ADVANCEPIERRE FOODS HOLDINGS, INC. (NYSE:APFH) Files An 8-K Termination of a Material Definitive Agreement
Item 1.02.
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Termination of a Material Definitive Agreement. |
On June 7, 2017, in connection with the consummation of the
Merger (as defined below), AdvancePierre Foods, Inc., a Delaware
corporation (AdvancePierre Foods), repaid all outstanding
principal amounts under the Term Loan Agreement, dated as of June
2, 2016, among AdvancePierre Foods Holdings, Inc., a Delaware
corporation (AdvancePierre), Pierre Holdco, Inc., a
Delaware corporation, AdvancePierre Foods, as the borrower, the
lenders party thereto and Morgan Stanley Senior Funding, Inc.
(Morgan Stanley), as administrative agent and security
agent (as amended from time to time, the Term Loan Credit
Agreement), together with all accrued interest and fees and
expenses thereunder. In connection with such repayment, all
guarantees of obligations under the Term Loan Credit Agreement,
and all liens and security interests securing such obligations,
were released and terminated.
In addition, on June 7, 2017, in connection with the consummation
of the Merger, AdvancePierre Foods repaid all outstanding
principal amounts, and permanently terminated all commitments,
under the Second Amended and Restated Credit Agreement, dated as
of October 10, 2012, among AdvancePierre Foods, as the borrower,
the lenders party thereto and Wells Fargo Capital Finance, LLC,
as administrative agent (as amended from time to time, the ABL
Credit Agreement), together with all accrued interest and
fees and expenses thereunder. In connection with such repayment
and commitment termination, all guarantees of obligations under
the ABL Credit Agreement, and all liens and security interests
securing such obligations, were released and terminated.
In addition, on June 7, 2017, in connection with the consummation
of the Merger, AdvancePierre terminated (i) the Stockholders
Agreement (the Stockholders Agreement), by and between
AdvancePierre and OCM Principal Opportunities Fund IV Delaware,
L.P. (OCM POF) and (ii) the Third Amended and Restated
Registration Rights Agreement (the Registration Rights
Agreement), by and among AdvancePierre, OCM POF, OCM APFH
Holdings, LLC (OCM APFH) and the other stockholders named
therein, except with respect to AdvancePierres indemnification
obligations to OCM POF, OCM APFH and certain other stockholders
under the Registration Rights Agreement. Except with respect to
the indemnification obligations of AdvancePierre under the
Registration Rights Agreement, all rights, obligations,
responsibilities and liabilities of AdvancePierre under the
Stockholders Agreement and Registration Rights Agreement have
been repealed and eliminated. The foregoing summaries of the
Stockholders Agreement and the Registration Rights Agreement do
not purport to be complete and are subject to, and qualified in
their entirety by, the full text of the Stockholders Agreement
and the Registration Rights Agreement, copies of which are
attached as Exhibit 10.1 and Exhibit 10.2, respectively, to
AdvancePierres Current Report on Form 8-K filed with the U.S.
Securities and Exchange Commission (the SEC) on July 25,
2016, and incorporated herein by reference.
The information contained in Item 2.04 of this Form 8-K is
incorporated herein by reference.
| Item 2.01. |
Completion of Acquisition or Disposition of Assets. |
As previously disclosed in the Current Report on Form 8-K filed
by AdvancePierre with the SEC, AdvancePierre entered into an
Agreement and Plan of Merger (the Merger Agreement), dated
as of April 25, 2017, with Tyson Foods, Inc., a Delaware
corporation (Tyson), and DVB Merger Sub, Inc., a Delaware
corporation and a wholly owned subsidiary of Tyson (Merger
Sub). to the Merger Agreement, on May 9, 2017, Merger Sub
commenced a tender offer to purchase any and all of the
outstanding shares of common stock, par value $0.01 per share, of
AdvancePierre (the Shares), at a price of $40.25 per Share
(the Offer Price), net to the seller in cash, without
interest, subject to any required withholding of taxes, upon the
terms and subject to the conditions set forth in the Offer to
Purchase dated May 9, 2017 (as amended or supplemented from time
to time, the Offer to Purchase), and in the related Letter
of Transmittal (as amended or supplemented from time to time, the
Letter of Transmittal, and together with the Offer to
Purchase and other related materials, as each may be amended or
supplemented from time to time, the Offer), filed as
Exhibit (a)(1)(A) and Exhibit (a)(1)(B), respectively, to the
Tender Offer Statement on Schedule TO originally filed with the
SEC by Tyson and Merger Sub on May 9, 2017 (as amended or
supplemented from time to time, the Schedule TO).
The Offer expired at 12:00 midnight, New York City time, at the
end of the day on June 6, 2017. American Stock Transfer Trust
Company LLC, in its capacity as depositary and paying agent for
the Offer (the Depositary), has advised Tyson and Merger
Sub that a total of 68,648,055 Shares were validly tendered and
not validly withdrawn (excluding, for the avoidance of doubt,
Shares presented to guaranteed delivery procedures provided by
Tyson, but which have not yet been validly tendered in
satisfaction of such guarantee and in accordance with such
procedures) to the Offer as of the Expiration Date,
representing approximately 87.27% of the outstanding Shares. In
addition, notices of guaranteed delivery have been delivered for
1,890,809 Shares, representing approximately 2.40% of the
outstanding Shares. All conditions to the Offer having been
satisfied or waived, on June 7, 2017, Merger Sub accepted for
payment all Shares validly tendered and not validly withdrawn
prior to the Expiration Date (as defined in the Offer), and
payment of the Offer Price for such Shares will be made by the
Depositary in accordance with the terms of the Merger Agreement.
On June 7, 2017 (the Closing Date), to the terms of the
Merger Agreement and in accordance with Section 251(h) of the
Delaware General Corporation Law (the DGCL), Merger Sub
merged with and into AdvancePierre, with AdvancePierre continuing
as the surviving corporation (the Surviving Corporation) (the
Merger). Upon completion of the Merger, AdvancePierre
became a wholly owned subsidiary of Tyson.
to the Merger Agreement, at the effective time of the Merger (the
Effective Time), any Shares not purchased to the Offer
(other than (i) Shares owned by Tyson, Merger Sub, AdvancePierre
(or held in AdvancePierres treasury) or any direct or indirect
wholly owned subsidiary of Tyson or AdvancePierre or (ii) Shares
held by any stockholder that has properly exercised appraisal
rights under the DGCL) were automatically converted into the
right to receive, in cash and without interest, an amount equal
to the Offer Price (the Merger Consideration).
Any option (or portion thereof) to acquire Shares that was
granted or issued to any Employee Plan (as defined in the Merger
Agreement) that was outstanding immediately prior to the
Effective Time (collectively, the Company Stock Options)
was canceled and converted into the right to receive an amount in
cash determined by multiplying (i) the excess, if any, of the
Merger Consideration over the applicable exercise price of such
canceled Company Stock Option by (ii) the number of Shares
subject to such Company Stock Option immediately prior to the
Effective Time, without interest and subject to any applicable
withholding of taxes. In addition, any restricted stock unit
granted or issued to any Employee Plan that was outstanding
immediately prior to the Effective Time (collectively, the
Company RSUs) was canceled and converted into the right to
receive solely an amount in cash equal to the product of (i) the
Merger Consideration and (ii) the total number of Shares subject
to such Company RSU, without interest and subject to any
applicable withholding of taxes. In addition, any restricted
Share granted or issued to any Employee Plan that was outstanding
immediately prior to the Effective Time was converted into the
right to receive solely an amount in cash equal to the Merger
Consideration, without interest and subject to any applicable
withholding of taxes.
The aggregate consideration for the transaction, net of
AdvancePierres cash and cash equivalents, was approximately $4.2
billion.
The foregoing summary description of the Merger Agreement does
not purport to be complete and is qualified in its entirety by
reference to the terms of the Merger Agreement, which was filed
as Exhibit 2.1 to the Current Report on Form 8-K filed by
AdvancePierre with the SEC on April 25, 2017 and is incorporated
by reference herein.
| Item 2.04. |
Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement. |
As previously disclosed in the Tender Offer
Solicitation/Recommendation on Schedule 14D-9 filed by
AdvancePierre, with the SEC on May 9, 2017, the consummation of
the Merger on June 7, 2017 triggered an acceleration provision
under the Income Tax Receivable Agreement (the Tax Receivable
Agreement) among AdvancePierre and certain of its pre-IPO
stockholders (the TRA Holders). As a result, the Tax
Receivable Agreement was terminated and AdvancePierre made (or
will make) a lump-sum payment to the TRA Holders equal to
$223,366,823.00, representing the present value of all future
amounts that would have been payable under the Tax Receivable
Agreement (based on the assumptions provided therein).
| Item 3.01. |
Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing. |
On the Closing Date, in connection with the consummation of the
Merger, AdvancePierre notified the New York Stock Exchange
(NYSE) that the Merger had been consummated, and requested
that the trading of Shares on the NYSE be halted after market
close on the Closing Date and that the listing of the Shares on
the NYSE be withdrawn. In addition, AdvancePierre requested that
the NYSE file with the SEC a notification on Form 25 to report
the delisting of the Shares from the NYSE and to deregister the
Shares under Section 12(b) of the Securities Exchange Act of
1934, as amended (the Exchange Act). AdvancePierre intends
to file with the SEC a Form 15 suspending AdvancePierres
reporting obligations under Sections 13 and
15(d) of the Exchange Act.
| Item 3.03. |
Material Modification to Rights of Security Holders. |
The information set forth under Item 2.01, Item 2.04, Item 3.01,
Item 5.01 and Item 5.03 of this Current Report on 8-K is
incorporated by reference into this Item 3.03.
| Item 5.01. | Changes in Control of Registrant. |
As a result of Merger Subs acceptance for payment of all Shares
that were validly tendered and not validly withdrawn to the Offer
and the consummation of the Merger to Section 251(h) of the DGCL
on the Closing Date, a change in control of AdvancePierre
occurred, and AdvancePierre is now a wholly owned subsidiary of
Tyson. Tyson obtained the funds necessary to fund the acquisition
through (i) proceeds from the Term Loan Facility dated May 12,
2017 among Tyson, as borrower, the lenders party thereto and
Morgan Stanley, as administrative agent, on the terms and
conditions previously disclosed in the Schedule TO, (ii) proceeds
from concurrent offerings of four series of senior notes due
2019, 2020, 2027 and 2047 on the terms and conditions previously
disclosed in the Prospectus Supplement on Form 424B5 filed by
Tyson on May 24, 2017, (iii) proceeds from the issuance of
commercial paper or commercial notes and (iv) cash on hand.
The information set forth under Item 2.01, Item 2.04, Item 5.02
and Item 5.03 of this Current Report on Form 8-K is incorporated
by reference into this Item 5.01.
| Item 5.02. |
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
In connection with the Merger, to the terms of the Merger
Agreement, at the Effective Time, Dean Hollis, Celeste A. Clark,
Peter C. Dillingham, Stephen A. Kaplan, Gary L. Perlin, Matthew
C. Wilson and Christopher D. Sliva each resigned and ceased to be
directors of AdvancePierre and members of any committee of
AdvancePierres board of directors. to the Merger Agreement, the
directors of Merger Sub, David L. Van Bebber and Dennis
Leatherby, became the directors of the Surviving Corporation.
Biographical information regarding the new directors has been
previously disclosed under the heading Directors and Executive
Officers of Purchaser of the section entitled Schedule I of the
Offer to Purchase, which information is incorporated herein by
reference.
In connection with the Merger, the officers of AdvancePierre
ceased serving in such capacities. The officers of Merger Sub
immediately prior to the Effective Time became the officers of
the Surviving Corporation each to hold office in accordance with
the Amended and Restated Certificate of Incorporation (as defined
below) and the Amended and Restated By-Laws (as defined below) of
the Surviving Corporation until their respective successors are
duly appointed. Biographical information with respect to Messrs.
Hayes, Leatherby, Van Bebber, Hudson, Munsell, Hodne and Tademy
are included under the heading Directors and Executive Officers
of Purchaser of the section entitled Schedule I of the Offer to
Purchase, which information is incorporated herein by reference.
On June 6, 2017, the board of directors of AdvancePierre approved
Tax Reimbursement Agreements with each of Christopher D. Sliva,
Michael B. Sims, George F. Chappelle, Jr., James L. Clough and
certain of AdvancePierres other employees (collectively, the
Tax Reimbursement Agreements), as previously disclosed in
the Schedule 14D-9 filed by AdvancePierre with the SEC on May 9,
2017 and in Amendment No. 4 thereto filed with the SEC on June 2,
2017. The Tax Reimbursement Agreements provide that in the event
any employee party to any Tax Reimbursement Agreement becomes
subject to an excise tax under Section 4999 of the Internal
Revenue Code of 1986, as amended (the Code), such employee
will be entitled to a tax reimbursement payment in respect of
Section 4999 of the Code, inclusive of any income taxes,
employment taxes and excise taxes applicable thereto.
Notwithstanding the previous sentence, the Tax Reimbursement
Agreements provide that in no event will the aggregate payments
made under all of the Tax Reimbursement Agreements exceed
$12,500,000, and will be allocated amongst such employees pro
rata based on the maximum amount of such taxes that is reasonably
expected to become payable by such employees. This summary does
not purport to be complete and is subject to and qualified in its
entirety by reference to the Tax Reimbursement Agreements, a form
of which is filed as Exhibit 10.1 to this Current Report on Form
8-K and incorporated herein by reference.
| Item 5.03. |
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
to the terms of the Merger Agreement, at the Effective Time,
AdvancePierres certificate of incorporation, as in effect
immediately prior to the Effective Time, was amended and restated
in its entirety (the Amended and Restated Certificate of
Incorporation). In addition, to the terms of the Merger
Agreement, at the Effective Time, AdvancePierres By-Laws, as in
effect immediately prior to the Effective Time, were amended and
restated in their entirety (the Amended and Restated
By-Laws).
Copies of the Amended and Restated Certificate of Incorporation
and the Amended and Restated By-Laws are filed as Exhibits 3.1
and 3.2, respectively, to this Current Report on Form 8-K, and
are incorporated herein by reference.
| Item 9.01. | Financial Statements and Exhibits. |
| (d) | Exhibits. |
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Exhibit Number |
Description |
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| 2.1 |
Agreement and Plan of Merger, dated as of April 25, 2017, by and among AdvancePierre Foods Holdings, Inc., Tyson Foods, Inc. and DVB Merger Sub, Inc. (incorporated herein by reference to Exhibit 2.1 to Current Report on Form 8-K filed by AdvancePierre Foods Holdings, Inc. with the SEC on April 25, 2017). |
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| 3.1 |
Amended and Restated Certificate of Incorporation of AdvancePierre Foods Holdings, Inc. |
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| 3.2 |
Amended and Restated By-Laws of AdvancePierre Foods Holdings, Inc. |
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| 10.1 | Form of Tax Reimbursement Agreement | |
About ADVANCEPIERRE FOODS HOLDINGS, INC. (NYSE:APFH)
AdvancePierre Foods Holdings, Inc. is a producer and distributor of ready-to-eat sandwiches, sandwich components and other entrees and snacks. The Company operates through four segments. The Foodservice segment’s portfolio of products includes breakfast sandwiches, peanut butter and jelly sandwiches, Philly steaks, fully cooked hamburger-patties, country-fried steak, stuffed entrees and chicken tenders. The Retail segment sells both branded and private label ready-to-eat sandwiches, such as grilled chicken sandwiches and stuffed pockets; sandwich components, such as chicken patties, and other entrees and snacks, such as stuffed chicken breasts. The Convenience segment sells customized ready-to-eat sandwiches, such as breakfast sandwiches and burgers; sandwich components, such as chicken patties, and other entrees and snacks, such as cinnamon dough bites. The Industrial segment supplies other food producers, such as packaged food companies under short-term co-manufacturing agreements.