speculation.
“Debt” means, with respect to any Person on any date of determination, without duplication, any indebtedness of that Person:
(1) for borrowed money (but only with regard to the principal of and premium (if any) in respect of such borrowed money);
(2) evidenced by bonds, debentures, notes or other similar instruments;
(3) constituting Capitalized Lease Obligations;
(4) Incurred or assumed as the deferred and unpaid purchase price of property or services, or pursuant to conditional sale obligations and title retention agreements (but excluding trade accounts payable and accrued expenses arising in the ordinary course of business), which purchase price is due more than six months after the date of placing such property in service or taking delivery and title thereto or the completion of such services;
(5) for reimbursement of any obligor on any letter of credit, banker’s acceptance or similar credit transaction (except to the extent such reimbursement obligations relate to trade payables and such obligations are satisfied within 30 days of Incurrence);
(6) for Debt of other Persons to the extent guaranteed by such Person;
(7) for Hedging Obligations; and
(8) for Debt of any other Person of the type referred to in clauses (1) through (7) which is secured by any Lien on any property or asset of such first referred to Person, the amount of such Debt being deemed to be the lesser of the value of the property or asset underlying the Lien or the amount of the Debt so secured;
provided, however, that notwithstanding the foregoing, Debt does not include (i) Cash Management Services, (ii) any item set forth above that does not appear as a liability on the balance sheet of such Person, (iii) Debt of any parent entity appearing on the balance sheet of the Company solely by reason of push-down accounting under GAAP, or (iv) any obligations or liabilities arising by operation of law as a result of the Company and any of its Subsidiaries forming part of a fiscal unity (fiscale eenheid) for Dutch corporate income and/or value added tax purposes.
The amount of Debt of any Person at any date will be:
(a) the sum of the outstanding principal amount of all unconditional obligations described above, as such amount would be reflected on a balance sheet prepared in accordance with GAAP; and
(b) the accreted value of that Debt, in the case of any Debt issued with original issue discount.
“Default” means any event which is, or after notice or passage of time or both would be, an Event of Default.
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“Disposition” means, with respect to any Person, any merger, consolidation or other business combination involving such Person (whether or not such Person is the Surviving Person) or the sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of such Person’s assets or Capital Stock.
“Disqualified Capital Stock” means any Capital Stock that, by its terms or by the terms of any security into which it is convertible or for which it is exchangeable, or upon the happening of any event,
(1) matures (excluding any maturity as the result of an optional redemption by the issuer of that Capital Stock);
(2) is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise; or
(3) is redeemable at the sole option of its holder,
in each case, other than as a result of a change of control or asset sale, in whole or in part, on or prior to the date that is 91 days after the final maturity date of the notes; provided, however, that (i) only the portion of Capital Stock that so matures or is mandatorily redeemable or is so redeemable at the sole option of its holder prior to the final maturity date of the notes will be deemed Disqualified Capital Stock and (ii) with respect to any such Capital Stock issued to any employees or to any plan for the benefit of employees of the Company or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by the Company or one of its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.
“Domestic Restricted Subsidiary” means a Restricted Subsidiary that is not a Foreign Subsidiary.
“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock, but excluding any debt security that is convertible into, or exchangeable for, Capital Stock.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Existing 2029 Notes” means the US$600.0 million of 3.000% senior notes due 2029 outstanding on the issue date of such notes, issued by the Issuers.
“Existing 2031 Notes” means the US$500.0 million of 3.750% senior notes due 2031 outstanding on the issue date of such notes, issued by the Issuers.
“Existing 2032 Notes” means the US$1.0 billion of 3.000% sustainability-linked senior notes due 2032 outstanding on the issue date of such notes, issued by the Issuers.
“Fitch” means Fitch Ratings, Inc. or any successor to the rating agency business of Fitch Ratings, Inc.
“Foreign Subsidiary” means any Subsidiary which is not organized under the laws of the United States of America or any State thereof or the District of Columbia.
“GAAP” means, as used in the applicable Indenture with respect to financial calculations relating to the Company and its Restricted Subsidiaries for purposes of the covenants described under “— Certain Covenants of the Company,” IFRS.
“guarantee” means a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct or indirect, in any manner (including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof), of all or any part of any Debt. The term “guarantee” used as a verb has a corresponding meaning.
“Guarantee” means a guarantee by a Guarantor of the Issuers’ payment obligations under the applicable Indenture and the notes.
“Guarantors” means each of the Company’s Restricted Subsidiaries that in the future executes a supplemental indenture in which such Person agrees to be bound by the terms of the applicable Indenture as a Guarantor; provided that any Person constituting a Guarantor as described above shall cease to constitute a Guarantor with respect to the notes when its respective Guarantee is released in accordance with the terms of the applicable Indenture.
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“Hedging Obligations” means, with respect to any specified entity, the obligations of that entity under:
(1) any Interest Rate Protection Agreement;
(2) foreign exchange contracts and Currency Protection Agreements;
(3) any Commodity Agreement; and
(4) other agreements or arrangements designed to protect that entity against fluctuations in interest rates, currency exchange rates or commodity prices and not entered into for speculative purposes.
“IFRS” means, at the Company’s option, International Financial Reporting Standards as adopted by the International Accounting Standards Board, as implemented in the Netherlands, or as implemented through the accounting pronouncements by international accounting standards or in the jurisdiction in which the Company or Parent Reporting Entity is domiciled. At any time after the applicable Issue Date, the Company may elect to apply U.S. GAAP accounting principles in lieu of IFRS and, upon any such election, references herein to IFRS shall thereafter be construed to mean U.S. GAAP (except as otherwise provided in the applicable Indenture).
“Incur” means, with respect to any Debt or other obligation of any Person, to create, issue, incur (by merger, conversion, exchange or otherwise), extend, assume, guarantee or become liable in respect of such Debt or other obligation or the recording, as required pursuant to GAAP or otherwise, of any such Debt or obligation on the balance sheet of such Person (and “Incurrence” and “Incurred” shall have meanings correlative to the foregoing); provided, however, that a change in GAAP that results in an obligation of such Person that exists at such time, and is not theretofore classified as Debt, becoming Debt shall not be deemed an Incurrence of such Debt; provided further, however, that any Debt or other obligations of a Person existing at the time such Person becomes a Subsidiary (whether by merger, consolidation, acquisition or otherwise) or merges into such other Person shall be deemed to be incurred by such Subsidiary or such other Person, as the case may be, at the time it becomes a Subsidiary or at the time of the merger.
“Interest Rate Protection Agreement” means, with respect to any Person, any interest rate protection agreement, interest rate future agreement, interest rate option agreement, interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge agreement or other similar agreement or arrangement used in the ordinary course of business as to which that Person is a party or beneficiary.
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or equivalent) by Moody’s and BBB- (or equivalent) by S&P or Fitch, or an equivalent rating by any other Rating Agency.
“Issue Date” means, as applicable, the date on which the applicable series of the Old Notes were issued.
“Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof).
“Moody’s” means Moody’s Investors Service, Inc. or any successor to the rating agency business of Moody’s Investors Service, Inc.
“Netherlands” means the European part of the Kingdom of the Netherlands.
“Net Income” means, with respect to any Person, the net income (loss) of such Person, determined in accordance with GAAP, and before any reduction in respect of Preferred Stock dividends.
“Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable to the trustee. The counsel may be an in-house counsel to the Company, JBS USA Foods Group Holdings, Inc. and/or JBS USA Food.
“Par Call Date” means, as applicable, the 2037 Notes Par Call Date or the 2057 Notes Par Call Date.
“Permitted Holders” means (i) any member of the Batista Family or any Affiliate or Affiliates of any of the foregoing and any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) of which any of the foregoing are members; provided that, in the case of such group and without giving effect to the existence of such group or any other group, such members of the Batista family and their respective Affiliates, collectively, have beneficial ownership of more than 50% of the total voting power of the
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Voting Stock of the Company or any of its direct or indirect subsidiaries, (ii) any Person the Voting Stock of which (or in the case of a trust, the beneficial interest in which) at least 51% is owned by Persons specified in clause (i) and (iii) any subsidiary of Company.
“Permitted Liens” means:
(1) Liens to secure (a) Debt of the Company or a Restricted Subsidiary of the Company under the Revolving Credit Agreement or other Credit Facilities, including guarantees thereof; provided that, after giving effect to any such Incurrence (including the application of proceeds therefrom), the aggregate principal amount of all Debt Incurred and then outstanding under this clause (1)(a) shall not exceed the greater of (x) US$1,000.0 million less the outstanding principal amount of any Receivables Facilities and (y) the sum of (i) 85% of the book value of accounts receivable of the Company and its Restricted Subsidiaries plus (ii) 80% of the book value of inventory of the Company and its Restricted Subsidiaries (excluding, in the case of clauses (i) and (ii), any such assets that are the subject of a Receivables Facility), in the case of clause (y), determined based on the consolidated balance sheet of the Company for the fiscal quarter most recently ended on or prior to the date on which such Debt is Incurred for which internal financial statements are available (as adjusted to give pro forma effect to acquisitions or dispositions outside the ordinary course of business occurring after the date of such balance sheet but on or before the date of such Incurrence) and (b) Debt of the Company or a Restricted Subsidiary of the Company under Credit Facilities (other than the Revolving Credit Agreement); provided that, after giving effect to any such Incurrence (including the application of proceeds therefrom), the aggregate principal amount of all Debt Incurred and then outstanding under this clause (1)(b) shall not exceed the greater of (x) US$2,800.0 million and (y) an aggregate principal amount of Debt that at the time of Incurrence does not cause the Secured Leverage Ratio of the Company to exceed 3.5 to 1.00;
(2) Liens on the Capital Stock or assets of any Non-Guarantor Significant Subsidiary to secure Debt incurred by such Non-Guarantor Significant Subsidiary;
(3) Liens to secure Debt, including but not limited to Capitalized Lease Obligations, mortgage financings or purchase money obligations, incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation, commissioning or improvement of property or assets, whether through direct purchase of assets or the Capital Stock of any Person owning those assets, or Incurred to refinance any such purchase price or cost of construction or improvement, and refinancings thereof; provided that any such Lien may not extend to any property of the Company or any Significant Subsidiary, other than the property acquired, constructed or leased with the proceeds of such Debt and such Liens secure Debt in an amount not in excess of the original purchase price or the original cost of any such property and any improvements or accessions to such property;
(4) Liens for Taxes on the property of the Company or any Significant Subsidiary if the same shall not at the time be delinquent or thereafter can be paid without penalty, or are being contested in good faith and by appropriate proceedings promptly instituted and diligently concluded;
(5) Liens imposed by law, such as carriers’, warehousemen’s and mechanics’ Liens and other similar Liens, on the property of the Company or any Significant Subsidiary arising in the ordinary course of business and securing payment of obligations that are not more than 60 days past due or are being contested in good faith and by appropriate proceedings;
(6) Liens on the property of the Company or any Significant Subsidiary Incurred in the ordinary course of business to secure performance of obligations with respect to statutory or regulatory requirements, performance or return-of-money bonds, surety bonds or other obligations of a like nature, in each case which are not Incurred in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property and which do not in the aggregate impair in any material respect the use of property in the operation of the business of the Company and the Significant Subsidiaries taken as a whole;
(7) Liens on property or assets of, or any shares of stock or secured debt of, any Person at the time the Company or any Significant Subsidiary acquired such property or the Person owning such Property, including any acquisition by means of a merger or consolidation with or into the Company or any
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Significant Subsidiary; provided, however, that any such Lien may not extend to any other property of the Company or any Significant Subsidiary; provided further, however, that such Liens shall not have been Incurred in anticipation of or in connection with the transaction or series of transactions pursuant to which such property was acquired by the Company or any Significant Subsidiary;
(8) Liens on the property of a Person at the time such Person becomes a Significant Subsidiary; provided, however, that any such Lien may not extend to any other property of the Company or any other Significant Subsidiary that is not a direct Subsidiary of such Person; provided further, however, that any such Lien was not Incurred in anticipation of or in connection with the transaction or series of transactions pursuant to which such Person became a Significant Subsidiary;
(9) pledges or deposits by the Company or any Significant Subsidiary under workmen’s compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Debt) or leases to which the Company or any Significant Subsidiary is party, or deposits to secure public or statutory obligations of the Company, or deposits for the payment of rent, in each case, in the ordinary course of business;
(10) utility easements, building restrictions and such other encumbrances or charges against real property as are of a nature generally existing with respect to properties of a similar character;
(11) Liens securing Hedging Obligations and Cash Management Services;
(12) Liens existing on the applicable Issue Date not otherwise described in clauses (1) through (11) above;
(13) Liens on the property of the Company or any Significant Subsidiary to secure any refinancing, refunding, extension, renewal or replacement, in whole or in part, of any Debt secured by Liens referred to in clause (3), (7), (8), (11) or (12) above, clause (21) below, or pursuant to this clause (13); provided, however, that any such Lien shall be limited to all or part of the same property that secured the original Lien (together with improvements and accessions to such property) and the aggregate principal amount of Debt that is secured by such Lien shall not be increased to an amount greater than the sum of:
(a) the outstanding principal amount, or, if greater, the committed amount, of the Debt secured by Liens referred to in clause (3), (7), (8), (11) or (12) above or clause (21) below, as the case may be, at the time the original Lien became a Permitted Lien under the applicable Indenture; and
(b) an amount necessary to pay any fees and expenses, including premiums and defeasance costs, incurred by the Company or such Significant Subsidiary in connection with such refinancing, refunding, extension, renewal or replacement;
(14) Liens on accounts receivable and related assets incurred in connection with a Receivables Facility;
(15) Liens securing Debt or other obligations of a Significant Subsidiary of the Company owing to the Company or another Significant Subsidiary;
(16) Liens on specific items of inventory or other goods and proceeds securing obligations in respect of bankers’ acceptances issued or created for the account of the Company or any of its Significant Subsidiaries to facilitate the purchase, shipment or storage of such inventory or other goods;
(17) Liens in favor of the Company or any Subsidiary Guarantor;
(18) Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection, (ii) attaching to commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business and (iii) in favor of banking institutions arising as a matter of law encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking industry;
(19) Liens deemed to exist in connection with investments in repurchase agreements; provided that such Liens do not extend to any assets other than those that are the subject of such repurchase agreement;
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(20) Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by the Company or any of its Significant Subsidiaries in the ordinary course of business;
(21) Liens securing Debt (other than Subordinated Debt); provided that after giving effect to the Incurrence of such Debt and the application of the proceeds therefrom, the Secured Leverage Ratio of the Company would not exceed 3.5 to 1.0;
(22) Liens not otherwise permitted by clauses (1) through (21) above securing obligations in an aggregate amount at any time outstanding not in excess of the greater of (i) US$2.5 billion and (ii) 10.0% of Total Assets of the Company, in either case, at the time of any incurrence of an obligation secured by a Lien in reliance on this clause (22);
(23) judgment Liens not giving rise to an Event of Default so long as any appropriate legal proceedings that may have been duly initiated for the review of such judgment shall not have been finally terminated or the period within which such legal proceedings may be initiated shall not have expired;
(24) Liens on Capital Stock of an Unrestricted Subsidiary that secure Debt or other obligations of such Unrestricted Subsidiary;
(25) (a) Leases and subleases of real property which do not materially interfere with the ordinary conduct of the business of the Company and its Significant Subsidiaries and (b) licenses of intellectual property in the ordinary course of business; and
(26) Liens to secure a defeasance trust.
“Person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
“Pilgrim’s Pride” means Pilgrim’s Pride Corporation, a company incorporated under the laws of Delaware.
“Preferred Stock” of any Person means any Capital Stock of that Person that has preferential rights to any other Capital Stock of that Person with respect to dividends or redemptions or upon liquidation.
“Principal Property” means any plant or other similar facility of the Company or any Significant Subsidiary used primarily for processing, producing, or packaging and having a book value in excess of 2.0% of Total Assets of the Company as of the date of such determination, but shall not include any plant or similar facility which, in the good faith opinion of the Board of Directors or management of the Company, is not material to the overall business of the Company and its Subsidiaries, taken as a whole.
“Qualified Capital Stock” means any Capital Stock that is not Disqualified Capital Stock.
“Rating Agency” means, at the Company’s option, two of S&P, Moody’s and Fitch, and if two agencies do not make a rating on the notes publicly available, a U.S. nationally recognized statistical rating agency or agencies, as the case may be, selected by the Company (as certified by a resolution of the Board of Directors).
“Ratings Decline” means that at any time within 60 days after the earlier of the date of public notice of a Change of Control and the date on which the Company or any other Person publicly declares its intention to effect a Change of Control, (1) in the event the notes are assigned an Investment Grade rating by at least two of the Rating Agencies prior to such public notice or declaration, the rating assigned to the notes by at least two of the Rating Agencies is below an Investment Grade rating; or (2) in the event the ratings assigned to the notes by at least two of the Rating Agencies prior to such public notice or declaration are below an Investment Grade rating, the rating assigned to the notes by at least two of the Rating Agencies is decreased by one or more categories (i.e., notches); provided that, in each case, any such Ratings Decline is expressly stated by the applicable Rating Agencies to have been the result of the Change of Control.
“Receivables Facility” means any of one or more receivables financing facilities, as amended, supplemented, modified, extended, renewed, restated or refunded from time to time, the obligations of which are non-recourse (except for customary representations, warranties, covenants and indemnities made in connection with such
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facilities) to the Company and the Restricted Subsidiaries (other than a Receivables Subsidiary) pursuant to which the Company or any Restricted Subsidiary sells its accounts receivable to either (a) a Person that is not a Restricted Subsidiary or (b) a Receivables Subsidiary that in turn funds such purchase or extension of credit by purporting to sell its accounts receivable to a Person that is not a Restricted Subsidiary or by borrowing from such a Person or from another Receivables Subsidiary that in turn funds itself by borrowing from such a Person.
“Receivables Subsidiary” means any Subsidiary formed for the purpose of facilitating or entering into one or more Receivables Facilities, and in each case engages only in activities reasonably related or incidental thereto.
“Restricted Subsidiary” means any Subsidiary of such Person other than an Unrestricted Subsidiary; provided that the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary of the Company subject to the condition that the redesignation of such Unrestricted Subsidiary as a Restricted Subsidiary would not cause a Default, it being understood that any Liens, agreements or transactions of such Unrestricted Subsidiary outstanding at the time of such redesignation shall be deemed to be Incurred or entered into at such time.
“Revolving Credit Agreement” means the Revolving Syndicated Facility Agreement, dated November 1, 2022, among the Company, JBS USA Food, JBS Australia PTY Limited and JBS Food Canada ULC, the other credit parties signatory thereto, the lenders party thereto, Bank of Montreal, as administrative agent, as the same may be amended, restated, renewed, refunded, replaced, refinanced, supplemented or otherwise modified from time to time, including any such replacement, refunding or refinancing facility or indenture that increases the amount permitted to be borrowed thereunder or alters the maturity thereof or adds Restricted Subsidiaries as additional borrowers or guarantors thereunder and whether by the same or any other agent, lender or group of lenders.
“Sale and Leaseback Transaction” means any transaction or series of related transactions pursuant to which the Company or any Significant Subsidiary sells or transfers any property to any Person (other than the Company or any Restricted Subsidiary) with the intention of taking back a lease of such property pursuant to which the rental payments are calculated to amortize the purchase price of such property substantially over the useful life thereof and such property is in fact so leased.
“S&P” means Standard & Poor’s Ratings Group, a division of McGraw Hill, Inc., or any successor to the rating agency business thereof.
“Secured Debt” means any of the Consolidated Total Indebtedness of the Company or any of its Restricted Subsidiaries secured by a Lien.
“Secured Leverage Ratio” means, as of any date of determination (the “determination date”) with respect to any Person, the ratio of:
(1) Secured Debt of such Person and its Restricted Subsidiaries as of the end of the most recent fiscal quarter for which internal financial statements are available minus the aggregate cash and cash equivalents included in the cash and cash equivalents accounts listed on the consolidated balance sheet of such Person and its Restricted Subsidiaries as at such date, to
(2) Consolidated EBITDA of such Person for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which internal financial statements are available,
provided, however, that:
(1) if such Person or any Restricted Subsidiary:
(a) has Incurred any Debt since the beginning of such period that remains outstanding on such date of determination or if the transaction giving rise to the need to calculate the Secured Leverage Ratio includes an Incurrence of Debt, Consolidated EBITDA and Consolidated Interest Expense for such period will be calculated after giving effect on a pro forma basis to such Debt as if such Debt had been Incurred on the first day of such period (except that in making such computation, the amount of Debt under any revolving Credit Facility outstanding on the date of such calculation will be deemed to be:
(i) the average daily balance of such Debt during such four fiscal quarters or such shorter period for which such facility was outstanding or
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(ii) if such facility was created after the end of such four fiscal quarters, the average daily balance of such Debt during the period from the date of creation of such facility to the date of such calculation)
and the repayment, repurchase, redemption, retirement, defeasance or other discharge of any other Debt with the proceeds of such new Debt as if such repayment, repurchase, redemption, retirement, defeasance or other discharge had occurred on the first day of such period; or
(b) has repaid, repurchased, redeemed, retired, defeased or otherwise discharged any Debt since the beginning of the period that is no longer outstanding on such date of determination or if the transaction giving rise to the need to calculate the Secured Leverage Ratio includes a repayment, repurchase, redemption, retirement, defeasance or other discharge of Debt (in each case, other than Debt Incurred under any revolving Credit Facilities unless such Debt has been permanently repaid and the related commitment terminated and not replaced), Consolidated EBITDA and Consolidated Interest Expense for such period will be calculated after giving effect on a pro forma basis to such discharge of such Debt, including with the proceeds of such new Debt, as if such discharge had occurred on the first day of such period;
(2) if since the beginning of such period, such Person or any Restricted Subsidiary will have made any asset sale or disposed of or discontinued (as defined under GAAP) any company, division, operating unit, segment, business, group of related assets or line of business or if the transaction giving rise to the need to calculate the Secured Leverage Ratio includes such a transaction:
(a) the Consolidated EBITDA for such period will be reduced by an amount equal to the Consolidated EBITDA (if positive) directly attributable to the assets that are the subject of such disposition or discontinuation for such period or increased by an amount equal to the Consolidated EBITDA (if negative) directly attributable thereto for such period; and
(b) Consolidated Interest Expense for such period will be reduced by an amount equal to the Consolidated Interest Expense directly attributable to any Debt of such Person or any Restricted Subsidiary repaid, repurchased, redeemed, retired, defeased or otherwise discharged (to the extent the related commitment is permanently reduced) with respect to such Person and its continuing Restricted Subsidiaries in connection with such transaction for such period (or, if the Capital Stock of any Restricted Subsidiary is sold, the Consolidated Interest Expense for such period directly attributable to the Debt of such Restricted Subsidiary to the extent such Person and its continuing Restricted Subsidiaries are no longer liable for such Debt after such sale);
(3) if since the beginning of such period such Person or any Restricted Subsidiary (by merger or otherwise) will have made an investment in any Restricted Subsidiary (or any Person that becomes a Restricted Subsidiary or is merged with or into the Company or a Restricted Subsidiary) or an acquisition of assets, including any acquisition of assets occurring in connection with a transaction causing a calculation to be made hereunder, Consolidated EBITDA and Consolidated Interest Expense for such period will be calculated after giving pro forma effect thereto (including the Incurrence of any Debt) as if such investment or acquisition occurred on the first day of such period; and
(4) if since the beginning of such period any Person (that subsequently became a Restricted Subsidiary or was merged with or into the Company or any Restricted Subsidiary since the beginning of such period) will have Incurred any Debt or discharged any Debt, made any disposition or any investment or acquisition of assets that would have required an adjustment pursuant to clause (1), (2) or (3) above if made by such Person or a Restricted Subsidiary during such period, Consolidated EBITDA and Consolidated Interest Expense for such period will be calculated after giving pro forma effect thereto as if such transaction occurred on the first day of such period.
For purposes of this definition, whenever pro forma effect is to be given to any calculation under this definition, the pro forma calculations will be determined in good faith by a responsible financial or accounting officer of such Person (and may include, without limitation, for the avoidance of doubt, cost savings and operating expense reductions from such investment, acquisition, merger or consolidation that is being given pro forma effect that have been or are expected to be realized); provided that such calculations are set forth in an officer’s certificate
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stating that such calculations are based on the reasonable good faith beliefs of the officer executing such officer’s certificate at the time of such execution. If any Debt bears a floating rate of interest and is being given pro forma effect, the interest expense on such Debt will be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Interest Rate Protection Agreement applicable to such Debt if such Interest Rate Protection Agreement has a remaining term in excess of 12 months). If any Debt that is being given pro forma effect bears an interest rate at the option of such Person, the interest rate shall be calculated by applying such optional rate chosen by such Person.
For purposes of the calculation of the Secured Leverage Ratio, in connection with the Incurrence of any Lien pursuant to clause (21) of the definition of “Permitted Liens,” the Company may elect, pursuant to an officer’s certificate, to treat all or a portion of the commitment under any Debt which is to be secured by such Lien as being Incurred as of such determination date and any subsequent Incurrence of Debt under such commitment that was so treated shall not be deemed, for purposes of this calculation, to be an Incurrence of additional Debt or additional Lien at such subsequent time; provided that if the Company makes such an election, for purposes of the calculation of the Secured Leverage Ratio in connection with any subsequent Incurrence of any Lien pursuant to clause (21) of the definition of “Permitted Liens” (other than under such commitment), the amount under such commitment that was so treated shall be deemed to be Incurred as of such determination date.
“Securities Act” means the Securities Act of 1933, as amended.
“Significant Subsidiary” of any Person means any Restricted Subsidiary of such Person which at the time of determination either (1) had assets which, as of the date of the Company’s most recent quarterly consolidated balance sheet for which internal financial statements are available, constituted at least 10% of the Company’s total assets on a consolidated basis as of such date or (2) had revenues for the 12-month period ending on the date of the Company’s most recent quarterly consolidated statement of operations for which internal financial statements are available which constituted at least 10% of the Company’s total revenues on a consolidated basis for such period, in each case with such pro forma adjustments as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of “Secured Leverage Ratio.”
“Subordinated Debt” means any Debt whether outstanding on the applicable Issue Date or thereafter Incurred, which is subordinate or junior in right of payment to the notes or the Guarantees, as the case may be, pursuant to a written agreement.
“Subsidiary,” with respect to any Person, means (i) any corporation of which the outstanding Capital Stock having at least a majority of the votes entitled to be cast in the election of directors under ordinary circumstances shall at the time be owned, directly or indirectly, through one or more intermediaries, by such Person or (ii) any other Person of which at least a majority of the voting interest under ordinary circumstances is at the time, directly or indirectly, through one or more intermediaries, owned by such Person. Notwithstanding anything in the applicable Indenture to the contrary, all references to any Person and its consolidated Subsidiaries or to financial information prepared on a consolidated basis in accordance with GAAP shall be deemed to include such Person and its Subsidiaries as to which financial statements are prepared on a consolidated basis in accordance with GAAP and to financial information prepared on such a consolidated basis.
“Surviving Person” means, with respect to any Person involved in or that makes any Disposition, the Person formed by or surviving such Disposition or the Person to which such Disposition is made.
“Tax” means any tax, duty, levy, impost, assessment or other governmental charge in the nature of tax (including penalties, interest and any other liabilities related thereto).
“Taxing Authority” means any government or political subdivision or territory or possession of any government or any authority or agency therein or thereof having power to tax.
“Total Assets” of any Person means the total assets of such Person and its Restricted Subsidiaries on a consolidated basis determined in accordance with GAAP as shown on the most recent balance sheet of such Person and calculated on a pro forma basis in a manner consistent with the adjustments set forth in the definition of “Secured Leverage Ratio.”
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“Treasury Yield” means, as of any redemption date, the yield to maturity as of such redemption date of United States Treasury securities with a constant maturity (as compiled by and published in the most recent Federal Reserve Statistical Release H.15(519) that has become publicly available at least two business days prior to the date fixed for redemption (or, if such statistical release is no longer published, any publicly available source of similar market data) most nearly equal to the period from the redemption date to the applicable Par Call Date. If the period is less than one year, the weekly average yield on actively traded United States Treasury securities adjusted to a constant maturity of one year will be used.
“Unrestricted Subsidiary” means (i) JBS Wisconsin Properties and each of its subsidiaries (which subsidiaries include Pilgrim’s Pride), (ii) any Subsidiary designated as an “unrestricted subsidiary” under the Revolving Credit Agreement and (iii) any direct or indirect Subsidiary of the Company formed after the applicable Issue Date that has been designated as an Unrestricted Subsidiary at the time of its creation or acquisition; provided that with respect to this clause (iii), no Debt of such Unrestricted Subsidiary may be assumed or guaranteed by the Company or any Restricted Subsidiary. Notwithstanding the foregoing, under no circumstances shall the Issuer be designated an Unrestricted Subsidiary.
“U.S. GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect from time to time; provided that all terms of an accounting or financial nature used in the applicable Indenture shall be construed, and all computations of amounts and ratios referred to in the applicable Indenture shall be made (a) without giving effect to any election under FASB Accounting Standards Codification Topic 825 — Financial Instruments, or any successor thereto (including pursuant to the FASB Accounting Standards Codification), to value any Debt of the Company or any of its Subsidiaries at “fair value,” as defined therein and (b) the amount of any Debt under GAAP with respect to Capitalized Lease Obligations shall be determined in accordance with the definition of Capitalized Lease Obligations (it being understood that all leases and obligations under any leases of any Person that are or would be characterized as operating leases and/or operating lease obligations in accordance with GAAP on February 25, 2016 (whether or not such operating leases and/or operating lease obligations were in effect on such date) shall continue to be accounted for as operating leases and/or operating lease obligations (and not as Capitalized Lease Obligations) for purposes of the applicable Indenture regardless of any change in GAAP following the date that would otherwise require such leases and/or lease obligations to be recognized as right-of-use assets and lease liabilities on the balance sheet). At any time after the applicable Issue Date, the Company may elect to apply IFRS accounting principles in lieu of U.S. GAAP and, upon any such election, references herein to U.S. GAAP shall thereafter be construed to mean IFRS (except as otherwise provided in the applicable Indenture).
“U.S. Government Securities” means direct obligations (or certificates representing an ownership interest in such obligations) of the United States of America (including any agency or instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged and which are not callable or redeemable at the issuer’s option or money market funds that invest solely in the foregoing.
“Voting Stock” of any Person as of any date means the Capital Stock of that Person that is at the time entitled to vote in the election of that Person’s Board of Directors.
“Wholly Owned Restricted Subsidiary” means any Restricted Subsidiary that is a Wholly Owned Subsidiary.
“Wholly Owned Subsidiary” means a Subsidiary of any Person, all of the outstanding Capital Stock of which (other than any director’s qualifying shares or shares owned by foreign nationals to the extent mandated by applicable law) is owned by such Person or one or more Wholly Owned Subsidiaries of such Person.
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The following description of the Registration Rights Agreement is a summary and does not describe every aspect of the Registration Rights Agreement. This summary is subject to, and is qualified in its entirety by, reference to all of the provisions of the Registration Rights Agreement. We urge you to read the Registration Rights Agreement in its entirety because this agreement, not the following summary, will define your rights as a holder of Old Notes under the Registration Rights Agreement. A copy of the Registration Rights Agreement is included as Exhibit 4.1 to the registration statement related to this prospectus and may be obtained at the address set forth under “Where You Can Find Additional Information.”
On April 13, 2026, the Company entered into a registration rights agreement (the “Registration Rights Agreement”) with certain initial purchasers, pursuant to which the Company agreed, for the benefit of the holders of the Old Notes, to use its commercially reasonable efforts to cause a registration statement to be filed with the SEC (the “exchange offer registration statement”) with respect to a registered offer (the “registered exchange offer”) to exchange the Old Notes of each series for New Notes of the same series, which will have terms identical in all material respects to such Old Notes, except that the New Notes will not contain transfer restrictions, to be declared effective and to complete the registered exchange offer not later than 365 calendar days following April 13, 2026.
The Registration Rights Agreement provides that, promptly after the exchange offer registration statement has been declared effective, the Company will commence the registered exchange offer. The Company agreed to keep the registered exchange offer open for not less than 20 business days after the date notice is mailed to the holders of the Old Notes, or longer if required by applicable law. Interest on each New Note will accrue from the last interest payment date on which interest was paid on the Old Notes surrendered in exchange therefor or, if no interest has been paid on the Old Notes, from the date of their original issuance. The New Notes will vote and consent together with the Old Notes of the same series on all matters on which holders of such Old Notes or New Notes are entitled to vote and consent.
Under existing interpretations of the staff of the SEC, the New Notes would generally be freely tradable after the completion of the registered exchange offer without further compliance with the registration and prospectus delivery requirements of the Securities Act. However, any participant in the exchange offer who is an affiliate of JBS USA or who intends to participate in the registered exchange offer for the purposes of distributing the exchange notes:
• will not be able to rely on the interpretations of the staff of the SEC;
• will not be entitled to participate in the registered exchange offer; and
• must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any sale or transfer of the Old Notes, unless that sale or transfer is made pursuant to an exemption from those requirements.
Each holder of Old Notes who wishes to exchange Old Notes for New Notes pursuant to the registered exchange offer will be required to represent to JBS USA at the consummation of the registered exchange offer that:
• it is not an affiliate of JBS USA;
• it is not a broker-dealer tendering Old Notes acquired directly from JBS USA for its own account;
• the New Notes to be received by it will be acquired in the ordinary course of its business; and
• it is not engaged and does not intend to engage in, and has no arrangement or understanding with any person, to participate in the distribution, within the meaning of the Securities Act, of the New Notes.
The Company’s consummation of the registered exchange offer is subject to certain conditions set forth in the Registration Rights Agreement, including, without limitation, our receipt of the representations from participating holders of Old Notes as described above and in the Registration Rights Agreement.
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If, due to a change in law or in applicable interpretations of the staff of the SEC, the Company determines upon the advice of its outside counsel that it is not permitted to effect the registered exchange offer, the Registration Rights Agreement provides that the Company will, at its reasonable cost:
• as promptly as practicable file with the SEC a shelf registration statement (the “shelf registration statement”) covering resales of the Old Notes;
• use its commercially reasonable efforts to cause the shelf registration statement to become effective under the Securities Act within 365 days after the date, if any, on which the Company became obligated to file the shelf registration statement; and
• use the Company’s commercially reasonable efforts to keep the shelf registration statement effective until the earlier of the date that is two years after the date that the Company enters into the Registration Rights Agreement or the time that all of the Old Notes eligible to be sold under the shelf registration statement have been sold pursuant to the shelf registration statement or are freely tradeable pursuant to Rule 144(k) of the Securities Act and the applicable interpretations of the SEC.
In the event of an applicable shelf registration statement, for each relevant holder of Old Notes, the Company agrees to:
• provide copies of the prospectus that is part of the shelf registration statement;
• notify each such Holder when the shelf registration statement has been filed and when it has become effective; and
• take certain other actions as are required to permit unrestricted resales of the Old Notes.
A holder that sells Old Notes pursuant to such shelf registration statement generally will be required to be named as a selling security holder in the related prospectus and to deliver a prospectus to purchasers, will be subject to certain of the civil liability provisions under the Securities Act in connection with such sales and will be bound by the provisions of the Registration Rights Agreement that are applicable to such holder, including certain indemnification obligations. No holder shall be entitled to be named as a selling security holder in such shelf registration statement or to use the prospectus forming a part thereof for resales of the Old Notes unless such holder has signed and returned to the Company a notice and questionnaire as distributed by the Company consenting to such holder’s inclusion in the shelf registration statement and related prospectus as a selling security holder and providing further information to the Company.
The Registration Rights Agreement for the Old Notes provides that a holder will be required to deliver information to be used in connection with such shelf registration statement to benefit from the provisions set forth in the following paragraph.
If:
• neither the registered exchange offer is completed within 365 days after the date that the Company entered into the Registration Rights Agreement (April 13, 2026) nor the shelf registration (if applicable) has been declared effective within 365 days after the date, if any, on which the Company became obligated to file such shelf registration statement; or
• such shelf registration statement has been both filed and effective but ceases to be effective or usable for a period of time that exceeds 120 days in the aggregate in any 12-month period in which it is required to be effective under the Registration Rights Agreement (each such event referred to in this bullet point and the previous bullet point, a “registration default”);
then, if the Company has not undertaken its commercially reasonable efforts in connection with any of the previous bullet points, the Company will, subject to certain exceptions, be required to pay additional interest as liquidated damages to the holders affected thereby, and additional interest will accrue on the principal amount of the Old Notes affected thereby, in addition to the stated interest on the Old Notes, from and including the date on which any registration default shall occur to, but not including, the date on which all registration defaults have been cured. Additional interest on the Old Notes will accrue at a rate of 0.25% per annum immediately following the occurrence of any registration default until, but not including, the date on which all registration defaults have been cured.
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Following the cure of all registration defaults, the accrual of additional interest on the affected Old Notes will cease and the interest rate will revert to the original rate on such Old Notes. Any additional interest on the Old Notes will constitute liquidated damages and will be the exclusive remedy, monetary or otherwise, available to any holder of Old Notes with respect to any registration default.
Holders will also be required to suspend (on one or more occasions) their use of such shelf registration statement and the related prospectus upon written notice from the Company for a period not to exceed an aggregate of 120 days in any calendar year because of the occurrence of any material event or development with respect to the Company that, in its reasonable judgment, would be detrimental to the Company if so disclosed or would otherwise materially adversely affect a financing, acquisition, disposition, merger or other material transaction.
The Registration Rights Agreement provides that a Holder agrees to be bound by the provisions of the Registration Rights Agreement whether or not the holder has signed the Registration Rights Agreement.
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BOOK-ENTRY SETTLEMENT AND CLEARANCE
The New Notes will initially be evidenced by one or more global notes deposited with the trustee, as custodian for DTC, and registered in the name of Cede & Co., as DTC’s nominee.
Unless the New Notes represented by a global note are exchanged, in whole or in part, for New Notes in definitive form, the New Notes represented by a global note may generally be transferred only as a whole and only to another nominee of DTC or to a successor depositary or its nominee.
DTC currently limits the maximum denomination of any single global note to US$500.0 million. Beneficial interests in the New Notes represented by a global note will be shown on, and transfers of New Notes represented by a global note will be effected only through, records maintained by DTC and its participants.
DTC has provided us the following information: DTC is a limited purpose trust company organized under the New York Banking Law, a “banking organization” within the meaning of the New York Banking Law, a member of the United States Federal Reserve System, a “clearing corporation” within the meaning of the New York Uniform Commercial Code and a “clearing agency” registered under Section 17A of the Securities Exchange Act of 1934, as amended. DTC holds securities that its participants deposit with DTC. DTC also facilitates the clearance and recording of the settlement among its participants of securities transactions, such as transfers and pledges, in deposited securities through computerized records for participants’ accounts. This eliminates the need for physical exchange of certificates. Direct participants include securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. Other organizations such as securities brokers and dealers, banks and trust companies that work through a participant either directly or indirectly use DTC’s book-entry system. The rules that apply to DTC and its participants are on file with the SEC.
Pursuant to DTC’s procedures, upon issuance of the New Notes represented by a global note in connection with the applicable Exchange Offer, DTC will credit the accounts of the participants designated by the Exchange Agent with the applicable principal amount of the New Notes exchanged for the Old Notes in the applicable Exchange Offer. Ownership of beneficial interests in the New Notes represented by global notes will be shown:
• on DTC’s records with respect to participants;
• by the participants with respect to indirect participants and certain beneficial owners; and
• by the indirect participants with respect to all other beneficial owners.
The laws of some states require that certain persons take physical delivery in definitive form of the securities which they own. Consequently, the ability to transfer beneficial interests in the New Notes represented by global notes may be limited.
Under the applicable Indenture, if the nominee of DTC is the registered owner of the New Notes represented by global notes, the nominee will be considered the sole owner or holder of such New Notes. Except as provided below, owners of the New Notes represented by global notes will not be entitled to have such New Notes registered in their names, will not receive or be entitled to receive physical delivery of such New Notes in definitive form and will not be considered the owners or holders thereof under the applicable Indenture for any purpose, including with respect to the giving of any directions, instructions or approval to the trustee. However, DTC has advised us that, pursuant to its customary practice with respect to the giving of consents and voting, it will deliver an omnibus proxy to the trustee assigning the related holder’s voting rights to the participant to whose account the New Notes represented by global notes are credited on the record date. Each proxy will include a list of participants’ positions in the relevant New Note as of the record date for a consent or vote.
We will wire to DTC’s nominee principal and interest payments with respect to the New Notes represented by global notes. We and the trustee will treat DTC’s nominee as the owner of the New Notes represented by global notes for all purposes. Accordingly, we, the trustee, any paying agent and any agent of us, the trustee or the paying agent will have no direct responsibility or liability to pay amounts due on the New Notes represented by global notes to owners of beneficial interests in such New Notes or for maintaining and reviewing any records relating to the beneficial interests.
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It is DTC’s current practice, upon receipt of any payment of principal or interest, to credit participants’ accounts on the payment date according to their holdings of beneficial interests in the New Notes represented by global notes as shown on DTC’s records. DTC’s current practice is to credit such accounts, as to interest, in next-day funds and, as to principal, in same-day funds. Payments by participants to owners of beneficial interests in the New Notes represented by global notes will be governed by standing instructions and customary practices between the participants and the owners of beneficial interests in the Notes represented by global notes, as is the case with securities held for the account of customers registered in “street name.” However, payments will be the responsibility of the participants and not of DTC, the Exchange Agent, the trustee or us. Neither we nor the trustee will be liable for any delay by DTC or any of its participants in identifying the beneficial owners of any notes, and we and the trustee may conclusively rely on and will be protected in relying on instructions from DTC or its nominee for all purposes.
The New Notes represented by global notes will be exchangeable for the New Notes registered with the same terms in authorized denominations only if:
• DTC notifies us that it is unwilling or unable to continue as depositary or has ceased to be a clearing agency registered under the Exchange Act;
• an Event of Default has occurred and is continuing with respect to the New Notes represented by global notes; or
• certain circumstances exist, as specified in the applicable Indenture.
If any of these events occur, DTC will generally notify all direct participants of the availability of definitive New Notes. Such New Notes will be issued in minimum denominations of US$2,000 and integral multiples of US$1,000 in excess thereof, in registered form only, and without coupons. We will maintain one or more offices or agencies in New York City, New York to facilitate the transfer or exchange of the New Notes represented by global notes. Holders of the New Notes are not required to pay any service charges for any transfer or exchange, but we may require you to pay any tax, other governmental charge or payment in connection with the exchange or transfer.
Links have been established among DTC, Clearstream and Euroclear, which are European book-entry depositaries similar to DTC, to facilitate the initial issuance of the New Notes exchanged outside of the United States and cross-market transfers of the New Notes associated with secondary market trading.
Although DTC, Clearstream and Euroclear have agreed to the procedures provided below in order to facilitate transfers, they are under no obligation to perform these procedures, and these procedures may be modified or discontinued at any time. Neither we nor the trustee nor any of our respective agents will have any responsibility for the performance by DTC, Euroclear, Clearstream or their respective participants or indirect participants of their respective obligations under the rules and procedures governing their operations.
Each of Clearstream and Euroclear will record the ownership interests of their participants in much the same way as DTC, and DTC will record the total ownership of each of the United States agents of Clearstream and Euroclear, as participants in DTC.
When the New Notes are to be transferred from the account of a DTC participant to the account of a Clearstream participant or a Euroclear participant, the purchaser must send instructions to Clearstream or Euroclear, as the case may be, through a participant at least one day prior to settlement. Clearstream or Euroclear, as the case may be, will instruct its United States agent to receive the New Notes against payment therefor. After settlement, Clearstream or Euroclear, as the case may be, will credit its participant’s account. Credit for the New Notes will appear on the next day (European time), in the case of Clearstream and Euroclear.
Because settlement of the issuance of the New Notes will take place during New York business hours, DTC participants will be able to employ their usual procedures for sending the New Notes to the relevant United States agent acting for the benefit of Clearstream or Euroclear, as the case may be, participants. As a result, to the DTC participant, a cross-market transaction will settle no differently than a transaction between two DTC participants.
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When a Clearstream or Euroclear, as the case may be, participant wishes to transfer the New Notes to a DTC participant, the seller will be required to send instructions to Clearstream or Euroclear, as the case may be, through a participant at least one business day prior to settlement. In these case, Clearstream or Euroclear, as the case may be, will instruct its United States agent to transfer the New Notes against payment therefor. The payment will then be reflected in the account of the Clearstream or Euroclear, as the case may be, participant the following day, with the proceeds back-valued to the value date, which would be the preceding day, when settlement occurs in the New York City, New York. If settlement is not completed on the intended value date, proceeds credited to the Clearstream or Euroclear, as the case may be, participant’s account will instead be valued as of the actual settlement date.
Same-Day Settlement in respect of the Notes Represented by Global Notes
Secondary trading in definitive long-term notes and debentures of corporate issuers is generally settled in clearing-house or next-day funds. In contrast, debt securities represented by global notes held by DTC will trade in DTC’s Same-Day Funds Settlement System until maturity, and DTC therefore will require that secondary market trading activity in such debt securities settle in immediately available funds. No assurance can be given as to the effect, if any, of settlement in immediately available funds on trading activity in debt securities represented by global notes.
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Under existing interpretations of the Staff of the SEC, set forth in no-action letters issued to third parties (including Exxon Capital Holdings Corporation (available May 13, 1988), Morgan Stanley & Co. Incorporated (available June 5, 1991), K-111 Communications Corporation (available May 14, 1993) and Shearman & Sterling (available July 2, 1993)), we believe that the New Notes would generally be freely tradable after the completion of the Exchange Offers without further compliance with the registration and prospectus delivery requirements of the Securities Act. However, each holder of Old Notes who is an affiliate of ours or who intends to participate in the Exchange Offers for the purposes of distributing the New Notes:
• will not be able to rely on the interpretations of the Staff;
• will not be entitled to participate in the Exchange Offers; and
• must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any sale or transfer of the New Notes, unless that sale or transfer is made pursuant to an exemption from those requirements.
Each holder of Old Notes that participates in the Exchange Offers will be required to represent to us at the time it transmits an agent’s message through ATOP and the consummation of the Exchange Offers that:
• it is not an affiliate of ours;
• it is not a broker-dealer tendering notes acquired directly from us for its own account;
• the New Notes to be received by it will be acquired in the ordinary course of its business; and
• it is not engaged and does not intend to engage in, and has no arrangement or understanding with any person, to participate in the distribution, within the meaning of the Securities Act, of the New Notes.
In addition, in connection with any resales of the New Notes, any broker-dealer that acquired New Notes for its own account as a result of market-making or other trading activities (“exchanging broker-dealers”) may be deemed to be an “underwriter” within the meaning of the Securities Act and, therefore, must deliver a prospectus meeting the requirements of the Securities Act in connection with any resales of such New Notes. The SEC has taken the position that exchanging broker-dealers may fulfill their prospectus delivery requirements with respect to the New Notes with the prospectus contained in the exchange offer registration statement. Under the Registration Rights Agreement, we will be required for a limited period to allow exchanging broker-dealers and other persons, if any, subject to similar prospectus delivery requirements to use the prospectus contained in the exchange offer registration statement in connection with the resale of New Notes.
We have not sought and do not intend to seek a no-action letter from the SEC with respect to the Exchange Offers, and there can be no assurance that the Staff would make a similar determination with respect to the New Notes as it has in such no-action letters.
Each broker-dealer that receives New Notes for its own account pursuant to the Exchange Offers must acknowledge that it will deliver a prospectus in connection with any resale of such New Notes. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of New Notes received in exchange for Old Notes where such Old Notes were acquired as a result of market-making activities or other trading activities.
The Co-Issuers will not receive any proceeds from any sale of New Notes by broker-dealers. New Notes received by broker-dealers for their own account pursuant to the Exchange Offers may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the New Notes or a combination of such methods of resale, at market prices prevailing at the time of resale, at prices related to such prevailing market prices or negotiated prices. Any such resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any such broker-dealer or the purchasers of any such New Notes. Any broker-dealer that resells New Notes that were received by it for its own account pursuant to the Exchange Offers and any broker or dealer that participates in a
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distribution of such New Notes may be deemed to be an “underwriter” within the meaning of the Securities Act and any profit on any such resale of New Notes and any commission or concessions received by any such persons may be deemed to be underwriting compensation under the Securities Act. By acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.
Upon request, for a period of 90 days after the Expiration Date, the Co-Issuers will make this prospectus, as amended or supplemented, available to any broker-dealer for use in connection with any such resale.
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MATERIAL UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of certain U.S. federal income tax considerations relating to the exchange of unregistered Old Notes for New Notes pursuant to the Exchange Offers, but does not purport to be a complete analysis of all the potential tax considerations relating to the Exchange Offers. This summary is based upon the provisions of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), U.S. Treasury Regulations promulgated or proposed thereunder, administrative rulings and pronouncements and judicial decisions, all as in effect on the date of this prospectus and all of which are subject to change, possibly with retroactive effect, or different interpretations. We have not sought and will not seek any rulings from the Internal Revenue Service, or the IRS, with respect to the statements made in this summary, and there can be no assurance that the IRS will not take a position contrary to these statements or that a contrary position taken by the IRS would not be sustained by a court. This discussion does not address all of the U.S. federal income tax consequences that may be relevant to a holder in light of such holder’s particular circumstances or to holders subject to special rules, such as banks and certain other financial institutions, partnerships and other pass-through entities or arrangements and investors therein, regulated investment companies, real estate investment trusts, U.S. expatriates, insurance companies, dealers in securities or currencies, traders in securities, persons subject to special tax accounting rules as a result of any item of gross income with respect to the Old Notes or the New Notes being taken into account in an applicable financial statement, U.S. holders whose functional currency is not the U.S. dollar, holders subject to alternative minimum tax, tax-exempt organizations, tax deferred or other retirement accounts, controlled foreign corporations, passive foreign investment companies, and persons holding the Old Notes or that will hold the New Notes as part of a “straddle,” “hedge,” “conversion transaction” or other integrated transaction. This discussion also does not address the tax considerations arising under the laws of any foreign, state or local jurisdiction, or the effects of any other U.S. federal tax laws, including the gift and estate tax and the Medicare tax.
The exchange of an Old Note for a New Note pursuant to the Exchange Offers (described under “Exchange Offers”) will not constitute a taxable exchange for U.S. federal income tax purposes. Consequently, you will not recognize any taxable gain or loss upon the receipt of a New Note pursuant to the Exchange Offers, your holding period for a New Note will include the holding period of the Old Note exchanged therefor, your adjusted tax basis in an New Note will be the same as the adjusted tax basis in the Old Note immediately before such exchange, and all of the U.S. federal income tax considerations associated with owning and disposing of an Old Note will continue to apply to the New Note received in exchange therefor. Holders who did not purchase the Old Notes at original issuance for cash at their original offering price should consult their own tax advisors with respect to the U.S. federal income tax considerations associated with owning and disposing of a New Note.
HOLDERS OF THE NOTES SHOULD CONSULT THEIR OWN TAX ADVISORS REGARDING THE U.S. FEDERAL, STATE AND LOCAL AND FOREIGN INCOME AND OTHER TAX CONSIDERATIONS RELATING TO THE EXCHANGE OFFERS IN LIGHT OF THEIR PARTICULAR CIRCUMSTANCES, AS WELL AS THE CONSIDERATIONS RELATING TO OWNING AND DISPOSING OF THE NEW NOTES.
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Certain legal matters of United States federal and New York state law in connection with respect to the validity of the offered securities in connection with the Exchange Offers will be passed upon for the Co-Issuers by White & Case LLP. Certain legal matters in connection with Netherlands law will be passed upon for JBS N.V. by De Brauw Blackstone Westbroek N.V.
The consolidated financial statements of JBS N.V. as of December 31, 2025 and 2024 and for each of the years in the three-year period ended December 31, 2025, incorporated by reference into this prospectus by reference to our Form 20-F, in reliance upon the report of KPMG Auditores Independentes, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
This prospectus is part of a registration statement that we have filed with the SEC on Form F-4 under the Securities Act. This prospectus, which is part of the registration statement, does not contain all of the information contained in the registration statement. The rules and regulations of the SEC allow us to omit certain information from this prospectus that is included in the registration statement. Statements made in this prospectus concerning the contents of any contract, agreement or other document are summaries of all material information about the documents summarized, but are not complete descriptions of all terms of these documents. If we filed any of these documents as an exhibit to the registration statement, you may read the document itself for a complete description of its terms.
The SEC maintains a website at http://www.sec.gov that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC. In addition, copies of JBS N.V.’s SEC and CVM filings, including its annual reports, quarterly reports and current reports, are available free of charge on its investor relations website at https://ir.jbsglobal.com/sec-and-cvm-filings/sec-filings/. Our website allows you to access such reports and other information free of charge as soon as reasonably practicable after such material is electronically filed with, or furnished to, the SEC. The information that is contained in, or that will be accessed through, our website (including the website referenced above) is not part of this prospectus.
JBS N.V. is subject to the informational requirements of the Exchange Act. You may read JBS N.V.’s periodic reports on the SEC’s website at http://www.sec.gov or on JBS’s investor relations website at https://ir.jbsglobal.com/sec-and-cvm-filings/sec-filings/. Except as otherwise expressly indicated herein, any such information does not form part of this prospectus or the registration statement. Those reports or other information will be available without charge on the SEC’s website and on JBS’s investor relations website.
As a foreign private issuer, we are exempt from the rules under the Exchange Act related to the furnishing and content of proxy statements, and our officers, directors and principal shareholders are exempt from the short-swing profit recovery provisions contained in Section 16 of the Exchange Act. In addition, we are not required under the Exchange Act to file annual, quarterly and current reports and financial statements with the SEC as frequently or as promptly as United States companies whose securities are registered under the Exchange Act. However, beginning with our quarterly report on Form 10-Q for the period ended June 30, 2026, we voluntarily elected to file annual reports on Form 10-K, quarterly reports on Form 10-Q and current reports on Form 8-K with the SEC instead of the reporting forms otherwise available to us as a foreign private issuer (Form 20-F and Form 6-K), noting that this voluntary election does not affect our status as a foreign private issuer.
This prospectus does not constitute an offer to sell or a solicitation of an offer to buy any securities offered by this prospectus in any jurisdiction in which such an offer or a solicitation is unlawful and does not constitute an offer of securities to the public in the European Union within the meaning of Article 3(1) of the Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017, as amended, (the “Prospectus Regulation”). This prospectus is not a prospectus or an offer document within the meaning of the Prospectus Regulation.
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INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
We have incorporated by reference certain information that we file with, or furnish to, the SEC, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus. We are incorporating by reference into this prospectus the following documents that JBS N.V. filed with, or furnished to, the SEC, copies of which are also available on JBS N.V.’s investor relations website at https://ir.jbsglobal.com/sec-and-cvm-filings/sec-filings/:
• Annual report on Form 20-F of JBS N.V. for the year ended December 31, 2025, filed with the SEC on March 25, 2026;
• Quarterly report on Form 10-Q of JBS N.V. for the quarterly period ended June 30, 2026, filed with the SEC on August 10, 2026; and
• Current report on Form 8-K of JBS N.V. filed with the SEC on September 15, 2026 (Film No. 261381585).
We also incorporate by reference in this prospectus any future filings of JBS N.V. on Form 20-F, Form 10-K or Form 10-Q made with the SEC, and any reports of JBS N.V. on Form 8-K filed with the SEC (excluding, in each case, any portion of such filings that is furnished rather than filed, unless otherwise indicated in such filing), in each case after the date of this prospectus and prior to the termination of the offering of the securities offered by this prospectus. As of the date of this prospectus, JBS N.V. has begun filing current reports on Form 8-K with the SEC beginning with its Second Quarter Form 10-Q.
The information incorporated by reference contains important information about us and our financial condition and is considered to be part of this prospectus. Any statement contained in a document incorporated or deemed to be incorporated by reference into this prospectus will be deemed to be modified or superseded to the extent that a statement contained herein or in any other subsequently filed or furnished document which is or is deemed to be incorporated by reference into this prospectus modifies or supersedes that statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
If you make a request for such information in writing or by telephone, we will provide you, without charge, a copy of any or all of the information incorporated by reference into this prospectus. Any such request should be directed to JBS N.V.’s investor relations team at ri@jbs.com.br.
You should rely only on the information contained in, or incorporated by reference into, this prospectus. We have not authorized anyone else to provide you with different or additional information. This prospectus does not offer to sell or solicit any offer to buy any notes in any jurisdiction where the offer or sale is unlawful. You should not assume that the information in this prospectus or in any document incorporated by reference is accurate as of any date other than the date on the front cover of the applicable document.
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PROSPECTUS
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, 2026
PART II — INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.
Registrant incorporated as a corporation in the Netherlands
JBS N.V.
Under Dutch law, indemnification provisions may be included in a company’s articles of association. Pursuant to JBS N.V.’s articles of association, current and former directors shall be reimbursed for all (a) costs and expenses (including reasonably incurred and substantiated attorneys’ fees) reasonably incurred in relation to the director’s defenses in the relevant action, suit, proceeding or investigation or a settlement thereof, (b) liabilities, losses, damages, fines, penalties and other claims and/or financial effects of judgments, excluding any reputational damages and (other) immaterial damages, and (c) payments by the director and/or any other financial effects resulting from a settlement of such action, suit, proceeding or investigation, excluding any reputational damages and (other) immaterial damages, subject to prior written approval of such settlement by JBS N.V., provided he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to our best interests or out of his or her mandate, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. Any indemnification shall be made only (unless ordered by a court) upon a determination that indemnification of the director or former director is proper under the circumstances because he or she had met the applicable standard of conduct set. Indemnified amount referred to in (a) through (c) above, inclusive may be paid by the company. in advance of the final disposition of the relevant anticipated or pending action, suit or proceedings against that director, upon a resolution of the board of directors with respect to the specific case.
A director or former director shall not be entitled to any indemnification, if and to the extent: (a) Dutch law would not permit such indemnification; (b) a competent court, a judicial tribunal or, in case of an arbitration, an arbitrator has established by final judgment that is not open to challenge or appeal, that the acts or omissions of the director or former director can be considered intentional, fraudulent, grossly negligent, willfully reckless, seriously culpable, or willful misconduct on the part of such director, unless this would in the given circumstances be unacceptable according to the standards of reasonableness and fairness; (c) the costs or the decrease in assets of the director are covered by an insurance and the insurer started payment of the costs or the decrease in assets; or (d) JBS N.V. and/or a group company brought the procedure in question before a court.
Under Dutch law, directors may be held liable for damages in the event of improper or negligent performance of their duties. They may be held jointly and severally liable for damages to our company for infringement of the articles of association or of certain provisions of the Dutch Civil Code. In certain circumstances, they may also incur additional specific civil and criminal liabilities.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling JBS N.V. pursuant to the foregoing provisions, JBS N.V. has been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Registrants incorporated as a corporation in Delaware
JBS USA Foods Group Holdings, Inc. and JBS USA Food Company Holdings
Article IX of the Amended and Restated Certificate of Incorporation of JBS USA Foods Group Holdings, Inc. provides that its directors shall not be personally liable to JBS USA Foods Group Holdings, Inc. or its stockholders for monetary damages for breach of fiduciary duty as a director. If the General Corporation Law of the State of Delaware (the “DGCL”) or any other law of the State of Delaware is amended after approval by the stockholders of Article X of the Amended and Restated Certificate of Incorporation of JBS USA Foods Group Holdings, Inc. to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of JBS USA Foods Group Holdings, Inc. shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.
II-1
Article X of the Amended and Restated Certificate of Incorporation of JBS USA Foods Group Holdings, Inc. provides that, to the fullest extent permitted by applicable law, JBS USA Foods Group Holdings, Inc. is authorized to provide indemnification (and advancement of expenses to) directors, officers and agents of JBS USA Foods Group Holdings, Inc. (and any other persons to which the DGCL permits JBS USA Foods Group Holdings, Inc. to provide indemnification) through by-law provisions, agreements with such agents or other persons, vote of stockholders or disinterested directors or otherwise, in excess of the indemnification and advancement otherwise permitted by Section 145 of the DGCL. Any amendment, repeal or modification of the foregoing provisions of Article X of the Amended and Restated Certificate of Incorporation of JBS USA Foods Group Holdings, Inc. shall not adversely affect any right or protection of any director, officer or other agent of JBS USA Foods Group Holdings, Inc. existing at the time of, or increase the liability of any director of JBS USA Foods Group Holdings, Inc. with respect to any acts or omissions of such director, officer or other agent occurring prior to, such amendment, repeal or modification.
Article VI of the Certificate of Incorporation of JBS USA Food Company Holdings provides that its directors shall be protected from personal liability, through indemnification or otherwise, to the fullest extent permitted under the DGCL, as it presently exists or may hereafter be amended from time to time. A director shall under no circumstances have any personal liability to JBS USA Food Company Holdings or its stockholders for monetary damages for breach of fiduciary as a director except for those breaches and acts or omissions with respect to which the DGCL expressly provides that this provision shall not eliminate or limit such personal liability of directors, Neither the modification or repeal of this sentence nor any amendment to the DGCL that does not have retroactive application shall limit the right of the directors hereunder to exculpation from personal liability for any act or omission occurring prior to such amendment, modification or repeal. JBS USA Food Company Holdings shall indemnify each director and officer of JBS USA Food Company Holdings to the fullest extent permitted by applicable law, except as may otherwise be provided in its Bylaws, and in furtherance hereof the board of directors is expressly authorized to amend the Bylaws from time to time to give full effect hereto, notwithstanding possible self-interest of the directors in the actions being taken. Neither the modification or repeal of the foregoing sentence nor any amendment to the DGCL that does not have retroactive application shall limit the right of the directors and the officers to indemnification hereunder with respect to any act or omission occurring prior to such modification, amendment or appeal. Expenses incurred by any person who may have a right of indemnification under Article Vi of the Certificate of Incorporation of JBS USA Food Company Holdings in defending a civil, criminal, administrative or investigative action, suit or proceeding may be paid by JBS USA Food Company Holdings in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such person to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by JBS USA Food Company Holdings.
Section 145 of the DGCL authorizes and empowers JBS USA Foods Group Holdings, Inc. and JBS USA Food Company Holdings to indemnify their respective directors, officers, employees and agents against liabilities incurred in connection with, and related expenses resulting from, any claim, action or suit brought against any such person as a result of his or her relationship with the corporation, provided that such persons acted in good faith and in a manner such person reasonably believed to be in, and not opposed to, the best interests of the corporation and with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful in connection with the acts or events on which such claim, action or suit is based. The finding of either civil or criminal liability on the part of such person in connection with such acts or events is not necessarily determinative of the question of whether such person has met the required standard of conduct and is, accordingly, entitled to be indemnified. The foregoing statements are subject to the detailed provisions of Section 145 of the DGCL.
In addition, each of JBS USA Foods Group Holdings, Inc. and JBS USA Food Company Holdings (as successor to JBS USA Food Company) has obtained a directors’ and officers’ liability and company reimbursement policy for itself and its subsidiaries that insures against certain liabilities under the Securities Act of 1933, as amended, subject to applicable retentions.
On April 13, 2026, the Company entered into a registration rights agreement (the “Registration Rights Agreement”) with certain initial purchasers, pursuant to which the Company agreed, for the benefit of the holders of the Old Notes, to use its commercially reasonable efforts to cause a registration statement to be filed with the SEC (the “exchange offer registration statement”) with respect to a registered offer (the “registered exchange offer”) to exchange the Old Notes of each series for New Notes of the same series, which will have terms identical in all material respects to such Old Notes, except that the New Notes will not contain transfer restrictions, to be declared effective and to complete the registered exchange offer not later than 365 calendar days following April 13, 2026.
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Item 21. Exhibits and Financial Statement Schedules.
(a) Exhibits.
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Exhibit No. |
Description |
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3.1 |
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3.2 |
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3.3 |
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3.4 |
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3.5 |
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4.1 |
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4.2 |
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4.3 |
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4.4 |
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4.5 |
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4.6 |
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4.7 |
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4.8 |
II-3
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Exhibit No. |
Description |
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4.9 |
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4.10 |
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4.11 |
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4.12 |
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4.13 |
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4.14 |
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4.15 |
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4.16 |
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4.17 |
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4.18 |
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4.19 |
II-4
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Exhibit No. |
Description |
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4.20 |
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4.21 |
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4.22 |
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4.23 |
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4.24 |
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4.25 |
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4.26 |
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4.27 |
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4.28 |
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4.29 |
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4.30 |
II-5
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Exhibit No. |
Description |
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4.31 |
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4.32 |
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4.33 |
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4.34 |
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4.35 |
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4.36 |
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4.37 |
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4.38 |
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4.39 |
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4.40 |
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4.41 |
II-6
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Exhibit No. |
Description |
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4.42 |
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4.43 |
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4.44 |
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4.45 |
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4.46 |
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4.47 |
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4.48 |
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4.49 |
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4.50 |
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4.51 |
II-7
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Exhibit No. |
Description |
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4.52 |
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4.53 |
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4.54 |
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4.55 |
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4.56 |
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4.57 |
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4.58 |
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4.59 |
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5.1* |
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5.2* |
Opinion of De Brauw Blackstone Westbroek N.V., Netherlands counsel to JBS N.V. (including consent). |
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10.1# |
II-8
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Exhibit No. |
Description |
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21.1* |
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23.1* |
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23.2* |
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23.3* |
Consent of De Brauw Blackstone Westbroek N.V. (included in Exhibit 5.2). |
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24.1* |
Power of Attorney of JBS N.V. (included in signature page of this registration statement). |
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24.2* |
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24.3* |
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25.1* |
Form T-1 statement of eligibility under the Trust Indenture Act of 1939 of Regions Bank. |
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107* |
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* Filed herewith.
# Portions of this exhibit have been omitted because (i) the omitted information is not material and (ii) the omitted information is of the type that the parties customarily and actually treat as private or confidential.
Certain debt instruments of the Registrant and its subsidiaries have been omitted as exhibits because the amounts involved in such debt instruments are less than 10% of the Registrant’s total assets. Copies of debt instruments for which the related debt is less than 10% of the Registrant’s total assets will be furnished to the Commission upon request.
(b) Financial Statement Schedules.
Schedules not listed above have been omitted because the information required to be set forth therein is not applicable or is shown in the financial statements or notes thereto.
Item 22.Undertakings.
(a) Each of the undersigned registrants hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the “Securities Act”);
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
(2) That, for purposes of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
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(4) That, for purposes of determining liability under the Securities Act to any purchaser:
(i) each prospectus filed by the registrants pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
(5) That, for the purpose of determining liability of the registrants under the Securities Act to any purchaser in the initial distribution of securities, that, in a primary offering of securities of the undersigned registrants pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrants will be sellers to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrants relating to the offering required to be filed pursuant to Rule 424 under the Securities Act;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrants or used or referred to by the undersigned registrants;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrants or their securities provided by or on behalf of the undersigned registrants; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrants to the purchaser.
(6) That, for purposes of determining any liability under the Securities Act, each filing of the registrants’ annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934, as amended) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(7) That prior to any public reoffering of the securities registered hereunder through use of a prospectus which is a part of this registration statement, by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c), the issuer undertakes that such reoffering prospectus will contain the information called for by the applicable registration form with respect to reofferings by persons who may be deemed underwriters, in addition to the information called for by the other items of the applicable form.
(8) That every prospectus (i) that is filed pursuant to the paragraph immediately preceding, or (ii) that purports to meet the requirements of Section 10(a)(3) of the Securities Act of 1933 and is used in connection with an offering of securities subject to Rule 415, will be filed as a part of an amendment to the registration statement and will not be used until such amendment is effective, and that, for purposes of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(9) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrants pursuant to the foregoing provisions, or otherwise, such registrants have been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrants of expenses incurred or paid by a director, officer or controlling person of the registrants in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the co-registrants will, unless in the opinion of their counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by them is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
(10) Each of the undersigned registrants hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11 or 13 of Form S-4, within one business day of receipt of such request, and to send the incorporated documents by first-class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request.
(11) Each of the undersigned registrants hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective.
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Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Amstelveen, Netherlands, on October 16, 2026.
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JBS N.V. |
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By: |
/s/ Gilberto Tomazoni |
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Name: Gilberto Tomazoni |
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Title: Executive Director and Global Chief Executive Officer |
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By: |
/s/ Guilherme Perboyre Cavalcanti |
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Name: Guilherme Perboyre Cavalcanti |
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Title: Global Chief Financial Officer |
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KNOWN ALL BY THESE PRESENTS, that the undersigned officers and directors of JBS N.V. do hereby constitute and appoint Guilherme Perboyre Cavalcanti, as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign and any all amendments (including post-effective amendments) to this registration statement (or any registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended), and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto each said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that any said attorney-in-fact and agent, or any substitute or substitutes of any of them or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on October 16, 2026. This document may be executed in counterparts that when so executed shall constitute one registration statement, notwithstanding that all of the undersigned are not signatories to the original of the same counterpart.
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Signature |
Title |
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/s/ Jeremiah O’Callaghan |
Chairman of the Board |
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Jeremiah O’Callaghan |
(Non-Executive Director) |
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/s/ Gilberto Tomazoni |
Executive Director and Global Chief Executive Officer |
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Gilberto Tomazoni |
(Principal Executive Officer) |
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/s/ Guilherme Perboyre Cavalcanti |
Global Chief Financial Officer |
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Guilherme Perboyre Cavalcanti |
(Principal Financial Officer) |
|
|
/s/ Agnaldo dos Santos Moreira Jr. |
Chief Accounting Officer |
|
|
Agnaldo dos Santos Moreira Jr. |
(Principal Accounting Officer) |
|
|
/s/ Wesley Mendonça Batista |
Non-Executive Director |
|
|
Wesley Mendonça Batista |
||
|
/s/ Joesley Mendonça Batista |
Non-Executive Director |
|
|
Joesley Mendonça Batista |
||
|
/s/ Kátia Regina de Abreu Gomes |
Non-Executive Director |
|
|
Kátia Regina de Abreu Gomes |
II-12
|
Signature |
Title |
|
|
/s/ Paulo Bernardo Silva |
Non-Executive Director |
|
|
Paulo Bernardo Silva |
||
|
/s/ Carlos Hamilton Vasconcelos Araújo |
Non-Executive Director |
|
|
Carlos Hamilton Vasconcelos Araújo |
||
|
/s/ Henrique de Campos Meirelles |
Non-Executive Director |
|
|
Henrique de Campos Meirelles |
||
|
/s/ Raul Alfredo Padilla |
Non-Executive Director |
|
|
Raul Alfredo Padilla |
|
By: |
/s/ Diego Pirani |
JBS USA Food Company Holdings |
||
|
Name: Diego Pirani |
Authorized Representative in the United States |
|||
|
Title: Authorized Representative |
II-13
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Greeley, Colorado on October 16, 2026.
|
JBS USA FOODS GROUP HOLDINGS, INC. |
||||
|
By: |
/s/ Victor Hugo Machado |
|||
|
Victor Hugo Machado |
||||
KNOWN ALL BY THESE PRESENTS, that the undersigned officers and directors of JBS USA Foods Group Holdings, Inc. do hereby constitute and appoint Diego Pirani and Victor Hugo Machado, as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign and any all amendments (including post-effective amendments) to this registration statement (or any registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended), and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto each said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that any said attorney-in-fact and agent, or any substitute or substitutes of any of them or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on October 16, 2026. This document may be executed in counterparts that when so executed shall constitute one registration statement, notwithstanding that all of the undersigned are not signatories to the original of the same counterpart.
|
Signature |
Title |
|
|
/s/ Wesley Mendonça Batista Filho |
Chief Executive Officer |
|
|
Wesley Mendonça Batista Filho |
(Principal Executive Officer) |
|
|
/s/ Victor Hugo Machado |
Chief Financial Officer |
|
|
Victor Hugo Machado |
(Principal Financial Officer) |
|
|
/s/ Andrea Riva |
Chief Accounting Officer |
|
|
Andrea Riva |
(Principal Accounting Officer) |
|
|
/s/ Wesley Mendonça Batista Filho |
Director |
|
|
Wesley Mendonça Batista Filho |
||
|
/s/ Guilherme Perboyre Cavalcanti |
Director |
|
|
Guilherme Perboyre Cavalcanti |
||
|
/s/ Victor Hugo Machado |
Director |
|
|
Victor Hugo Machado |
II-14
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Greeley, Colorado on October 16, 2026.
|
JBS USA FOOD COMPANY HOLDINGS |
||||
|
By: |
/s/ Victor Hugo Machado |
|||
|
Victor Hugo Machado |
||||
KNOWN ALL BY THESE PRESENTS, that the undersigned officers and directors of JBS USA Food Company Holdings do hereby constitute and appoint Diego Pirani and Victor Hugo Machado, as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign and any all amendments (including post-effective amendments) to this registration statement (or any registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended), and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto each said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that any said attorney-in-fact and agent, or any substitute or substitutes of any of them or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on October 16, 2026. This document may be executed in counterparts that when so executed shall constitute one registration statement, notwithstanding that all of the undersigned are not signatories to the original of the same counterpart.
|
Signature |
Title |
|
|
/s/ Wesley Mendonça Batista Filho |
Chief Executive Officer |
|
|
Wesley Mendonça Batista Filho |
(Principal Executive Officer) |
|
|
/s/ Victor Hugo Machado |
Chief Financial Officer |
|
|
Victor Hugo Machado |
(Principal Financial Officer) |
|
|
/s/ Andrea Riva |
Chief Accounting Officer |
|
|
Andrea Riva |
(Principal Accounting Officer) |
|
|
/s/ Wesley Mendonça Batista Filho |
Director |
|
|
Wesley Mendonça Batista Filho |
||
|
/s/ Guilherme Perboyre Cavalcanti |
Director |
|
|
Guilherme Perboyre Cavalcanti |
||
|
/s/ Victor Hugo Machado |
Director |
|
|
Victor Hugo Machado |
II-15
Exhibit 5.1
 |
| October 16, 2026 JBS N.V. Stroombaan 16, 5th Floor 1181 VX, Amstelveen, Netherlands Ladies and Gentlemen: |
 |
We have acted as New York counsel to JBS N.V., a Netherlands company (the “Company”), JBS USA Foods Group Holdings, Inc., a Delaware corporation (“JBS USA Foods Group”), and JBS USA Food Company Holdings, a Delaware corporation (“JBS USA Food Company” and, collectively with the Company and JBS USA Foods Group, the “Issuers”), in connection with the Company’s offers to exchange (together, the “Exchange Offers”) up to: (i) US$1,500,000,000 aggregate principal amount of newly issued and registered 5.6250% Senior Notes due 2037 (the “New 2037 Notes”) for an equal principal amount of our outstanding 5.6250% Senior Notes due 2037 (the “Old 2037 Notes”); and (ii) US$1,000,000,000 aggregate principal amount of newly issued and registered 6.400% Senior Notes due 2057 (the “New 2057 Notes” and, together with the New 2037 Notes, , the “New Notes”) for an equal principal amount of our outstanding 6.400% Senior Notes due 2057 (the “Old 2057 Notes” and, together with the Old 2037 Notes, the “Old Notes”), pursuant to a registration statement on Form F-4 (as amended, the “Registration Statement”) filed with the Securities and Exchange Commission (the “Commission”) on the date hereof under the Securities Act of 1933, as amended (the “Securities Act”).
The Old 2037 Notes were, and the New 2037 Notes will be, issued under an indenture, dated as of April 13, 2026 (as supplemented through the date hereof, the “2037 Notes Indenture”), by and among the Issuers and Regions Bank (“Trustee”), as trustee.
The Old 2057 Notes were, and the New 2057 Notes will be, issued under an indenture, dated as of April 13, 2026 (as supplemented through the date hereof, the “2057 Notes Indenture” and, together with the 2037 Notes Indenture, the “Indentures”), by and among the Issuers and the Trustee, as trustee.
In connection with our opinions expressed below, we have examined originals or copies certified to our satisfaction of the following documents and such other documents, certificates and other statements of government officials and corporate officers of the Issuers as we deemed necessary for the purposes of the opinions set forth in this opinion letter:
| (i) | JBS USA Foods Group’s Amended and Restated Certificate of Incorporation, dated December 23, 2024; |
| (ii) | JBS USA Foods Group’s Amended and Restated Bylaws effective as of December 23, 2024; |
| (iii) | JBS USA Food Company’s Amended and Restated Certificate of Incorporation, dated November 20, 2025; |
| (iv) | JBS USA Food Company’s Bylaws; |
| (v) | the resolutions adopted by JBS USA Foods Group’s board of directors through unanimous written consent on March 30, 2026; |
| (vi) | the resolutions adopted by JBS USA Food Company’s board of directors through unanimous written consent on March 30, 2026; |
| (vii) | the Indentures; |
| (viii) | the forms of New Notes included in each Indenture; and |
| (ix) | the Registration Statement. |
We have relied, to the extent we deem such reliance proper, upon certificates of public officials and, as to any facts material to our opinions, upon certificates of officers of the parties and the representations of the parties. In rendering such opinions, we have assumed without independent investigation or verification of any kind the genuineness of all signatures, the legal capacity of all natural persons signing all documents, the authenticity of all documents submitted to us as originals, the conformity to authentic original documents of all documents submitted to us as copies, the truthfulness, completeness and correctness of all factual representations and statements contained in all documents, and the accuracy and completeness of all public records examined by us and the accuracy of English translations of all documents originally in other languages.
In making our examination of documents executed by parties, other than JBS USA Foods Group and JBS USA Food Company, we have assumed that such parties had the power, corporate or other, and authority to enter into and perform all their obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and execution and delivery by such parties of such documents and the validity, binding and enforceable effect thereof.
In rendering the opinion contained herein, we have assumed that: (i) the Registration Statement and any supplements and amendments thereto, will have become effective and will comply with all applicable laws (and will remain effective and in compliance at the time of issuance of the New Notes thereunder); (ii) a prospectus supplement providing supplemental information to the Registration Statement, to the extent required by applicable law and relevant rules and regulations of the Commission, will be timely filed with the Commission and will comply with all applicable laws; (iii) the Issuers will issue and deliver the New Notes in the manner contemplated by the Registration Statement; (iv) the resolutions authorizing JBS USA Foods Group and JBS USA Food Company to issue, offer and sell the New Notes have been adopted by its board of directors and will be in full force and effect at all times at which the New Notes are offered or sold by JBS USA Foods Group and JBS USA Food Company; and (v) the New Notes will be in substantially the form attached to the applicable Indenture and that any information omitted from such form will be properly added and will be issued and sold in compliance with applicable federal and state securities laws or applicable laws or regulations or any agreement or other instrument binding upon the Issuers.
We have further assumed that the New Notes will be delivered by the Issuers in accordance with applicable laws and sold as contemplated in the Registration Statement.
Based upon the foregoing, and subject to the qualifications, assumptions and limitations set forth in this opinion letter, having considered such questions of law as we have deemed necessary as a basis for the opinion expressed below, we are of the opinion that, when the New Notes have been duly authorized by all necessary corporate action, executed, issued and delivered by the Issuers and authenticated by the Trustee in accordance with the provisions of the Indentures, and exchanged for the Old Notes in accordance with the terms of the Exchange Offers as set forth in the Registration Statement, the New Notes will constitute valid and binding obligations of the Issuers enforceable against such Issuer in accordance with their terms.
2
The foregoing opinions as to enforceability of obligations of the Issuers are subject to: (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar laws affecting the enforcement of creditors’ rights generally, and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and the discretion of the court before which any proceedings therefor may be brought (such principles of equity are of general application, and in applying such principles, a court may include a covenant of good faith and fair dealing and apply concepts of reasonableness and materiality); (ii) provisions of law which may require that a judgment for money damages rendered by a court in the United States be expressed only in U.S. dollars; and (iii) governmental authority to limit, delay or prohibit the making of payments outside the United States or in foreign currency or composite currency. Rights to indemnification and contribution may also be limited by Federal and state securities laws.
We express no opinion as to the validity, legally binding effect or enforceability of any provision in any agreement or instrument that (i) requires or relates to payment of any interest at a rate or in an amount which a court would determine in the circumstances under applicable law to be commercially unreasonable or a penalty or a forfeiture or (ii) relates to governing law and submission by the parties to the jurisdiction of one or more particular courts.
The opinions expressed above are limited to questions arising under the law of the State of New York and the Delaware General Corporation Law. We do not express any opinion as to the laws of any other jurisdiction.
This opinion letter is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Securities Act. This opinion letter is provided solely in connection with the Exchange Offers pursuant to the Registration Statement and is not to be relied upon for any other purpose.
The opinions expressed above are as of the date hereof only, and we express no opinion as to, and assume no responsibility for, the effect of any fact or circumstance occurring, or of which we learn, subsequent to the date of this opinion letter, including, without limitation, legislative and other changes in the law or changes in circumstances affecting any party. We assume no responsibility to update this opinion letter for, or to advise you of, any such facts or circumstances of which we become aware, regardless of whether or not they affect the opinions expressed in this opinion letter.
We hereby consent to the filing of this opinion letter with the Commission as Exhibit 5.1 to the Registration Statement and to the reference to our firm as counsel for the Issuers appearing under the caption “Legal Matters” in the prospectus forming part of the Registration Statement. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act and the rules and regulations of the Commission promulgated thereunder.
| Very truly yours, | |
| /s/ White & Case LLP | |
| White & Case LLP |
VM : KK : CG
3
Exhibit 5.2
| Advocaten | |
| Notarissen | |
| Belastingadviseurs | |
 |
| Burgerweeshuispad 201 | |
| To JBS N.V. | P.O. Box 75084 |
| Stroombaan 16, 5th floor | 1070 AB Amsterdam |
| 1181VX Amstelveen | |
| The Netherlands | T +31 20 577 1771 |
| (the “Company”) | F +31 20 577 1775 |
| Date 16 October 2026 | Lisa de Boer | |
| E Lisa.deBoer@debrauw.com | ||
| Our ref. M60139773/2/20795548 | T +31 20 577 1614 | |
| F +31 20 577 1775 |
Re:
Dear Addressee,
JBS N.V. (the “Company”)
the Registration with the SEC of the New Notes
| 1 | INTRODUCTION |
We, De Brauw Blackstone Westbroek N.V., (“De Brauw”) act as Dutch legal advisers to the Company in connection with the New Notes and the Registration.
Certain terms used in this opinion are defined in the Annex (Definitions).
| 2 | SCOPE OF WORK |
As set out in paragraphs 1 and 7, we give this opinion as Dutch legal advisers and our duty of care is governed by Dutch law. By implication:
| (a) | This opinion is limited to Dutch law. It (including all terms used in it) is to be construed in accordance with Dutch law. |
De Brauw Blackstone Westbroek N.V., Amsterdam, is registered with the Trade Register in the Netherlands under no. 27171912.
All services and other work are carried out under an agreement of instruction (“overeenkomst van opdracht”) with De Brauw
Blackstone Westbroek N.V. The agreement is subject to the General Conditions, which have been filed with the register of the District Court in Amsterdam and contain a limitation of liability.
| (b) | As required by Dutch law, in preparing and issuing this opinion, we have observed the care which is to be expected from a reasonably proficient and reasonably acting Dutch opinion giver in similar circumstances (including our reputation) and accordingly: |
| (i) | we have performed the factual research set out in paragraph 3 and not any additional fact-finding actions (including not in respect of the correctness of the assumptions in paragraph 4 or the applicability of the qualifications in paragraph 6 except as expressly set out in it); |
| (ii) | we have examined the text of the documents listed in paragraph 3 and not researched their meaning and effect beyond their semantic meaning to a Dutch opinion giver (including not their meaning and effect under any law other than Dutch law); |
| (iii) | we have performed legal research into Dutch law reasonably likely to be relevant to this opinion and not any additional legal research (including into Dutch law not in effect on or prior to the date of this opinion); and |
| (iv) | we do not express any opinion or view other than as expressly set out in paragraphs 5 and 6 (including not in respect of any document, or on any reference to a document, not listed in paragraph 3). |
This opinion is limited to its date.
| 3 | FACTUAL RESEARCH |
We have examined the following documents:
| (a) | A copy of: |
| (i) | each Indenture signed by the Company; |
| (ii) | the forms of the New Notes as included in each Indenture; and |
| (iii) | the Registration Statement. |
| (b) | A copy of: |
| (i) | the Company’s deed of incorporation and its articles of association, as provided by the Chamber of Commerce (Kamer van Koophandel); |
| (ii) | the Board Regulations; and |
| (iii) | each Trade Register Extract. |
| (c) | A copy of the Corporate Resolution. |
| Legal opinion on the Registration of the New Notes | |
| Our ref. M60139773/2/20795548 | 2 / 16 |
| (d) | A copy of the Power of Attorney. |
In addition, we have obtained the following confirmations on the date of this opinion:
| (e) | Confirmation by telephone from the Chamber of Commerce that the most recent Trade Register Extract is up to date. | |
| (f) | Confirmation through https://data.europa.eu/data/datasets/consolidated-list-of-persons-groups-and-entities-subject-to-eu-financial-sanctions?locale=en and https://www.rijksoverheid.nl/documenten/rapporten/2015/08/27/national e-terrorismelijst that the Company is not included on any Sanctions List. |
| (g) | Confirmation through www.rechtspraak.nl, derived from the Central Insolvency Register (including from the segments for EU registrations and publications about public composition proceedings outside bankruptcy), that the Company is not registered as being subject to a public Dutch Insolvency or foreign Insolvency Proceedings. |
| 4 | ASSUMPTIONS |
We have made the following assumptions:
| (a) |
| (i) | Each copy document conforms to the original and each original is genuine and complete. |
| (ii) |
| (A) | Each signature (including each electronic signature) is the genuine signature of the individual concerned. |
| (B) | Each electronic signature is a qualified electronic signature or the signing method used for it is sufficiently reliable |
| (iii) | Each confirmation listed in paragraph 3 is true. |
| (iv) | Each Indenture has been signed by all parties, and all New Notes will have been issued in the form referred to in this opinion. |
| (b) | The Board Regulations remain in force without modification. |
| Legal opinion on the Registration of the New Notes | |
| Our ref. M60139773/2/20795548 | 3 / 16 |
| (c) |
| (i) | The Corporate Resolution has been duly adopted and remains in force without modification. |
| (ii) | There is no works council (ondernemingsraad) the advice of which must be sought on the Company’s issue of the New Notes. |
| (d) | The most recent Trade Register Extract remains up to date. |
| (e) |
| (i) | Each party other than the Company has validly entered into each Indenture. |
| (ii) | Where required, the New Notes have been or will have been validly authenticated in accordance with the Indentures. |
| (iii) | The Power of Attorney remains in force, and will remain in force without modification and no rule of law (other than Dutch law) which under the 1978 Hague Convention on the Law applicable to Agency applies or may be applied to the existence and extent of the authority of any person authorised to sign any Indenture or the Global Notes on behalf of the Company under the Power of Attorney, adversely affects the existence and extent of that authority as expressed in the Power of Attorney (including, whether or not expressed, to sign by electronic signature). |
| (iv) | All New Notes will have been signed on behalf of the Company by the number of managing directors required by its articles of association, the managing director with the title Global Chief Executive Officer, or by a person duly authorised to sign pursuant to the Power of Attorney. |
| (f) | When validly signed by all parties (including by electronic signature), each Indenture and the New Notes are valid and binding on and enforceable against each party under New York law by which they are expressed to be governed. |
| (g) |
| (i) | Any New Notes offered to the public in the Netherlands have been, are and will be so offered in accordance with the Prospectus Regulation and the Offer Regulations. |
| Legal opinion on the Registration of the New Notes | |
| Our ref. M60139773/2/20795548 | 4 / 16 |
| (ii) | The New Notes have not been, are not and will not be admitted to trading on the regulated market of Euronext Amsterdam or on any other regulated market in the Netherlands. |
| (iii) | At the time when the Company disposed or disposes of the New Notes in the context of the offer of the New Notes, the Company did or does not possess inside information (voorwetenschap) in respect of the Company or the trade in the New Notes. |
| (h) | The Company does not qualify as a bank (bank) within the meaning of the Wft. |
| (i) | The Registration Statement will have been and each of the Indentures have been filed with the SEC in the form referred to in this opinion. |
| 5 | OPINION |
Within the limitations set out in paragraph 2, based on the factual research described in paragraph 3 and the assumptions made in paragraph 4, and subject to the qualifications in paragraph 6 and any matters not disclosed to us in the context of this opinion, we are of the following opinion:
| (a) | The Company has been incorporated as a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) and exists as a public limited liability company (naamloze vennootschap). |
| (b) |
| (i) | The Company has the corporate power to enter into and perform each Indenture, and to issue and perform the New Notes. |
| (ii) | The Company has taken all necessary corporate action to authorise its entry into and performance of each Indenture, and its issue and performance of the New Notes. |
| (iii) | The Company has validly signed each Indenture. |
| (iv) | When signed on behalf of the Company by the number of managing directors required by its articles of association, the managing director with the title Global Chief Executive Officer, or by a person duly authorised to sign pursuant to the Power of Attorney, the Company will have validly signed the Global Notes. |
| (c) | The Company’s entry into and performance of each Indenture, and the issue and performance of the New Notes, do not violate Dutch law or its articles of association. |
| Legal opinion on the Registration of the New Notes | |
| Our ref. M60139773/2/20795548 | 5 / 16 |
| (d) |
| (i) | The choice of New York law as the governing law of each Indenture and the New Notes is recognised. |
| (ii) | Dutch law does not restrict the validity and binding effect on and enforceability against the Company of each Indenture and the New Notes. |
| (e) |
| (i) | The validity and binding effect on and enforceability against the Company of the submission to the jurisdiction of the New York Courts in each Indenture: |
| (A) | under Dutch private international law are likely governed by New York law; and |
| (B) | are not restricted by Dutch law. |
| (ii) | A judgment in a civil or commercial matter rendered by a New York Court cannot be enforced in the Netherlands. However, if a person has obtained a final judgment without appeal in such a matter rendered by a New York Court which is enforceable in New York and files his claim with a Dutch court with jurisdiction, the Dutch court will generally recognise and give effect to the judgment insofar as it finds that (A) the jurisdiction of the court has been based on an internationally generally accepted ground, (B) proper legal procedures have been observed, (C) the judgment does not contravene Dutch public policy, and (D) the judgment is not irreconcilable with a judgment of a Dutch court or an earlier judgment of a foreign court that is capable of being recognised in the Netherlands. |
| 6 | QUALIFICATIONS |
This opinion is subject to the following qualifications:
| (a) | This opinion is subject to any limitations arising from (i) rules relating to Dutch Insolvencies, (ii) rules relating to foreign insolvency or composition or restructuring proceedings (including foreign Insolvency Proceedings), (iii) other rules regulating conflicts between rights of creditors, or (iv) resolution, intervention and other measures in relation to financial enterprises or their affiliated entities. |
| Legal opinion on the Registration of the New Notes | |
| Our ref. M60139773/2/20795548 | 6 / 16 |
| (b) | The recognition of New York law as the governing law of each Indenture and the New Notes: |
| (i) | will not prejudice the provisions of the law of the European Union (where appropriate as implemented in the Netherlands) which cannot be derogated from by agreement if all elements relevant to the situation at the time when the relevant Indenture was entered into or the New Notes were issued (other than the choice of New York law as the governing law of that Indenture or the New Notes, as applicable) are located in one or more Member States of the European Union; |
| (ii) |
| (A) | will not restrict the application of the overriding provisions of Dutch law; and |
| (B) | will not prevent effect being given to the overriding provisions of the law of a jurisdiction with which the situation has a close connection; |
(and for this purpose “overriding provisions” are provisions the respect for which is regarded as crucial by a jurisdiction for safeguarding its public interests to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to an agreement);
| (iii) | will not prevent the application of New York law being refused if it is manifestly incompatible with Dutch public policy (ordre public); and |
| (iv) | will not prevent regard being had to the law of the jurisdiction in which performance takes place in relation to the manner of performance and the steps to be taken in the event of defective performance. |
| (c) | The binding effect and enforceability of the submission to the jurisdiction of the New York Courts in each Indenture, are subject to limited exceptions, including any exceptions applicable under the Brussels I-bis Regulation or the Lugano Convention. |
| (d) | Under the Brussels I-bis Regulation, a choice of court agreement that (i) provides for a choice of court in the European Union, and (ii) permits a party to bring proceedings before another court, is valid insofar as (A) the other court is a court in the European Union or a state party to the Lugano Convention, and (B) the agreement identifies objective factors which are sufficiently precise to enable the other court to ascertain whether it has jurisdiction. It is uncertain whether this rule applies to other non-exclusive choices of court and we do not express any opinion on the effects of this rule on each Indenture. |
| Legal opinion on the Registration of the New Notes | |
| Our ref. M60139773/2/20795548 | 7 / 16 |
| (e) | Enforcement in the Netherlands of each Indenture and the New Notes, and of foreign judgments is subject to Dutch rules of civil procedure. |
| (f) | The Sanction Act 1977 (Sanctiewet 1977) or international sanctions may affect whether (i) the Company’s entry into and performance of each Indenture and the issue of the New Notes violates Dutch law, and (ii) each Indenture and the New Notes are valid, binding and enforceable. |
| (g) | To the extent that Dutch law applies, any provision that the holder of a Note may be treated as its absolute owner may not be enforceable under all circumstances. |
| (h) | To the extent that Dutch law applies, title to a New Note may not pass if (i) the New Note is not delivered (geleverd) in accordance with Dutch law, (ii) the transferor does not have the power to pass on title (beschikkingsbevoegdheid) to the New Note, or (iii) the transfer of title is not made pursuant to a valid title of transfer (geldige titel). |
| (i) | To the extent that each of the Terms and Conditions are general conditions within the meaning of article 6:231 BW, a holder of a New Note may nullify (vernietigen) a provision therein if (i) the Company has not offered the holder a reasonable opportunity to examine each of the Terms and Conditions, or (ii) the provision, having regard to all relevant circumstances, is unreasonably onerous to the holder. A provision in general conditions as referred to in article 6:236 BW is deemed to be unreasonably onerous, irrespective of the circumstances, if the holder of a New Note is a natural person not acting in the conduct of a profession or trade. A substitution provision such as set out in Section 12 of the applicable Indenture might fall within the scope of article 6:236 BW. |
| (j) | If any New Note has been signed on behalf of the Company (manually) by a person who on the signing date is, but ceases to be before the date of the New Note and its authentication and issue, a duly authorised representative of the Company, enforcement of the New Note in a Dutch court may require that the holder of the New Note submit a copy of the applicable Indenture. |
| Legal opinion on the Registration of the New Notes | |
| Our ref. M60139773/2/20795548 | 8 / 16 |
| (k) | In proceedings in a Dutch court for the enforcement of each Indenture, the court may mitigate amounts due in respect of litigation and collection costs. |
| (l) | In respect of proceedings in a Dutch court for the enforcement of each Indenture, the appointment of a process agent pursuant the Indentures may be without effect. |
| (m) | Any trust to which the 1985 Convention on the Law applicable to Trusts and their Recognition (the “Trust Convention”) applies, will be recognised subject to the Trust Convention. Any trust to which the Trust Convention does not apply may not be recognised. |
| (n) |
| (i) | An extract from the Trade Register does not provide conclusive evidence that the facts set out in it are correct. However, under the 2007 Trade Register Act (Handelsregisterwet 2007), subject to limited exceptions, a legal entity or partnership cannot invoke the incorrectness or incompleteness of its Trade Register registration against third parties who were unaware of the incorrectness or incompleteness. |
| (ii) | A confirmation from the Central Insolvency Register does not provide conclusive evidence that an entity is not subject to a Dutch Insolvency or foreign Insolvency Proceedings (also because they are not all registered). |
| (o) | We do not express any opinion on: |
| (i) | any co-ownership interest, including its validity, in any New Note; |
| (ii) | the validity of any assignment or transfer pursuant to each of the Indentures or any other in rem matters; |
| (iii) | (a) tax matters, (b) anti-trust, state-aid or competition laws, (c) compliance with sanctions laws and (d) any laws that we, having exercised customary professional diligence, could not be reasonably expected to recognise as being applicable to the Indentures, the New Notes or transactions pursuant to the Indentures to which this opinion relates; and |
| (iv) | the implications of the New Notes being co-issued by the Issuers, including without limitation any questions arising from the joint or several nature of the co-issuance obligations or the allocation of rights and liabilities between each of the Issuers. |
| Legal opinion on the Registration of the New Notes | |
| Our ref. M60139773/2/20795548 | 9 / 16 |
| 7 | RELIANCE |
| (a) | This opinion is an exhibit to the Registration Statement and may be relied upon for the purpose of the Registration. It may not be supplied, and its contents or existence may not be disclosed, to any person other than as an exhibit to (and therefore together with) the Registration Statement. |
| (b) | Each person relying on this opinion in doing so agrees that: |
| (i) | the agreements in this paragraph 7, our duty of care and all liability and other matters relating to this opinion will be governed exclusively by Dutch law and the Dutch courts will have exclusive jurisdiction to settle any dispute relating to them; and |
| (ii) | only we, De Brauw, (and not any other person, including any person working at or affiliated with us) will have any liability in connection with this opinion; and |
| (iii) | our liability in connection with this opinion is limited to the amount that is paid out in the specific case under our insurance, plus the applicable deductible. |
| (c) | The Company may: |
| (i) | file this opinion as an exhibit to the Registration Statement; and |
| (ii) | refer to De Brauw giving this opinion in the exhibit schedule in the Registration Statement. |
| (d) | We consent to the filing of this opinion letter with the SEC as an exhibit to the Registration Statement and to the reference to De Brauw Blackstone Westbroek N.V. in the Registration Statement under the heading ‘Legal Matters’. In giving this consent, we do not admit that we are a person whose consent is required under Section 7 of the Securities Act or any rules and regulations promulgated by the SEC. |
[Signature page follows]
| Legal opinion on the Registration of the New Notes | |
| Our ref. M60139773/2/20795548 | 10 / 16 |
Yours faithfully,
De Brauw Blackstone Westbroek N.V.
/s/ De Brauw Blackstone Westbroek N.V.
Lisa de Boer
Advocaat
| Legal opinion on the Registration of the New Notes | |
| Our ref. M60139773/2/20795548 | 11 / 16 |
Annex – Definitions
Part 1 – General
In this opinion:
“2037 Indenture” is defined in part 3 (New Notes and Registration) of this Annex.
“2037 New Notes” is defined in part 3 (New Notes and Registration) of this Annex.
“2037 Old Notes” means the old USD 1,500,000,000 5.625% senior notes issued by the Issuers due 2037 under the 2037 Indenture.
“2057 Indenture” is defined in part 3 (New Notes and Registration) of this Annex.
“2057 New Notes” is defined in part 3 (New Notes and Registration) of this Annex.
“2057 Old Notes” means the old USD 1,000,000,000 6.400% senior notes issued by the Issuers due 2057 under the 2057 Indenture.
“Exchange Offers” means the offers by the Issuers to exchange each series of Old Notes for a corresponding series of New Notes, as contemplated by the Registration Statement.
“Board Regulations” is defined in part 2 (Company) of this Annex.
“Brussels I-bis Regulation” means Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast).
“BW” means the Civil Code (Burgerlijk Wetboek).
“Company” is defined in part 2 (Company) of this Annex.
“Corporate Resolution” is defined in part 2 (Company) of this Annex.
“De Brauw” means De Brauw Blackstone Westbroek N.V.
“Dutch Insolvency” means bankruptcy (faillissement), suspension of payments (surseance van betaling) or restructuring proceedings outside bankruptcy (akkoordprocedures buiten faillissement).
“Dutch law” means the national law of the Netherlands and European Union and international law to the extent directly applicable in the Netherlands.
“Foreign Issuer” means each of:
| Legal opinion on the Registration of the New Notes | |
| Our ref. M60139773/2/20795548 | 12 / 16 |
| (a) | JBS USA Foods Group Holdings, Inc., a Delaware corporation; and |
| (b) | JBS USA Food Company Holdings, a Delaware corporation. |
“Global Notes” is defined in part 3 (New Notes and Registration) of this Annex.
“Indentures” is defined in part 3 (New Notes and Registration) of this Annex.
“Insolvency Proceedings” means insolvency proceedings as defined in Article 2(4) of Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast).
“Issuers” means the Company and each Foreign Issuer.
“New Notes” is defined in part 3 (New Notes and Registration) of this Annex.
“Lugano Convention” means the 2007 Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
“New York Court” means any federal or state court in The City of New York, Borough of Manhattan, State of New York.
“New York law” means the laws of the State of New York without regard to its conflicts of laws principles.
“Offer Regulations” means:
| (a) | Commission Delegated Regulation (EU) 2019/979 of 14 March 2019 supplementing Regulation (EU) 2017/1129 of the European Parliament and of the Council with regard to regulatory technical standards on key financial information in the summary of a prospectus, the publication and classification of prospectuses, advertisements for securities, supplements to a prospectus, and the notification portal, and repealing Commission Delegated Regulation (EU) No 382/2014 and Commission Delegated Regulation (EU) 2016/301; |
| (b) | Commission Delegated Regulation (EU) 2019/980 of 14 March 2019 supplementing Regulation (EU) 2017/1129 of the European Parliament and of the Council as regards the format, content, scrutiny and approval of the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, and repealing Commission Regulation (EC) No 809/2004; |
| (c) | Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC; |
| Legal opinion on the Registration of the New Notes | |
| Our ref. M60139773/2/20795548 | 13 / 16 |
| (d) | Regulation (EC) No 1060/2009 of the European Parliament and of the Council of 16 September 2009 on credit rating agencies to the extent applicable to the Registration Statement; and |
| (e) | the Wft. |
“Old Notes” means each of the 2037 Old Notes and the 2057 Old Notes.
“Power of Attorney” is defined in part 2 (Company) of this Annex.
“Prospectus Regulation” means Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, and repealing Directive 2003/71/EC.
“Registration” means the registration by the Issuers of the New Notes with the SEC under the Securities Act in connection with the Exchange Offers.
“Registration Statement” is defined in part 3 (New Notes and Registration) of this Annex.
“Sanctions List” means each of:
| (a) | the Consolidated list of persons, groups and entities subject to EU financial sanctions; and |
| (b) | the National sanction list terrorism (Nationale sanctielijst terrorisme). |
“SEC” means the United States Securities and Exchange Commission. “Securities Act” means the United States Securities Act of 1933, as amended.
“Terms and Conditions” is defined in part 3 (New Notes and Registration) of this Annex.
“the Netherlands” means the European part of the Kingdom of the Netherlands.
“Trade Register Extract” is defined in part 2 (Company) of this Annex.
“Trustee” means Regions Bank as trustee under the Indentures.
“Wft” means the Financial Markets Supervision Act (Wet op het financieel toezicht).
| Legal opinion on the Registration of the New Notes | |
| Our ref. M60139773/2/20795548 | 14 / 16 |
Part 2 – Company
In this opinion:
“Board Regulations” means the management board regulations of the Company’s management board (bestuur) dated 13 June 2025.
“Company” means JBS N.V., a public limited liability company (naamloze vennootschap) incorporated under the laws of the Netherlands, with its official seat (statutaire zetel) in Amsterdam, registered with the Dutch Trade Register (Handelsregister) under number 76063305.
“Corporate Resolution” means the minutes of the meeting of the Company’s management board (bestuur) held on 25 March 2026 (including Schedule 1 thereto), approving, among other things, the issuance of the New Notes, the Exchange Offers and the Registration, including a power of attorney granted by the Company to each of Gilberto Tomazoni, Diego de Camargo Pirani, Eliseo Santiago Perez Fernandez, Wesley Mendonça Batista Filho and Guilherme Perboyre Cavalcanti, and dated 25 March 2026.
“Power of Attorney” means the power of attorney included in the resolution of the Company’s management board referred to in the definition of “Corporate Resolution”.
“Trade Register Extract” means each Trade Register extract relating to the Company provided by the Chamber of Commerce (Kamer van Koophandel) dated 13 April 2026 and dated 16 October 2026.
| Legal opinion on the Registration of the New Notes | |
| Our ref. M60139773/2/20795548 | 15 / 16 |
Part 3 – New Notes and Registration
In this opinion:
“2037 Indenture” means the indenture dated 13 April 2026 among the Issuers, as issuers, and the Trustee, as trustee, governed by the laws of the State of New York, relating to the 2037 New Notes and the 2037 Old Notes.
“2037 New Notes” means the new 5.625% senior notes issued by the Issuers due 2037 under the 2037 Indenture.
“2057 Indenture” means the indenture dated 13 April 2026 among the Issuers, as issuers, and the Trustee, as trustee, governed by the laws of the State of New York, relating to the 2057 New Notes and the 2057 Old Notes.
“2057 New Notes” means the new 6.400% senior notes issued by the Issuers due 2057 under the 2057 Indenture.
“Global Notes” means:
| (a) | the global note to be executed by the Company after the Registration, following the consummation of the applicable Exchange Offer, relating to the 2037 New Notes, in the form as included in the 2037 Indenture; and |
| (b) | the global note to be executed by the Company after the Registration, following the consummation of the applicable Exchange Offer, relating to the 2057 New Notes, in the form as included in the 2057 Indenture. |
“Indentures” means each of the 2037 Indenture and the 2057 Indenture.
“New Notes” means each of the 2037 New Notes and the 2057 New Notes, and where the context permits:
| (a) | the New Notes in all forms referred to in this opinion, including, without limitation, the Global Notes; and |
| (b) | each of the Terms and Conditions. |
“Registration Statement” means the registration statement on Form F-4 of the Issuers filed with the SEC in connection with the Exchange Offers, including the prospectus.
“Terms and Conditions” means each of the terms and conditions of the New Notes.
| Legal opinion on the Registration of the New Notes | |
| Our ref. M60139773/2/20795548 | 16 / 16 |
Exhibit 21.1
| JBS N.V. - Subsidiaries | ||||
| N. | Company | Jurisdiction of incorporation of organization | ||
| 1 | Adams Pork Products Limited | UK | ||
| 2 | Agro Alfa Indústria e Comércio Ltda. | BRA | ||
| 3 | Albert Van Zoonen B.V. | NHL | ||
| 4 | Andrews Meat Industries Pty. Ltd. | AUS | ||
| 5 | Arkose Investments ULC | IRE | ||
| 6 | Attleborough Foods Limited | UK | ||
| 7 | Australian Consolidated Food Holdings Pty. Ltd. | AUS | ||
| 8 | Australian Consolidated Food Investments Pty. Ltd. | AUS | ||
| 9 | Avicola Pilgrim's Pride de Mexico S.A de C.V | MEX | ||
| 10 | Bakewell Foods Limited | UK | ||
| 11 | Baumhardt Com. e Part. Ltda. | BRA | ||
| 12 | Baybrick LandCo Pty. Ltd. | AUS | ||
| 13 | Baybrick Pty. Ltd. | AUS | ||
| 14 | Belvoir Foods Limited | UK | ||
| 15 | Biotech Foods, S.L. | ESP | ||
| 16 | Birla Società Agricola Srl | ITA | ||
| 17 | Cattle Production Systems, Inc. | USA | ||
| 18 | CB 2025 LLC | USA | ||
| 19 | Climert Investments S.A | URY | ||
| 20 | Colorado Egg, LLC | USA | ||
| 21 | Combo México Holdings, S. de R.L de C.V. | MEX | ||
| 22 | Combo Productora, S. de R.L de C.V | MEX | ||
| 23 | Combo Servicios Especializados de Personal, S. de R.L de C.V | MEX | ||
| 24 | Conceria Priante S.p.A | ITA | ||
| 25 | Consumer Foods Van Sales (Ireland) Limited | IRE | ||
| 26 | Consumer Foods Van Sales Limited | IRE | ||
| 27 | Cordine Pty. Ltd. | AUS | ||
| 28 | D Blowers Limited | UK | ||
| 29 | Dalehead Foods Limited | UK | ||
| 30 | De Korte Weg B.V. | NHL | ||
| 31 | Denver Processing, LLC | USA | ||
| 32 | Diamond Valley Pork Pty Ltd | AUS | ||
| 33 | Dungannon Proteins Ltd | UK | ||
| 34 | E.M.T. Agro Comercial Ltda. | BRA | ||
| 35 | Easey Herds Limited | UK | ||
| 36 | Easey Holdings Limited | UK | ||
| 37 | Easey Pigs Limited | UK | ||
| 38 | Easey Veterinary Services Limited | UK | ||
| 39 | Empire Packing Company, LLC | USA | ||
| 40 | Excelsior Alimentos S.A. | BRA | ||
| 41 | Fampat S.A. de C.V. | MEX | ||
| 42 | Fazenda da Toca Ltda. | BRA | ||
| 43 | Final Porto Comércio e Distribuidora Ltda. | BRA | ||
| 44 | Flora Green Pty. Ltd. | AUS | ||
| 45 | Food Processors Water Cooperative, Inc. | USA | ||
| 46 | Food Ventures North America Canada, Inc. | CAN | ||
| 47 | Food Ventures North America, Inc. | USA | ||
| 48 | Galina Pesada S.A.P.I. de C.V | MEX | ||
| 49 | Gateway Participações Ltda. | BRA | ||
| 50 | Geo Adams & Sons (Farms) Limited | UK | ||
| 51 | Geo Adams & Sons Limited | UK | ||
| 52 | Gideny S.A. | URY | ||
| 53 | GJ Land Co., LLC | USA | ||
| 54 | GJ Land Investors, LLC | USA | ||
| 55 | Good Country Investments Pty. Ltd. | AUS | ||
| 56 | Good Country Pty. Ltd. | AUS | ||
| 57 | H. Eggs Comércio Varejista Ltda. | BRA | ||
| 58 | Hadgraft Industrial Properties LLC | USA | ||
| 59 | Hamer International Limited | UK | ||
| 60 | Hans Continental Smallgoods Pty. Ltd. | AUS | ||
| 61 | Harris Mason Processing, LLC | USA | ||
| 62 | Henco Hogs, L.L.C. | USA | ||
| 63 | Hermitage AI Limited | UK | ||
| 64 | Hickman's Egg Ranch, Inc | USA | ||
| 65 | High Plains Pork, LLC | USA | ||
| 66 | Hortifrutigranjeiro Canela Ltda. | BRA | ||
| 67 | Hunter Valley Quality Meats Pty. Ltd. | AUS | ||
| 68 | Huon Aquaculture Company Pty Ltd | AUS | ||
| 69 | Huon Aquaculture Group Pty Ltd | AUS | ||
| 70 | Huon Ocean Trout Pty Ltd | AUS | ||
| 71 | Huon Salmon Pty Ltd | AUS | ||
| 72 | Huon Seafoods Pty Ltd | AUS | ||
| 73 | Huon Shellfish Co. Pty Ltd | AUS | ||
| 74 | Huon Smoked Salmon Pty Ltd | AUS | ||
| 75 | Huon Smoked Seafoods Pty Ltd | AUS | ||
| 76 | Huon Tasmanian Salmon Pty Ltd | AUS | ||
| 77 | Imposete Pty. Ltd. | AUS | ||
| 78 | Industry Park Pty. Ltd. | AUS | ||
| 79 | Inmobiliaria Andradina, S. de R.L de C.V. | MEX | ||
| 80 | Inmobiliaria Avicola Pilgrim's Pride S. de R.L de C.V. | MEX | ||
| 81 | International Food Company Seara OPC LLC | UAE | ||
| 83 | International Food Packers LLC | USA | ||
| 84 | Ivory Investments Luxembourg Holding S.C.S. | LUX | ||
| 85 | JBS Aquaculture Pty Ltd | AUS | ||
| 86 | JBS Asia Co. Ltd. | HKG | ||
| 87 | JBS Asia Holding Company B.V. | NHL | ||
| 88 | JBS Aspelt S.à r.l. | LUX | ||
| 89 | JBS Asset Management Corp. | USA |
2
| 90 | JBS Australia Air Pty Limited Liability | AUS | ||
| 91 | JBS Australia Finance 1 Pty. Ltd. | AUS | ||
| 92 | JBS Australia Finance Pty. Ltd. | AUS | ||
| 93 | JBS Australia Pty. Ltd. | AUS | ||
| 94 | JBS Aves Ltda. | BRA | ||
| 95 | JBS Berg S.à r.l. | LUX | ||
| 96 | JBS Captive Insurance Company | USA | ||
| 97 | JBS Carriers, Inc. | USA | ||
| 98 | JBS Chile Limitada | CHI | ||
| 99 | JBS Clervaux Finance S.à r.l. | LUX | ||
| 100 | JBS Confinamento Ltda. | BRA | ||
| 101 | JBS Couros Brasil Ltda. | BRA | ||
| 102 | JBS Durham UK Ltd | UK | ||
| 103 | JBS Eggs Holdings B.V. | NHL | ||
| 104 | JBS Embalagens Metálicas Ltda. | BRA | ||
| 105 | JBS Empire, Inc. | USA | ||
| 106 | JBS Finco, Inc. | USA | ||
| 107 | JBS Food Canada ULC | CAN | ||
| 108 | JBS Food Colombia S.A.S | COL | ||
| 109 | JBS Food Trading (Shanghai) Ltd | CHN | ||
| 110 | JBS Foods Ontario Inc. | CAN | ||
| 111 | JBS Global Luxembourg S.à r.l. | LUX | ||
| 112 | JBS Global Meat Holdings Pty Ltd | AUS/NHL | ||
| 113 | JBS Global UK Ltd | UK | ||
| 114 | JBS Green Bay, Inc. | USA | ||
| 115 | JBS Holdco Australia Pty. Ltd. | AUS | ||
| 116 | JBS Holding Brasil S.A. | BRA | ||
| 117 | JBS Investments Cork Ltd | IRE | ||
| 118 | JBS Investments Dublin Ltd | IRE | ||
| 119 | JBS Investments Luxembourg S.à r.l. | LUX | ||
| 120 | JBS Japan Ltd. | JPN | ||
| 121 | JBS La Rochette Finance S.à r.l. | LUX | ||
| 122 | JBS Leather Argentina S.A.U. | ARG | ||
| 123 | JBS Leather Asia Limited Liability | HKG | ||
| 124 | JBS Leather International B.V | NHL | ||
| 125 | JBS Leather Paraguay Srl | PAR | ||
| 126 | JBS Leather Uruguay S.A. | URY | ||
| 127 | JBS Live Pork, LLC | USA | ||
| 128 | JBS Meat Investments Pty. Ltd. | AUS | ||
| 129 | JBS Meat UK Ltd | UK | ||
| 130 | JBS Melwood UK Limited Liability | UK | ||
| 131 | JBS Mersch S.à r.l. | LUX | ||
| 132 | JBS N.V. | NHL | ||
| 133 | JBS Oman Holdings B.V. | NHL | ||
| 134 | JBS Packerland, Inc. | USA | ||
| 135 | JBS Participações Societárias S.A. | BRA |
3
| 136 | JBS Plainwell, Inc. | USA | ||
| 137 | JBS Pork Australia Pty Ltd | AUS | ||
| 138 | JBS Prepared Foods Inc. | USA | ||
| 139 | JBS S.A. | BRA | ||
| 140 | JBS Sanitation Canada Limited | CAN | ||
| 141 | JBS Smallgoods Holdco Australia, Pty Ltd | AUS | ||
| 142 | JBS Smallgoods Holdco Pty. Ltd. | AUS | ||
| 143 | JBS Smallgoods Investments Pty. Ltd. | AUS | ||
| 144 | JBS Souderton, Inc. | USA | ||
| 145 | JBS Southern Australia Pty. Ltd. | AUS | ||
| 146 | JBS Southern Holdco AU Pty. Ltd. | AUS | ||
| 147 | JBS Southern Investments 1 Pty. Ltd. | AUS | ||
| 148 | JBS Southern Investments 2 Pty. Ltd. | AUS | ||
| 149 | JBS Terminais Holding Ltda. | BRA | ||
| 150 | JBS Terminais Ltda. | BRA | ||
| 151 | JBS Terminais Santos Ltda. | BRA | ||
| 152 | JBS Toledo N.V | BEL | ||
| 153 | JBS Tolleson, Inc. | USA | ||
| 154 | JBS Trading Agent (Dongguan) | CHN | ||
| 155 | JBS Trading USA, Inc. | USA | ||
| 156 | JBS USA Food Company Holdings | USA | ||
| 157 | JBS USA Foods Group Holdings, Inc. | USA | ||
| 158 | JBS USA Holding Lux S.à r.l. | LUX | ||
| 159 | JBS USA Imports, Inc. | USA | ||
| 160 | JBS USA Leather, Inc. | USA | ||
| 161 | JBS USA Promontory Holdings I LLC | USA | ||
| 162 | JBS USA Promontory Holdings II LLC | USA | ||
| 163 | JBS USA Promontory I LLC | USA | ||
| 164 | JBS USA Promontory II LLC | USA | ||
| 165 | JBS USA Sanitation Corporation | USA | ||
| 166 | JBS Wisconsin Properties, LLC | USA | ||
| 167 | Kahula Pty. Ltd. | AUS | ||
| 168 | King’s S.p.A. | ITA | ||
| 169 | Kitchen Range Foods Limited | UK | ||
| 170 | Lap Foods Pty. Ltd. | AUS | ||
| 171 | LLB Natureza Viva Comércio e Distribuidora Ltda. | BRA | ||
| 172 | Mafrip - Matadouro Frigorífico S.A. | BRA | ||
| 173 | Mantiqueira Agricultura Regenerativa S.A. | BRA | ||
| 174 | Mantiqueira Agronegócios Ltda. | BRA | ||
| 175 | Mantiqueira Alimentos S.A. | BRA | ||
| 176 | Mantiqueira International B.V. | NHL | ||
| 177 | Mantiqueira UK I Holding Ltd. | UK | ||
| 178 | Mantiqueira UK II Holding Ltd. | UK | ||
| 179 | Mantiqueira USA Holding Inc. | USA | ||
| 180 | Mantiqueira USA Inc. | USA | ||
| 181 | Marzolara Food Processing Srl | ITA |
4
| 182 | Meadow Bank Hatchery Pty Ltd | AUS | ||
| 183 | Meat Me México, Mercado de Carnes, S. de R.L. de C.V. | MEX | ||
| 184 | Miller Bros. Co., Inc. | USA | ||
| 185 | Mopac of Virginia, Inc. | USA | ||
| 186 | Morrison's Seafood Pty Ltd | AUS | ||
| 187 | Moy Park (Newco) Ltd | UK | ||
| 188 | Moy Park Beef Orleans S.à.r.l | FRA | ||
| 189 | Moy Park Bondco PLC Ltd | UK | ||
| 190 | Moy Park France (Holdings) SAS | FRA | ||
| 191 | Moy Park France SAS | FRA | ||
| 192 | Moy Park Holdings (Europe) Limited | UK | ||
| 193 | Moy Park Limited | UK | ||
| 194 | Moyer Distribution LLC | USA | ||
| 195 | N.Ovo Plant Based Ltda. | BRA | ||
| 196 | Nacrail, LLC | USA | ||
| 197 | Noon Products Limited | UK | ||
| 198 | Normaclass S.A. | FRA | ||
| 199 | Nuco Feeds, LLC | USA | ||
| 200 | Oak Grove L.L.C. | USA | ||
| 201 | Oakhouse Foods Limited | UK | ||
| 202 | O'Kane (Blue Rose Newco 1) Limited | UK | ||
| 203 | O'Kane Poultry Limited | UK | ||
| 204 | Olympia Processing, LLC | USA | ||
| 205 | Onix Investments UK Ltd | UK | ||
| 206 | Orbital SPE Empreendimentos e Participações Ltda. | BRA | ||
| 207 | Oxdale Dairy Enterprise Pty Ltd | AUS | ||
| 208 | P&H Investments 1 Pty. Ltd. | AUS | ||
| 209 | P&H Investments 2 Pty. Ltd | AUS | ||
| 210 | Penasul UK Ltd. | UK | ||
| 211 | Pico Paco Frango Ltda. | BRA | ||
| 212 | Pilgrim’s Food Masters Holdings Ltd | UK | ||
| 213 | Pilgrim’s Food Masters Ireland Limited | IRE | ||
| 214 | Pilgrim’s Pride Malta Finance Limited Liability | MLT | ||
| 215 | Pilgrim's Europe Ltd | UK | ||
| 216 | Pilgrim's Food Masters UK Limited | UK | ||
| 217 | Pilgrim's Pride Affordable Housing Corporation | USA | ||
| 218 | Pilgrim's Pride Corporation | USA | ||
| 219 | Pilgrim's Pride Finance, LLC | USA | ||
| 220 | Pilgrim's Pride Ltd | UK | ||
| 221 | Pilgrim's Pride S. de R.L de C.V | MEX | ||
| 222 | Pilgrim's Shared Services Ltd. | UK | ||
| 223 | Pilgrim's UK Lamb Ltd | UK | ||
| 224 | Plan Pro Restaurantes S.A. de C.V. | MEX | ||
| 225 | Planterra Holdings B.V. | NHL | ||
| 226 | Plumrose Limited | UK | ||
| 227 | Poppsa 3, LLC | USA |
5
| 228 | Poppsa 4, LLC | USA | ||
| 229 | PPC Transportation Company | USA | ||
| 230 | PQP Holdings Limited | UK | ||
| 231 | Premier Beehive Holdco Pty. Ltd. | AUS | ||
| 232 | Premier Beehive NZ | NZL | ||
| 233 | Primo Foods Pty Ltd. | AUS | ||
| 234 | Primo Group Holdings Pty. Ltd. | AUS | ||
| 235 | Primo Meats Admin Pty Ltd | AUS | ||
| 236 | Primo Meats Pty. Ltd. | AUS | ||
| 237 | Primo Retail Pty. Ltd. | AUS | ||
| 238 | Principe di San Daniele S.p.A. | ITA | ||
| 239 | QMT General Partner Limited Liability | NZL | ||
| 240 | QMT New Zealand Limited Liability Partnership | NZL | ||
| 241 | Ready Mile Trucking Ltd | CAN | ||
| 242 | Rigamonti Salumificio S.p.A | ITA | ||
| 243 | Rivalea Holdings Pty Limited Liability | AUS | ||
| 244 | Rivercan | URY | ||
| 245 | Robotic Technologies Limited Liability | NZL | ||
| 246 | Rocklabs Automation Technology Limited | CAN | ||
| 247 | Rocklabs Limited Liability | NZL | ||
| 248 | Rollover Limited | UK | ||
| 249 | Rye Valley Foods Limited | IRE | ||
| 250 | S&C Australia Holdco Pty. Ltd. | AUS | ||
| 251 | S&C Australia Investments, Pty Ltd. | AUS | ||
| 252 | S&C Resale Company | USA | ||
| 253 | Sampco Holdings LLC | USA | ||
| 254 | Sampco LLC | USA | ||
| 255 | Sandstone Holdings S.à r.l. | LUX | ||
| 256 | Scott Automation a.s. | CZE | ||
| 257 | Scott Automation and Robotics Pty Ltd | AUS | ||
| 258 | Scott Automation GmbH | GER | ||
| 259 | Scott Automation Limited Liability. | UK | ||
| 260 | Scott Automation Ltd | NZL | ||
| 261 | Scott Automation N.V. | BEL | ||
| 262 | Scott Automation SAS | FRA | ||
| 263 | Scott LED Limited Liability | NZL | ||
| 264 | Scott Systems (Qingdao) Co., Ltd | CHN | ||
| 265 | Scott Systems International Inc. | USA | ||
| 266 | Scott Technology Americas Limited Liability | NZL | ||
| 267 | Scott Technology Australia Pty Ltd | AUS | ||
| 268 | Scott Technology Belgium bvba | BEL | ||
| 269 | Scott Technology Europe Limited Liability | NZL | ||
| 270 | Scott Technology Limited Liability | NZL | ||
| 271 | Scott Technology NZ Limited Liability | NZL | ||
| 272 | Scott Technology USA Limited Liability | NZL | ||
| 273 | Seara África Pty. Ltd. | RSA |
6
| 274 | Seara Alimentos Ltda. | BRA | ||
| 275 | Seara Arabia Food Industrial Company | KSA | ||
| 276 | Seara Comércio de Alimentos Ltda. | BRA | ||
| 277 | Seara Food Europe Holding B.V. | NHL | ||
| 279 | Seara Food Saudi for Consultancy and Research LLC | KSA | ||
| 280 | Seara Holding Ltda. | BRA | ||
| 281 | Seara Holdings (Europe) B.V. | NHL | ||
| 282 | Seara Japan Ltd | JPN | ||
| 283 | Seara Meats B.V. | NHL | ||
| 284 | Seara Middle East Foods Trading Company | KSA | ||
| 285 | Seara Middle East Wholesale and Retail Co. SPC | KWT | ||
| 286 | Seara Paraguay S.A. | PAR | ||
| 287 | Seara Participações Societárias S/A | BRA | ||
| 288 | Seara Singapore Pte. Ltd | SIN | ||
| 289 | Servicios Administrativos Pilgrim's Pride S. de R.L de C.V | MEX | ||
| 290 | Seven Point Pork Pty Ltd | AUS | ||
| 291 | Sharonville Processing, LLC | USA | ||
| 292 | SIA.MO.CI. Srl | ITA | ||
| 293 | Skippack Creek Corp. | USA | ||
| 294 | Southern Hens, Inc. | USA | ||
| 295 | Southern Ocean Trout Pty Ltd | AUS | ||
| 296 | Southwest Specialty Eggs, LLC | USA | ||
| 297 | Springfield Hatcheries Pty Ltd | AUS | ||
| 298 | Springs Smoked Salmon Pty Ltd | AUS | ||
| 299 | Springs Smoked Seafoods Pty Ltd | AUS | ||
| 300 | Spurway Foods Limited | UK | ||
| 301 | Surveyors Investments Pty Ltd | AUS | ||
| 302 | Swift & Company International Sales Corp. | USA | ||
| 306 | Swift Australia (Southern) Pty. Ltd. | AUS | ||
| 307 | Swift Beef Company | USA | ||
| 308 | Swift Brands Company | USA | ||
| 309 | Swift Pork Company | USA | ||
| 310 | Swift Refrigerated Foods S.A de C.V | MEX | ||
| 311 | Swift Southern Investments Pty. Ltd. | AUS | ||
| 312 | Tatiara Meat Company, Pty Ltd. | AUS | ||
| 313 | Tatiara Meat Investments Pty. Ltd. | AUS | ||
| 314 | To-Ricos Distribution, Ltd. | USA/BER | ||
| 315 | To-Ricos, Ltd. | USA/BER | ||
| 316 | TriOak Foods, LLC | USA | ||
| 317 | TriOak Grain, LLC | USA | ||
| 318 | TVB B.V. | NHL | ||
| 319 | Unifleisch SA | CHE | ||
| 320 | Via Rovigo Indústria e Comércio de Produtos Alimentícios S.A. | BRA | ||
| 321 | Vivera B.V. | NHL | ||
| 322 | Vivera Topholding B.V. | NHL | ||
| 323 | Vivera UK Ltd | UK | ||
| 324 | Vivera Vastgoed B.V. | NHL | ||
| 325 | Weddel Limited | CAN | ||
| 326 | White Strap Safco Foods Trading LLC | UAE | ||
| 327 | White Stripe Foods Investment Holdings Pty Ltd | AUS | ||
| 328 | White Stripe Foods Pty Ltd. | AUS | ||
| 329 | White Stripe Safco Foods | UAE | ||
| 330 | Wonder Best Holding Co Ltd. | HKG | ||
| 331 | Zendaleather Co. | USA | ||
| 332 | Zendaleather GmbH | GER | ||
| 333 | Zendaleather S.A de C.V | MEX | ||
| 334 | Zero Lines Corporation | USA | ||
| 335 | ZM Australia Pty. Ltd. | AUS |
7
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the use of our report dated March 25, 2026, with respect to the consolidated financial statements of JBS N.V., incorporated herein by reference and to the reference to our firm under the heading “Experts” in the prospectus.
| /s/ KPMG Auditores Independentes Ltda. | |
| São Paulo/SP, Brazil | |
| October 16, 2026 |
Exhibit 25.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
☐ CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b) (2)
REGIONS BANK
(Exact name of trustee as specified in its charter)
| Alabama | 63-0371391 | |
| (Jurisdiction of incorporation or organization if not a U.S. national bank) |
(I.R.S. Employer Identification No.) | |
| 1900 Fifth Avenue North | ||
| Birmingham, AL | 35203 | |
| (Address of principal executive offices) | (Zip code) |
Regions Bank
1180 West Peachtree Street
Atlanta, GA 30309
(404) 581-3770
(Name, address and telephone number of agent for service)
JBS
N.V.
(Exact name of obligor as specified in its charter)
| Netherlands | Not Applicable | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) | |
|
Stroombaan 16, 5th Floor 1181 VX, Amstelveen, Netherlands |
N/A | |
| (Address of principal executive offices) | (Zip code) |
5.625% SENIOR NOTES DUE 2037
6.400% SENIOR NOTES DUE 2057
(Titles of the indenture securities)
| Schedule A – Table of Co-Obligors | ||||||
| Exact Name
as Specified in its Charter |
State
or Other Jurisdiction of Incorporation or Formation |
I.R.S.
Employer Identification Number |
Address,
including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices | |||
| JBS USA Foods Group Holdings, Inc. * | Delaware | 99-0802532 | 1770 Promontory Circle Greeley, Colorado 80634 +1 (970) 506-8000 | |||
| JBS USA Food Company Holdings * | Delaware | 58-1034573 | 1770 Promontory Circle Greeley, Colorado 80634 +1 (970) 506-8000 | |||
| * | JBS N.V., JBS USA Foods Group Holdings, Inc. and JBS USA Food Company Holdings (collectively, the “Co-Issuers”) are the co-issuers of the Securities. |
1
Item 1. General Information. Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it is subject.
State of Alabama State Banking Department
PO Box 4600
Montgomery, AL 36103-4600
Federal Deposit Insurance Corporation
Washington, D.C.
Federal Reserve Bank of Atlanta
Atlanta, Georgia 30309
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation.
None with respect to the trustee.
Items 3-15. No responses are included for Items 3 through 15. Responses to those Items are not required because, as provided in General Instruction B the obligor is not in default on any securities issued under indentures under which Regions Bank is a trustee.
Item 16. List of Exhibits. List below all exhibits filed as a part of this Statement of Eligibility.
| Exhibit 1. | A copy of the Articles of Incorporation of the trustee now in effect. | |
| Exhibit 2. | The authority of Regions Bank to commence business was granted under the Articles of Incorporation for Regions Bank, incorporated herein by reference to Exhibit 1 of Form T-1. | |
| Exhibit 3. | The authorization to exercise corporate trust powers was granted under the Articles of Incorporation for Regions Bank, incorporated herein by reference to Exhibit 1 of Form T-1. | |
| Exhibit 4. | A copy of the bylaws of the trustee as now in effect. | |
| Exhibit 5. | Not applicable. | |
| Exhibit 6. | The consent of the trustee required by Section 321(b) of the Act. | |
| Exhibit 7. | A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. | |
| Exhibit 8. | Not applicable. | |
| Exhibit 9. | Not applicable. |
2
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Regions Bank, a state chartered bank under the laws of Alabama, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Atlanta and State of Georgia on October 16, 2026.
| REGIONS BANK | |
| /s/ Craig Kaye | |
| Craig Kaye | |
| Vice President |
3
EXHIBIT 1 [1]
| ARTICLES OF AMENDMENT TO THE ARTICLES OF INCORPORATION OF REGIONS BANK an Alabama banking corporation |
Pursuant to the provisions of Section 10A-1-3.13 and Sections 10A-2-10.01 through 10A-2-10.09 of the Alabama Business and Nonprofit Entities Code, as amended, (the “Law”), the undersigned banking corporation adopts the following Articles of Amendment to its Articles of Incorporation:
FIRST: The name of the banking corporation is Regions Bank (the “Bank”).
SECOND: The Bank is an Alabama banking corporation.
THIRD: The Restated Articles of Incorporation of the Bank were filed with the Office of the Judge of Probate of Jefferson County, Alabama on October 28, 2014. The Alabama Entity ID Number of the Bank is 006-854.
FOURTH: The Second Amended and Restated Certificate of Incorporation, attached hereto as Exhibit A and incorporated herein by this reference, is hereby adopted as the articles of incorporation of the Bank.
FIFTH: The Second Amended and Restated Certificate of Incorporation was adopted and approved by the Board of Directors of the Bank at a meeting duly called and held on July 22, 2020 and by the sole shareholder of the Bank pursuant to an action by written consent dated as of July 22, 2020.
SIXTH: The designation, number of outstanding shares, and number of votes entitled to be cast by the sole shareholder on the Second Amended and Restated Certificate of Incorporation were as follows:
| Shares | Outstanding | Entitled to Vote | ||||||
| Common Stock, par value $5.00 | 21,546 | 21,546 | ||||||
SEVENTH: The number of shares entitled to vote on the Second Amended and Restated Certificate of Incorporation that voted FOR the Second Amended and Restated Certificate of Incorporation and the number of shares entitled to vote on the Second Amended and Restated Certificate of Incorporation that voted AGAINST the Second Amended and Restated Certificate of Incorporation were as follows:
| Shares | Total Voted FOR | Total Voted AGAINST | ||||||
| Common Stock | 21,546 | 0 | ||||||
EIGHTH: The number of shares that voted FOR the Second Amended and Restated Certificate of Incorporation was sufficient for approval thereof by the sole shareholder of the Bank, as required by the Law and the Articles of Incorporation.
NINTH: The original written approval issued by the Superintendent of the Alabama State Banking Department with respect to the Second Amended and Restated Certificate of Incorporation is attached hereto as Exhibit B and recorded herewith.
| 1 | Note to Draft: Regions Bank to confirm if this is the version in effect of the articles of incorporation. |
4
IN WITNESS WHEREOF, the Bank has caused these Articles of Amendment to the Articles of Incorporation of the Bank to be executed in its name and on its behalf as of August 6, 2020.
| BANK: | ||
| REGIONS BANK | ||
| an Alabama banking corporation | ||
| By: | /s/ Hope D. Mehlman | |
| Hope D. Mehlman | ||
| Executive Vice President, Corporate | ||
| Secretary, Chief Governance Officer, and Deputy General Counsel |
This instrument prepared by:
Andrew S. Nix
Maynard, Cooper & Gale, P.C.
1901 Sixth Avenue North
2400 Regions/Harbert Plaza
Birmingham, AL 35203
(205) 254-1000
5
EXHIBIT A
Second Amended and Restated Certificate of Incorporation
(attached)
6
SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
REGIONS BANK
| 1. | The name of this corporation shall be Regions Bank. The corporation is a domestic banking corporation. |
| 2. | The principal place of business of the corporation shall be 1900 Fifth Avenue North, Birmingham, Alabama 35203. The general business of Regions Bank (the “Bank”) shall be conducted at its main office and its branches and other facilities. |
| 3. | The Bank shall have the following objects, purposes and powers: |
| a. | To be and serve as an Alabama banking corporation pursuant to the Alabama Banking Code, Section 5-1A-1 et seq. of the Code of Alabama 1975, as amended (together with any act amendatory thereof, supplementary thereto or substituted therefor, hereinafter referred to as the “Banking Code”), with all the power and authority that may be exercised by an Alabama banking corporation. |
| b. | To engage in any lawful business, act or activity for which a banking corporation may be organized under Alabama law, it being the purpose and intent of this section to invest the Bank with the broadest objects, purposes and powers lawfully permitted an Alabama banking corporation. |
| c. | To engage in any lawful business, act or activity for which a corporation may be organized under the Alabama Business Corporation Law of 2019, Section 10A-2A-1.01 et seq. of the Code of Alabama 1975, as amended (together with any act amendatory thereof, supplementary thereto or substituted therefor, hereinafter referred to as the “ABCL”), to the extent not inconsistent with the provisions of the Banking Code or any other regulation of a banking corporation in the State of Alabama. |
| d. | Without limiting the scope and generality of the foregoing, the Bank shall have the following specific objects, purposes and powers: |
| i. | To conduct a general banking business through such means and at such places as the Board of Directors may deem proper. |
| ii. | To sue and be sued, complain and defend, in its corporate name. |
| iii. | To have a corporate seal which may be altered at pleasure, and to use the same by causing it, or a facsimile thereof, to be impressed or affixed or in any other manner reproduced. |
| iv. | To purchase, take, receive, lease or otherwise acquire, own, hold, improve, use and otherwise deal in and with, real or personal property, or any interest therein, wherever situated. |
7
| v. | To sell, convey, mortgage, pledge, lease, exchange, transfer and otherwise dispose of all or any part of its property and assets, subject to the limitations hereinafter prescribed. |
| vi. | To lend money and use its credit to assist its employees. |
| vii. | To purchase, take, receive, subscribe for or otherwise acquire, own, hold, vote, use, employ, sell, mortgage, lend, pledge or otherwise dispose of, and otherwise use and deal in and with, shares or other interests in, or obligations of, other domestic or foreign corporations, associations, partnerships or individuals, or direct or indirect obligations of the United States or of any other government, state, territory, governmental district or municipality or of any instrumentality thereof as may be permitted by law or appropriate regulations. |
| viii. | To make contracts, guarantees and indemnity agreements and incur liabilities, borrow money at such rates of interest as the corporation may determine, issue its notes, bonds and other obligations, and secure any of its obligations by mortgage, pledge of or creation of security interests in, all or any of its property, franchises or income, or any interest therein. |
| ix. | To lend money for its corporate purposes, invest and reinvest its funds and take and hold real and personal property as security for the payment of funds so loaned or invested. |
| x. | To conduct its business, carry on its operations and have offices and exercise the powers granted by this section, within or without the State of Alabama. |
| xi. | To elect or appoint and remove officers and agents of the Bank, define their duties and fix their compensation. |
| xii. | To make and alter by its board of directors by-laws not inconsistent with its certificate of incorporation or with the laws of the State of Alabama for the administration and regulation of the affairs of the Bank. |
| xiii. | To make donations for the public welfare or for charitable, scientific or educational purposes. |
| xiv. | To transact any lawful business which the board of directors shall find will be in aid of governmental policy. |
| xv. | To pay pensions and establish pension plans, pension trusts, profit sharing plans, stock bonus plans, stock option plans and other incentive plans for any or all of its directors, officers and employees. |
8
| xvi. | To be a promoter, incorporator, partner, member, trustee, associate or manager of any domestic or foreign corporation, partnership, joint venture, trust or other enterprise. |
| xvii. | To consolidate or merge, before or after the completion of its works, with any other foreign or domestic corporation or corporations engaged in the business of banking or trust companies doing a banking business. |
| xviii. | To discount bills, notes or other evidences of debt. |
| xix. | To receive and pay out deposits, with or without interest, pay checks and impose charges for any services. |
| xx. | To receive on special deposit money, bullion or foreign coins or bonds or other securities. |
| xxi. | To buy and sell foreign and domestic exchanges, gold and silver bullion or foreign coins, bonds, bills of exchange, notes and other negotiable paper. |
| xxii. | To lend money on personal security or upon pledges of bonds, stocks or other negotiable securities. |
| xxiii. | To take and receive security by mortgage, security or otherwise on property, real and personal. |
| xxiv. | To become trustee for any purpose and be appointed and act as executor, administrator, guardian, receiver or fiduciary. |
| xxv. | To lease real and personal property upon specific request of a customer, provided that it complies with any applicable laws of the State of Alabama regulating leasing real property or improvements thereon to others. |
| xxvi. | To perform computer, management and travel agency services for others. |
| xxvii. | To subscribe to the capital stock and become a member of the Federal Reserve System and comply with rules and regulations thereof |
| xxviii. | To do business and exercise directly or through operating subsidiaries any powers incident to the business of banks. |
9
| 4. | The duration of the corporation shall be perpetual. |
| 5. | The Board of Directors is expressly authorized from time to time to fix the number of Directors which shall constitute the entire Board, subject to the following: |
| a. | The number of Directors constituting the entire Board shall be fixed from time to time by vote of a majority of the entire Board; provided, however, that the number of Directors shall not be reduced so as to shorten the term of any Director at the time in office; provided further, that the number of Directors shall not be less than five (5) nor more than twenty-five (25). Each Director shall be the record owner of the requisite number of shares of common stock of the Bank’s parent bank holding company fixed by the appropriate regulatory authorities. |
| b. | Notwithstanding any other provisions of this Second Amended and Restated Certificate of Incorporation or the by-laws of the Bank (and notwithstanding the fact that some lesser percentage may be specified by law, this Second Amended and Restated Certificate of Incorporation or the by-laws of the Bank), any Director or the entire Board of Directors of the Bank may be removed at any time, with or without cause, by the affirmative vote of the holder(s) of ninety percent (90%) or more of the outstanding shares of capital stock of the Bank entitled to vote generally in the election of directors (considered for this purpose as one class) cast at a meeting of stockholders called for that purpose. |
| 6. | The aggregate number of shares of capital stock which the Bank shall have authority to issue is thirty thousand five hundred forty-six (30,546) shares, which shall be common stock, par value five dollars ($5.00) per share (the “Common Stock”). The Bank shall not issue fractional shares of stock, but shall pay in cash the fair value of fractions of a share as of the time when those otherwise entitled to receive such fractions are determined. |
| a. | Stockholders shall not have pre-emptive rights to purchase shares of any class of capital stock of the Bank. The Bank, at any time and from time to time, may authorize and issue debt obligations, whether or not subordinated, without the approval of the stockholders. |
| b. | Authority is hereby expressly granted to the Board of Directors from time to time to issue any authorized but unissued shares of Common Stock for such consideration and on such terms as it may determine. Every share of Common Stock of the Bank shall have one vote at any meeting of stockholders and may be voted by the stockholders of record either in person or by proxy. |
10
| c. | In the event of any liquidation, dissolution or winding up of the Bank, or upon the distribution of the assets of the Bank, the assets of the Bank remaining after satisfaction of all obligations and liabilities shall be divided and distributed ratably among the holders of the Common Stock. Neither the merger nor the consolidation of the Bank with another corporation, nor the sale or lease of all or substantially all of the assets of the Bank, shall be deemed to be a liquidation, dissolution or winding up of the Bank or a distribution of its assets. |
| 7. | The Chief Executive Officer, Secretary, Board of Directors or holder(s) of at least 90% of the issued and outstanding voting stock of the Bank may call a special meeting of stockholders at any time. The Bank shall notify stockholders of the place, if any, date and time of each annual and special meeting of stockholders no fewer than ten (10) nor more than sixty (60) days before the meeting date, such notice to be delivered to each stockholder of record at the address as shown upon the stock transfer book of the Bank. Notice of a special meeting of stockholders shall include a description of the purpose or purposes for which the meeting is called. |
| 8. | The Bank reserves the right to amend, alter, change or repeal any provision contained in this Second Amended and Restated Certificate of Incorporation, in the manner now or hereafter provided by law, at any regular or special meeting of stockholders, and all rights conferred upon officers, directors and stockholders of the Bank hereby are granted subject to this reservation. |
| 9. | The Bank shall indemnify its officers, directors, employees and agents in accordance with the indemnification provisions set forth in the by-laws of the Bank, as may be amended from time to time, and in all cases in accordance with applicable laws and regulations. |
| 10. | To the extent not inconsistent with the provisions of the Banking Code or the rules, regulations or orders of the Superintendent of the Alabama State Banking Department, and pursuant to Section 10A-2A-17.01 of the ABCL, the Bank hereby elects to be governed by the provisions of the ABCL, and all references in this Second Amended and Restated Certificate of Incorporation to the ABCL shall mean the Alabama Business Corporation Law of 2019. |
[Signature Page Follows]
11
IN WITNESS WHEREOF, the undersigned hereby certifies that, in accordance with applicable law, this Second Amended and Restated Certificate of Incorporation has been adopted by the Bank as of the 6th day of August, 2020.
| By: | /s/ Hope D. Mehlman | |
| Hope D. Mehlman | ||
| Executive Vice President, Corporate Secretary, Chief Governance Officer, and Deputy General Counsel |
12
STATE OF ALABAMA
MONTGOMERY COUNTY
I, Mike Hill, as Superintendent of Banks for the State of Alabama, do hereby certify that I have fully and duly examined the foregoing Second Amended and Restated Certificate of Incorporation whereby the shareholder of Regions Bank, a banking corporation located at Birmingham, Alabama, proposes to Amend and Restate the Certificate of Incorporation.
See attached Articles of Amendment which Amend and Restate the Certificate of Incorporation of Regions Bank.
I do hereby certify that said Second Amended and Restated Certificate of Incorporation appear to be in substantial conformity with the requirements of law and they are hereby approved. Upon the filing of the same, together with this Certificate of Approval, with the proper agency as required by law, the Second Amended and Restated Certificate of Incorporation of said bank shall be effective.
Given under my hand and seal of office this the 3rd day of August, 2020.
| By: | /s/ Mike Hill | |
| Mike Hill | ||
| Superintendent of Banks |
13
EXHIBIT 4
BY-LAWS OF
REGIONS FINANCIAL CORPORATION
(As amended and restated October 18, 2023)
ARTICLE I. OFFICES
Section 1. Registered Office.
The registered office of Regions Financial Corporation (the “Corporation”) shall be as set forth in the certificate of incorporation of the Corporation (as it may be amended and/or restated from time to time, the “Certificate of Incorporation”).
Section 2. Other Offices.
The Corporation may have other offices at such places as the Board of Directors of the Corporation (the “Board of Directors”) may from time to time appoint or the business of the Corporation may require.
Section 3. Principal Place of Business.
The principal place of business of the Corporation shall be in Birmingham, Alabama or at such other place as determined by the Board of Directors.
ARTICLE II. MEETINGS OF STOCKHOLDERS
Section 1. Annual Meetings.
Annual meetings of stockholders for the election of members of the Board of Directors (“Directors”) and for such other business as may be properly brought before the meeting shall be held at such place, if any, time and date as the Board of Directors, by resolution, shall determine. The Board of Directors shall have the right to determine that an annual meeting not be held at a place, but instead be held solely by means of remote communication in the manner and to the extent permitted by the Delaware General Corporation Law. The Corporation may postpone, reschedule or cancel any annual meeting of stockholders previously scheduled by the Board of Directors. For purposes of these By-Laws and for the avoidance of doubt, all references to a “stockholder” means a stockholder of record of the Corporation.
Section 2. Special Meetings.
Special meetings of the stockholders for any purpose may be called by the Chair of the Board of Directors, the Chief Executive Officer, the President, the Secretary or by resolution of the Board of Directors. Special meetings of stockholders may be held at such place, if any, time and date as shall be stated in the notice of the meeting. The Board of Directors shall have the right to determine that a special meeting not be held at a place, but instead be held solely by means of remote communication in the manner and to the extent permitted by the Delaware General Corporation Law. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. The Corporation may postpone, reschedule or cancel any special meeting of stockholders previously scheduled by the Board of Directors.
14
Section 3. Voting.
Each stockholder entitled to vote in accordance with the terms of the Certificate of Incorporation or applicable law shall, unless otherwise provided in the Certificate of Incorporation, be entitled to one vote, in person or by proxy, for each share of stock entitled to vote held by such stockholder, but no proxy shall be voted after three years from its date unless such proxy provides for a longer period.
Except as may be otherwise required by the Certificate of Incorporation, each Director shall be elected by the vote of the majority of the votes cast (meaning the number of shares voted “for” a nominee must exceed the number of shares voted “against” such nominee), provided that the Directors shall be elected by a plurality of the votes cast (meaning the nominees with the greatest number of shares voted “for” shall be elected without regard to votes cast “against” any nominee) at any contested election. For purposes of this Section 3, a contested election shall mean any election for which the number of nominees to serve as Directors exceeds the number of Directors to be elected, with the determination that an election is a contested election being made by the Board of Directors as of the close of the applicable notice of nomination period set forth in Section 7 or Section 8 of Article II of these By-laws or under applicable law and based on whether one or more notice(s) of nomination were timely filed in accordance with such section; provided, however, that the determination that an election is a contested election shall be determinative only as to the timeliness of a notice of nomination and not otherwise as to its validity. Once an election is determined to be a contested election, Directors shall be elected by the vote of a plurality of the votes cast notwithstanding that one or more notices of nomination subsequently may be withdrawn or declared invalid or untimely.
In all matters other than the election of Directors, the affirmative vote of a majority of the votes cast “for” or “against” the matter by stockholders entitled to vote on the subject matter, whether present in person or represented by proxy at the meeting, shall be the act of the stockholders, except as otherwise provided in the Certificate of Incorporation, these By-Laws or as otherwise required by applicable law, regulation or listing standards applicable to the Corporation or its securities. Abstentions and broker non-votes shall not be treated as affirmative votes “for” or “against” and shall not be taken into account in determining whether a matter is approved, except as otherwise provided in the Certificate of Incorporation or as required by applicable law, regulation or listing standards.
Section 4. Quorum; Adjournment.
At each meeting of stockholders, except where otherwise provided by applicable law, the Certificate of Incorporation or these By-Laws, the holders of a majority in voting power of the outstanding shares of the Corporation entitled to vote on a matter at the meeting, represented in person or by proxy, shall constitute a quorum. For purposes of the foregoing, where a separate vote by class or classes, or any series thereof, is required for any matter, the holders of a majority in voting power of the outstanding shares of such class or classes or series, present in person or represented by proxy, shall constitute a quorum to take action with respect to that vote on that matter. Two or more classes or series of stock shall be considered a single class or series if the holders thereof are entitled to vote together as a single class or series at the meeting. In determining whether a quorum is present, shares held by a subsidiary corporation owned by this Corporation and treasury shares shall not be counted. In the absence of a quorum, either (a) the stockholders so present or represented may, by the affirmative vote of the holders of a majority in voting power of the shares present in person or by proxy and entitled to vote thereon or (b) the chair of the meeting may, on his or her own motion and without the approval of the stockholders, adjourn the meeting from time to time until a quorum shall be so present and represented. The stockholders present at a duly organized meeting at which a quorum is present may continue to transact business until an adjournment notwithstanding the withdrawal of enough stockholders to leave less than a quorum. Additional adjournment rights and authority held by the chair of the meeting are set forth in Article II, Section 9 of these By-Laws.
15
Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place, if any, thereof are (i) announced at the meeting at which the adjournment is taken, (ii) displayed, during the time scheduled for the meeting, on the same electronic network used to enable stockholders and proxy holders to participate in the meeting by means of remote communication or (iii) set forth in the notice of the meeting. At the adjourned meeting the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than 30 days, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. If after the adjournment a new record date for determination of stockholders entitled to vote is fixed for the adjourned meeting, the Board of Directors shall fix as the record date for determining stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote at the adjourned meeting, and shall give notice of the adjourned meeting to each stockholder of record entitled to vote at the adjourned meeting as of the record date so fixed for notice of such adjourned meeting.
Section 5. No Stockholder Action by Consent.
No action required to be taken or which may be taken at any annual or special meeting of stockholders of the Corporation may be taken without a meeting, and the power of stockholders to consent, without a meeting, to the taking of any action is specifically denied.
Section 6. Notice of Meetings.
Notice, stating the place (or the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person), date and time of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be given to each stockholder entitled to vote at the meeting at his or her address as it appears on the records of the Corporation, not less than ten nor more than sixty days before the date of the meeting (unless otherwise required by applicable law, the Certificate of Incorporation or these By-Laws). Any notice to stockholders shall be sufficient if given in any manner permitted by applicable law, including any form of electronic transmission, and shall be deemed to have been given in accordance with applicable law. Notwithstanding the foregoing, notice may be given to stockholders sharing an address in the manner and to the extent permitted by applicable law, including the “householding” rules set forth in Rule 14a-3(e) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
Stockholders not entitled to vote shall not be entitled to receive notice of any meetings except as otherwise provided by applicable law.
Section 7. Notice of Stockholder Business and Nominations.
(A) Annual Meetings of Stockholders.
(1) Nominations of persons for election to the Board of Directors and the proposal of business to be considered by the stockholders at an annual meeting of stockholders may be made (a) pursuant to the Corporation’s notice of meeting, (b) by or at the direction of the Board of Directors or duly authorized committee thereof, (c) by any stockholder of the Corporation who was a stockholder of record at the time the notice provided for in this Section 7 is delivered to the Secretary and at the time of the annual meeting, who is entitled to vote at the annual meeting and who complied with the notice and other procedures set forth in this Section 7 or (d) in the case of stockholder nominations to be included in the Corporation’s proxy statement for such annual meeting made pursuant to Article II, Section 8 of these By-Laws, by any Eligible Holder (as defined in Article II, Section 8 of these By-laws) who satisfies the requirements set forth in such Section. The number of nominees a stockholder may nominate for election at an annual meeting on its own behalf (or in the case of a stockholder giving the notice on behalf of a beneficial owner, the number of nominees a stockholder may nominate for election at the annual meeting on behalf of such beneficial owner) shall not exceed the number of directors to be elected at such annual meeting.
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(2) For nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to clause (c) of paragraph (A)(1) of this Section 7, the stockholder must give timely notice thereof in writing to the Secretary and such other business must be a proper matter for stockholder action. To be timely, a stockholder’s notice shall be delivered by registered mail to, and received by, the Secretary at the principal executive offices of the Corporation not less than 90 nor more than 120 days prior to the first anniversary of the date of the preceding year’s proxy statement; provided, however, that in the event that the date of the annual meeting is more than 30 days before or after the first anniversary of the preceding year’s annual meeting, notice by the stockholder to be timely must be so delivered to, and received by, the Secretary not later than the close of business on the later of the 90th day prior to such annual meeting or the 10th day following the day on which public announcement of the date of such meeting is first made. Notwithstanding anything in this Section 7(A) to the contrary, in the event that (a) the number of Directors to be elected to the Board of Directors at the next annual meeting of stockholders is increased by virtue of an increase in the size of the Board of Directors and (b) either all of the nominees for Director at the next annual meeting of stockholders or the size of the increased Board of Directors is not publicly announced or disclosed by the Corporation at least 100 days prior to the first anniversary of the preceding year’s annual meeting, then such stockholder’s notice shall also be considered timely hereunder, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to, and received, by the Secretary at the principal executive office of the Corporation not later than the close of business on the 10th day following the first date all of such nominees or the size of the increased Board of Directors shall have been publicly announced or disclosed.
(3) As to nominations of persons for election to the Board of Directors pursuant to clause (c) of paragraph (A)(1) of this Section 7, such stockholder’s notice shall set forth, as to each person whom the stockholder proposes to nominate for election as a Director, (a) all information relating to such person that is required to be disclosed in solicitations of proxies for election of Directors in an election contest, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, (b) a statement signed by the candidate confirming that the candidate will serve as a Director for the term for which they are standing for election if nominated by the Board of Directors and elected by the stockholders, consents to being named in the Corporation’s proxy statement as a nominee, will comply with the Corporation’s Code of Business Conduct and Ethics, General Policy on Insider Trading, Corporate Governance Principles (and any replacement policies) and any other rule, regulation, policy or standard of conduct applicable to the Directors, and will provide any information required or requested by the Corporation or its subsidiaries, or banking or other regulators, including, without limitation, all information requested by the form of Directors questionnaire used by the Corporation, (c) whether each nominee is eligible for consideration as an independent director under the relevant standards contemplated by Item 407(a) of Regulation S-K under the Securities Act of 1933, as amended (the “Securities Act of 1933”) (or the corresponding provisions of any successor regulation) and the relevant listing standards of any exchange where the Corporation’s equity securities are listed, (d) a description of all direct and indirect compensation and other monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such proposed nominee, and his or her respective affiliates and associates, on the one hand, and such stockholder or any Stockholder Associated Person (as defined below), on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Item 404 of Regulation S-K under the Exchange Act if the stockholder making the nomination or any Stockholder Associated Person were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, (e) a completed and signed questionnaire provided by the Corporation (the “Questionnaire”), which will be provided by the Corporation within 10 days following a request therefor by a stockholder seeking to nominate nominees, and (f) a statement signed by the candidate confirming that the candidate is not and will not become a party to (i) any compensatory, payment or other financial agreement, arrangement or understanding with any person or entity in connection with his or her nomination, service or action as a Director of the Corporation that has not been disclosed to the Corporation, (ii) any Voting Commitment (as defined below) that has not been disclosed to the Corporation or (iii) any Voting Commitment that could limit or interfere with such candidate’s ability to comply, if elected as a Director of the Corporation, with its fiduciary duties under applicable law.
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(4) As to the proposal of business that the stockholder proposes to bring forth before the meeting (but not as to nominations of persons for election to the Board of Directors), such stockholder’s notice shall set forth (a) a brief description of the business desired to be brought before the meeting, the text of the proposal to be presented, including the text of any resolutions to be proposed for consideration by stockholders and in the event that such business includes a proposal to amend these By-laws, the language of the proposed amendment, (b) a brief written statement of the reasons why such stockholder favors the proposal, and (c) any material interest in such business of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made.
(5) In addition to the notice requirements of Section 7(A)(3) and Section 7(A)(4) of Article II, as applicable, all stockholder notices, whether for nominations or other business pursuant to clause (c) of paragraph (A)(1) of this Section 7, shall set forth (a) as to the stockholder giving the notice and any Stockholder Associated Person, (i) the name and address of such stockholder, as it appears on the Corporation’s books, and of any Stockholder Associated Person, (ii) the class or series and number of shares of the Corporation that are, directly or indirectly, owned beneficially and of record by such stockholder or any Stockholder Associated Person, including any class or series of shares of the Corporation that the stockholder and Stockholder Associated Person has the right to acquire beneficial ownership of, (iii) disclosure of any hedging or other arrangement with respect to any share of the Corporation’s stock (including any short position on or any borrowing or lending of shares of stock) made by or on behalf of the stockholder or any Stockholder Associated Person (A) to mitigate loss to or manage risk of stock price changes for the stockholder or any Stockholder Associated Person or (B) to increase or decrease the voting power of the stockholder or any Stockholder Associated Person, (iv) a description of all agreements, arrangements or understandings among the stockholder, any Stockholder Associated Person and any other person or persons (naming such person or persons and including any person that may be deemed to be acting in concert with such stockholder under applicable federal or state securities or banking laws and including, with respect to a nomination, the nominee) pursuant to which the nomination or proposal is made by the stockholder, (v) any proxy (other than a revocable proxy given in response to a public proxy solicitation made pursuant to, and in accordance with, the Exchange Act), contract, arrangement, understanding or relationship pursuant to which such stockholder or any Stockholder Associated Person has a right to vote any shares of any security of the Corporation, (vi) any direct or indirect interest of such stockholder or any Stockholder Associated Person in any contract with the Corporation, any affiliate of the Corporation or any principal competitor of the Corporation (a list of which will be provided within 10 days following a written request therefor by the stockholder (including, in any such case, any employment agreement, collective bargaining agreement or consulting agreement)), (vii) a representation whether the stockholder or any Stockholder Associated Person intends or is part of a group that intends (x) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock required to approve or adopt the proposal or elect the nominee, (y) otherwise to solicit proxies or votes from stockholders in support or such proposal or nomination or (z) solicit the holders of shares representing at least 67% of the voting power of shares entitled to vote on the election of directors in support of director nominees other than the Corporation’s nominees pursuant to Rule 14a-19 under the Exchange Act, (viii) a description of any rights to dividends or other distributions on the shares of any class or series of capital stock of the Corporation, directly or indirectly, owned beneficially by such stockholder or Stockholder Associated Persons that are separated or separable from the underlying shares of the Corporation, (ix) a description of any performance-related fees (other than an asset based fee) that such stockholder or Stockholder Associated Persons, directly or indirectly, are entitled to based on any increase or decrease in the value of shares of any class or series of capital stock of the Corporation or any interests described in clause (a)(iii) and (x) any other information relating to such stockholder and Stockholder Associated Person required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or election of directors in an election contest pursuant to and in accordance with Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder; (b) the names and addresses of any other stockholders or beneficial owners known to be supporting such nomination or proposal of business by the proposing stockholder on whose behalf the nomination or proposal is made; and (c) a representation that the stockholder is a holder of the Corporation’s voting stock entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to propose such business or nomination.
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(6) The Corporation may also require any proposed nominee to furnish such other information as it may reasonably require to determine whether the nominee would be considered “independent” as a member of the Board of Directors or meet the requirements for membership on the Board of Directors or any committee thereof.
(7) To be considered timely, a stockholder’s notice shall further be updated and supplemented, if necessary, so that the information provided or required to be provided in such notice (other than the representations at Section 5(a)(vii) and 5(c) of this Section 7) shall be true and correct as of the record date for the meeting and as of the date that is 10 days prior to the meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to, and received by, the Secretary at the principal executive offices of the Corporation not later than 5 days after the record date for the meeting in the case of the update and supplement required to be made as of the record date, and not later than 8 days prior to the date for the meeting or any adjournment or postponement thereof in the case of the update and supplement required to be made as of 10 days prior to the meeting or any adjournment or postponement thereof. For the avoidance of doubt, the obligation to update and supplement as set forth in this Section 7 or any other section of these By-Laws shall not limit the Corporation’s rights with respect to any deficiencies in any stockholder’s notice, extend any applicable deadlines under these By-Laws or enable or be deemed to permit a stockholder who has previously submitted a stockholder’s notice under these By-Laws to amend or update any proposal or to submit any new proposal, including by changing or adding nominees, matters, business and/or resolutions proposed to be brought before a meeting of stockholders.
(8) For the purposes of these By-Laws, a “Stockholder Associated Person” of any stockholder means: (A) any beneficial owner of shares of stock of the Corporation on whose behalf any nomination or proposal is made by such stockholder, (B) any affiliates or associates of such stockholder or any beneficial owner described in clause (A); and (C) any affiliate who controls such stockholder or any beneficial owner described in clause (A).
(B) Special Meetings of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting. Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at which the election of directors is included in the business to be conducted pursuant to the Corporation’s notice of meeting, (i) by or at the direction of the Board of Directors or any duly authorized committee thereof or (ii) provided that the Board of Directors has determined that directors shall be elected at such meeting, by any stockholder of the Corporation who is entitled to vote at the meeting, who complies with the notice procedures set forth in this Section 7 and who is a stockholder of record at the time such notice is delivered and at the time of the special meeting in proper written form to, and received by, the Secretary at the principal executive offices of the Corporation. The number of nominees a stockholder may nominate for election at the special meeting on its own behalf (or in the case of a stockholder giving the notice on behalf of a beneficial owner, the number of nominees a stockholder may nominate for election at the special meeting on behalf of such beneficial owner) shall not exceed the number of directors to be elected at such special meeting. If the Corporation calls a special meeting of the stockholders at which the election of directors is included in the business to be conducted, any stockholder entitled to vote in such election may nominate such number of person or persons for election to such position(s) as are specified in the Corporation’s notice of meeting, if the stockholder’s notice shall be delivered to the Secretary at the principal executive offices of the Corporation not earlier than 120 days prior to such special meeting and not later than 90 days prior to such special meeting or 10 days following the day on which public announcement of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting is first made by the Corporation.
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(C) General.
(1) Except as otherwise expressly provided in any applicable rule or regulation promulgated under the Exchange Act, only such persons who are nominated in accordance with the procedures set forth in this Section 7 and, if applicable, Article II, Section 8 of these By-Laws shall be eligible to serve as Directors and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 7.
(2) Except as otherwise expressly provided by applicable law, the Certificate of Incorporation or these By-Laws, the person presiding at any meeting of stockholders (or, in advance of any meeting of stockholders, the Board of Directors), in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall have the power and duty to determine whether notice of nominees and other matters proposed to be brought before a meeting has been duly given in the manner provided in this Section 7 or Article II, Section 8 of these By-laws and, if not so given, shall direct and declare at the meeting that such nominees and other matters are not properly before the meeting and shall not be considered. Notwithstanding the foregoing provisions of this Section 7 and the provisions of Article II, Section 8 of these By-laws, if the stockholder or a qualified representative of the stockholder does not appear at the annual or special meeting of stockholders of the Corporation to present any such nomination or make any such proposal, such nomination or proposal may be disregarded, notwithstanding that the nominee or business is included in the Corporation’s proxy statement, notice of meeting or other proxy materials (or any supplement thereto) and notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 7, to be considered a qualified representative of the stockholder, a person must be a duly authorized officer, manager or partner of such stockholder or must be authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders.
(3) Notwithstanding anything to the contrary in these By-Laws, at the time its notice is delivered to the Secretary and at all times thereafter, a stockholder, as well as the stockholder’s nominee, shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in these By-Laws, as well as the federal and state banking requirements applicable to the Corporation or any banking subsidiary. Nothing in this Section 7 shall apply to (a) stockholder proposals made pursuant to Rule 14a-8 under the Exchange Act or (b) the election of Directors selected by or pursuant to the provisions of the Certificate of Incorporation relating to the rights of the holders of any series of preferred stock of the Corporation.
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(4) Notwithstanding anything to the contrary in this Section 7, unless otherwise required by law, if a stockholder (A) provides notice pursuant to Rule 14a-19(b) under the Exchange Act with respect to any proposed nominee for election as a director of the Corporation and (B) subsequently fails to comply with the requirements of Rule 14a-19(a)(2) or Rule 14a-19(a)(3) under the Exchange Act (or fails to timely provide reasonable evidence sufficient to satisfy the Corporation that such stockholder has met the requirements of Rule 14a-19(a)(3) under the Exchange Act in accordance with the following sentence), then the nomination of each such proposed nominee shall be disregarded, notwithstanding that the nominee is included as a nominee in the Corporation’s proxy statement, notice of meeting or other proxy materials for any meeting (or any supplement thereto) and notwithstanding that proxies or votes in respect of the election of such proposed nominees may have been received by the Corporation (which proxies and votes shall be disregarded). Upon request by the Corporation, if any stockholder provides notice pursuant to Rule 14a-19(b) under the Exchange Act, such stockholder shall deliver to the Corporation, no later than five business days prior to the applicable meeting, reasonable evidence that it has met the requirements of Rule 14a-19(a)(3) under the Exchange Act.
(5) In no event shall the public announcement of a recess, postponement or adjournment of an annual meeting or a special meeting commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described in these By-Laws, and a stockholder shall not be entitled to make additional or substitute nominations following the expiration of the time periods set forth in these By-Laws.
(6) For purposes of these By-Laws, (A) “public announcement” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act, (B) “business day” means any day other than Saturday, Sunday or a day on which banks are closed in New York City, New York and (C) “close of business” means 5:00 p.m. local time at the principal executive offices of the Corporation on any calendar day, whether or not the day is a business day.
Section 8. Stockholder Nominations Included in the Corporation’s Proxy Materials.
(A) Inclusion of Nominees in Proxy Statement. Subject to the provisions of this Section 8, if expressly requested in the relevant Nomination Notice (as defined below), the Corporation shall include in its proxy statement for any annual meeting of stockholders:
(1) the names of any person or persons nominated for election (each, a “Nominee”), which shall also be included on the Corporation’s form of proxy and ballot, by any Eligible Holder (as defined below) or group of up to 20 Eligible Holders that has (individually and collectively, in the case of a group) satisfied, as determined by the Board of Directors, all applicable conditions and complied with all applicable procedures set forth in this Section 8 (such Eligible Holder or group of Eligible Holders being a “Nominating Stockholder”);
(2) disclosure about each Nominee and the Nominating Stockholder required under the rules of the U.S. Securities and Exchange Commission (the “SEC”) or other applicable law to be included in the proxy statement;
(3) any statement included by the Nominating Stockholder in the Nomination Notice for inclusion in the proxy statement in support of each Nominee’s election to the Board of Directors (subject, without limitation, to Section 8(E)(2)), if such statement does not exceed 500 words and fully complies with Section 14 of the Exchange Act and the rules and regulations thereunder, including Rule 14a-9 (the “Supporting Statement”); and
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(4) any other information that the Corporation or the Board of Directors determines, in their discretion, to include in the proxy statement relating to the nomination of each Nominee, including, without limitation, any statement in opposition to the nomination, any of the information provided pursuant to this Section and any solicitation materials or related information with respect to a Nominee.
For purposes of this Section 8, any determination to be made by the Board of Directors may be made by the Board of Directors, a committee of the Board of Directors or any officer of the Corporation designated by the Board of Directors or a committee of the Board of Directors, and any such determination shall be final and binding on the Corporation, any Eligible Holder, any Nominating Stockholder, any Nominee and any other person so long as made in good faith (without any further requirements). The chair of any annual meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall have the power and duty to determine whether a Nominee has been nominated in accordance with the requirements of this Section 8 and, if not so nominated, shall direct and declare at the meeting that such Nominee shall not be considered.
(B) Maximum Number of Nominees.
(1) The Corporation shall not be required to include in the proxy statement for an annual meeting of stockholders more Nominees than that number of Directors constituting the greater of (i) two or (ii) 20% of the total number of Directors of the Corporation on the last day on which a Nomination Notice may be submitted pursuant to this Section 8 (rounded down to the nearest whole number) (the “Maximum Number”). The Maximum Number for a particular annual meeting shall be reduced by: (1) Nominees who the Board of Directors itself decides to nominate for election at such annual meeting and (2) the number of incumbent Directors who had been Nominees with respect to any of the preceding two annual meetings of stockholders and whose reelection at the upcoming annual meeting is being recommended by the Board of Directors. In the event that one or more vacancies for any reason occurs on the Board of Directors after the deadline for submitting a Nomination Notice as set forth in Section 8(D) below but before the date of the annual meeting, and the Board of Directors resolves to reduce the size of the board in connection therewith, the Maximum Number shall be calculated based on the number of Directors in office as so reduced.
(2) If the number of Nominees pursuant to this Section 8 for any annual meeting of stockholders exceeds the Maximum Number then, promptly upon notice from the Corporation, each Nominating Stockholder will select one Nominee for inclusion in the proxy statement until the Maximum Number is reached, going in order of the amount (largest to smallest) of the ownership position as disclosed in each Nominating Stockholder’s Nomination Notice, with the process repeated if the Maximum Number is not reached after each Nominating Stockholder has selected one Nominee. If, after the deadline for submitting a Nomination Notice as set forth in Section 8(D) below, a Nominating Stockholder or a Nominee ceases to satisfy the eligibility requirements in this Section 8, as determined by the Board of Directors, a Nominating Stockholder withdraws its nomination or a Nominee becomes unwilling or unable to serve on the Board of Directors, whether before or after the mailing or other distribution of the definitive proxy statement, then the nomination shall be disregarded, and the Corporation: (1) shall not be required to include in its proxy statement or on any ballot or form of proxy the disregarded Nominee or any successor or replacement nominee proposed by the Nominating Stockholder or by any other Nominating Stockholder and (2) may otherwise communicate to its stockholders, including without limitation by amending or supplementing its proxy statement or ballot or form of proxy, that a Nominee will not be included as a nominee in the proxy statement or on any ballot or form of proxy and will not be voted on at the annual meeting.
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(C) Eligibility of Nominating Stockholder.
(1) An “Eligible Holder” is a person who has either (x) been a record holder of the shares of common stock used to satisfy the eligibility requirements in this Section 8(C) continuously for the three-year period specified in Subsection (2) below or (y) provides to the Secretary, within the time period referred to in Section 8(D) below, evidence of continuous ownership of such shares for such three-year period from one or more securities intermediaries in a form that the Board of Directors determines would be deemed acceptable for purposes of a stockholder proposal under Rule 14a-8(b)(2) under the Exchange Act (or any successor rule).
(2) An Eligible Holder or group of up to 20 Eligible Holders may submit a nomination in accordance with this Section 8 only if the person or group (in the aggregate) has continuously owned at least the Minimum Number (as defined below) of shares of the Corporation’s common stock throughout the three-year period preceding and including the date of submission of the Nomination Notice, and continues to own at least the Minimum Number through the date of the annual meeting. Two or more funds that are (x) under common management and investment control, (y) under common management and funded primarily by a single employer or (z) a “group of investment companies,” as such term is defined in Section 12(d)(1)(G)(ii) of the Investment Company Act of 1940, as amended, shall be treated as one Eligible Holder if such Eligible Holder shall provide together with the Nomination Notice documentation reasonably satisfactory to the Corporation that demonstrates that the funds meet the criteria set forth in (x), (y) or (z) hereof. For the avoidance of doubt, in the event of a nomination by a group of Eligible Holders, any and all requirements and obligations for an individual Eligible Holder that are set forth in this Section 8, including the minimum holding period, shall apply to each member of such group; provided, however, that the Minimum Number shall apply to the ownership of the group in the aggregate. Should any stockholder cease to satisfy the eligibility requirements in this Section 8, as determined by the Board of Directors, or withdraw from a group of Eligible Holders at any time prior to the annual meeting of stockholders, the group of Eligible Holders shall only be deemed to own the shares held by the remaining members of the group.
(3) The “Minimum Number” of shares of the Corporation’s common stock means 3% of the number of outstanding shares of common stock as of the most recent date for which such amount is given in any filing by the Corporation with the SEC prior to the submission of the Nomination Notice.
(4) For purposes of this Section 8, an Eligible Holder “owns” only those outstanding shares of the Corporation as to which the Eligible Holder possesses both:
(a) the full voting and investment rights pertaining to the shares; and
(b) the full economic interest in (including the opportunity for profit and risk of loss on) such shares;
provided that the number of shares calculated in accordance with clauses (A) and (B) shall not include any shares: (1) purchased or sold by such Eligible Holder or any of its affiliates in any transaction that has not been settled or closed, (2) sold short by such Eligible Holder, (3) borrowed by such Eligible Holder or any of its affiliates for any purpose or purchased by such Eligible Holder or any of its affiliates pursuant to an agreement to resell or subject to any other obligation to resell to another person, or (4) subject to any option, warrant, forward contract, swap, contract of sale, other derivative or similar agreement entered into by such Eligible Holder or any of its affiliates, whether any such instrument or agreement is to be settled with shares or with cash based on the notional amount or value of outstanding shares of the Corporation, in any such case which instrument or agreement has, or is intended to have, the purpose or effect of: (x) reducing in any manner, to any extent or at any time in the future, such Eligible Holder’s or any of its affiliates’ full right to vote or direct the voting of any such shares, and/or (y) hedging, offsetting, or altering to any degree, gain or loss arising from the full economic ownership of such shares by such Eligible Holder or any of its affiliates.
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An Eligible Holder “owns” shares held in the name of a nominee or other intermediary so long as the Eligible Holder retains the right to instruct how the shares are voted with respect to the election of Directors and possesses the full economic interest in the shares. An Eligible Holder’s ownership of shares shall be deemed to continue during any period in which the Eligible Holder has delegated any voting power by means of a proxy, power of attorney, or other similar instrument or arrangement that is revocable at any time by the Eligible Holder. An Eligible Holder’s ownership of shares shall be deemed to continue during any period in which the Eligible Holder has loaned such shares provided that the Eligible Holder has the power to recall such loaned shares on five business days’ notice, promptly recalls such loaned shares upon being notified by the Corporation that any of its Nominees will be included in the Corporation’s proxy materials and continues to hold such shares through the date of the annual meeting. The terms “owned,” “owning” and other variations of the word “own” shall have correlative meanings. Whether outstanding shares of the Corporation are “owned” for these purposes shall be determined by the Board of Directors.
(5) No Eligible Holder shall be permitted to be in more than one group constituting a Nominating Stockholder, and if any Eligible Holder appears as a member of more than one group, it shall be deemed to be a member of the group that has the largest ownership position as reflected in the Nomination Notice.
(D) Nomination Notice. To nominate a Nominee, the Nominating Stockholder must, no earlier than 150 calendar days and no later than 120 calendar days before the anniversary of the date that the Corporation distributed its proxy statement for the prior year’s annual meeting of stockholders, submit to the Secretary at the principal executive office of the Corporation all of the following information and documents (collectively, the “Nomination Notice”); provided, however, that if (and only if) the annual meeting is not scheduled to be held within a period that commences 30 days before its anniversary date and ends 30 days after its anniversary date (an annual meeting date outside such period being referred to herein as an “Other Meeting Date”), the Nomination Notice shall be given in the manner provided herein by the later of the close of business on the date that is 180 days prior to such Other Meeting Date or the tenth day following the date such Other Meeting Date is first publicly announced or disclosed:
(1) A Schedule 14N (or any successor form) relating to each Nominee, completed and filed with the SEC by the Nominating Stockholder as applicable, in accordance with SEC rules;
(2) A written notice, in a form deemed satisfactory by the Board of Directors, of the nomination of each Nominee that includes the following additional information, agreements, representations and warranties by the Nominating Stockholder (including each group member):
(a) the information required by Article II, Section 7(A)(3) and Article II, Section 7(A)(5) with respect to the nomination of Directors pursuant to clause (c) of paragraph (A)(1) of Article II, Section 7 of these By-Laws;
(b) the details of any relationship that existed within the past three years and that would have been described pursuant to Item 6(e) of Schedule 14N (or any successor item) if it existed on the date of submission of the Schedule 14N;
(c) a representation and warranty that the Nominating Stockholder acquired the securities of the Corporation in the ordinary course of business and did not acquire, and is not holding, securities of the Corporation for the purpose or with the effect of influencing or changing control of the Corporation;
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(d) a representation and warranty that each Nominee’s candidacy or, if elected, Board membership would not violate applicable state or federal law or the rules of any stock exchange on which the Corporation’s securities are traded;
(e) a representation and warranty that each Nominee:
(i) does not have any direct or indirect relationship with the Corporation that would cause the Nominee to be considered not independent pursuant to the Corporation’s Corporate Governance Principles and otherwise qualifies as independent under the rules of the primary stock exchange on which the Corporation’s shares of common stock are traded (or any successor rules);
(ii) meets the audit committee and compensation committee independence requirements under the rules of the primary stock exchange on which the Corporation’s shares of common stock are traded (or any successor rules);
(iii) is a “non-employee director” for the purposes of Rule 16b-3 under the Exchange Act (or any successor rule);
(iv) is an “outside director” for the purposes of Section 162(m) of the Internal Revenue Code (or any successor provision); and
(v) is not and has not been subject to any event specified in Rule 506(d)(1) of Regulation D (or any successor rule) under the Securities Act of 1933 or Item 401(f) of Regulation S-K (or any successor rule) under the Exchange Act, without reference to whether the event is material to an evaluation of the ability or integrity of such Nominee;
(f) a representation and warranty that the Nominating Stockholder satisfies the eligibility requirements set forth in Section 8(C) and has provided evidence of ownership to the extent required by Section 8(C)(1);
(g) a representation and warranty that the Nominating Stockholder intends to continue to satisfy the eligibility requirements described in Section 8(C) through the date of the annual meeting;
(h) details of any position of a Nominee as an officer or director of any competitor (that is, any entity that produces products or provides services that compete with or are alternatives to the products produced or services provided by the Corporation or its affiliates) of the Corporation, within the three years preceding the submission of the Nomination Notice;
(i) the details of any compensatory, payment or other financial agreement, arrangement or understanding with any person or entity in connection with service or action as a Director of the Corporation and details of any agreement, arrangement or understanding with any person or entity as to how such Nominee would vote or act on any issue or question as a Director (a “Voting Commitment”);
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(j) a statement detailing whether the Nominee is experienced in matters of risk management for purposes of Regulation YY of the Federal Reserve Board;
(k) a representation and warranty that the Nominating Stockholder will not engage in a “solicitation” within the meaning of Rule 14a-1(l) (without reference to the exception in Section 14a-1(l)(2)(iv)) (or any successor rules) with respect to the annual meeting, other than with respect to a Nominee or any nominee of the Board of Directors;
(l) a representation and warranty that the Nominating Stockholder will not use any proxy card other than the Corporation’s proxy card in soliciting stockholders in connection with the election of a Nominee at the annual meeting;
(m) if desired, a Supporting Statement; and
(n) in the case of a nomination by a group of Eligible Holders, the designation by all group members of one group member that is authorized to act on behalf of all group members with respect to matters relating to the nomination, including withdrawal of the nomination; and
(3) An executed agreement, in a form deemed satisfactory by the Board of Directors, pursuant to which the Nominating Stockholder (including each group member) agrees:
(a) to comply with all applicable laws, rules and regulations in connection with the nomination, solicitation and election;
(b) to file any written solicitation or other communication with the Corporation’s stockholders relating to one or more of the Corporation’s Directors or Director nominees or any Nominee with the SEC, regardless of whether any such filing is required under rule or regulation or whether any exemption from filing is available for such materials under any rule or regulation;
(c) to assume all liability stemming from an action, suit or proceeding concerning any actual or alleged legal or regulatory violation arising out of any communication by the Nominating Stockholder or any of its Nominees with the Corporation, its stockholders or any other person in connection with the nomination or election of Directors, including, without limitation, the Nomination Notice;
(d) to indemnify and hold harmless (jointly with all other group members, in the case of a group member) the Corporation and each of its Directors, officers and employees individually against any liability, loss, damages, expenses or other costs (including attorneys’ fees) incurred in connection with any threatened or pending action, suit or proceeding, whether legal, administrative or investigative, against the Corporation or any of its Directors, officers or employees arising out of or relating to a failure or alleged failure of the Nominating Stockholder or any of its Nominees to comply with, or any breach or alleged breach of, its or their obligations, agreements or representations under this Section 8; and
(e) in the event that any information included in the Nomination Notice, or any other communication by the Nominating Stockholder (including with respect to any group member), with the Corporation, its stockholders or any other person in connection with the nomination or election ceases to be true and accurate in all material respects (or omits a material fact necessary to make the statements made not misleading), or that the Nominating Stockholder (including any group member) has failed to continue to satisfy the eligibility requirements described in Section 8(C), to promptly (and in any event within 48 hours of discovering such misstatement, omission or failure) notify the Corporation and any other recipient of such communication of (A) the misstatement or omission in such previously provided information and of the information that is required to correct the misstatement or omission or (B) such failure (it being understood that providing any such notification shall not be deemed to cure any defect or limit the Corporation’s rights to omit a Nominee from its proxy materials as provided in this Section 8); and
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(4) An executed agreement, in a form deemed satisfactory by the Board of Directors, by each Nominee:
(a) to provide to the Corporation such other information and certifications, including completion of a Questionnaire, as it may reasonably request;
(b) at the reasonable request of the Nominating and Corporate Governance Committee, to meet with the Nominating and Corporate Governance Committee to discuss matters relating to the nomination of such Nominee to the Board of Directors, including the information provided by such Nominee to the Corporation in connection with his or her nomination and such Nominee’s eligibility to serve as a member of the Board of Directors;
(c) that such Nominee has read and agrees, if elected, to serve as a member of the Board of Directors, to adhere to the Corporation’s Code of Business Conduct and Ethics, General Policy on Insider Trading, Corporate Governance Principles and any other rule, regulation, policy or standard of conduct applicable to Directors; and
(d) that such Nominee is not and will not become a party to (i) any compensatory, payment or other financial agreement, arrangement or understanding with any person or entity in connection with his or her nomination, service or action as a Director of the Corporation that has not been disclosed to the Corporation, (ii) any Voting Commitment that has not been disclosed to the Corporation or (iii) any Voting Commitment that could limit or interfere with such Nominee’s ability to comply, if elected as a Director of the Corporation, with its fiduciary duties under applicable law.
The information and documents required by this Section 8(D) to be provided by the Nominating Stockholder shall be: (i) provided with respect to and executed by each group member, in the case of information applicable to group members; and (ii) provided with respect to the persons specified in Instruction 1 to Items 6(c) and (d) of Schedule 14N (or any successor item) in the case of a Nominating Stockholder or group member that is an entity. The Nomination Notice shall be deemed submitted on the date on which all the information and documents referred to in this Section 8(D) (other than such information and documents contemplated by this Section 8 to be provided after the date the Nomination Notice is provided) have been delivered to or, if sent by mail, received by the Secretary.
| (E) | Exceptions. |
(1) Notwithstanding anything to the contrary contained in this Section 8, the Corporation may omit from its proxy statement any Nominee and any information concerning such Nominee (including a Nominating Stockholder’s Supporting Statement) and no vote on such Nominee will occur (notwithstanding that proxies in respect of such vote may have been received by the Corporation), and the Nominating Stockholder may not, after the last day on which a Nomination Notice would be timely, cure in any way any defect preventing the nomination of such Nominee, if:
(a) the Corporation receives a notice pursuant to clause (c) of paragraph (A)(1) of Article II, Section 7 of these By-Laws that a stockholder intends to nominate a candidate for Director at the annual meeting, whether or not such notice is subsequently withdrawn or made the subject of a settlement with the Corporation;
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(b) the Nominating Stockholder or the designated lead group member, as applicable, or any qualified representative thereof, does not appear at the meeting of stockholders to present the nomination submitted pursuant to this Section 8, the Nominating Stockholder withdraws its nomination or the chair of the annual meeting declares that such nomination was not made in accordance with the procedures prescribed by this Section 8 and shall therefore be disregarded;
(c) the Board of Directors determines that such Nominee’s nomination or election to the Board of Directors would result in the Corporation violating or failing to be in compliance with the Corporation’s By-Laws or Certificate of Incorporation or any applicable law, rule or regulation to which the Corporation is subject, including any rules or regulations of the primary stock exchange on which the Corporation’s common stock is traded;
(d) (1) such Nominee has been, within the past three years, an officer or director of a competitor, as defined for purposes of Section 8 of the Clayton Antitrust Act of 1914, as amended; (2) the Nominee’s election as a member of the Board of Directors would cause the Corporation to seek, or assist in the seeking of, advance approval or to obtain, or assist in the obtaining of, an interlock waiver pursuant to the rules or regulations of the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the Alabama State Banking Department or any other federal or state regulator; or (3) the Nominee is a director, trustee, officer or employee with management functions for any depository institution, depository institution holding company or entity that has been designated as a Systemically Important Financial Institution, each as defined in the Depository Institution Management Interlocks Act; or
(e) the Corporation is notified, or the Board of Directors determines, that the Nominating Stockholder or the Nominee has failed to continue to satisfy the eligibility requirements described in Section 8(C), any of the representations and warranties made in the Nomination Notice ceases to be true and accurate in all material respects (or omits a material fact necessary to make the statements made not misleading), such Nominee becomes unwilling or unable to serve on the Board of Directors or any material violation or breach occurs of the obligations, agreements, representations or warranties of the Nominating Stockholder or such Nominee under this Section 8.
(2) Notwithstanding anything to the contrary contained in this Section 8, the Corporation may omit from its proxy statement, or may supplement or correct, any information, including all or any portion of the Supporting Statement or any other statement in support of a Nominee included in the Nomination Notice, if the Board of Directors determines that:
(a) such information is not true in all material respects or omits a material statement necessary to make the statements made not misleading;
(b) such information directly or indirectly impugns the character, integrity or personal reputation of, or directly or indirectly makes charges concerning improper, illegal or immoral conduct or associations, without factual foundation, with respect to, any person; or
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(c) the inclusion of such information in the proxy statement would otherwise violate the SEC proxy rules or any other applicable law, rule or regulation.
The Corporation may solicit against, and include in the proxy statement its own statement relating to, any Nominee.
Section 9. Chair of the Meetings of Stockholders.
Meetings of stockholders shall be presided over by the Chair of the Board of Directors; or in the absence of the Chair of the Board of Directors, by the Chief Executive Officer; or in the absence of the Chief Executive Officer, by a chair designated by the Chief Executive Officer. A Secretary, or in the absence of a Secretary, an Assistant Secretary, shall act as secretary of the meeting, but in the absence of a Secretary and any Assistant Secretary, the chair of the meeting may appoint any person to act as secretary of the meeting.
The order of business at each such meeting shall be as determined by the chair of the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations adopted by the Board of Directors, the chair of the meeting shall have the right and authority to convene and (for any or no reason) to recess and/or adjourn a meeting of stockholders without a vote of stockholders and to prescribe such rules, regulations and procedures and to do all such acts and things as, in the judgement of such chair of the meeting, are necessary or desirable for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the chair of the meeting, may include, without limitation, the establishment of an agenda or order of business for the meeting, the establishment of rules and procedures for the maintenance of order and safety, limitations on attendance at or participation in the meeting to stockholders entitled to vote at the meeting, their duly authorized and constituted proxies or such other persons as the chair of the meeting shall determine, limitations on the time allotted to questions or comments on the affairs of the Corporation, restrictions on entry to such meeting after the time prescribed for the commencement thereof and the opening and closing of the voting polls for each item upon which a vote is to be taken.
ARTICLE III. DIRECTORS
Section 1. Number and Term.
The number of Directors that shall constitute the whole Board of Directors shall be fixed, from time to time, by resolutions adopted by the Board of Directors, but shall not be less than three persons. If the holders of any series of preferred stock of the Corporation are entitled by the Certificate of Incorporation to elect one or more Directors, the preceding sentence shall not apply to such Directors and the number of such Directors shall be as provided in the terms of such series of preferred stock. The number of Directors shall not be reduced so as to shorten the term of any Director in office at the time.
Directors elected at each annual or special meeting or appointed pursuant to Article III, Section 4 of these By-Laws shall hold office until the next annual meeting and until his or her successor shall have been elected and qualified, or until his or her earlier retirement, death, resignation or removal. Directors need not be residents of Delaware.
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Section 2. Chair of the Board of Directors and Lead Independent Director.
A majority of the Board of Directors shall designate from time to time from among its members a Chair of the Board of Directors. The Chair of the Board of Directors shall preside at all meetings of the Board of Directors. He or she shall have and perform such duties as are prescribed by these By-Laws and by the Board of Directors. The position of Chair of the Board of Directors is a Board position; provided however, the position of Chair of the Board of Directors may be held by a person who is also an officer of the Corporation.
In the absence of the Chair of the Board of Directors, or in the case he or she is unable to preside, the Lead Independent Director, if at the time a Director of the Corporation has been designated by the Board of Directors as such, shall have and exercise all powers and duties of the Chair of the Board of Directors and shall preside at all meetings of the Board of Directors. If at any Board of Directors meeting neither of such persons is designated, present or able to act, the Board of Directors shall select one of its members as acting chair of the meeting or any portion thereof.
Section 3. Resignations.
Any Director may resign at any time. All resignations shall be made in writing or by electronic transmission and shall take effect at the time of receipt by the Chair of the Board of Directors, Chief Executive Officer, President or Secretary or at such other time as may be specified therein. The acceptance of a resignation shall not be necessary to make it effective.
Section 4. Vacancies.
If the office of any Director becomes vacant, including by reason of resignation or removal, or the size of the Board of Directors is increased (other than as a result of any Directors elected in the manner described in the next sentence), the remaining Directors in office, even if less than a quorum, by a majority vote, may appoint any qualified person to fill such vacancy or new position, and such person shall hold office until the next annual meeting and until his or her successor shall have been elected and qualified, or until his or her earlier retirement, death, resignation or removal. Whenever the holders of any series of preferred stock of the Corporation are entitled by the Certificate of Incorporation to elect one or more Directors, vacancies and newly created directorships of such Directors elected by a series of preferred stock may be filled by, and only by, a majority of the Directors elected by the holders of such series of preferred stock then in office, or the sole remaining Director so elected or, if none, by the holders of such series of preferred stock.
Section 5. Removal.
Any Director (other than a Director elected by the holders of any series of preferred stock of the Corporation pursuant to the rights granted to holders of such series of preferred stock in the Certificate of Incorporation) may be removed at any time, with or without cause, by the affirmative vote of the holders of a majority of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of Directors, considered as one class for this purpose, at any meeting of the stockholders called for that purpose.
Section 6. Powers.
The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, except as may be otherwise provided by applicable law or the Certificate of Incorporation.
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Section 7. Meetings.
Regular meetings of the Board of Directors may be held without notice at such places (and/or solely by means of remote communication) and times as shall be determined from time to time by the Board of Directors.
Special meetings of the Board of Directors may be called by the Chair of the Board of Directors, Lead Independent Director, Chief Executive Officer or President, or Secretary on the written request of a majority of the Board of Directors, on at least 48 hours’ notice to each Director and shall be held at such place or places (and/or solely by means of remote communication) as may be determined by the Board of Directors or as shall be stated in the notice of such meeting.
Unless otherwise restricted by the Certificate of Incorporation or these By-Laws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any committee, by means of conference telephone, video or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. Notice of any special meeting of the Board of Directors need not be given personally, and may be given by United States mail, postage prepaid or by any form of electronic transmission, and shall be deemed to have been given on the date such notice is transmitted by the Corporation (which, if notice is mailed, shall be the date when such notice is deposited in the United States mail, postage prepaid, directed to the applicable Director at such Director’s address as it appears on the records of the Corporation).
Section 8. Quorum; Vote Required for Action.
A majority of the total authorized number of Directors shall constitute a quorum for the transaction of business. If at any meeting of the Board of Directors there shall be less than a quorum present, a majority of those present may adjourn the meeting from time to time until a quorum is obtained, and no further notice thereof need be given other than by announcement at the meeting which shall be so adjourned. The vote of a majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board of Directors unless the Certificate of Incorporation or these By-Laws shall require a vote of a greater number.
Section 9. Compensation.
Unless otherwise restricted by the Certificate of Incorporation or these By-Laws, the Board of Directors shall have the authority to fix the compensation of Directors. Nothing herein contained shall be construed to preclude any Director from serving the Corporation in any other capacity as an officer, agent or otherwise, and receiving compensation therefor.
Section 10. Action Without Meeting.
Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting if all members of the Board of Directors, or of such committee, as the case may be, consent thereto in writing or by electronic transmission. After any action is taken, the consent or consents relating thereto shall be filed with the minutes of proceedings of the Board of Directors or such committee.
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Section 11. Committees.
The Board of Directors shall have the authority to designate one or more committees, each committee to consist of one or more of the Directors of the Corporation. The Board of Directors may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any committee of the Board of Directors, to the extent provided in the resolutions of the Board of Directors or in these By-Laws, shall have and may exercise the powers of the Board of Directors in the management of the business and affairs of the Corporation and may authorize the seal of the Corporation to be affixed to all papers that may require it, in each case to the fullest extent permitted by applicable law. In the absence or disqualification of any member of a committee from voting at any meeting of such committee, the remaining member or members thereof present at such meeting and not disqualified from voting, whether or not the remaining member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at such meeting in the place of any such absent or disqualified member.
ARTICLE IV. OFFICERS
Section 1. Officers.
The officers of the Corporation shall be a Chief Executive Officer, a President, one or more Vice Presidents, who may be designated Senior Executive Vice Presidents, Executive Vice Presidents, Senior Vice Presidents, Vice Presidents and Assistant Vice Presidents, a Secretary, one or more Assistant Secretaries, a Chief Financial Officer and such other officers as may be deemed appropriate. All such officers shall be appointed annually by the Board of Directors to serve for a term of one year and until their respective successors are appointed and qualified or until such officer’s earlier death, resignation, retirement or removal, except that the Board of Directors may delegate the authority to appoint officers holding the position of Senior Executive Vice President and below in accordance with procedures established or modified by the Board of Directors from time to time. None of the officers of the Corporation need be Directors. More than one office may be held by the same person. The conduct of the business and affairs of the Corporation by the officers shall be subject to the oversight of the Board of Directors and of any committee of the Board of Directors having authority over the subject matter.
Section 2. Chief Executive Officer.
The Board of Directors shall appoint a Chief Executive Officer of the Corporation. The Chief Executive Officer is the most senior officer of the Corporation and shall be vested with the authority to act for the Corporation in all matters and shall have general supervision of the Corporation and of its business affairs, including authority over the detailed operations of the Corporation and over its personnel, with full power and authority during intervals between sessions of the Board of Directors to do and perform in the name of the Corporation all acts and deeds necessary or proper, in his or her opinion, to be done and performed and to execute for and in the name of the Corporation all instruments, agreements and deeds that may be authorized to be executed on behalf of the Corporation or may be required by law. The Chief Executive Officer may, but need not, also hold the office of President.
Section 3. President.
The President shall perform such duties as are prescribed by these By-Laws, the Board of Directors or the Chief Executive Officer.
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Section 4. Vice Presidents.
The Vice Presidents shall, subject to the control of the Chief Executive Officer or the President, have and may exercise the authority vested in them in all proper matters, including authority over the detailed operations of the Corporation and over its personnel.
Section 5. Chief Financial Officer.
The Chief Financial Officer, or his or her designee, shall have and perform such duties as are incident to the office of Chief Financial Officer and such other duties as may from time to time be assigned to him or her by the Board of Directors, the Chief Executive Officer or the President.
Section 6. Secretary and Assistant Secretary.
The Secretary shall keep minutes of all meetings of the stockholders and the Board of Directors unless otherwise directed by the Board of Directors. The Secretary shall have custody of the corporate seal, and the Secretary or any Assistant Secretary shall affix the same to all instruments or papers requiring the seal of the Corporation. The Secretary, or in his or her absence, any Assistant Secretary, shall attend to the giving and serving of all notices of the Corporation. The Secretary shall perform all the duties incident to the office of Secretary and shall do and perform such other duties as may from time to time be assigned by the Board of Directors, Chair of the Board of Directors, Chief Executive Officer or President.
Section 7. Other Officers and Agents.
The Board of Directors may appoint such other officers and agents as it may deem advisable, such as General Counsel, who shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors.
ARTICLE V. MISCELLANEOUS
Section 1. Certificates of Stock.
The shares of stock in the Corporation shall be represented by certificates, provided that the Board of Directors may provide by resolution or resolutions that some or all of any or all classes or series of the Corporation’s stock shall be uncertificated shares that may be evidenced by a book-entry system maintained by the registrar of such stock. Any such resolution shall not apply to shares represented by a certificate theretofore issued until such certificate is surrendered to the Corporation. Shares of stock of the Corporation represented by certificates shall be signed by, or in the name of the Corporation by two authorized officers of the Corporation (it being understood that each of the Chair of the Board of Directors, the Chief Executive Officer, the President, a Vice President, the Chief Financial Officer, the Controller, the Secretary or an Assistant Secretary of the Corporation shall be an authorized officer for such purpose). Any or all of the signatures may be facsimiles. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the date of issue.
Section 2. Lost Certificates.
The Corporation may order a new certificate or certificates of stock to be issued in the place of any certificate or certificates of the Corporation alleged to have been lost, stolen or destroyed, and may require that the owner of the lost certificate or certificates shall first cause to be given to the Corporation or its authorized agent a bond in such sum as the Corporation may direct, as indemnity against any loss that the Corporation may incur by reason of such replacement of the lost certificate or certificates; but, to the fullest extent permitted by law, the Corporation may, at its discretion, refuse to replace any lost certificate of stock save upon the order of some court having jurisdiction in such matter and may cause such legend to be inscribed on the new certificate or certificates as in the Corporation’s discretion may be necessary to prevent loss to the Corporation.
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Section 3. Transfer of Shares.
The shares of stock of the Corporation shall be transferable only upon its books and, in the case of certificated shares of stock, by the holders thereof in person or by their duly authorized attorneys or legal representatives and upon the surrender of the certificate therefor; or, in the case of uncertificated shares of stock, upon receipt of proper transfer instructions from the holders thereof in person or by their duly authorized attorneys or legal representatives and upon compliance with appropriate procedures for transferring shares in uncertificated form. In the case of certificated shares, upon such transfer, the old certificates shall be surrendered to the Corporation by the delivery thereof to the person in charge of the stock and transfer books and ledgers or to the authorized agent of the Corporation, by whom they shall be canceled, and new certificates shall thereupon be issued. A record shall be made of each transfer and whenever a transfer shall be made for collateral security, and not absolutely, it shall be expressed in the entry of the transfer.
Section 4. Fractional Shares.
No fractional part of a share of stock shall be issued by the Corporation.
Section 5. Stockholders Record Date.
In order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, the Board of Directors may fix, in advance, a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than 60 nor less than 10 days before the date of such meeting. If the Board of Directors so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the Board of Directors determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote in accordance herewith at the adjourned meeting.
In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall not be more than 60 days prior to such action. If no such record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.
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Section 6. Dividends.
Subject to the provisions of the Certificate of Incorporation and applicable law, the Board of Directors may, out of funds legally available therefor, declare dividends upon the capital stock of the Corporation as and when it deems expedient. Before declaring any dividend, there may be set apart out of any funds of the Corporation available for dividends, such sum or sums as the Directors from time to time in their discretion deem proper for working capital; as a reserve fund to meet contingencies; or for equalizing dividends or for such other purposes as the Directors shall deem conducive to the interests of the Corporation.
Section 7. Seal.
The Corporation may have a corporate seal which shall have the name of the Corporation inscribed thereon and shall be in such form as prescribed by the Board of Directors from time to time.
Section 8. Fiscal Year.
The fiscal year of the Corporation shall be determined by resolution of the Board of Directors.
Section 9. Exclusive Forum.
Unless the Corporation consents in writing to the selection of an alternative forum, to the fullest extent permitted by law, the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any Director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation or any Director, officer or other employee of the Corporation arising pursuant to any provision of Delaware law or the Certificate of Incorporation or these By-Laws (in each case, as they may be amended from time to time) or (iv) any action asserting a claim against the Corporation or any Director, officer or other employee of the Corporation governed by the internal affairs doctrine shall be the Court of Chancery of the State of Delaware (or, if the Court of Chancery of the State of Delaware has no jurisdiction, the federal district court for the District of Delaware).
Unless the Corporation consents in writing to the selection of an alternative forum, to the fullest extent permitted by law, the sole and exclusive forum for any action asserting a cause of action arising under the Securities Act of 1933, or any rule or regulation promulgated thereunder, shall be the federal district courts of the United States.
To the fullest extent permitted by law, any person or entity purchasing or otherwise acquiring or holding any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Section 9.
Section 10. Checks.
All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Corporation shall be signed by such officer or officers, agent or agents of the Corporation, and in such manner as shall be determined from time to time by resolution of the Board of Directors.
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Section 11. Notice and Waiver of Notice.
Whenever any notice whatever is required to be given under the provisions of any law or under the provisions of the Certificate of Incorporation or these By-Laws, a waiver thereof in writing or electronic transmission, given by the person or persons entitled to notice, whether before or after the time stated therein, shall be deemed equivalent thereto. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of business at the meeting because the meeting is not lawfully called or convened.
Section 12. Indemnification and Advancement of Expenses.
(A) Except as otherwise provided in these By-Laws, the Corporation shall, to the fullest extent permitted by applicable law as then in effect, indemnify any person made or threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was a Director or officer of the Corporation, or serves as a director, officer, employee, agent or fiduciary of another corporation, or with a partnership, joint venture, trust, enterprise or nonprofit entity at the request of the Corporation (each such person, an “Indemnitee”), against all Expenses (as defined below), judgments, fines and amounts paid in settlement actually and reasonably incurred by such Indemnitee in connection with any such action, suit or proceeding. For the purposes of this Section 12, the term “Expenses” shall include all reasonable fees, costs and expenses, including, without limitation, attorney’s fees, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, ERISA excise taxes or penalties assessed on Indemnitee with respect to an employee benefit plan, Federal, state, local or foreign taxes imposed as a result of the actual or deemed receipt of any payments under this Section 12, penalties and all other disbursements or expenses of the types customarily incurred in connection with defending, preparing to defend, or investigating an actual or threatened action, suit or proceeding (including Indemnitee’s counterclaims that directly respond to and negate the affirmative claim made against Indemnitee (“Permitted Counterclaims”)) in such action, suit or proceeding, whether civil, criminal, administrative or investigative, but shall exclude the costs of (1) any of Indemnitee’s counterclaims, other than Permitted Counterclaims, or (2) except as otherwise provided in paragraph (C), proceedings (or parts thereof) commenced by such Indemnitee unless the commencement of such proceeding (or part thereof) by Indemnitee was authorized in the specific case by the Board of Directors.
(B) The Corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by an Indemnitee in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Indemnitee to repay all amounts advanced if it should be ultimately determined that the Indemnitee is not entitled to be indemnified under this Section 12 or otherwise.
(C) If a claim for indemnification under this Section 12 (following the final disposition of such proceeding) is not paid in full within sixty days after the Corporation has received a claim therefor by the Indemnitee, or if a claim for any advancement of expenses under this Section 12 is not paid in full within thirty days after the Corporation has received a statement or statements requesting such amounts to be advanced, the Indemnitee shall thereupon (but not before) be entitled to file suit to recover the unpaid amount of such claim. If successful in whole or in part, the Indemnitee shall be entitled to be paid the expense of prosecuting such claim to the fullest extent permitted by law. In any such action, the Corporation shall have the burden of proving that the Indemnitee is not entitled to the requested indemnification or advancement of expenses under applicable law.
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(D) The indemnification provided by this Section 12 shall not be deemed exclusive of and shall be in addition to any other rights (whether created prior or subsequent to the adoption of these By-Laws) to which those indemnified may be entitled under any statute, rule of law, certificate of incorporation, by-law, agreement, vote of stockholders or disinterested Directors or otherwise, both as to action in their official capacity and as to action in another capacity while holding such office, shall continue as to a person who has ceased to be a Director, employee or agent of the Corporation and shall inure to the benefit of the heirs, executors and administrators of such a person. The Corporation’s obligation, if any, to indemnify or to advance expenses to any Indemnitee who was or is serving at its request as a director, officer, employee, agent or fiduciary of another corporation, or with a partnership, joint venture, trust, enterprise or nonprofit entity, shall be reduced by any amount such Indemnitee may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or nonprofit entity. This Section 12 shall not limit the right of the Corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Indemnitees when and as authorized by appropriate corporate action.
(E) By action of the Board of Directors notwithstanding any interest of the Directors in such action, the Corporation may purchase and maintain insurance in such amounts as the Board of Directors deems appropriate on behalf of any person who is or was a Director, officer, employee, agent or fiduciary of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee, agent or fiduciary of another corporation, or with a partnership, joint venture, trust, enterprise or nonprofit entity against any liability asserted against him or her and incurred by him or her in any such capacity, or arising out of his status as such, whether or not the Corporation shall have the power to indemnify him or her against such liability under the provisions of this Section 12.
(F) Any right to indemnification or to advancement of expenses of any Indemnitee arising hereunder shall not be eliminated or impaired by an amendment to or repeal of these By-Laws after the occurrence of the act or omission that is the subject of the civil, criminal, administrative or investigative action, suit or proceeding for which indemnification or advancement of expenses is sought.
Section 13. Execution of Instruments and Documents.
The Chief Executive Officer, the President, any Senior Executive Vice President, any Executive Vice President or any Senior Vice President is authorized, in his or her discretion, to do and perform any and all corporate and official acts in carrying on the business of the Corporation, including, but not limited to, the authority to make, execute, acknowledge, accept and deliver any and all deeds, mortgages, releases, bills of sale, assignments, transfers, leases (as lessor or lessee), powers of attorney or of substitution, servicing or sub-servicing agreements, vendor agreements, contracts, proxies to vote stock or any other instrument in writing that may be necessary in the purchase, sale, lease, assignment, transfer, discount, management or handling in any way of any property of any description held, controlled or used by the Corporation or to be held, controlled or used by the Corporation and including the authority from time to time to open bank accounts with the Corporation’s subsidiary bank or any other institution, to borrow money in such amounts for such lengths of time, at such rates of interest and upon such terms and conditions as any said officer may deem proper and to evidence the indebtedness thereby created by executing and delivering in the name of the Corporation promissory notes or other appropriate evidences of indebtedness, and to guarantee the obligations of any subsidiary or affiliate of the Corporation. The enumeration herein of particular powers shall not restrict in any way the general powers and authority of said officers.
By way of example and not limitation, such officers of the Corporation are authorized to execute, accept, deliver, and issue, on behalf of the Corporation and as binding obligations of the Corporation, such agreements and instruments as may be within the officer’s area of responsibility, including, as applicable, agreements and related documents (such as schedules, confirmations, transfers, assignments, acknowledgments and other documents) relating to derivative transactions, loan or letter of credit transactions, syndications, participations, trades, purchase and sale or discount transactions, transfers and assignments, servicing and sub-servicing agreements, vendor agreements, contracts, securitizations and transactions of whatever kind or description arising in the conduct of the Corporation’s business.
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The authority to execute and deliver documents, instruments and agreements may be limited by resolution of the Board of Directors or a committee of the Board of Directors, by the Chief Executive Officer or by the President, by reference to subject matter, category, amount, geographical location or any other criteria and may be made subject to such policies, procedures and levels of approval as may be adopted or amended from time to time.
Section 14. Voting Corporation’s Securities.
Unless otherwise ordered by the Board of Directors, the Chief Executive Officer, the President, any Executive Vice President or above, the Controller, the Corporation’s Chief Legal Officer or General Counsel and any other officer as may be designated by the Board of Directors shall have full power and authority on behalf of the Corporation to attend and to act and vote at any meetings of security holders of any of the corporations or entities in which the Corporation may hold securities, to consent in any manner permitted under applicable law to any action by such other corporations or other entities, or to execute a proxy or proxies empowering others to take such actions, and, in each case, such officer shall possess and may exercise any and all rights and powers incident to the ownership of such securities which, as the owner thereof, the Corporation might have possessed and exercised, if present.
ARTICLE VI. AMENDMENTS
These By-Laws may be amended, altered or repealed and By-Laws may be adopted (a) by the affirmative vote of a majority of the Board of Directors or (b) by the stockholders at any annual meeting of the stockholders, or at any special meeting thereof if notice of the proposed alteration or repeal of By-Law or By-Laws to be adopted is contained in the notice of such special meeting, by the affirmative vote of seventy-five percent (75%) of the stock issued and outstanding and entitled to vote at such meeting.
ARTICLE VII. EMERGENCY BY-LAWS
Section 1. Emergency By-Laws.
This Article VII shall be operative during any emergency resulting from an attack on the United States or on a locality in which the Corporation conducts its business or customarily holds meetings of its Board of Directors or its stockholders, or during any nuclear or atomic disaster, or during the existence of any pandemic, epidemic, declaration of a national emergency by the United States government, catastrophe or other similar emergency condition (an “emergency”), notwithstanding any different or conflicting provisions in these By-Laws, the Certificate of Incorporation or the Delaware General Corporation Law. To the extent not inconsistent with the provisions of this Article VII, the By-Laws provided in the other Articles of these By-Laws and the provisions of the Certificate of Incorporation shall remain in effect during such emergency and upon termination of such emergency, the provisions of this Article VII shall cease to be operative. Without limiting any powers or emergency actions that the Board of Directors may take during such an emergency, during such an emergency, the Board may take any action that it determines to be practical and necessary to address the circumstances of the emergency including, without limitation, taking the actions with respect to stockholder meetings and dividends as provided in the Delaware General Corporation Law. To the extent not inconsistent with this emergency bylaw, the By-Laws provided in the preceding Articles shall remain in effect during such emergency and upon the termination of such emergency the emergency bylaw shall cease to be operative unless and until another such emergency shall occur.
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Section 2. Meetings.
During any emergency, a meeting of the Board of Directors, or any committee thereof, may be called by any member of the Board of Directors, the President, a Senior Executive Vice President, the Secretary or an Assistant Secretary. Notice of the time and place, if any, of the meeting shall be given by any available means of communication by the individual calling the meeting to such Directors and/or Designated Officers, as defined in Section 3 of this Article, as it may be feasible to reach. Such notice shall be given at such time in advance of the meeting as, in the judgment of the individual calling the meeting, circumstances permit. As a result of such emergency, the Board of Directors may determine that a meeting of stockholders not be held at any place, but instead be held solely by means of remote communication in accordance with the Delaware General Corporation Law.
Section 3. Quorum.
At any meeting of the Board, or any committee thereof, called in accordance with Section 2 of this Article, the presence or participation of two Directors or one Director and a Designated Officer shall constitute a quorum for the transaction of business. In the event that no Directors are able to attend the meeting of the Board of Directors, then the Designated Officers in attendance shall serve as directors for the meeting, without any additional quorum requirement and will have full powers to act as directors of the Corporation.
The Board of Directors or the committees thereof, as the case may be, shall, from time to time but in any event prior to such time or times as an emergency may have occurred, designate the officers of the Corporation in a numbered list (the “Designated Officers”) who shall be deemed, in the order in which they appear on such list, directors of the Corporation for purposes of obtaining a quorum during an emergency, if a quorum of Directors cannot otherwise be obtained.
Section 4. By-Laws.
At any meeting called in accordance with Section 2 of this Article, the Board of Directors or a committee thereof, as the case may be, may modify, amend or add to the provisions of this Article VII so as to make any provision that may be practical or necessary for the circumstances of the emergency.
Section 5. Liability.
No officer, Director or employee of the Corporation acting in accordance with the provisions of this Article VII shall be liable except for willful misconduct.
Section 6. Repeal or Change.
The provisions of this Article VII shall be subject to repeal or change by further action of the Board of Directors or by action of the stockholders, but no such repeal or change shall modify the provisions of Section 5 of this Article VII with regard to action taken prior to the time of such repeal or change.
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EXHIBIT 6
CONSENT
In accordance with Section 321 (b) of the Trust Indenture Act of 1939, Regions Bank hereby consents that reports of examination of Regions Bank by Federal, State, Territorial or District regulatory authorities may be furnished by such regulatory authorities to the Securities and Exchange Commission upon request therefor.
| Dated: October 16, 2026 | |
| REGIONS BANK | |
| /s/ Craig Kaye | |
| Craig Kaye | |
| Vice President |
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EXHIBIT 7
Consolidated Report of Condition for Insured
Banks
and Savings Associations
REGIONS BANK
As of the close of business on June 30, 2026:
| ASSETS | Thousands of Dollars | |||
| Cash and balances due from depository institutions: | 10,964,000 | |||
| Securities: | 33,192,000 | |||
| Federal funds sold and securities purchased under agreement to resell: | 0 | |||
| Loans and leases held for sale: | 591,000 | |||
| Loans and leases net of unearned income and allowance: | 97,711,000 | |||
| Trading Assets: | 1,000 | |||
| Premises and fixed assets: | 2,104,000 | |||
| Other real estate owned: | 19,000 | |||
| Investments in unconsolidated subsidiaries and associated companies: | 189,000 | |||
| Direct and indirect investments in real estate ventures: | 0 | |||
| Intangible assets: | 6,374,000 | |||
| Other assets: | 8,642,000 | |||
| Total Assets: | 159,787,000 | |||
| LIABILITIES | Thousands of Dollars | |||
| Deposits | 131,776,000 | |||
| Federal funds purchased and securities sold under agreements to repurchase | 200,000 | |||
| Trading liabilities: | 0 | |||
| Other borrowed money: | 5,711,000 | |||
| Subordinated notes and debentures: | 497,000 | |||
| Other Liabilities: | 3,593,000 | |||
| Total Liabilities | 141,777,000 | |||
| EQUITY CAPITAL | Thousands of Dollars | |||
| Common Stock | 0 | |||
| Surplus | 16,483,000 | |||
| Retained Earnings | 3,378,000 | |||
| Accumulated other comprehensive income | (1,922,000 | ) | ||
| Total Equity Capital | 18,010,000 | |||
| Total Liabilities and Equity Capital | 159,787,000 | |||
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