Amended Statement of Ownership: Solicitation (sc 14d9/a)
03 June 2017 - 5:44AM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE
14D-9
(Rule
14d-101)
(Amendment No. 4)
Solicitation/Recommendation Statement
Under Section 14(d)(4) of the Securities Exchange Act of 1934
AdvancePierre Foods Holdings, Inc.
(Name of Subject Company)
AdvancePierre
Foods Holdings, Inc.
(Name of Persons Filing Statement)
Common Stock, par value $0.01 per share
(Title of Class of Securities)
00782L107
(CUSIP Number
of Class of Securities)
Michael B. Sims
Senior
Vice President, Chief Financial Officer and Treasurer
9987 Carver Road
Blue Ash, Ohio 45242
(800)
969-2747
(Name, address, and telephone numbers of person authorized to receive notices and communications
on behalf of the persons filing statement)
With a Copy to
Jeffrey H. Cohen
Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue, Suite 3400
Los Angeles, California 90071
(213)
687-5000
☐
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Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
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This Amendment No. 4 (the
Amendment
) amends and supplements the
Solicitation/Recommendation Statement on Schedule
14D-9
of AdvancePierre Foods Holdings, Inc., a Delaware corporation (the
Company
), filed with the U.S. Securities and Exchange Commission
(the
SEC
) on May 9, 2017 (as amended, the
Schedule
14D-9
). The Schedule
14D-9
relates to the cash tender offer by DVB Merger
Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of Tyson Foods, Inc., a Delaware corporation, to purchase all of the shares of Company Common Stock, par value $0.01 per share, issued and outstanding (the
Shares
) at
a purchase price per Share of $40.25, net to the holder thereof in cash, without interest and subject to any withholding of taxes required by applicable law, upon the terms and subject to the conditions set forth in the Offer to Purchase, filed with
the SEC on May 9, 2017 (as it may be amended or supplemented from time to time, the
Offer to Purchase
), and the related Letter of Transmittal (as it may be amended or supplemented from time to time, the
Letter of
Transmittal
) (which offer, upon such terms and subject to such conditions, as it and they may be amended or supplemented from time to time, constitutes the
Offer
). The Offer to Purchase and the Letter of Transmittal are
incorporated by reference and filed as Exhibits (a)(1)(A) and (a)(1)(B), respectively, to the Schedule
14D-9.
The Offer is described in a Tender Offer Statement on Schedule TO, filed with the SEC on May 9,
2017.
All information regarding the Offer as set forth in the Schedule
14D-9,
including
all exhibits and annexes that were previously filed with the Schedule
14D-9,
is hereby expressly incorporated by reference into this Amendment, except that such information is hereby amended and supplemented
to the extent specifically provided for herein. Capitalized terms used but not defined in this Amendment have the meanings ascribed to them in the Schedule
14D-9.
ITEM 3.
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PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS
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Item 3 of the Schedule
14D-9
is hereby amended and supplemented by replacing the section captioned Tax
Gross-Ups
on pages
12-13
of the Schedule
14D-9
with the following:
Tax
Gross-Ups
Subject to good faith consultation and agreement between the Company and Parent, the Company may make, or enter into binding obligations to
make,
gross-up,
indemnification or other reimbursement payments to certain of its executive officers and other individuals with regard to Section 4999 of the Internal Revenue Code of 1986, inclusive of
any income taxes, employment taxes and excise taxes applicable thereto (except for Mr. Simons, whose current agreements with the Company already provide for such a reimbursement). All such payments will not exceed $12.5 million in the
aggregate and will be allocated amongst such individuals prorata based on the maximum amount of such taxes under such section that is reasonably expected to become payable by such individuals. For estimates of the amounts of such payments payable to
each of the Companys named executive officers, please see ITEM 8. ADDITIONAL INFORMATIONGolden Parachute Compensation below, which is incorporated herein by reference.
2
ITEM 8.
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ADDITIONAL INFORMATION
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Item 8 of the Schedule
14D-9
is hereby amended and supplemented by replacing the section captioned Golden Parachute Compensation on pages
50-51
of the Schedule
14D-9
with the following:
Golden Parachute Compensation
The following table sets forth the information required by Item 402(t) of Regulation
S-K
regarding the
compensation for the Companys named executive officers based on the Transactions, assuming that the closing date of the Merger is June 7, 2017, and the named executive officers each experience a qualifying termination (as provided in each
applicable plan, program or agreement) on the same day immediately following the Merger.
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Name
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Cash
($)(1)
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Equity
($)(2)
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Pension /
NQDC
($)(3)
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Perquisites /
Benefits
($)(4)
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Tax
Reimbursements
($)(5)
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Total
($)
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John N. Simons, Jr.
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$
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$
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$
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$
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$
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$
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Christopher D. Sliva
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$
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5,200,000
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$
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7,846,013
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$
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$
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51,001
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$
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3,732,432
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$
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16,829,446
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Michael B. Sims
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$
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1,620,000
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$
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4,176,711
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$
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$
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43,134
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$
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$
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5,839,845
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George F. Chappelle, Jr.
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$
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1,120,250
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$
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5,169,115
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$
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$
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42,334
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$
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$
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6,331,699
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James L. Clough
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$
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1,078,438
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$
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4,176,711
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$
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$
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42,315
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$
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$
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5,297,464
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(1)
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For Mr. Sliva, represents (i) a lump sum payment equal to the sum of (a) three times Mr. Slivas then-current annual base salary ($800,000) plus (b) three times Mr. Slivas target
annual bonus for 2016 ($800,000), in each case pursuant to the terms of his employment agreement with the Company, and (ii) a bonus payment prorated to the first day of the month following the month in which the Acceptance Time occurs, pursuant
to the terms of the Merger Agreement, which is calculated at target performance for purposes of this disclosure because the actual amount is uncertain as of the time of this filing ($400,000). For Mr. Sims, represents (i) a lump sum
payment equal to 1.5 times the sum of (a) his base salary ($500,000) and (b) the
two-year
average of prior years bonuses (for 2015, $410,000, and for 2016, $500,000) pursuant to the Executive
Severance Plan and (ii) a bonus payment prorated to the first day of the month following the month in which the Acceptance Time occurs, pursuant to the terms of the Merger Agreement, which is calculated at target performance for purposes of
this disclosure because the actual amount is uncertain as of the time of this filing ($187,500). For Mr. Chappelle, represents (i) a lump sum payment equal to 1.0 times the sum of (a) his base salary ($500,000) and (b) the
two-year
average of prior years bonuses (for 2015, $400,000, and for 2016, $465,500) pursuant to the Executive Severance Plan and (ii) a bonus payment prorated to the first day of the month following the
month in which the Acceptance Time occurs, pursuant to the terms of the Merger Agreement, which is calculated at target performance for purposes of this disclosure because the actual amount is uncertain as of the time of this filing ($187,500). For
Mr. Clough, represents (i) a lump sum payment equal to 1.0 times the sum of (a) his base salary ($500,000) and (b) the two year average of prior years bonuses (for 2015, $360,000, and for 2016, $421,875) pursuant to the
Executive Severance Plan and (ii) a bonus payment prorated to the first day of the month following the month in which the Acceptance Time occurs, pursuant to the terms of the Merger Agreement, which is calculated at target performance for
purposes of this disclosure because the actual amount is uncertain as of the time of this filing ($187,500).
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(2)
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For a description of the treatment and detailed breakdown of each named executive officers equity award-based payments, see the section titled
Interests of Certain Persons; Agreements and Arrangements
with Current Executive Officers and Directors of the Company
Effect of the Merger Agreement on Equity Awards
above.
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(3)
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None of the named executive officers will be entitled to additional pension or
non-qualified
deferred compensation benefits in connection with the Merger.
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(4)
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Includes, for Mr. Sliva, continued health insurance benefits at the Companys expense for 24 months following the date of termination ($26,001), for Mr. Sims, continued health insurance benefits at the
Companys expense for 18 months following the date of termination ($18,134), and for Messrs. Chappelle and Clough, continued health insurance benefits at the Companys expense for 12 months following the date of termination ($17,334 and
$17,315, respectively). Also includes outplacement benefits for three months for each named executive officer except Mr. Simons (estimated to be $25,000 in each case).
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(5)
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In connection with the Companys entry into the Merger Agreement, the Company intends to enter into
agreements with certain of its executive officers and other individuals, including each of the named executive officers (other than Mr. Simons), subject to good faith consultation and agreement between the Company and Parent. Pursuant to such
agreements, each such person will be entitled to a tax reimbursement or
gross-up
in respect of Section 4999 of the Code, inclusive of any income taxes, employment taxes and excise taxes applicable
thereto. Mr. Simons current agreements with the Company already provide for such a reimbursement. All such payments will not exceed $12.5 million in the aggregate, and will be allocated
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amongst such individuals, including the named executive officers, prorata based on the maximum amount of such taxes under such section that is reasonably expected to become payable by such
individuals. The amounts reflected in this table are estimates of the amounts that may become payable to the named executive officers pursuant to these arrangements and are included solely for illustrative purposes. Additional information regarding
these payments is provided in the section titled
Interests of Certain Persons; Agreements and Arrangements with Current Executive Officers and Directors of the Company
Tax
Gross-Ups
above.
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4
SIGNATURE
After due inquiry and to the best of its knowledge and belief, the undersigned certifies that the information set forth in this statement is
true, complete and correct.
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ADVANCEPIERRE FOODS HOLDINGS, INC.
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By:
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/s/ Christopher D. Sliva
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Name:
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Christopher D. Sliva
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Title:
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President and Chief Executive Officer
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Dated: June 2, 2017
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