SECURITIES AND EXCHANGE COMMISSION
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 30, 2000
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ________ TO ________
COMMISSION FILE NUMBER 1-16247
FLOWERS FOODS, INC.
(Exact name of registrant as specified in its charter)
GEORGIA 58-2582379
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1919 FLOWERS CIRCLE 31757
THOMASVILLE, GEORGIA (Zip Code)
(Address of principal executive offices)
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Registrant's telephone number, including area code: (229) 226-9110
Securities registered pursuant to Section 12(b) of the Act:
NAME OF EACH EXCHANGE
TITLE OF EACH CLASS ON WHICH REGISTERED
------------------- ---------------------
Common Stock, $.01 per share, together New York Stock Exchange
with Preferred Share Purchase Rights
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Securities registered pursuant to Section 12(g) of the Act:
NONE
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days: Yes [ ] No [X]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated herein by reference in Part III of this Form 10-K or any amendment to this Form 10-K. [X]
Based on the closing sales price on the New York Stock Exchange on March 28, 2001, the aggregate market value of the voting and non-voting common stock held by nonaffiliates of the registrant was $341,128,389.
On March 28, 2001, the number of shares outstanding of the registrant's Common Stock, $.01 par value, was 19,865,968.
FORM 10-K REPORT
TABLE OF CONTENTS
PAGE
----
Item 1. Business.................................................... 1
Item 2. Properties.................................................. 9
Item 3. Legal Proceedings........................................... 10
Item 4. Submission of Matters to a Vote of Security Holders......... 10
Item 5. Market for the Registrant's Common Stock and Related
Shareholder Matters......................................... 10
Item 6. Selected Financial Data..................................... 11
Item 7. Management's Discussion and Analysis of Results of
Operations
and Financial Condition..................................... 12
Item 7A. Quantitative and Qualitative Disclosures About Market
Risk........................................................ 21
Item 8. Financial Statements and Supplementary Data................. 21
Item 9. Changes in and Disagreements with Accountants on Accounting
and
Financial Disclosure........................................ 21
Item 10. Directors and Executive Officers of the Registrant.......... 22
Item 11. Executive Compensation...................................... 25
Item 12. Security Ownership of Certain Beneficial Owners and
Management of Flowers Foods................................. 31
Item 13. Certain Relationships and Related Transactions.............. 32
Item 14. Exhibits, Financial Statement Schedules and Reports on Form
8-K......................................................... 32
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PART I
ITEM 1. BUSINESS
CORPORATE INFORMATION
Flowers Foods, Inc. was incorporated in Georgia in October, 2000 and, prior to March 26, 2001, was a wholly-owned subsidiary of Flowers Industries, Inc. ("FII"). On October 26, 2000, FII and Kellogg Company ("Kellogg") entered into an agreement and plan of restructuring and merger pursuant to which a wholly- owned subsidiary of Kellogg merged with FII on March 26, 2001. As a condition to the merger, FII transferred its traditional fresh and frozen bakery operations, and certain other corporate assets and liabilities, to Flowers Foods and distributed all of the outstanding shares of Flowers Foods common stock to FII shareholders on March 26, 2001.
As used herein, references to "we," "us," "the company" or "Flowers Foods" include the historical operating results and activities of the business operations which comprise Flowers Foods as of the date hereof.
THE COMPANY
Flowers Foods is one of the largest producers and marketers of frozen and non-frozen bakery and dessert products in the United States. Flowers Foods consists of the following businesses:
- Flowers Bakeries; and
- Mrs. Smith's Bakeries.
Our core strategy is to be one of the nation's leading producers and marketers of bakery products available to customers through fresh and frozen channels of distribution. Our strategy focuses on responding to current market trends for our products and changing consumer preferences, which increasingly favor purchases of ready-made convenience food products as opposed to traditional foods to be prepared at home. To assist in accomplishing our core strategy, we have aggressively invested capital to modernize and expand our production and distribution capacity and have expanded a nationally branded business which complements our traditional strengths.
We have established a presence in all distribution channels where bakery and dessert products are sold, including traditional supermarkets and their in-store deli/bakeries, foodservice distributors, convenience stores, mass merchandisers, club stores, wholesalers, restaurants, fast food outlets, schools, hospitals and vending machines.
Our Flowers Bakeries business focuses on the production and marketing of bakery products to customers in the super-regional 16 state area in and surrounding the southeastern United States. We have devoted significant resources to modernizing production facilities, improving our distribution capabilities and enhancing our information technology. We have acquired numerous local bakery operations that are generally within or contiguous to our existing region and which can be served with our extensive direct store door delivery system. Our strategy is to continue to better serve new and existing customers, principally by using information technology to enhance the productivity and efficiency of our production facilities and by extending our direct store door delivery system. This system utilizes approximately 3,200 independent distributors who own the right to sell our bakery products within their respective territories.
Our Mrs. Smith's Bakeries business produces and markets frozen desserts as well as bread, rolls and buns for sale to retail and foodservice customers. Traditionally, retail frozen pie sales are heavily concentrated in the year-end holiday season. In an effort to enhance sales outside of the holiday season, we launched "Operation 365," a strategy aimed at significantly expanding non-seasonal sales in the frozen dessert product line by extending the well-recognized Mrs. Smith's brand name to existing and related retail and foodservice products. Examples of significant product line extensions include the introduction of Mrs. Smith's Restaurant Classics and Mrs. Smith's Cookies and Cream frozen pies in the retail channel and Grand Finales frozen pies in the foodservice channel.
We have a leading presence in each of the major product categories in which we compete. Collectively, our Flowers Bakeries' brands rank first in branded sales measured in dollars and units in the 22 major metropolitan markets we serve. Our Mrs. Smith's Bakeries business is one of the leading frozen dessert producers and marketers in the United States, and our Mrs. Smith's pies are the leading national brand of frozen pies sold at retail. Our major branded products include, among others, the following:
FLOWERS BAKERIES MRS. SMITH'S BAKERIES
Flowers Mrs. Smith's
Nature's Own Mrs. Freshley's
Cobblestone Mill Oregon Farms
BlueBird European Bakers
ButterKrust Stilwell
REGIONAL FRANCHISED BRANDS: Our Special Touch
Sunbeam Danish Kitchen
Roman Meal Pour a Quiche
Evangeline Maid Grand Finales
Bunny Pet-Ritz
Oronoque Orchard
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We are committed to producing high quality products at the lowest price in all of our operations, and we have made significant capital investments in recent years to modernize, automate and expand our production and distribution capabilities and enhance our information technology. Capital spending has been primarily directed toward expanding and modernizing existing production facilities. The most recent major production facility expenditure in our Flowers Bakeries business was the installation of a fully automated wrapping system for three production lines in a new 6,000 square foot facility in Goldsboro, North Carolina. Production capabilities at our Mrs. Smith's Bakeries business were significantly realigned at an approximate cost of $183.2 million over the last three years. This realignment included the relocation and upgrading of 25 production lines at seven of our nine operating facilities, which offers us significantly more capacity at fewer locations. We believe these facilities will give us the ability to exploit many opportunities in the foodservice segment and continue our growth in the retail market.
In order to provide prompt and responsive service to customers, we tailor our distribution systems to the marketing and production aspects of our major product lines. Flowers Bakeries distributes its baked foods through an extensive direct store door delivery system of approximately 3,200 independent distributors who, as owners of their territories, are motivated to maintain and build retail brand shelf space and to monitor product freshness, which is essential in the marketing of short shelf life products such as fresh bread, rolls and buns. Mrs. Smith's Bakeries distributes its frozen foods through two strategically-located frozen distribution facilities, as well as through additional commercial frozen warehouse space throughout the United States in order to accommodate demands in the retail channel for seasonal products and to provide staging to expedite distribution throughout the year.
INDUSTRY OVERVIEW
The United States food industry is comprised of a number of distinct product lines and distribution channels for frozen and non-frozen bakery products and desserts. Changes in consumer preferences have shifted food purchases away from the traditional grocery store aisles for home preparation and consumption and toward home meal replacement purchases, either in supermarket in-store deli/bakeries or in non-supermarket channels, such as mass merchandisers, convenience stores, club stores, restaurants and other convenience channels. Non-supermarket channels of distribution are extremely important throughout the food industry.
Non-Frozen and Frozen Bakery Products
Retail sales of bakery products continue to experience modest growth, with expansion within the category occurring in a variety of premium and specialty breads. However, foodservice sales of bakery products continue to grow at a faster rate than retail sales as consumers who demand convenience increasingly are purchasing food products from non-retail distribution channels. In addition to Flowers Foods, several large baking and diversified food companies market bakery products in the United States. Competitors in this category include Interstate, Earthgrains, Bestfoods and Pepperidge Farm. There are also a number of smaller, regional companies. We believe that the larger companies enjoy several competitive advantages over smaller operations due principally to economies of scale in areas such as information technology, purchasing, production, advertising, marketing and distribution, as well as through greater brand awareness.
A significant trend in the baking industry over the last several years has been the consolidation of smaller bakeries into larger baking businesses. Consolidation continues to be driven by factors such as capital constraints on smaller companies that limit their ability to avoid technological obsolescence, to increase productivity or to develop new products, generational changes at family-owned businesses, and the need to serve the consolidated retail customers and the foodservice channel. We believe that the consolidation trend in the baking, food retailing and foodservice industries will continue to present opportunities for strategic acquisitions that complement our existing businesses and that extend our super-regional presence.
Frozen Dessert Products
Sales of frozen desserts to foodservice institutions and other distribution channels, including restaurants and in-store bakeries, have grown at a rate faster than sales to retail channels. We are a preferred supplier of frozen dessert products to the leading foodservice distributors in the United States. While retail sales of frozen desserts have experienced declining sales, Mrs. Smith's remains the leading brand in the frozen pie category. Primary competitors in the frozen dessert market include Sara Lee, Pepperidge Farm, Edwards and Pillsbury. We believe the increase in foodservice sales in the frozen dessert industry will provide us with additional revenue opportunities.
STRATEGY
Our core strategy is to be one of the nation's leading producers and marketers of bakery products available to customers through fresh and frozen channels of distribution. Our Flowers Bakeries and Mrs. Smith's Bakeries businesses each develop strategies based on the production, distribution and marketing requirements of their particular food categories. We employ the following five overall strategies:
- Strong Brand Recognition. We intend to capitalize on the success of our well-recognized brand names, which communicate product consistency and quality, by extending those brand names to additional products and channels of distribution. Many of our brands, including Nature's Own bread, Cobblestone Mill bread and Mrs. Smith's retail frozen baked pies, are the top-selling brands in their categories.
- Efficient Production and Distribution Facilities. We intend to maintain a continuing level of capital improvements that, while substantially lower than our level of capital improvements in recent years, will permit us to fulfill our commitment to remaining among the most modern and efficient frozen and non-frozen bakery and dessert producers in the United States.
- Customer Service-Oriented Distribution. We intend to expand and refine our distribution systems to respond quickly and efficiently to changing customer service needs, consumer preferences and seasonal demands. We have distribution systems that are tailored to the nature of each of our food product categories and are designed to provide the highest levels of service to our retail and foodservice customers. We have developed a direct store door delivery network of approximately 3,200 independent distributors for our Flowers Bakeries bakery products. Our Mrs. Smith's Bakeries business utilizes a network of strategically located storage and distribution facilities for our frozen bakery and dessert products and a centralized distribution facility for our snack cake products.
- Broad Range of Products Sold Through Multiple Distribution Channels. Recognizing that consumers are increasingly seeking home meal replacements and other convenience food products, we intend to continue to emphasize expansion of our product lines and distribution channels to meet those preferences. Our product lines now include virtually every category of fresh and frozen bakery and dessert products. These products generally can be found in traditional supermarkets and in-store deli/ bakeries, convenience stores, mass merchandisers, club stores, wholesalers, restaurants, fast food outlets, schools, hospitals and vending machines.
- Strategic Acquisitions. We have consistently pursued growth in sales, geographic markets and products through strategic acquisitions. We intend to pursue growth through strategic acquisitions and investments that will complement and expand our existing markets, product lines and product categories.
PRODUCTS
We produce packaged bakery, frozen dessert and frozen bakery products.
Flowers Bakeries
We market our packaged bakery products in the super-regional 16 state area in and surrounding the southeastern United States under numerous brand names, including Nature's Own and Cobblestone Mill. We also market fresh bread under regional franchised brands such as Sunbeam, Roman Meal, Evangeline Maid and Bunny. Nature's Own is the best selling brand by volume of soft variety bread in the United States, despite being marketed solely in the super-regional 16 state area. Pastries, doughnuts, bakery snacks, cakes and english muffins are sold through our direct store door distribution system primarily, under the BlueBird brand, as well as under the ButterKrust, Sunbeam and Holsum trademarks. Our branded products account for approximately 65% of sales by Flowers Bakeries.
In addition to our branded products, we also produce and distribute packaged bakery products under private labels for such retailers as Winn-Dixie and Kroger. While private label products carry lower margins than our branded products, we use our private label offerings to expand our total shelf space and to effectively utilize production and distribution capacity.
We utilize our direct store door distribution system to supply foodservice companies, including Burger King, Krystal, Hardees, Whataburger and Outback Steakhouse, with bakery products. In addition, we supply frozen bakery products to Wendy's.
Mrs. Smith's Bakeries
Mrs. Smith's frozen desserts are marketed throughout the United States, and our frozen pies were the number one retail frozen pie brand in the United States for 2000. Mrs. Smith's frozen desserts are sold at retail under the Mrs. Smith's, Pet-Ritz, Oregon Farms and Oronoque Orchard brand names. Frozen desserts in the foodservice channel are sold under the Grand Finales brand and under private labels for foodservice customers, such as Sysco. Our branded products account for approximately 41% of sales by Mrs. Smith's Bakeries.
We produce and distribute frozen bakery products such as bread, rolls and buns, for sale to foodservice customers. We also produce packaged bakery products for distribution by Flowers Bakeries' direct store door distribution network under the BlueBird brand. In addition, we produce packaged bakery products under the Mrs. Freshley's brand for sale to the vending channel and under various private labels for sale through the retail channel.
PRODUCTION AND DISTRIBUTION
We design our production facilities and distribution systems to meet the
marketing and production demands of our major product lines. Through a
significant program of capital improvements and careful planning of plant
locations, which, among other things, allows us to establish reciprocal baking
or product
transfer arrangements among our bakeries, we seek to remain a low cost producer and marketer of a full line of frozen and non-frozen bakery and dessert products on a national and super-regional basis. In addition to the independent distributor system for our fresh baked products, we also use both owned and public warehouses and distribution centers in central locations for the distribution of certain of our Mrs. Smith's products.
Flowers Bakeries
We operate 27 packaged bakery product facilities in 10 states. We have invested approximately $130.8 million over the past three years, primarily to build new state-of-the-art baking facilities and to significantly upgrade existing facilities. During this period, we also added 13 new highly-automated production lines in eight of our facilities, and a fully automated wrapping system for three production lines was installed in our new 6,000 square foot facility in Goldsboro, North Carolina. We believe that these investments have made us the most efficient major producer of packaged bakery products in the United States. We believe that our capital investment yields long-term benefits in the form of more consistent product quality, highly sanitary processes, and greater production volume at a lower cost per unit. While our major capital improvement program is largely complete, we intend to continue to invest in our production facilities and equipment to maintain high levels of efficiency.
Distribution of packaged bakery products involves determining appropriate order levels, delivering the product from the plant to the independent distributor for direct store door delivery to the customer, stocking the product on the shelves, visiting the customer daily to ensure that inventory levels remain adequate, and removing stale goods. We utilize a network of approximately 3,200 independent distributors who own the rights to distribute our packaged bakery products in their geographic territory. Distributor purchase arrangements historically have been made directly with a financial institution, and, pursuant to an agreement, we manage and service these arrangements. Commencing late March 2001, we will provide financing arrangements directly to the distributors for the purchase of their routes.
The Company leases hand-held computers, which contain our proprietary software, and charges independent distributors an administrative fee for their use. The software permits distributors to track and communicate inventory data to the production facilities and to calculate recommended order levels based on historical sales data and recent trends. These orders are electronically transmitted to the appropriate production facility on a nightly basis. This system, which we believe is more sophisticated than comparable tracking programs currently used in the industry, is designed to ensure that adequate product, and the right mix of products, are available to meet the retail and foodservice customers' immediate needs. We believe our system minimizes returns of unsold goods. In addition to the hand-held distributor units, our main computer system permits tracking of sales, product returns and profitability by customer location, plant, day and other bases. Managers receive sales and profitability reports on a weekly basis, allowing prompt operational adjustments when appropriate.
We believe the independent distributor system is unique in the industry as to its size, with approximately 3,200 distributors, and with respect to its geographic coverage. The program is designed to provide retail customers with superior service because distributors, highly motivated by route ownership, strive to increase sales by maximizing service. In turn, distributors have the opportunity to benefit directly from the enhanced value of their routes resulting from higher sales volume.
Mrs. Smith's Bakeries
We operate nine production facilities with 43 production lines for our frozen desserts, frozen bakery products and packaged bakery products. We significantly realigned our production capabilities over the last three years, spending approximately $183.3 million. This realignment included the relocation and upgrading of 25 production lines at seven of our nine operating facilities, which offers us significantly more capacity at fewer locations. We believe product realignment will give us the ability to exploit many opportunities in the retail and foodservice channels.
Our distribution facilities are strategically located near our production facilities to simplify distribution logistics. Our plant in Stilwell, Oklahoma was the focus of a $60.0 million capital spending project in 1999 to
add production capacity and is the primary producer of frozen fruit and custard pies. This facility also serves as a principal point of distribution for our frozen desserts. Our Suwanee, Georgia facility is located on a major interstate corridor near three of our frozen dessert production facilities. This facility contains such innovations as five 78-foot tall, laser-guided cranes specifically designed for the facility, a six million cubic foot freezer, and computer-controlled bar-coding and inventorying. The automation of this facility enables us to move extremely large volumes of product without a significant labor component and enables the facility to operate with extremely cold temperatures that preserve high product quality. These features allow our Suwanee facility to better serve customers by processing customer orders much more quickly than conventional freezer facilities. Production capacity was added to this facility as part of the overall realignment project, enhancing operating efficiencies by having contiguous production and frozen storage and distribution.
In addition to our two strategically-located freezer and distribution facilities in Suwanee and Stilwell, we own and lease additional freezer and distribution facilities throughout the United States to facilitate distribution of our products nationwide. These owned and leased facilities allow us to build and store necessary inventory of raw materials and finished dessert products and to expedite the national distribution of both our seasonal and non-seasonal products.
We distribute our packaged bakery products from a centralized distribution facility located near Knoxville, Tennessee. Centralized distribution allows us to achieve both production and distributing efficiencies. The production facilities are able to operate longer, more efficient production runs of a single product, which are then shipped to the centralized distribution facility. Products coming from different production facilities are then cross-docked and shipped directly to customer warehouses.
CUSTOMERS
Our top 10 customers in 2000 accounted for 35.5% of sales. Winn-Dixie accounted for approximately 8.5% of sales during 2000. Pursuant to an agreement with Winn-Dixie, which is terminable at the option of either party, we are the exclusive supplier of its private label fresh bakery products and are afforded preferred supplier status and preferential space allocation in Winn-Dixie store locations.
Flowers Bakeries
Our fresh baked foods have a highly diversified customer base, which includes grocery retailers, restaurants, fast-food chains, food wholesalers, institutions and vending companies. We also sell returned and surplus product through a system of thrift outlets. We supply numerous restaurants, institutions and foodservice companies with bakery products, including buns for outlets such as Burger King, Wendy's, Krystal, Hardees, Whataburger and Outback Steakhouse. We also sell packaged bakery products to wholesale distributors for ultimate sale to a wide variety of food outlets.
Mrs. Smith's Bakeries
Our frozen desserts are marketed to traditional retail outlets, such as grocery stores, as well as non-traditional outlets, ranging from club stores and mass merchandisers to wholesalers, foodservice distributors and restaurants. Our branded frozen desserts are sold primarily through grocery retailers. Our frozen bakery products are sold to foodservice distributors, institutions, retail in-store bakeries and restaurants.
Our packaged bakery products under the Mrs. Freshley's brand are sold primarily through vending outlets. We produce packaged bakery products for our own distribution under our BlueBird brand. In certain circumstances, we enter into co-packing arrangements with some of our competitors. Through co-packing, we have produced packaged bakery products for popular brands such as Weight Watchers, Stouffer, Lance, Pepperidge Farm and Little Debbie.
MARKETING
Our marketing and advertising campaigns are conducted through targeted television and radio advertising and coupons placed in printed media. We also incorporate promotional tie-ins with other sponsors, on-package
promotional offers and sweepstakes into our marketing efforts. Additionally, we focus our marketing and advertising campaigns on specific products throughout the year, such as buns for Memorial Day, Independence Day and Labor Day and fruit cakes and pies during the Thanksgiving and Christmas holiday season.
COMPETITION
Flowers Bakeries
The United States packaged bakery category is intensely competitive and is comprised of large food companies, large independent bakeries with national distribution, and smaller regional and local bakeries. Primary national competitors include Interstate, Earthgrains and Bestfoods. We also face competition from private label brands. Competition is based on product availability, product quality, brand loyalty, price effective promotions and the ability to target changing consumer preferences. Customer service, including frequent delivery and well-stocked shelves, is an increasingly important competitive factor. While we experience price pressure from time to time, primarily as a result of competitors' promotional efforts, we believe that our customer relationships and the consumers' brand loyalty, as well as our diversity within our region in terms of geographic markets, products, and sales channels, limit the effects of such competition. Recent consolidation in the industry has further enhanced the ability of the larger firms to compete with small regional bakeries. We believe we have significant competitive advantages over smaller regional bakeries due to economies of scale in areas such as information technology, purchasing, production, advertising, marketing and distribution as well as greater brand awareness.
Mrs. Smith's Bakeries
Mrs. Smith's Bakeries, Sara Lee, Pepperidge Farm and Pillsbury lead the frozen dessert category. Other significant competitors in the frozen baked dessert category include Edwards and private label brands. Competitors for packaged bakery products produced by Mrs. Smith's Bakeries include Interstate (Hostess) and McKee (Little Debbie). Competition for frozen desserts depends primarily on brand recognition and loyalty, perceived product quality, effective promotions and, to a lesser extent, price. For the frozen bakery and packaged bakery products manufactured by Mrs. Smith's Bakeries, competition is based upon the ability to meet production and distribution demands of foodservice and vending customers at a competitive price.
INTELLECTUAL PROPERTY
We own a number of trademarks and trade names, as well as certain licenses. Such trademarks and trade names are considered to be important to our business since they have the effect of developing brand identification and maintaining consumer loyalty. We are not aware of any fact that would negatively impact the continuing use of any of our trademarks, trade names or licenses.
RAW MATERIALS
Our primary baking ingredients are flour, sugar, shortening and fruit. We also use paper products, such as corrugated cardboard, aluminum products, such as pie plates, and films and plastics to package our baked foods. In addition, we are also dependent upon natural gas and propane as fuel for firing ovens as well as gasoline and diesel as fuel for distribution vehicles. On average, baking ingredients constitute approximately 10% to 15%, and packaging represents approximately 1% to 5% of the wholesale selling price of our baked foods. We maintain diversified sources for all of our baking ingredients and packaging products.
Commodities, such as our baking ingredients, periodically experience price fluctuations and, for that reason, the market for these commodities is continuously monitored. From time to time, we enter into forward purchase agreements and derivative financial instruments to reduce the impact of volatility in raw materials prices.
RESEARCH AND DEVELOPMENT
We engage in research and development activities that principally involve developing new products, improving the quality of existing products and improving and modernizing production processes. We also develop and evaluate new processing techniques for both current and proposed product lines.
REGULATION
As a producer and marketer of food items, our operations are subject to regulation by various federal governmental agencies, including the Food and Drug Administration, the Department of Agriculture, the Federal Trade Commission, the Environmental Protection Agency and the Department of Commerce, as well as various state agencies, with respect to production processes, product quality, packaging, labeling, storage and distribution. Under various statutes and regulations, such agencies prescribe requirements and establish standards for quality, purity, and labeling. The finding of a failure to comply with one or more regulatory requirements can result in a variety of sanctions, including monetary fines or compulsory withdrawal of products from store shelves.
In addition, advertising of our businesses is subject to regulation by the Federal Trade Commission, and we are subject to certain health and safety regulations, including those issued under the Occupational Safety and Health Act.
Our operations, like those of similar businesses, are subject to various federal, state, and local laws and regulations with respect to environmental matters, including air and water quality and underground fuel storage tanks, as well as other regulations intended to protect public health and the environment. Our operations and products also are subject to state and local regulation through such measures as licensing of plants, enforcement by state health agencies of various state standards and inspection of facilities. We believe that we are currently in material compliance with applicable laws and regulations.
EMPLOYEES
We employ approximately 7,300 persons, approximately 535 of whom are covered by collective bargaining agreements. We believe that we have good relations with our employees.
EXECUTIVE OFFICES
The address and telephone number of our principal executive offices are 1919 Flowers Circle, Thomasville, Georgia 31757, (229) 226-9110.
FORWARD LOOKING STATEMENTS
Certain statements made in this annual report on Form 10-K are "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995 (the "Reform Act"). These statements are subject to the safe harbor provisions of the Reform Act. Such forward-looking statements include, without limitation, statements about:
- the competitiveness of the baking industry;
- the future availability and prices of raw and packaging materials;
- potential regulatory obligations;
- our strategies; and
- other statements that are not historical facts.
When used in this report, the words "anticipate," "believe," "estimate" and similar expressions are generally intended to identify forward-looking statements. Because such forward-looking statements involve risks and uncertainties, there are important factors that could cause actual results to differ materially from those expressed or implied by such forward-looking statements, including but not limited to:
- changes in general economic or business conditions (including in the baking industry);
- actions of competitors;
- our ability to retain or procure capital on terms acceptable to us;
- our ability to recover material costs in the pricing of our products;
- the extent to which we are able to develop new products and markets for our products;
- the time required for such development;
- the level of demand for such products; and
- changes in our business strategies.
FINANCIAL INFORMATION ABOUT SEGMENTS
Refer to Note 13 of Notes to Consolidated Financial Statements for financial information about Flowers Bakeries and Mrs. Smith's Bakeries.
ITEM 2. PROPERTIES
Currently 34 of our production facilities are owned and two facilities are leased. We consider that our properties are well maintained and sufficient for our present operations. Our production plant locations are:
FLOWERS BAKERIES
Birmingham, Alabama Lafayette, Louisiana
Opelika, Alabama New Orleans, Louisiana
Tuscaloosa, Alabama Goldsboro, North Carolina
Ft. Smith, Arkansas Jamestown, North Carolina
Pine Bluff, Arkansas Memphis, Tennessee
Texarkana, Arkansas Morristown, Tennessee
Bradenton, Florida El Paso, Texas
Jacksonville, Florida Houston, Texas
Miami, Florida San Antonio, Texas
Atlanta, Georgia Tyler, Texas
Thomasville, Georgia Lynchburg, Virginia
Villa Rica, Georgia Norfolk, Virginia
Baton Rouge, Louisiana Bluefield, West Virginia
Charleston, West Virginia
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MRS. SMITH'S BAKERIES
Montgomery, Alabama London, Kentucky
Atlanta, Georgia Pembroke, North Carolina
Suwanee, Georgia Stilwell, Oklahoma
Tucker, Georgia Spartanburg, South Carolina
Crossville, Tennessee
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ITEM 3. LEGAL PROCEEDINGS
We are engaged in various legal proceedings that arise in the ordinary course of our business. We believe that the amount of the ultimate liability with respect to those proceedings will not be material to our financial position or results of operations.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
On November 28, 2000, FII, as sole shareholder of Flowers Foods, adopted a resolution by written consent in lieu of a special meeting electing our initial Board of Directors and setting the number of directors. The initial Board of Directors consisted of Amos R. McMullian, Robert P. Crozer and G. Anthony Campbell.
Except as provided above, during the fourth quarter of the fiscal year covered by this Annual Report on Form 10-K, no matter was submitted to a vote of shareholders.
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON STOCK AND RELATED SHAREHOLDER MATTERS
RECENT SALES OF UNREGISTERED SECURITIES
On October 19, 2000, we issued 500 shares of our common stock to FII, our direct parent, for consideration of $500.00. No underwriter was involved in this sale, and, in the opinion of Flowers Foods, this transaction is exempt from registration under the Securities Act of 1933, as amended, by virtue of Section 4(2) thereof in that such transaction did not involve any public offering.
MARKET PRICE OF FLOWERS FOODS COMMON STOCK
Flowers Foods was formed as a wholly-owned subsidiary of FII, a publicly held company whose shares of common stock traded on the New York Stock Exchange under the symbol "FLO." Prior to March 26, 2001, the effective date of the spin-off of Flowers Foods from FII, there was no established trading market for shares of Flowers Foods common stock. Shares of Flowers Foods common stock began regular trading on the New York Stock Exchange under the symbol "FLO" on March 28, 2001.
As of March 28, 2001, there were approximately 6,241 holders of record of our common stock.
DIVIDENDS
We do not currently pay cash dividends on our shares of common stock. The payment of dividends on our common stock is subject to the discretion of our Board of Directors. The Board of Directors bases its decisions regarding dividends on, among other things, general business conditions, our financial results, contractual, legal and regulatory restrictions regarding dividend payments and any other factors the Board may consider relevant. Under the terms of our credit agreement we are restricted from paying dividends during fiscal 2001. For fiscal years commencing after 2001, the maximum amount of dividends paid on our common stock cannot exceed $5.0 million unless certain requirements are met. See Note 3 of Notes to Consolidated Financial Statements.
ITEM 6. SELECTED FINANCIAL DATA
FLOWERS FOODS, INC.
SELECTED FINANCIAL DATA
FOR THE 52 WEEKS ENDED FOR THE 27 FOR THE 52 WEEKS ENDED
----------------------------------------------------- WEEKS ENDED -----------------------------
DECEMBER 30, 2000 JANUARY 1, 2000 JANUARY 2, 1999 JANUARY 3, 1998 JUNE 28, 1997 JUNE 29, 1996
----------------- --------------- --------------- --------------- ------------- -------------
(AMOUNTS IN THOUSANDS EXCEPT PER SHARE DATA)
STATEMENT OF INCOME
DATA:
Sales................ $1,619,980 $1,568,240 $1,538,887 $784,097 $1,437,713 $1,250,584
Materials, supplies,
labor and other
production costs... 900,198 883,882 795,084 418,926 787,799 674,762
Selling, marketing
and administrative
expenses........... 642,535 643,432 583,352 301,426 534,285 473,630
Depreciation and
amortization....... 67,102 53,890 53,544 26,930 45,970 40,848
Non-recurring charge
(credit)........... 17,704 (5,994) 64,461 -- -- --
Insurance proceeds... (17,193) -- -- -- -- --
Interest expense..... 68,373 44,691 42,225 11,796 25,109 13,004
Gain on sale of
distributor
notes.............. -- -- -- -- 43,244 --
(Loss) income from
continuing
operations before
income taxes and
cumulative effect
of changes in
accounting
principles......... (58,739) (51,661) 221 25,019 87,794 48,340
Income taxes......... (16,457) (16,915) 1,429 9,632 33,191 18,185
(Loss) income from
continuing
operations before
cumulative effect
of changes in
accounting
principles......... (42,282) (34,746) (1,208) 15,387 54,603 30,155
Income from
discontinued
operations, less
applicable taxes... 87,809 42,040 46,238 18,061 7,721 613
Transaction costs
less phaseout
income, less
applicable taxes... (40,482) -- -- -- -- --
Income before
cumulative effect
of changes in
accounting
principles......... 5,045 7,294 45,030 33,448 62,324 30,768
Cumulative effect of
changes in
accounting
principles, net of
tax benefit........ -- -- (3,131) (9,888) -- --
Net income........... $ 5,045 $ 7,294 $ 41,899 $ 23,560 $ 62,324 $ 30,768
BALANCE SHEET DATA:
Total assets(1)...... $1,562,646 $1,566,963 $1,382,877 $898,880 $ 898,187 $ 849,443
Long-term debt(2).... $ 247,847 $ 303,955 $ 215,233 $276,211 $ 275,247 $ 274,698
Shareholders'
equity............. $ 502,460 $ 538,754 $ 572,961 $348,567 $ 340,012 $ 305,324
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(1) Includes net assets of discontinued operations of $569.3 million, $496.7
million and $461.1 at December 30, 2000, January 1, 2000 and January 2,
1999, respectively.
(2) Excludes amounts settled by others of $540.0 million, $486.0 million and
$282.0 at December 30, 2000, January 1, 2000 and January 2, 1999,
respectively.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND FINANCIAL CONDITION
The following discussion should be read in conjunction with "Selected Financial Data" included herein and the consolidated financial statements and the related notes thereto of the company incorporated by reference or included elsewhere. The following information contains forward-looking statements which involve certain risks and uncertainties. See "Forward-Looking Statements."
OVERVIEW
General
The company produces and markets fresh baked breads, rolls and snack foods and frozen baked breads, desserts and snack foods. Sales are principally affected by pricing, quality, brand recognition, new product introductions and product line extensions, marketing and service. The company manages these factors to achieve a sales mix favoring its higher-margin branded products while using high-volume products to control overhead costs and maximize use of production capacity.
The principal elements comprising the company's production costs are ingredients, packaging materials, labor and overhead. The major ingredients used in the production of the company's products are flour, sugar, shortening, fruits and dairy products. The company also uses paper products, such as corrugated cardboard, aluminum products, such as pie plates, and plastic to package its products. The prices of these materials are subject to significant volatility. The company has mitigated the effects of such price volatility in the past through its hedging programs, but may not be successful in protecting itself from fluctuations in the future. In addition to the foregoing factors, production costs are affected by the efficiency of production methods and capacity utilization.
The company's selling, marketing and administrative expenses are comprised mainly of distribution, logistics and advertising expenses. Distribution and logistics costs represent the largest component of the company's cost structure, other than production costs, and are principally influenced by changes in sales volume.
Depreciation and amortization expenses for the company are comprised of depreciation of property, plant and equipment and amortization of costs in excess of net tangible assets associated with acquisitions. The company's interest expense related to its outstanding debt is discussed in Notes to Consolidated Financial Statements.
Matters Affecting Analysis
On March 26, 2001, FII shareholders approved a transaction that resulted in the spin-off of Flowers Foods and the merger of FII with a wholly-owned subsidiary of Kellogg. In the transaction, FII transferred the stock of its two wholly-owned subsidiaries, Flowers Bakeries and Mrs. Smith's Bakeries, and all other assets and liabilities directly held by FII (except for its majority interest in Keebler and certain debt and other liabilities and transaction costs totaling $698.7 million), to Flowers Foods. FII distributed all of the outstanding shares of common stock of Flowers Foods to existing FII shareholders such that each shareholder received one share of Flowers Foods stock for every five shares of FII they owned. FII, which consisted solely of its majority interest in Keebler and the aforementioned liabilities, was simultaneously merged with a wholly-owned subsidiary of Kellogg. The cash purchase price paid by Kellogg, less the aforementioned liabilities and certain other transaction costs, resulted in proceeds paid directly to FII shareholders of $1,241.6 million.
The result of the spin-off and merger transaction described above is the disposal of a segment of a business, Keebler. Accordingly, for accounting purposes, Flowers Foods is presented as the continuing entity that includes the historical financial information of Flowers Bakeries and Mrs. Smith's Bakeries with Keebler presented as a discontinued operation as of December 30, 2000. As such, Flowers Foods has classified all balance sheet information relating to the transactions for the years ended December 30, 2000 and January 1, 2000 under the captions "Net Assets of Discontinued Operations" and "Liabilities to be Settled by Others" in the Consolidated Balance Sheet, as appropriate, and all income and expense activity (including amortization
of Keebler goodwill and other intangible assets recorded at FII) of Keebler for the fiscal years ended December 30, 2000, January 1, 2000, and January 2, 1999 under the caption "Income from discontinued operations, less applicable taxes" in the Consolidated Statement of Income. In addition, costs related to the transactions, less all estimated income and expense activity of Keebler from the period December 31, 2000 through March 26, 2001, is included under the caption "Transaction costs less phase-out income, less applicable taxes," in the Consolidated Statement of Income. For further information, see Note 3 of Notes to Consolidated Financial Statements.
The company maintains insurance for property damage, mechanical breakdown, product liability, product contamination and business interruption applicable to its production facilities. During fiscal 1999, Mrs. Smith's Bakeries incurred substantial costs related to mechanical breakdown and product contamination at certain plants. Mrs. Smith's Bakeries filed claims under the company's insurance policies for a portion of these costs that it believed to be insured. During fiscal 2000, Mrs. Smith's Bakeries recovered net insurance proceeds of $17.2 million related to product contamination, mechanical breakdown and business interruption coverage. Subsequent to year end, the company finalized these insurance claims and received an additional $10.0 million of the $10.7 million final settlement. Amounts collected will be reported in a separate line item in the Consolidated Statement of Income when received.
The company enters into commodity future and option contracts and swap agreements for wheat and, to a lesser extent, other commodities, in an effort to provide a predictable and consistent commodity price, and thereby reduce the impact and volatility of its raw material and packaging prices. In fiscal 2000 and 1999, the company recorded negative mark-to-market adjustments of $1.3 million and $3.5 million, respectively. In fiscal 1998, the company recorded a positive mark-to-market adjustment of $1.1 million. These adjustments are recorded as corporate transactions and do not affect the results of operations on a segment basis at Flowers Bakeries or Mrs. Smith's Bakeries.
Information on Non-recurring Charges
During the fourth quarter of fiscal 2000, Mrs. Smith's Bakeries recorded an asset impairment of $17.4 million representing the impairment of goodwill and other identifiable intangible assets relating to the Pet-Ritz and Banquet lines, both of which were acquired in fiscal 1998. The impairment of these intangible assets is a result of the company's decision to discontinue certain products under the Banquet product line and decreased forecasted sales volumes for the Pet-Ritz and Banquet product lines.
During the fourth quarter of fiscal 2000, Mrs. Smith's Bakeries implemented a plan to transfer production from its facility in Forest Park, Georgia to an existing facility in Spartanburg, South Carolina. This decision was made to take advantage of our more highly automated production capacities at the Spartanburg plant. As a direct result, Mrs. Smith's Bakeries recorded a charge of $1.5 million which consisted of $1.0 million of noncash asset impairments and $0.5 million of related exit costs. This plan is expected to be substantially complete by the second quarter of fiscal 2001.
During the fourth quarter of fiscal 1998, the Board of Directors of FII approved a plan to realign production and distribution at Flowers Bakeries and Mrs. Smith's Bakeries in order to enhance efficiency. The company recorded a pre-tax non-recurring charge of $64.5 million ($32.2 million and $32.3 million for Flowers Bakeries and Mrs. Smith's Bakeries, respectively). The charge included $55.6 million of non-cash asset impairments, $3.6 million of severance costs and $5.3 million of other related exit costs. The plan involved closing six less efficient facilities of Flowers Bakeries and Mrs. Smith's Bakeries and shifting their production and distribution to highly automated facilities. As a direct result of management's decision to implement production line rationalizations, asset impairments were recorded to write-down the closed facilities to net realizable value, less cost to sell, based on management's estimate of fair value, and the related cost in excess of net tangible assets. Also, as part of this plan, asset impairments were recorded to write-off certain duplicate machinery and equipment designated for disposal. The plan included severance costs for 695 employees, and, as of January 1, 2000, all such employees had been terminated. During fiscal 2000, Flowers Bakeries recorded adjustments to the fiscal 1998 restructuring reserve of $1.2 million. This adjustment was the result of Flowers Bakeries' decision to reopen a closed bakery located in Norfolk, Virginia in order to meet the
demands of our growing foodservice business. This bakery will be operational in the spring of 2001. During fiscal 1999, Flowers Bakeries and Mrs. Smith's Bakeries recorded adjustments to the fiscal 1998 restructuring reserve of $1.1 million and $4.9 million, respectively. These adjustments were the result of reduced carrying costs of plants held for sale, an adjustment to the value of these assets due to the identification of a buyer and changes in estimates of severance and other employee termination costs. As of January 1, 2000, all significant actions related to the plans had been completed. The remaining exit costs are insignificant. Management expects the charges to result in operating savings of approximately $40.0 million over five years, principally from reduced depreciation of approximately $13.0 million and increased efficiencies and reduced employee expense of approximately $27.0 million.
As part of the acquisition of the business of Mrs. Smith's in 1996, the company recorded a purchase accounting reserve of $37.1 million in order to realign production and distribution at Mrs. Smith's Bakeries to reduce inefficiencies. The realignment involved the shutdown of a leased production facility. The reserve included $27.6 million of noncancelable lease obligations and building maintenance costs, $2.1 million of severance costs, and $7.4 million of other exit costs, including health insurance, incremental workers' compensation costs and the costs associated with dismantling and disposing of equipment, at the closed facility. Under the plan, approximately 300 employees were to be and have been terminated. With the exception of noncancelable lease obligations and building maintenance costs that continue through fiscal 2006, this plan was substantially complete as of the end of fiscal 1998. Spending against the reserve totaled $4.2 million, $6.8 million and $4.0 million, in fiscal 2000, 1999 and 1998, respectively.
The company's results of operations, expressed as a percentage of sales, are set forth below:
FOR THE 52 WEEKS ENDED
-----------------------------------------------------
DECEMBER 30, 2000 JANUARY 1, 2000 JANUARY 2, 1999
----------------- --------------- ---------------
Sales...................................... 100.00% 100.00% 100.00%
Gross margin............................... 44.43 43.64 48.33
Selling, marketing, and administrative
expenses................................. 39.66 41.03 37.91
Depreciation and amortization.............. 4.14 3.44 3.48
Interest................................... 4.22 2.85 2.74
(Loss) income from continuing operations
before taxes............................. (3.63) (3.29) 0.00%
Net income................................. 0.31% 0.47% 2.72%
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FIFTY-TWO WEEKS ENDED DECEMBER 30, 2000 COMPARED TO FIFTY-TWO WEEKS ENDED
JANUARY 1, 2000
CONSOLIDATED AND SEGMENT RESULTS
Sales. For the fiscal year ended December 30, 2000, sales were $1,620.0 million or 3.2%, higher than sales for the prior year of $1,568.2 million.
Flowers Bakeries' sales increased $54.5 million or 5.7% to $1,016.2 million in fiscal 2000 from $961.7 million in fiscal 1999. This increase was attributable to a 3.5% increase from acquisitions and a 2.2% increase from same bakery sales. Branded retail sales, which account for 65.1% of Flowers Bakeries' total sales, increased $44.3 million. This increase is primarily attributable to price increases. Private label sales, which account for 15.7% of Flowers Bakeries' sales, increased $9.2 million. This increase is primarily due to the Kroger acquisition. Foodservice sales, which account for 19.0% of Flowers Bakeries' total sales, increased $3.0 million. This increase is primarily attributable to the acquisition of Home Baking Company in Birmingham, Alabama in fiscal 1999.
Mrs. Smith's Bakeries' sales, excluding inter-segment sales, decreased $2.8 million or 0.5% to $603.7 million in fiscal 2000 from $606.5 million in fiscal 1999. Non-branded retail sales, which account for 4.0% of Mrs. Smith's Bakeries' total sales decreased $10.3 million. This decrease was primarily due to the implementation of a plan to reduce the number of non-strategic SKU's produced and was partially offset by increases in branded retail sales of $6.2 million. Branded retail sales represent 41.0% of Mrs. Smith's total sales.
Gross Margin. Gross margin was 44.4% in fiscal 2000 as compared to 43.6% in fiscal 1999.
Flowers Bakeries' gross margin increased to 54.3% of sales in fiscal 2000 from 53.6% of sales in fiscal 1999. The increase is primarily the result of increased pricing as well as an increase in units sold. A decrease in ingredient costs as a result of changes in product mix also contributed to the increase in margin. These increases were partially offset by increased energy costs. Flowers Bakeries also experienced higher production costs due to inadequate bun capacity in the northern region which negatively affected margins. This issue is expected to be resolved by the reopening of the Norfolk, Virginia bakery in the spring of 2001. In addition, two of our bakeries were temporarily idled due to severe weather which negatively affected margins.
Mrs. Smith's Bakeries' gross margin improved slightly to 29.0% in fiscal 2000 from 28.4% in fiscal 1999. This increase is attributable to lower ingredient costs due to improved scrap rates and a reduction in labor costs due to the use of fewer temporary employees. This increase was partially offset by increased costs during the first half of fiscal 2000 associated with the efforts to correct the mechanical breakdown which occurred during the production realignment in fiscal 1999.
Selling, Marketing and Administrative Expenses. Selling, marketing and administrative expenses decreased $0.90 million or 0.10% from fiscal 1999. These expenses were 39.7% of sales in fiscal 2000 as compared to 41.0% in fiscal 1999.
Flowers Bakeries' selling, marketing and administrative expenses increased to 44.3% of sales in fiscal 2000 from 43.2% of sales in fiscal 1999. Distribution costs increased for a second straight year due to higher fuel costs. Flowers Bakeries also incurred increased logistics costs associated with shipping product to the northern region to alleviate inadequate bun production. As mentioned above, this issue is expected to be resolved by the reopening of the Norfolk bakery in the spring of 2001. Ongoing implementation costs associated with the rollout of the enterprise-wide information system, SAP, including installation, consulting, training and travel, increased as a result of the rollout to seven plants in fiscal 2000. Additionally, Flowers Bakeries incurred start up costs related to the integration and market expansion of the Memphis, Tennessee bakery it acquired from the Kroger Company in the first quarter of fiscal 2000.
Mrs. Smith's Bakeries' selling, marketing and administrative costs decreased to 29.0% of sales in fiscal 2000 from 33.8% of sales in fiscal 1999. In fiscal 1999, Mrs. Smith's Bakeries performed an extensive review of its business operations and recognized higher reserves due to customer deductions and promotional expenses. These costs were not incurred to the same extent in fiscal 2000. Distribution expenses also decreased as a result of the correction of production difficulties which caused under-utilization of our distribution carriers. Decreases in these expenses were partially offset by increased slotting fees related to the introduction of our Cookies and Cream products.
Depreciation and Amortization Expense. Depreciation and amortization expense was $67.1 million for fiscal 2000, an increase of 24.5% over $53.9 million for fiscal 1999.
Flowers Bakeries' depreciation and amortization expense increased to $38.2 million in fiscal 2000 from $32.9 million in fiscal 1999. The increase is primarily attributable to a full year of depreciation from capital expenditures incurred in fiscal 1999 and the purchase of Kroger's Memphis bakery in fiscal 2000. The expense also increased due to the depreciation of SAP costs capitalized in fiscal 1999.
Mrs. Smith's Bakeries' depreciation and amortization expense increased to $28.4 million in fiscal 2000 from $20.1 million in fiscal 1999. The increase is primarily attributable to a full year of depreciation from capital expenditures incurred in the production realignment in fiscal 1999.
Non-Recurring Charge. See discussion under the heading "Matters Affecting Analysis" above.
Interest Expense. For fiscal 2000, net interest expense was $68.4 million, an increase of 53.0% over fiscal 1999 interest expense of $44.7 million. The increase was due to an increase in loan borrowing margins and facility fees as a result of amendments made to the revolving line of credit in fiscal 1999 and fiscal 2000. As a result of the reduction in outstanding debt in connection with the spin-off and merger transaction, interest expense will be substantially lower in fiscal 2001.
Loss from Continuing Operations Before Income Taxes. Losses from continuing operations before income taxes were $58.7 million for fiscal 2000, an increase of $7.0 million compared to a loss of $51.7 million reported in fiscal 1999.
Flowers Bakeries' operating income decreased $4.1 million to $62.9 million in fiscal 2000 from $67.0 million in fiscal 1999. This decrease is primarily attributable to increased distribution costs as well as start up costs associated with the integration of the Memphis bakery and related market expansion. This decrease was partially offset by increased margins attributable to favorable pricing and production efficiencies.
Mrs. Smith's Bakeries' operating loss decreased by $25.3 million to $28.0 million in fiscal 2000 from $53.3 million in fiscal 1999. This improved performance is a result of a reduction in labor and ingredient costs and expenses incurred to correct the production realignment problems incurred in fiscal 1999.
Other operating losses decreased by $2.0 million and interest expense increased by $23.7 million. In addition, fiscal 2000 included insurance proceeds of $17.2 million which were not present in fiscal 1999 and non-recurring charges increased $23.7 million.
Income from Discontinued Operations. Income from discontinued operations increased $45.8 million to $87.8 million in fiscal 2000 from $42.0 million in fiscal 1999. The increase is primarily due to an increase in sales and gross margins at Keebler as a result of the purchase of Austin Quality Foods on March 6, 2000, as well as a decrease in non-recurring charges of $67.3 million. A gain on the sale of the value brands business and the Sayreville facility also added to the increase. Partially offsetting those increases were higher marketing expenses associated with the roll out of the new Sesame Street line of products and higher distribution costs related to fuel price increases. Depreciation and amortization also increased as a result of capital spending and acquisitions. Income from discontinued operations also includes a loss from transaction costs less phase-out income of $40.5 million for the period from fiscal 2000 year end through the merger transactions which culminated on March 26, 2001. This net loss is discussed in detail in Note 3 of Notes to the Consolidated Financial Statements.
Income Taxes. The income tax benefit on the losses from continuing operations were provided at an effective rate of 28.0% in fiscal 2000 and 32.7% in fiscal 1999.
Net Income. For fiscal 2000, net income was $5.0 million, a decrease of $2.3 million as compared to $7.3 million net income reported in fiscal 1999. Fiscal 2000 included an increase in the loss from continuing operations of $7.1 million. Fiscal 2000 also included a loss from transaction costs less phase-out income of $40.5 million which was not present in fiscal 1999. Partially offsetting these decreases was an increase in income from discontinued operations of $45.8 million.
FIFTY-TWO WEEKS ENDED JANUARY 1, 2000 COMPARED TO FIFTY-TWO WEEKS ENDED JANUARY
2, 1999
CONSOLIDATED AND SEGMENT RESULTS
Sales. For the fiscal year ended January 1, 2000, sales were $1,568.2 million, or 1.9%, higher than sales for the prior year of $1,538.9 million.
Flowers Bakeries' sales for fiscal 1999 were $961.7 million, an increase of $22.6 million and 2.4% over sales of $939.1 million reported a year ago. Acquisitions, net of divestitures, accounted for 0.5% of the increase. The total sales increase was attributable to increases of 2.2% and 8.7% in branded and foodservice sales, respectively, slightly offset by a decrease of 7.0% in private label sales. Exclusive of the effect of acquisitions, the overall sales increase was a result of an increase of 4.5% in overall pricing offset by a decrease in volume of 2.2%.
Mrs. Smith's Bakeries' sales for fiscal 1999, after excluding inter-segment sales, increased 1.1% to $606.5 million from $599.8 million reported a year ago. This increase was primarily driven by increases of 6.7%, 8.5% and 1.2% in foodservice, in-store bakery and branded retail sales, respectively, partially offset by a reduction of 7.8% in non-branded retail and co-pack fresh snack products. The disappointing sales increase is attributable to production difficulties, as discussed below, resulting in product shortages.
Gross Margin. Gross margin was 43.6% in fiscal 1999 as compared to 48.3% in fiscal 1998.
Flowers Bakeries' gross margin increased to $515.1 million and 53.6% of sales for fiscal 1999 compared to $498.3 million and 53.1% of sales in fiscal 1998. This increase represents a combination of increased pricing partially offset by increased operating costs. While the cost of ingredients decreased during the year, the shift to sponge and dough production methods and the accompanying change in product formulation somewhat offset these savings. Flowers Bakeries believes that the sponge and dough process produces a better tasting product that will be valued in the market. Additional incremental costs were incurred due to the production disruption at the Goldsboro facility during construction of a new bun line.
Mrs. Smith's Bakeries' gross margin for fiscal 1999 was $172.0 million and 28.4% of sales compared to $246.4 million and 41.1% reported a year ago. This decrease is primarily the result of costs associated with a massive production realignment project that included the installation and start-up of 25 new or relocated and upgraded production lines. Mrs. Smith's Bakeries experienced start-up costs, product damage, spoilage and unabsorbed overhead at seven of its nine production facilities primarily in the third and fourth quarters of fiscal 1999. This project fell behind due to the delay in the receipt and installation of production equipment, and in the programming of production control software and the hiring and training of additional production employees. Traditionally, the third and fourth quarters are Mrs. Smith's Bakeries' highest volume quarters. However, product shortages in these quarters hurt overall sales, especially in the higher margin retail segment.
Selling, Marketing and Administrative Expenses. Selling, marketing and administrative expenses increased $60.1 million or 10.3% over fiscal 1998. These expenses were 41.0% of sales in fiscal 1999 as compared to 37.9% in fiscal 1998.
Flowers Bakeries' selling, marketing and administrative expenses increased 6.7% and $26.2 million to $415.3 million and 43.2% of sales in fiscal 1999 from $389.1 million and 41.4% of sales in fiscal 1998. Distribution costs in fiscal 1999 were higher due to rising fuel costs, additional miles incurred throughout the route system and incremental distribution cost due to severe hurricanes and flooding in Florida and North Carolina. Administrative costs increased as a result of incremental costs associated with realigning the northern region to consolidate the Goldsboro, North Carolina facility (acquired in 1998) and incremental costs associated with the consolidation of the accounts receivable and accounts payable functions to a central Shared Services Center.
Mrs. Smith's Bakeries' selling, marketing and administrative expenses were $205.1 million and 33.8% of sales in fiscal 1999 as compared to $181.8 million and 30.3% of sales in fiscal 1998. These costs increased primarily due to increased administrative and distribution costs associated with Mrs. Smith's Bakeries' production realignment and increased promotional expenses which were committed to the retail market based on higher expected sales. As a result of lower production, sales volume was lower than anticipated during the seasonally high sales period of the third and fourth quarters. Also, following a review of Mrs. Smith's Bakeries' business operations after the end of the second quarter of fiscal 1999, the company determined to recognize higher reserves for customer deductions, previously believed to be collectible, and trade promotions. At the same time, the company also revised estimates of the recoverable amount of certain out of code, damaged or discontinued inventory. The conclusions reached by the company relative to the ultimate realization of certain accounts receivable were based upon recent trends associated with Mrs. Smith's Bakeries' promotional and discount programs.
Depreciation and Amortization Expense. Depreciation and amortization expense was $53.9 million for fiscal 1999, an increase of 0.6% over $53.5 million for fiscal 1998.
Flowers Bakeries' depreciation and amortization expense was $32.9 million for fiscal 1999, a decrease of 1.8% from $33.5 million for fiscal 1998. The decrease is a result of the asset impairments recorded as a part of the non-recurring charge and write-off of start-up costs recorded in the prior year, partially offset by increased depreciation associated with capital improvements.
Mrs. Smith's Bakeries' depreciation and amortization expense was $20.1 million for fiscal 1999, an increase of 7.5% over $18.7 million for fiscal 1998. This increase is related to capital spending during the
period partially offset by decreases in depreciation and amortization that resulted from the asset impairments recorded as a part of the non-recurring charge recorded in fiscal 1998.
Non-Recurring Charge. See discussion under the heading "Matters Affecting Analysis" above.
Interest Expense. For fiscal 1999, net interest expense was $44.7 million, an increase of 5.8% over fiscal 1998 interest expense of $42.2 million. The increase was due to higher borrowings required to fund capital expenditures at Flowers Bakeries and Mrs. Smith's Bakeries.
Loss from Continuing Operations Before Income Taxes. Losses from continuing operations before income taxes were $51.7 million for fiscal 1999, a decrease of $51.9 million compared to income of $0.2 million reported in fiscal 1998.
Flowers Bakeries' operating income was $67.0 million in fiscal 1999, a decrease of $8.8 million and 11.6% from fiscal 1998 operating income of $75.8 million.
Mrs. Smith's Bakeries' operating loss, excluding non-recurring charge credits, was $53.3 million in fiscal 1999, a decrease of $99.2 million from operating income, excluding non-recurring charges, of $45.9 million in fiscal 1998. As discussed above, the primary cause of this decrease was the costs associated with the production realignment and the related effect on sales.
Other operating losses increased by $12.0 million and interest expense increased by $2.5 million. Partially offsetting these losses was a decrease in non-recurring charges of $70.5 million from fiscal 1998 to fiscal 1999.
Income from Discontinued Operations. Income from discontinued operations decreased $4.2 million to $42.0 million in fiscal 1999 from $46.2 million in fiscal 1998. The decrease was primarily due to increases in non-recurring charges of $62.5 million. This decrease was partially offset by decreases in selling, marketing and administrative costs as a percent of sales which resulted from increased efficiencies gained by the restructuring program. Income was also positively affected by the inclusion of the President business, acquired in September 1998, for a full year.
Income Taxes. The tax benefit on the loss from continuing operations was provided at an effective rate of 32.7% in fiscal 1999. The tax on income from continuing operations in fiscal 1998 differs from the statutory rate primarily due to non-deductible goodwill.
Net Income. For fiscal 1999, net income was $7.3 million, a decrease of $34.6 million as compared to $41.9 million net income reported in fiscal 1998. The decrease in net income can primarily be attributed to the production realignment difficulties incurred at Mrs. Smith's Bakeries in fiscal 1999 as discussed above.
LIQUIDITY AND CAPITAL RESOURCES
Net cash provided by operating activities for fiscal 2000 was $70.0 million. Operating cash flows were positively affected by decreases in accounts receivable, inventories and other assets as well as increases in accounts payable. Operating cash flows were negatively affected by a decrease in facility closing costs reserve.
Net cash disbursed for investing activities for fiscal 2000 was $24.6 million. This amount primarily consisted of $22.1 million for acquisitions and $39.9 million for capital expenditures. The $22.1 million represents Flowers Bakeries' acquisition of Kroger's Memphis, Tennessee bakery. The $39.9 million represents capital expenditures of $18.7 million at Flowers Bakeries and $21.2 million at Mrs. Smith's Bakeries which were made primarily to update and enhance production and distribution facilities. In addition, the company received dividends of $20.8 million from its investment in Keebler.
In fiscal 2000, net cash disbursed for financing activities was $52.2 million. Debt decreased by $4.4 million and dividends paid were $52.4 million. These items were partially offset by $4.6 million received from the exercise of stock options.
In fiscal 2000, the company's predecessor, FII, paid dividends per share of $.530, an increase of 2.9% from $.515 paid in the prior year. Flowers Foods paid no dividends in fiscal 2000. Dividends are declared at the
discretion of the Board of Directors based on an assessment of the company's financial position and other considerations. The company's ability to pay dividends is restricted by the terms of its credit agreement.
On March 26, 2001, the company effected a complete refinancing of its credit facilities and extinguished certain financing leases and other facilities as part of that refinancing. In addition, the company purchased certain fixed assets which were previously leased and outstanding notes payable to SunTrust Bank from the company's independent distributors in connection with the distributors' purchase of routes.
On March 26, 2001 the company completed a tender offer for the $200 million aggregate principle amount of 7.15% Debentures due 2028 (the "debentures") and repurchased substantially all of the debentures at a discount. Accordingly, in the first quarter of fiscal 2001 the company will record an extraordinary gain of approximately $5.8 million, net of tax, related to the early extinguishment of these debentures.
The purchase of the fixed assets, distributor notes and debentures was financed primarily from the proceeds of a new credit agreement entered into on March 26, 2001. The new credit agreement provides for total borrowings of up to $380 million consisting of term loans of $100 million ("Term Loan A") and $150 million ("Term Loan B") and a revolving loan facility of $130 million (the "revolving loan facility").
As a result of the transactions discussed in the preceding paragraph, the company's total debt outstanding (in thousands) at March 27, 2001 consisted of:
Revolving loan facility..................................... $ 11,190
Term Loan A................................................. 100,000
Term Loan B................................................. 150,000
Capitalized leases.......................................... 60,850
Other....................................................... 10,395
----------
$ 332,435
==========
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Term Loan A requires quarterly principal payments of $5.0 million beginning September 30, 2001, increasing to $5.6 million beginning March 31, 2002 and to $7.5 million beginning March 31, 2003 through maturity, March 26, 2005. Term Loan B requires quarterly principal payments of $0.38 million beginning September 30, 2001, increasing to $13.8 million beginning March 31, 2005 with a final payment of $34.8 million at maturity, March 26, 2007.
Interest is due quarterly on outstanding borrowings under the new credit agreement at the eurodollar rate or base rate plus applicable margin. This underlying rate is defined as either rates offered in the interbank eurodollar market or the higher of the prime rate or federal funds rate plus 0.5%. The applicable margin is based on the company's leverage ratio and can range from 2.5% - 0.5% for Term Loan A and the revolving loan facility and 3.00% - 1.75% for Term Loan B. The current rate is approximately 7.75% for Term Loan A and the revolving loan facility and 8.25% for Term Loan B. In addition, a commitment fee of 0.5% - .375% is due quarterly on all commitments not utilized under the new credit agreement.
The new credit agreement includes certain restrictions, which, among other things, require maintenance of financial covenants, restrict encumbrance of assets and creation of indebtedness and limit capital expenditures, repurchases of common stock and dividends that can be paid. Restrictive financial covenants include such ratios as a consolidated interest coverage ratio, a consolidated fixed charge coverage ratio and a maximum leverage ratio. Capital expenditures cannot exceed $50.0 million in fiscal 2001 and 2002. No dividend can be paid in fiscal 2001. Commencing in fiscal 2002, the maximum amount of dividends that can be paid cannot exceed $5.0 million, unless certain requirements are met. Loans under the credit agreement are secured by substantially all assets of the company, excluding real property.
Based on its current cash position, its cash flow from operating activities and its existing credit agreement, the company believes it can meet presently foreseeable financial requirements.
NEW ACCOUNTING PRONOUNCEMENTS
In June 1998, the Financial Accounting Standards Board ("FASB") issued Statement of Financial Accounting Standards No. 133, Accounting for Derivative Instruments and Hedging Activities. The standard, as amended by Statement of Financial Accounting Standards No. 137, Accounting for Derivative Instruments and Hedging Activities Deferral of the Effective Date of FASB Statement No. 133, an amendment of FASB Statement No. 133, and Statement of Financial Accounting Standards No. 138, Accounting for Certain Derivative Instruments and Certain Hedging Activities, an amendment of FASB Statement No. 133 (referred to hereafter as "FAS 133"), is effective for the company on December 31, 2000 (the first day of fiscal year 2001). FAS 133 requires that all derivative instruments be recorded on the balance sheet at their fair value. Changes in the fair value of derivatives are recorded each period in current earnings or in other comprehensive income, depending on whether a derivative is designated as part of a hedging relationship and, if it is, depending on the type of hedging relationship.
While FAS 133 provides a significant change in the accounting guidance related to derivative instruments and hedging activities, the company has determined that the more stringent accounting and documentation requirements under FAS 133 will not cause any significant changes in its overall risk management strategy and in its overall hedging activities.
In accordance with the transition provisions of FAS 133, the company recorded on December 31, 2000 a net-of-tax cumulative-effect-type adjustment of $(0.5) million in accumulated other comprehensive income to recognize at fair value all derivative instruments that had previously been designated in a hedging relationship of the variable cash flow exposure of a forecasted (anticipated) transaction. Related gains of $6.0 million, deferred on the balance sheet, were reclassified to shareholders' equity through a net-of-tax cumulative-effect-type adjustment in other comprehensive income.
On May 18, 2000, the Emerging Issues Task Force ("EITF") of the FASB reached consensus on Issue No. 00-14 Accounting for Certain Sales Incentives. This issue addresses the recognition, measurement, and income statement classification of sales incentives offered by vendors (including manufacturers) that have the effect of reducing the price of a product or service to a customer at the point of sale. For cash sales incentives within the scope of this issue, costs are generally recognized at the date on which the related revenue is recorded by the vendor and are to be classified as a reduction of revenue. For non-cash sales incentives, such as package inserts, costs are to be classified within cost of sales. This issue is effective for the company for the second quarter of fiscal 2001. Management has assessed the impact of this guidance and determined that adoption will not result in a material reclassification between sales and selling, general, and administrative expense. The company currently records coupon expenses as selling, marketing and administrative expenses. Coupon expenses were $2.6 million, $2.2 million and $2.1 million for the fiscal years 2000, 1999 and 1998, respectively. Upon adoption of EITF 00-14, the company will record coupon expense as a reduction to arrive at sales. This issuance will not affect net income.
In January 2001, the EITF reached a consensus on how a vendor should account for an offer to a customer to rebate or refund a specified amount of cash only if the customer completes a specified cumulative level of revenue transactions or remains a customer for a specified time period. This issue is one of many issues contained in EITF 00-22, Accounting for "Points" and Certain Other Time-Based or Volume-Based Sales Incentive Offers, and Offers for Free Products or Services to be Delivered in the Future. This consensus states that a vendor should recognize a liability for the rebate at the point of revenue recognition for the underlying revenue transactions that result in progress by the customer toward earning the rebate. Measurement of the liability should be based on the estimated number of customers that will ultimately earn and claim rebates or refunds under the offer. The vendor should classify the cost of the rebate as a reduction of revenue in the income statement. This consensus is effective for the company in the first quarter of fiscal 2001. The company currently records such sales incentives as selling, marketing and administrative expenses. Such expenses were $51.4 million, $56.9 million and $51.9 million for fiscal years 2000, 1999 and 1998, respectively. Upon adoption of this consensus, the company will record such expenses as reductions to arrive at sales. This consensus will not affect net income.
In December 1999, the SEC released Staff Accounting Bulletin No. 101, Revenue Recognition in Financial Statements ("SAB 101"). SAB 101 summarizes certain of the staff's views in applying generally accepted accounting principles to revenue recognition in financial statements. The company is required to apply the accounting principles and disclosures described in this bulletin in the fourth quarter of fiscal 2000. SAB 101 had no material effect on the company's sales or net income.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
In the normal course of business, the company is exposed to commodity risks, primarily related to the purchase of raw materials and packaging supplies. The company manages its exposure to this risk through the use of various financial instruments, none of which are entered into for trading purposes. The company has established policies and procedures governing the use of financial instruments, specifically as it relates to the type and volume of financial instruments entered into. Financial instruments can only be used to hedge an economic exposure, and speculation is prohibited. The company's accounting policy related to financial instruments is further described in Notes to Consolidated Financial Statements.
Commodity Price Risk
The company enters into commodity future and option contracts and swap agreements for wheat and, to a lesser extent, other commodities in an effort to provide a predictable and consistent commodity price and thereby reduce the impact of volatility in its raw material and packaging prices. A sensitivity analysis has been prepared to estimate the company's exposure to commodity price risk. Based on the company's derivative portfolio as of December 30, 2000, a hypothetical ten percent adverse change in commodity prices under normal market conditions could potentially have a $3.8 million effect on the fair value of the derivative portfolio. The analysis disregards changes in the exposures inherent in the underlying hedged item; however, the company expects that any loss in fair value of the portfolio would be substantially offset by reductions in raw material and packaging prices.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Refer to the Index to Financial Statements and Financial Statement Schedules for the required information.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
Not applicable.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
DIRECTORS AND EXECUTIVE OFFICERS
The following table sets forth certain information regarding the persons who currently serve as the executive officers of Flowers Foods. Our Board of Directors elects all executive officers for one-year terms with the exception of the positions of President and Chief Operating Officer, Flowers Bakeries and President and Chief Operating Officer, Mrs. Smith's Bakeries, which are appointed by the Chairman of the Board of Directors and Chief Executive Officer to serve until they resign or are removed.
EXECUTIVE OFFICERS
NAME AGE POSITION
---- --- --------
Amos R. McMullian......................... 63 Chairman of the Board of Directors and
Chief Executive Officer
G. Anthony Campbell....................... 49 Secretary and General Counsel
Jimmy M. Woodward......................... 40 Vice President and Chief Financial Officer
George E. Deese........................... 55 President and Chief Operating Officer,
Flowers Bakeries
Gary L. Harrison.......................... 63 President and Chief Operating Officer,
Mrs. Smith's Bakeries
Marta Jones Turner........................ 47 Vice President of Communications and
Investor Relations
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Our directors are divided into three classes so that only one class is elected each year. The table below sets forth the members of our current Board of Directors and indicates when each director's term expires. Commencing with the annual meeting of shareholders to be held after the end of fiscal 2002, directors for each class will be elected at the annual meeting of shareholders held in the year in which the term for such class expires and thereafter will serve for a term of three years.
DIRECTORS
NAME AGE TERM EXPIRES ---- --- ------------ Amos R. McMullian........................................... 63 2003 G. Anthony Campbell......................................... 49 2002 Edward L. Baker............................................. 66 2002 Joe E. Beverly.............................................. 59 2003 Franklin L. Burke........................................... 59 2004 Robert P. Crozer............................................ 54 2004 Langdon S. Flowers.......................................... 79 2004 Joseph L. Lanier, Jr........................................ 69 2004 J.V. Shields, Jr............................................ 63 2003 Jackie M. Ward.............................................. 62 2002 C. Martin Wood III.......................................... 57 2002 |
Amos R. McMullian has been Chairman of the Board of Directors and Chief Executive Officer of Flowers Foods since November 2000. Mr. McMullian previously served as Chairman of the Board of Directors of Flowers Industries from 1985 to March 2001 and as its Chief Executive Officer from 1981 to March 2001. Mr. McMullian also previously served as a director of Keebler from 1996 to March 2001.
G. Anthony Campbell has been General Counsel and Secretary and a director of Flowers Foods since November 2000. Mr. Campbell served as General Counsel and Secretary of Flowers Industries from January
1985 to March 2001. He previously served as a director of Flowers Industries from 1991 to March 2001 and as a director of Keebler from 1998 to March 2001.
Jimmy M. Woodward has been Vice President and Chief Financial Officer of Flowers Foods since November 2000. Mr. Woodward previously served in that capacity at Flowers Industries from March 2000 to March 2001. Mr. Woodward also served as Treasurer and Chief Accounting Officer of Flowers Industries from October 1997 to March 2000 and Assistant Treasurer of Flowers Industries for more than five years prior to that time. Mr. Woodward previously served as a director of Keebler from 1998 to March 2001. Mr. Woodward serves as a director of Integrity, Inc. (Nasdaq).
George E. Deese has been President and Chief Operating Officer of Flowers Bakeries since January 1997. He previously served as President and Chief Operating Officer, Baked Products Group of Flowers Industries from 1983 to January 1997, Regional Vice President, Baked Products Group of Flowers Industries from 1981 to 1983 and President of Atlanta Baking Company from 1980 to 1981.
Gary L. Harrison has been President and Chief Operating Officer of Mrs. Smith's Bakeries since January 1997. He previously served as President and Chief Operating Officer, Specialty Foods Group of Flowers Industries from 1989 to January 1997, Executive Vice President, Baked Products Group of Flowers Industries from 1987 to 1989, Regional Vice President, Baked Products Group of Flowers Industries from 1977 to 1987 and President of Flowers Baking Company of Thomasville from 1976 to 1977.
Marta Jones Turner is Vice President of Communications and Investor Relations of Flowers Foods. Ms. Turner has served in that capacity at Flowers Foods since November 2000. Ms. Turner previously served as Vice President of Communications and Investor Relations at Flowers Industries from January 2000 to March 2001. She also served as Vice President of Public Affairs of Flowers Industries from September 1997 until January 2000 and Director of Public Affairs of Flowers Industries for more than five years prior to that time.
Edward L. Baker has been Chairman of the Board of Directors of Florida Rock Industries, Inc. (NYSE) since 1989. He has also served as Chairman of the Board of Directors of Patriot Transportation Holding, Inc. (OTC) (formerly FRP Properties, Inc.) since 1989. Mr. Baker was elected as a director of Flowers Foods in March 2001. He previously served as a director of Flowers Industries from 1992 to March 2001.
Joe E. Beverly has been Chairman of the Board of Commercial Bank in Thomasville, Georgia, a wholly-owned subsidiary of Synovus Financial Corp. (NYSE) since 1989. He is also the former Vice Chairman of the Board of Synovus Financial Corp, and a director of Synovus Financial Corp. He was President of Commercial Bank from 1973 to 1989. Mr. Beverly was elected as a director of Flowers Foods in March 2001. Mr. Beverly previously served as a director of Flowers Industries from August 1996 to March 2001.
Franklin L. Burke, a private investor since 1991, is the former Senior Executive Vice President and Chief Operating Officer of Bank South Corp., Atlanta, Georgia, and the former Chairman and Chief Executive Officer of Bank South, N.A., the principal subsidiary of Bank South Corp. Mr. Burke was elected as a director of Flowers Foods in March 2001. Mr. Burke previously served as a director of Keebler from 1998 to March 2001 and as a director of Flowers Industries from 1994 to March 2001.
Robert P. Crozer served as Vice Chairman of the Board of Directors of Flowers Foods from November 2000 to March 2001. Mr. Crozer was elected as a director of Flowers Foods in November 2000. He previously served as Vice Chairman of the Board of Flowers Industries from 1989 to March 2001. Mr. Crozer also served as a director of Keebler from 1996 to March 2001 and as Chairman of the Board of Keebler from 1998 to March 2001.
Langdon S. Flowers retired as Chairman of the Board of Directors of Flowers Industries in 1985. He served as a director of Flowers Industries from 1968 to March 2001. Mr. Flowers was elected as a director of Flowers Foods in March 2001.
Joseph L. Lanier, Jr. has been Chairman of the Board of Directors and Chief Executive Officer of Dan River Inc. (NYSE), Danville, Virginia, a textile company, since 1989. He is also Chairman of the Board of
Directors of Dimon, Inc. (NYSE) and a director of SunTrust Banks, Inc. (NYSE), Torchmark Corp. (NYSE) and Waddell & Reed Financial, Inc. (NYSE). Mr. Lanier was elected as a director of Flowers Foods in March 2001. Mr. Lanier served as a director of Flowers Industries from 1977 to March 2001.
J.V. Shields, Jr. has been Chairman of the Board of Directors and Chief Executive Officer of Shields & Company, New York, New York, a diversified financial services company and member of the New York Stock Exchange, Inc. since 1982. Mr. Shields also is the Chairman of the Board of Directors and Chief Executive Officer of Capital Management Associates, Inc., a registered investment advisor, and the Chairman of the Board of Trustees of The 59 Wall Street Trust, the Brown Brothers Harriman mutual funds group. Mr. Shields was elected as a director of Flowers Foods in March 2001. He previously served as a director of Flowers Industries from 1989 to March 2001.
Jackie M. Ward has been Chairman of the Board of Directors of Computer Generation Incorporated, a telecommunications company based in Atlanta, Georgia since 1968. She is also a director of Bank of America Corporation (NYSE), Equifax, Inc. (NYSE), Matria Healthcare, Inc. (Nasdaq), PTEK Holdings, Inc. (Nasdaq), Profit Recovery Group International, Inc. (Nasdaq), SCI Systems, Inc. (NYSE), and Trigon Healthcare, Inc. (NYSE). Ms. Ward was elected as a director of Flowers Foods in March 2001. She previously served as a director of Flowers Industries from March 1999 to March 2001.
C. Martin Wood III retired as Senior Vice President and Chief Financial Officer of Flowers Industries on January 1, 2000, a position that he had held since 1978. Mr. Wood served on Flowers Industries' Board of Directors from 1975 until March 2001. Mr. Wood also served as a director of Keebler from 1996 to March 2001. Mr. Wood was elected as a director of Flowers Foods in March 2001.
Robert P. Crozer, J.V. Shields, Jr. and C. Martin Wood III are married to sisters, all of whom are nieces of Langdon S. Flowers.
COMMITTEES OF THE BOARD OF DIRECTORS
The Flowers Foods Board of Directors has established certain standing committees, which include the audit, nominating, compensation, executive, pension and finance and banking committees. The functions and responsibilities of the standing committees of our Board of Directors are described below.
The members of the audit committee are: Edward L. Baker, chairman, Joe E. Beverly, Franklin L. Burke and Jackie M. Ward. The functions of the audit committee are: (a) recommending to the Board of Directors the engagement or discharge of independent auditors; (b) reviewing investigations into matters relating to audit functions; (c) reviewing with independent auditors the plan for and results of the audit engagement; (d) reviewing the scope and results of our internal auditing procedures; (e) reviewing the independence of the auditors; (f) considering the range of audit and non-audit fees; (g) reviewing the adequacy of our system of internal accounting controls; and (h) reviewing related party transactions.
The members of the nominating committee are: Jackie M. Ward, chairman, Amos R. McMullian, Edward L. Baker and Joseph L. Lanier, Jr. The functions of the nominating committee are: (a) selecting or recommending to the Board of Directors nominees for election as directors; and (b) considering the performance of incumbent directors in determining whether to nominate them for re-election. The nominating committee will consider nominations for directors at the annual meeting that are submitted by shareholders in the manner provided in the bylaws of the company.
The members of the compensation committee are: Joseph L. Lanier, Jr., chairman, Edward L. Baker, Franklin L. Burke and Jackie M. Ward. The functions of the compensation committee are: (a) approving or recommending to the Board of Directors approval of compensation plans for officers and directors; (b) approving, or recommending to the Board of Directors approval of, remuneration arrangements for directors and senior management; and (c) granting benefits under compensation plans.
The members of the executive committee are: Amos R. McMullian, chairman, G. Anthony Campbell, Langdon S. Flowers and Joseph L. Lanier, Jr. The function of the executive committee is to exercise the
powers of the Board of Directors in the management and control of the business of the company during the intervals between meetings of the Board of Directors.
The members of the pension and finance committee are: C. Martin Wood III, chairman, Franklin L. Burke, J. V. Shields, Jr., Joe E. Beverly and Robert P. Crozer. The functions of the pension and finance committee are: (a) recommending to the Board of Directors in regard to the company's planning with respect to its capital structure and raising of its long-term capital and with regard to dividend actions and (b) review the performance and management of the company in regard to contributions to any pension plan, profit sharing, retirement or savings plan, or any proposed changes in the funding method or interest assumption or in amortization of liabilities in connection with funding any plan.
The members of the banking committee are Amos R. McMullian, chairman, and G. Anthony Campbell. The functions of banking committee are: (a) designating officers of the company to open bank accounts and enter into letters of credit and other debt instruments and (b) authorize additional signatories to the company's bank accounts.
DIRECTORS' FEES
Flowers Foods was formed in October 2000. None of the directors of Flowers Foods received compensation from Flowers Foods during fiscal year 2000.
ITEM 11. EXECUTIVE COMPENSATION
EXECUTIVE COMPENSATION
We were formed in October 2000 and remained a wholly-owned subsidiary of FII until March 26, 2001. Consequently, none of our executive officers received compensation or grants of stock options or other awards of securities by Flowers Foods during fiscal 2000. Accordingly, the information in this section relates to compensation paid by FII to certain of its executive officers who became executive officers of Flowers Foods for the periods presented. Compensation of executive officers of Flowers Foods for the periods following the spin-off will be determined by Flowers Foods' Board of Directors or the compensation committee thereof and can be expected to take into account factors such as the size and operating performance of Flowers Foods.
The following table provides certain summary information for the periods indicated concerning compensation of the Chief Executive Officer and each of the four other most highly compensated executive officers of FII, all of whom, except Mr. Crozer, became executive officers of Flowers Foods as of March 26, 2001.
SUMMARY COMPENSATION TABLE
LONG-TERM
COMPENSATION(1)
ANNUAL COMPENSATION --------------------
------------------------------------ RESTRICTED
OTHER STOCK OPTION
FISCAL SALARY BONUS COMP. AWARDS AWARDS
NAME AND PRINCIPAL POSITION AT FLOWERS INDUSTRIES YEAR $ $ $ $ #
------------------------------------------------- ------ -------- -------- ----- ---------- -------
Amos R. McMullian............................ 2000 850,000 0 0 0 198,000
Chairman of the Board and 1999 850,000 0 0 908,392 0
Chief Executive Officer 1998 736,000 552,000 0 730,509 198,000
Robert P. Crozer............................. 2000 725,000 0 0 0 146,000
Vice Chairman of the Board 1999 725,000 0 0 531,160 0
1998 579,616 405,731 0 279,399 146,000
Jimmy M. Woodward............................ 2000 265,000 0 0 0 28,000
Vice President and 1999 260,000 25,000 0 123,576 0
Chief Financial Officer 1998 238,462 90,769 0 39,200 28,000
George E. Deese.............................. 2000 353,600 0 0 0 47,500
President and Chief 1999 353,600 0 0 1,413,044 0
Operating Officer, Flowers 1998 345,700 156,900 0 192,249 47,500
Bakeries
Gary L. Harrison............................. 2000 353,600 0 0 0 47,500
President and Chief 1999 353,600 0 0 1,413,044 0
Operating Officer, 1998 345,700 0 0 192,249 47,500
Mrs. Smith's Bakeries
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(1) Reflects dollar value of restricted stock awards at the date of grant and options to acquire that number of shares of FII common stock granted pursuant to Flowers Industries 1989 Executive Stock Incentive Plan. No FII options remain outstanding.
FLOWERS FOODS 2001 EQUITY AND PERFORMANCE INCENTIVE PLAN
Flowers Foods has established an equity performance and incentive plan in order to encourage ownership of Flowers Foods common stock by its executives and to more closely align the interests of our executives with those of Flowers Foods' shareholders. A summary of the plan is set forth below. Certain key employees and officers of Flowers Foods and any of its subsidiaries who are selected by the Board and the nonemployee directors of Flowers Foods are eligible to receive awards under the plan. References in this discussion to actions that are to be taken by or are the responsibility of the Board will generally be taken by or be the responsibility of the compensation committee.
Principal Features of the Plan
General. Under the plan, Flowers Foods' Board is authorized to make awards of (1) options to purchase shares of Flowers Foods common stock, (2) performance stock and performance units, (3) restricted stock and (4) deferred stock. Flowers Foods' compensation committee is authorized to oversee the plan and to make awards and grants under the plan.
Shares Available Under the Plan. The number of shares of Flowers Foods
common stock that may be issued or transferred (1) upon the exercise of options,
(2) as restricted stock and released from all substantial risks of forfeiture,
(3) as deferred stock, (4) in payment of performance stock or performance units
that have
been earned, (5) in payment of dividend equivalents paid with respect to awards made under the plan, or (6) in payment of appreciation rights, may not exceed a total of 2,000,000, subject to some adjustments pursuant to the terms of the plan. These shares of common stock may be original issue or treasury shares or a combination of both.
Eligibility. Officers, key employees and nonemployee directors of Flowers Foods, as well as any person who has agreed to begin serving in such capacity within 30 days of the date of the grant are eligible to be selected by Flowers Foods' Board to receive benefits under the plan. Flowers Foods' Board selects those who will receive grants on the basis of management objectives.
Options. Options entitle the optionee to purchase shares of Flowers Foods
common stock at a predetermined price per share (which may not be less than the
market value at the date of grant). Each grant specifies whether the option
price will be payable (1) in cash at the time of exercise, (2) by the transfer
to Flowers Foods of shares of common stock owned by the optionee for at least
six months, having a value at the time of exercise equal to the option price,
(3) if authorized by Flowers Foods' Board, the delivery of shares of restricted
stock or other forfeitable shares, deferred stock, performance stock, other
vested options, or performance units, or (4) a combination of those payment
methods. Grants may provide for deferred payment of the option price from the
proceeds of sale through a broker on the date of exercise of some or all of the
shares of Flowers Foods common stock to which the exercise relates. No options
are exercisable more than ten years from the date of grant. Each grant must
specify the period of continuous employment with Flowers Foods that is required
before the options become exercisable. Grants may provide for earlier exercise
of an option in the event of retirement, disability, death or a "change in
control" of Flowers Foods so defined in the plan, or other similar transactions
or events. Grants may also specify management objectives that must be achieved
as a condition to the exercise of the option. Successive grants may be made to
the same optionee whether or not previously granted options remain unexercised.
Restricted Stock. An award of restricted stock involves the immediate transfer of ownership of a specific number of shares of Flowers Foods common stock by Flowers Foods to a participant in consideration of the performance of services. The participant is immediately entitled to voting, dividend and other ownership rights in such shares. The transfer or later elimination of restrictions may be made without additional consideration or in consideration of a payment by the participant that is less than current market value, as Flowers Foods' Board may determine. Flowers Foods' Board may condition the award on the achievement of specified management objectives. Restricted stock must be subject to a "substantial risk of forfeiture" within the meaning of Section 83 of the Internal Revenue Code for a period to be determined by Flowers Foods' Board in order for the award to avoid immediate taxation. An example would be a provision that the restricted stock would be forfeited if the participant ceased to serve as an officer or key employee of Flowers Foods during a specified period of years. If service alone is the criterion for non-forfeiture, the period of service must be at least three years; if other management objectives are included, non-forfeiture may occur one year from the date of grant. In order to enforce these forfeiture provisions, the transferability of restricted stock will be prohibited or restricted in a manner and to the extent prescribed by Flowers Foods' Board for the period during which the forfeiture provisions are to continue. Flowers Foods' Board may provide for a shorter period during which the forfeiture provisions are to apply in the event of retirement, disability, death or a change in control of Flowers Foods or other similar transaction or event.
Deferred Stock. An award of deferred stock constitutes an agreement by
Flowers Foods to deliver shares of its common stock to the participant in the
future in consideration of the performance of services. However, the deferred
stock award may be subject to the fulfillment of certain conditions, such as
management objectives, during the deferral period specified by Flowers Foods'
Board. During the deferral period, the participant cannot transfer any rights in
the award and has no right to vote the shares of deferred stock, but Flowers
Foods' Board may, on or after the date of the award, authorize the payment of
dividend equivalents on such shares on a current, deferred or contingent basis,
either in cash or in additional shares of Flowers Foods common stock. Awards of
deferred stock can be made without additional consideration or in consideration
of a payment by the participant that is less than the market value per share on
the date of award. Deferred stock must be subject to performance of services for
at least three years; provided that if management objectives are included, the
performance of services must be for at least one year. Flowers Foods' Board
determines the
deferral period at the date of the award, and may provide for a deferral period of less than three years in the event of retirement, disability, death or a change in control of Flowers Foods or other similar transaction or event.
Performance Stock and Performance Units. Performance stock and performance units involve awards that become payable upon the achievement of specified management objectives during a designated performance period. This performance period may be subject to early termination in the event of retirement, disability or death or a change in control of Flowers Foods or other similar transaction or event. A minimum level of acceptable achievement may also be established by Flowers Foods' Board. If, by the end of the performance period, the participant has achieved the specified management objectives, the participant will be deemed to have fully earned the performance stock and/or performance units. If the participant has not achieved the management objectives, but has attained or exceeded the predetermined minimum, the participant will be deemed to have partly earned the performance stock and/or performance units (such part to be determined in accordance with a formula). To the extent earned, the performance stock and/or performance units are paid to the participant at the time and in the manner determined by Flowers Foods' Board in cash, shares of Flowers Foods common stock or in any combination of those methods. Each award of performance stock or performance units may be subject to adjustment to reflect changes in compensation or other factors, so long as no adjustment would result in the loss of an available exemption for the award under Section 162(m) of the Internal Revenue Code. Flowers Foods' Board or its compensation committee may provide for the payment of dividend equivalents to the holder on a current, deferred or contingent basis, either in cash or in additional Flowers Foods common stock.
Management Objectives. Under the plan, Flowers Foods' Board is required to
establish performance goals for purposes of performance stock and performance
units. In addition, if Flowers Foods' Board so chooses, options, restricted
stock and deferred stock may also specify management objectives. Management
objectives may be described either in terms of firm-wide objectives, individual
participant objectives, or objectives related to performance of the division,
subsidiary, department or function within Flowers Foods in which the participant
is employed. Management objectives applicable to any award may include specified
levels of and/or growth in (1) cash flow, (2) earnings per share, (3) earnings
before interest and taxes, (4) earnings per share growth, (5) net income, (6)
return on assets, (7) return on assets employed, (8) return on equity, (9)
return on invested capital, (10) return on total capital, (11) revenue growth,
(12) stock price, (13) total return to shareholders, (14) economic value added,
(15) operating profit growth, or any combination of those methods. If Flowers
Foods' Board determines that a change in the business, operations, corporate
structure or capital structure of Flowers Foods, or the manner in which it
conducts its business, or other events or circumstances render the management
objectives unsuitable, Flowers Foods' Board may modify the performance goals or
the related minimum acceptable level of achievement, in whole or in part, as
Flowers Foods' Board deems appropriate and equitable, unless the result would be
to make an award otherwise eligible for an exemption under Section 162(m) of the
Internal Revenue Code ineligible for such an exemption.
Transferability. Except as otherwise determined by Flowers Foods' Board, no option or other award under the plan is transferable by a participant other than by will or the laws of descent and distribution, or (except for incentive stock options) to the participant's immediate family or trusts established solely for the benefit of one or more members of the immediate family. Except as otherwise determined by Flowers Foods' Board, options are exercisable during the optionee's lifetime only by him or her. The Board of Directors may specify at the date of grant that part or all of the shares of Flowers Foods common stock that are (1) to be issued or transferred by Flowers Foods upon exercise of options, upon termination of the deferral period applicable to deferred stock or upon payment under any grant of performance stock or performance units or (2) no longer subject to the substantial risk of forfeiture and restrictions on transfer referred to in the plan, shall be subject to further restrictions on transfer.
Adjustments. The plan provides that the number of shares available for awards will be adjusted to account for (a) shares relating to awards that expire or are forfeited under the plan, or (b) shares that are transferred, surrendered or relinquished in payment of the option exercise price for satisfaction of withholding rules for the exercise or receipt of awards under the plan. This permits the grant of additional awards equal to
the number of shares turned in by award recipients. The maximum number of shares of Flowers Foods common stock covered by outstanding options, deferred stock, performance stock and restricted stock granted under the plan, and the prices per share applicable to those shares, are subject to adjustment in the event of stock dividends, stock splits, combinations of shares, recapitalizations, mergers, consolidations, spin-offs, reorganizations, liquidations, issuances of rights or warrants, and similar events. In the event of any such transaction, Flowers Foods' Board is given discretion to provide a substitution of alternative consideration for any or all outstanding awards under the plan, as it in good faith determines to be equitable under the circumstances, and may require the surrender of all awards so replaced. Flowers Foods' Board may also make or provide for adjustments in the numerical limitations under the plan as Flowers Foods' Board may determine appropriate to reflect any of the foregoing transactions or events. Flowers Foods' Board is authorized to interpret the plan and related agreements and other documents. Flowers Foods' Board may make awards to employees under any or a combination of all of the various categories of awards that are authorized under the plan, or in its discretion, make no awards. The plan may be amended from time to time by Flowers Foods' Board. However, any amendment that must be approved by the shareholders of Flowers Foods in order to comply with applicable law or the rules of the principal national securities exchange or quotation system upon which Flowers Foods common stock is traded or quoted will not be effective unless and until such approval has been obtained in compliance with those applicable laws or rules. These amendments would include any increase in the number of shares issued or certain other increases in awards available under the plan (except for increases caused by adjustments made pursuant to the plan). Presentation of the plan or any amendment of the plan for shareholder approval is not to be construed to limit Flowers Foods' authority to offer similar or dissimilar benefits through plans that are not subject to shareholder approval.
Flowers Foods' Board may provide for special terms for awards to participants who are foreign nationals or who are employed by Flowers Foods outside the United States of America as Flowers Foods' Board may consider necessary or appropriate to accommodate differences in local law, tax policy or custom.
The plan provides that awards representing no more than 3% of the shares available under the plan may not be required to meet certain restrictions otherwise applicable to restricted stock, deferred stock and performance stock awards under the plans. Flowers Foods' Board may not, without further approval of its shareholders, authorize the amendment of any outstanding option to reduce the option price. Furthermore, no option may be canceled and replaced with awards having a lower option price without further approval of the shareholders of Flowers Foods. The plan does not confer on any participant a right to continued employment with Flowers Foods.
SEVERANCE POLICY
We intend to adopt a severance policy that will pay an amount of compensation proportionate to service rendered to Flowers Foods and to its predecessor FII and their respective subsidiaries to any employee (including those who are members of a collective bargaining unit and bargain to be included in the policy) who is actually or constructively terminated, other than for good cause, following a change in control, as defined in our benefit plans.
RETIREMENT PLAN
We have adopted the Flowers Foods Retirement Plan No. 1, which provides a pension benefit upon retirement on or after age 65 to qualified employees of our adopting subsidiaries but not to employees of Flowers Foods. However, the plan credits all employees who were eligible under the Flowers Industries Retirement Plan No. 1 prior to the spin-off for each year of service with FII. The pension is the sum of annual credits earned during employment. The basic annual credit is 1.35 percent of the first $10,000 of W-2 earnings, subject to certain exclusions, for each year of service and 2 percent of W-2 earnings, subject to certain exclusions, in excess of $10,000 each year for each year of service. Certain additional credits are provided for a limited group of participants in the retirement plan. The table below includes the estimated amounts which are payable to the persons indicated upon their retirement at age 65 under the provisions of the retirement plan and assuming that payment is made in the form of a 50% joint and survivor annuity. Effective
as of the date of the spin-of, the individuals listed in the table below have accrued certain benefits under Retirement Plan No. 1 but will not earn additional benefits.
DISCLOSURE FOR CERTAIN INDIVIDUALS
CREDITED
YEARS OF PROJECTED ANNUAL
SERVICE BENEFIT
-------- ----------------
Amos R. McMullian........................................... 37 $137,946
Robert P. Crozer............................................ 27 $112,219
Jimmy M. Woodward........................................... 15 $ 36,383
George E. Deese............................................. 36 $ 98,051
Gary L. Harrison............................................ 44 $ 94,361
|
SEPARATION AGREEMENTS
We intend to enter into separation agreements with certain of our executive
officers as such term is defined under the Securities Exchange Act of 1934, as
amended. These agreements will serve as memoranda of the change in control
provisions that have been authorized by us in our benefit plans, and provide
additional benefits, including relocation benefits and certain welfare benefits
in the event of termination of employment following a change in control, except
that these benefits are to be reduced to the extent benefits are received under
the severance policy described above. The agreements will also provide for
gross-up payments to neutralize any excise taxes imposed on payments subject to
Section 4999 of the Internal Revenue Code, or additional income taxes on those
payments. The compensation committee may select, in its sole discretion, the
executives to be offered such separation agreements.
PERFORMANCE GRAPH
Our common stock did not commence regular way trading on the New York Stock Exchange until the completion of our spin-off from FII on March 26, 2001. Prior to March 26, 2001 our common stock was not publicly traded. Therefore, the stock performance graph for the fiscal year ended December 30, 2000 has been omitted.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT OF FLOWERS FOODS
The following table sets forth the number of shares of Flowers Foods common stock beneficially owned by each director and each executive officer of Flowers Foods and by all directors and executive officers as a group, consisting of 15 persons, as of March 28, 2001.
SHARES BENEFICIALLY OWNED
--------------------------
NAME OF BENEFICIAL OWNER NUMBER PERCENT
------------------------ ----------- ---------
Edward L. Baker............................................. 11,192(1) *
Joe E. Beverly.............................................. 17,246(2) *
Franklin L. Burke........................................... 2,492(3) *
G. Anthony Campbell......................................... 74,316 *
Robert P. Crozer............................................ 721,979(4) 3.63%
George E. Deese............................................. 38,301(5) *
L.S. Flowers................................................ 121,799(6) *
Gary L. Harrison............................................ 44,987(7) *
Joseph L. Lanier, Jr........................................ 16,101(8) *
Amos R. McMullian........................................... 160,640 *
J.V. Shields, Jr............................................ 1,076,899(9) 5.42%
Marta J. Turner............................................. 2,074 *
Jackie M. Ward.............................................. 1,250 *
C. Martin Wood III.......................................... 686,464(10) 3.46%
Jimmy M. Woodward........................................... 2,684 *
All directors and executive officers as a group (15
persons).................................................. 2,978,424 15.00%
|
* Represents beneficial ownership of less than 1% of Flowers Foods common stock.
(1) Includes 4,660 shares held by a family trust for which Mr. Baker is a
co-trustee.
(2) Includes 9,196 shares owned by the spouse of Mr. Beverly, as to which
shares Mr. Beverly disclaims any beneficial ownership.
(3) Includes 750 shares owned by the spouse of Mr. Burke, over which shares Mr.
Burke has investment authority.
(4) Includes 196,556 shares held by limited partnerships in which Mr. Crozer
and his spouse are the general partners. Also includes the following shares
as to which Mr. Crozer disclaims any beneficial ownership: (i) 1,518 shares
held by Mr. Crozer and his spouse as custodians for their minor son; (ii)
58,554 shares held by trusts for the benefit of Mr. Crozer's minor
children; and (iii) 371,253 shares owned by the spouse of Mr. Crozer.
(5) Includes the following shares as to which Mr. Deese disclaims any
beneficial ownership: (i) 4,416 shares owned by the spouse of Mr. Deese;
and (ii) 242 shares held by Mr. Deese as custodian for his minor
grandchildren.
(6) Includes 61,368 shares owned by the spouse of Mr. Flowers, as to which Mr.
Flowers disclaims any beneficial ownership.
(7) Includes 6,000 shares held by a limited partnership in which Mr. Harrison
is a general partner. Also includes 8,000 shares owned by the spouse of Mr.
Harrison, as to which Mr. Harrison disclaims any beneficial ownership.
(8) Includes 4,778 shares owned by the spouse of Mr. Lanier, as to which Mr.
Lanier disclaims any beneficial ownership.
(9) Includes: (i) 426,599 shares held by investment advisory clients of Capital
Management Associates, Inc., of which Mr. Shields is chairman of the board
of directors and chief executive officer, and (ii) 646,300 shares owned by
the spouse of Mr. Shields, as to which Mr. Shields disclaims beneficial
ownership. Mr. Shields' business address is Shields & Company, 140
Broadway, New York, NY 10005.
(10) Includes 10,260 shares held by a trust of which Mr. Wood is co-trustee and
the following shares, as to which Mr. Wood disclaims beneficial ownership:
(i) 1,118 shares held by a trust for which Mr. Wood
serves as a trustee; (ii) 575,539 shares owned by the spouse of Mr. Wood; and (iii) 5,130 shares held by Mr. Wood as custodian for his nephew.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Not applicable.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) List of documents filed as part of this report.
1. Financial Statements of the Registrant
Report of Independent Accountants
Consolidated Statement of Income for the fifty-two weeks ended December 30, 2000, January 1, 2000, and January 2, 1999.
Consolidated Balance Sheet at December 30, 2000 and January 1, 2000.
Consolidated Statement of Changes in Shareholders' Equity for the fifty-two weeks ended December 30, 2000, January 1, 2000 and January 2, 1999.
Consolidated Statement of Cash Flows for the fifty-two weeks ended December 30, 2000, January 1, 2000 and January 2, 1999.
Notes to Consolidated Financial Statements
2. Financial Statement Schedules of the Registrant
Schedule II -- Valuation and Qualifying Accounts -- for the fiscal years ended December 30, 2000, January 1, 2000 and January 2, 1999
3. Exhibits. The following documents are filed as exhibits hereto:
EXHIBIT
NO. NAME OF EXHIBIT
------- ---------------
2.1 -- Distribution Agreement by and between Flowers Industries,
Inc. and Flowers Foods, Inc., dated as of October 26, 2000
(Incorporated by reference to Flowers Foods' Registration
Statement on Form 10, dated February 9, 2001, File No.
1-16247).
2.2 -- Amendment No. 1 to Distribution Agreement, dated as of March
12, 2001, between Flowers Industries, Inc. and Flowers
Foods, Inc.
3.1 -- Restated Articles of Incorporation of Flowers Foods, Inc.
3.2 -- Restated Bylaws of Flowers Foods, Inc.
4.1 -- Share Certificate of Common Stock of Flowers Foods, Inc.
4.2 -- Rights Agreement between Flowers Foods, Inc. and First Union
National Bank, as Rights Agent, dated March 23, 2001.
10.1 -- Employee Benefits Agreement by and between Flowers
Industries, Inc. and Flowers Foods, Inc., dated as of
October 26, 2000 (Incorporated by reference to Flowers
Foods' Registration Statement on Form 10, dated February 9,
2001, File No. 1-16247).
10.2 -- First Amendment to Employee Benefits Agreement by and
between Flowers Industries, Inc. and Flowers Foods, Inc.,
dated as of February 6, 2001 (Incorporated by reference to
Flowers Foods' Registration Statement on Form 10, dated
February 9, 2001, File No. 1-16247).
10.3 -- Flowers Foods, Inc. Retirement Plan No. 1.
|
EXHIBIT
NO. NAME OF EXHIBIT
------- ---------------
10.4 -- Flowers Foods, Inc. 2001 Equity and Performance Incentive
Plan.
10.5 -- Credit Agreement, dated as of March 26, 2001, among Flowers
Foods, Inc., the Lenders party thereto from time to time,
SunTrust Bank, as Syndication Agent and Bankers Trust
Company, as Administrative Agent.
10.6 -- Debenture Tender Agreement, dated as of March 12, 2001, by
and among Flowers Industries, Inc., Flowers Foods, Inc. and
the Holders.
21 -- Subsidiaries of Flowers Foods, Inc.
|
(b) Reports on Form 8-K:
None.
SIGNATURES
Pursuant to the requirements of Section 13 and 15(d) of the Securities Exchange Act of 1934, Flowers Foods, Inc. has duly caused this Form 10-K to be signed on its behalf by the undersigned, thereunto duly authorized on this 30th day of March, 2001.
FLOWERS FOODS, INC.
/s/ AMOS R. MCMULLIAN
--------------------------------------
Amos R. McMullian
Chairman of the Board and
Chief Executive Officer
/s/ JIMMY M. WOODWARD
--------------------------------------
Jimmy M. Woodward
Vice President, Chief Financial
Officer and
Chief Accounting Officer
|
Pursuant to the requirements of the Securities Exchange Act of 1934, this Form 10-K has been signed below by the following persons on behalf of Flowers Foods, Inc. and in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ AMOS R. MCMULLIAN Chairman of the Board and March 30, 2001
--------------------------------------------------- Chief Executive Officer
Amos R. McMullian
/s/ JIMMY M. WOODWARD Vice President, Chief March 30, 2001
--------------------------------------------------- Financial Officer and
Jimmy M. Woodward Chief Accounting Officer
/s/ EDWARD L. BAKER Director March 30, 2001
---------------------------------------------------
Edward L. Baker
/s/ JOE E. BEVERLY Director March 30, 2001
---------------------------------------------------
Joe E. Beverly
/s/ FRANKLIN L. BURKE Director March 30, 2001
---------------------------------------------------
Franklin L. Burke
/s/ G. ANTHONY CAMPBELL Secretary and General Counsel March 30, 2001
--------------------------------------------------- and Director
G. Anthony Campbell
/s/ ROBERT P. CROZER Director March 30, 2001
---------------------------------------------------
Robert P. Crozer
/s/ LANGDON S. FLOWERS Director March 30, 2001
---------------------------------------------------
Langdon S. Flowers
/s/ JOSEPH L. LANIER, JR. Director March 30, 2001
---------------------------------------------------
Joseph L. Lanier, Jr.
/s/ J.V. SHIELDS, JR. Director March 30, 2001
---------------------------------------------------
J.V. Shields, Jr.
/s/ JACKIE M. WARD Director March 30, 2001
---------------------------------------------------
Jackie M. Ward
/s/ C. MARTIN WOOD III Director March 30, 2001
---------------------------------------------------
C. Martin Wood III
|
FLOWERS FOODS, INC. AND SUBSIDIARIES
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
PAGE
----
Report of independent accountants........................... F-2
Consolidated statement of income for the fifty-two weeks
ended December 30, 2000, January 1, 2000 and January 2,
1999...................................................... F-3
Consolidated balance sheet at December 30, 2000 and January
1, 2000................................................... F-4
Consolidated statement of changes in shareholders' equity
for the fifty-two weeks ended December 30, 2000, January
1, 2000 and January 2, 1999............................... F-5
Consolidated statement of cash flows for the fifty-two weeks
ended December 30, 2000, January 1, 2000 and January 2,
1999...................................................... F-6
Notes to consolidated financial statements.................. F-7
|
REPORT OF INDEPENDENT ACCOUNTANTS
To Board of Directors and Shareholders of Flowers Foods, Inc.:
In our opinion, the consolidated financial statements listed in the accompanying index present fairly, in all material respects, the financial position of Flowers Foods, Inc. and its subsidiaries at December 30, 2000, and January 1, 2000, and the results of their operations and their cash flows for each of the three years in the period ended December 30, 2000 in conformity with accounting principles generally accepted in the United States of America. In addition, in our opinion, the financial statement schedule listed in the index appearing under Item 14(a)(2) on page 30 present fairly, in all material respects, the information set forth therein when read in conjunction with the related consolidated financial statements. These financial statements and financial statement schedule are the responsibility of the Company's management; our responsibility is to express an opinion on these financial statements and financial statement schedule based on our audits. We conducted our audits of these statements in accordance with auditing standards generally accepted in the United States of America, which require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
/s/ PricewaterhouseCoopers LLP Atlanta, Georgia March 27, 2001 |
FLOWERS FOODS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF INCOME
FOR THE 52 WEEKS ENDED
--------------------------------------------
DECEMBER 30, JANUARY 1, JANUARY 2,
2000 2000 1999
-------------- ------------ ------------
(AMOUNTS IN THOUSANDS EXCEPT PER SHARE DATA)
Sales................................................... $1,619,980 $1,568,240 $1,538,887
Materials, supplies, labor and other production costs... 900,198 883,882 795,084
Selling, marketing and administrative expenses.......... 642,535 643,432 583,352
Depreciation and amortization........................... 67,102 53,890 53,544
Insurance proceeds...................................... (17,193) -- --
Non-recurring charge (credit)........................... 17,704 (5,994) 64,461
---------- ---------- ----------
Income (loss) from operations........................... 9,634 (6,970) 42,446
---------- ---------- ----------
Interest expense........................................ 68,373 44,691 42,225
(Loss) income from continuing operations before income
taxes and cumulative effect of a change in accounting
principle............................................. (58,739) (51,661) 221
Income taxes............................................ (16,457) (16,915) 1,429
---------- ---------- ----------
(Loss) from continuing operations before cumulative
effect of a change in accounting principle............ (42,282) (34,746) (1,208)
---------- ---------- ----------
Discontinued operations (Note 3):
Income from discontinued operations, less applicable
taxes of $59,822, $40,246 and $40,129.............. 87,809 42,040 46,238
Transaction costs less phase-out income, less
applicable taxes................................... (40,482) -- --
---------- ---------- ----------
Income from discontinued operations..................... 47,327 42,040 46,238
---------- ---------- ----------
Income before cumulative effect of a change in
accounting principle.................................. 5,045 7,294 45,030
Cumulative effect of a change in accounting principle,
net of tax benefit of $2,237.......................... -- -- (3,131)
---------- ---------- ----------
Net income.............................................. $ 5,045 $ 7,294 $ 41,899
========== ========== ==========
Net Income (Loss) Per Common Share:
Basic:
(Loss) from continuing operations before cumulative
effect of a change in accounting principle......... $ (2.11) $ (1.74) $ (0.06)
Income from discontinued operations................... 2.36 2.10 2.40
Cumulative effect of a change in accounting principle,
net of tax benefit................................. -- -- (0.16)
---------- ---------- ----------
Net income per share.................................. $ .25 $ 0.36 $ 2.18
========== ========== ==========
Weighted average shares outstanding................... 20,024 20,022 19,279
========== ========== ==========
Diluted:
(Loss) from continuing operations before cumulative
effect of a change in accounting principle......... $ (2.11) $ (1.73) $ (0.06)
Income from discontinued operations................... 2.36 2.09 2.39
Cumulative effect of a change in accounting principle,
net of tax benefit................................. -- -- (0.16)
---------- ---------- ----------
Net income per share.................................. $ .25 $ 0.36 $ 2.17
========== ========== ==========
Weighted average shares outstanding................... 20,066 20,084 19,360
========== ========== ==========
|
See accompanying notes to consolidated financial statements.
FLOWERS FOODS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
DECEMBER 30, 2000 JANUARY 1, 2000
------------------- -----------------
(AMOUNTS IS THOUSANDS, EXCEPT SHARE DATA)
ASSETS
Current Assets:
Cash and cash equivalents................................. $ 11,845 $ 18,665
Accounts and notes receivable, net........................ 113,099 120,887
Inventories, net:
Raw materials........................................... 26,583 34,230
Packaging materials..................................... 12,048 15,973
Finished goods.......................................... 49,276 50,991
Other................................................... 2,524 3,451
---------- ----------
90,431 104,645
---------- ----------
Other..................................................... 51,925 85,516
---------- ----------
267,300 329,713
---------- ----------
Property, Plant and Equipment:
Land...................................................... 33,386 33,322
Buildings................................................. 264,889 247,909
Machinery and equipment................................... 567,682 521,144
Furniture, fixtures and transportation equipment.......... 64,596 51,610
Construction in progress.................................. 1,081 59,389
---------- ----------
931,634 913,374
Less: accumulated depreciation.............................. (362,160) (316,766)
---------- ----------
569,474 596,608
---------- ----------
Deferred Income Taxes....................................... 15,207 --
Other Assets................................................ 17,856 15,209
---------- ----------
Net Assets of Discontinued Operations....................... 567,449 496,678
---------- ----------
Cost in Excess of Net Tangible Assets:
Cost in excess of net tangible assets..................... 166,242 154,828
Less: accumulated amortization............................ (40,882) (26,073)
---------- ----------
125,360 128,755
---------- ----------
$1,562,646 $1,566,963
========== ==========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities:
Current maturities of long-term debt...................... $ 7,515 $ 9,783
Accounts payable.......................................... 100,775 100,291
Facility closing costs and severance...................... 5,465 5,546
Other accrued liabilities................................. 68,612 59,941
---------- ----------
182,367 175,561
---------- ----------
Long-Term Debt and Capital Leases........................... 247,847 303,955
---------- ----------
Other Liabilities:
Deferred income taxes..................................... -- 7,012
Postretirement/postemployment obligations................. 22,331 12,287
Facility closing costs and severance...................... 13,891 18,126
Liabilities to be Settled by Others....................... 584,198 496,368
Other..................................................... 9,552 14,900
---------- ----------
629,972 548,693
---------- ----------
Shareholders' Equity:
Preferred Stock -- $100 par value, authorized 100,000
shares and none issued..................................
Preferred Stock -- $.01 par value, authorized 900,000
shares and none issued..................................
Common stock $.01 par value, authorized 100,000,000
shares, 19,865,964 issued............................... 199 63,040
Capital in excess of par value............................ 351,506 291,377
Retained earnings......................................... 164,135 219,279
Common stock in treasury.................................. -- (10,594)
Stock compensation adjustments............................ (13,380) (24,348)
---------- ----------
502,460 538,754
---------- ----------
$1,562,646 $1,566,963
========== ==========
|
See accompanying notes to consolidated financial statements.
FLOWERS FOODS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CHANGES IN SHAREHOLDERS' EQUITY
TREASURY STOCK
COMMON STOCK --------------------
------------------------- STOCK
NUMBER OF CAPITAL IN RETAINED NUMBER OF COMPENSATION
SHARES ISSUED PAR VALUE EXCESS OF PAR EARNINGS SHARES COST ADJUSTMENTS
------------- --------- ------------- -------- --------- -------- ------------
(AMOUNTS IN THOUSANDS, EXCEPT SHARE DATA)
Balances at January 3, 1998 88,636,089.. $ 55,398 $ 45,200 $266,734 (207,670) $ (2,452) $(16,313)
Common stock offering................ 9,000,000 5,625 182,305 -- -- -- --
Stock issued for acquisition......... 2,000,000 1,250 38,750 -- -- -- --
Exercise of employee stock options... 225,000 141 2,797 -- (61,424) (2,419) --
Exercise of Equity Incentive Award... -- -- 452 -- (44,263) (982) 524
Purchase of treasury stock........... -- -- -- -- (24,414) (532) --
Net income for the year.............. -- -- -- 41,899 -- -- --
Adjustment for Keebler stock
transactions....................... -- -- (3,677) -- -- -- --
Stock issued into escrow in
connection with Restricted Stock
Award.............................. 345,973 216 8,653 -- -- -- (8,869)
Restricted Stock Award reversions.... (4,648) (3) (225) -- (43,595) (377) 513
Amortization of Restricted Stock
Award
and Equity Incentive Award......... -- -- -- -- -- -- 4,455
Dividends paid -- $.4750 per common
share.............................. -- -- -- (46,102) -- -- --
----------- -------- -------- -------- --------- -------- --------
Balances at January 2, 1999.......... 100,202,414 $ 62,627 $274,255 $262,531 (381,366) $ (6,762) $(19,690)
Net income for the year.............. -- -- -- 7,294 -- -- --
Adjustment for Keebler stock
transactions....................... -- -- 2,907 -- -- -- --
Exercise of employee stock options... -- -- (750) -- 78,044 1,494 --
Exercise of Equity Incentive Award... -- -- 1,043 -- (91,547) (2,161) 1,025
Exercise of Restricted Stock Award... -- -- 1,917 -- (121,078) (2,497) 1,666
Purchase of treasury stock........... -- -- -- -- (15,053) (335) --
Stock issued into escrow in
connection with Restricted Stock
Award.............................. 673,800 420 12,376 -- -- -- (12,796)
Restricted Stock Award reversions.... (12,366) (7) (371) -- (36,160) (333) 450
Amortization of Restricted Stock
Award and Equity Incentive Award... -- -- -- -- -- -- 4,997
Dividends paid -- $.515 per common
share.............................. -- -- -- (50,546) -- -- --
----------- -------- -------- -------- --------- -------- --------
Balances at January 1, 2000.......... 100,863,848 $ 63,040 $291,377 $219,279 (567,160) $(10,594) $(24,348)
Net income for the year.............. -- -- -- $ 5,045 -- -- --
Adjustment for Keebler stock
transactions....................... -- -- 3,752 -- -- -- --
Exercise of employee stock options... -- -- (1,658) -- 188,709 3,488 --
Exercise and expiration of Restricted
Stock Award........................ (325,541) (204) (3,652) -- (33,685) (659) 7,446
Purchase of treasury stock........... -- -- -- -- (2,810) (41) --
Stock issued into escrow in
connection with Restricted Stock
Award.............................. 22,500 14 255 -- -- -- (270)
Restricted Stock Award reversions.... (36,595) (22) (1,022) -- (28,945) (288) 940
Amortization of Restricted Stock
Award.............................. -- -- 102 -- -- -- 2,852
Dividends paid -- $.530 per common
share.............................. -- -- -- (52,372) -- -- --
Adjustment for merger and spin-off
transaction, including 1 for 5
stock split........................ (80,658,248) (62,629) 62,352 (7,817) 443,891 8,094 --
----------- -------- -------- -------- --------- -------- --------
Balances at December 30, 2000........ 19,865,964 $ 199 $351,506 $164,135 -- $ -- (13,380)
=========== ======== ======== ======== ========= ======== ========
|
See accompanying notes to consolidated financial statements.
FLOWERS FOODS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CASH FLOWS
FOR THE 52 WEEKS ENDED
-----------------------------------------------------
DECEMBER 30, 2000 JANUARY 1, 2000 JANUARY 2, 1999
----------------- --------------- ---------------
(AMOUNTS IN THOUSANDS)
Cash flows provided by operating activities:
Net income............................................. $ 5,045 $ 7,294 $ 41,899
Adjustments to reconcile net income to net cash
provided by operating activities:
Income from discontinued operations, net of taxes.... (47,327) (42,040) (46,238)
Depreciation and amortization........................ 67,102 53,890 53,544
Non-recurring charge (credit)........................ 17,704 (5,994) 64,461
Deferred income taxes................................ (19,328) (7,724) (13,815)
Income tax benefit related to stock options
exercised.......................................... 2,634 3,273 2,504
Cumulative effect of a change in accounting
principles......................................... -- -- 5,368
(Gain) loss on sale of property, plant and
equipment.......................................... (569) 408 (1,051)
Provision for inventory obsolescence................. 2,558 6,312 --
Allowances for account receivable.................... 5,875 13,413 --
Other................................................ 2,808 3,657 (1,127)
Changes in assets and liabilities, net of acquisitions:
Accounts and notes receivable, net................... 1,913 (16,238) (6,248)
Inventories, net..................................... 12,076 20,402 (21,998)
Other assets......................................... 22,465 (19,554) (39,529)
Accounts payable and other accrued liabilities....... 1,400 43,516 23,970
Facility closing costs and severance................. (4,316) (14,748) (4,425)
-------- --------- --------
Net cash provided by operating activities....... 70,040 45,867 57,315
-------- --------- --------
Cash flows from investing activities:
Purchase of property, plant and equipment.............. (39,925) (213,328) (73,477)
Acquisition of majority interest in Keebler............ -- -- (312,391)
Acquisition of businesses.............................. (22,070) (10,772) (37,650)
Proceeds from property sales........................... 17,983 285 7,741
Dividends received..................................... 20,788 -- --
Other.................................................. (1,389) (493) 1,378
-------- --------- --------
Net cash disbursed for investing activities..... (24,613) (224,308) (414,399)
-------- --------- --------
Cash flows from financing activities:
Dividends paid......................................... (52,372) (50,546) (46,102)
Treasury stock purchases............................... (41) (338) 546
Stock awards exercised................................. 4,567 2,147 167
Common stock offering proceeds, net.................... -- -- 187,930
Debenture proceeds, net................................ -- -- 197,667
Increase (decrease) in commercial paper................ -- (74,870) 21,364
Increase (decrease) in debt and capital leases......... (4,401) 289,686 24,539
-------- --------- --------
Net cash (disbursed for) provided by financing
activities.................................... (52,247) 166,079 386,111
-------- --------- --------
Net increase (decrease) in cash and cash equivalents..... (6,820) (12,362) 29,027
Cash and cash equivalents at beginning of period......... 18,665 31,027 2,000
-------- --------- --------
Cash and cash equivalents at end of period............... $ 11,845 $ 18,665 $ 31,027
======== ========= ========
Schedule of noncash investing and financing activities:
Stock compensation transactions........................ $ 2,972 $ 4,658 $ 20,431
Stock issued for acquisitions.......................... $ -- $ -- $ 40,000
Capital lease obligations.............................. $ -- $ 47,406 $ --
Supplemental disclosures of cash flow information:
Cash paid (refunded) during the period for:
Interest, net of amounts capitalized................. $ 65,182 $ 52,011 $ 35,439
Income taxes......................................... $(14,772) $ (11,319) $ 19,963
|
See accompanying notes to consolidated financial statements.
FLOWERS FOODS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1. BASIS OF PRESENTATION
On March 26, 2001, FII shareholders approved a transaction that resulted in the spin-off of Flowers Foods and the merger of FII with a wholly-owned subsidiary of Kellogg. In the transaction, FII transferred the stock of its two wholly-owned subsidiaries, Flowers Bakeries and Mrs. Smith's Bakeries, and all other assets and liabilities directly held by FII (except for its majority interest in Keebler and certain debt and other liabilities and transaction costs totaling $698.7 million) to Flowers Foods. FII distributed all of the outstanding shares of common stock of Flowers Foods to existing FII shareholders such that each shareholder received one share of Flowers Foods stock for every five shares of FII they owned. FII, which consisted solely of its majority interest in Keebler and the aforementioned liabilities, was simultaneously merged with a wholly-owned subsidiary of Kellogg. The cash purchase price paid by Kellogg, less the aforementioned liabilities and certain other transaction costs, resulted in proceeds paid directly to FII shareholders of $1,241.6 million.
The result of the spin-off and merger transaction described above is the disposal of a segment of a business, Keebler. Accordingly, for accounting purposes, Flowers Foods is presented as the continuing entity that includes the historical financial information of Flowers Bakeries and Mrs. Smith's Bakeries with Keebler presented as a discontinued operation as of December 30, 2000. As such, Flowers Foods has classified all balance sheet information relating to the spin-off and merger transaction for the years ended December 30, 2000 and January 1, 2000 under the captions "Net Assets of Discontinued Operations" and "Liabilities to be Settled by Others" in the Consolidated Balance Sheet, as appropriate, and all income and expense activity (including amortization of Keebler goodwill and other intangible assets recorded at FII) of Keebler for the fiscal years ended December 30, 2000, January 1, 2000, and January 2, 1999 under the caption "Income from discontinued operations, less applicable taxes" in the Consolidated Statement of Income. In addition, costs related to the transactions, less all estimated income and expense activity of Keebler from the period December 31, 2000 through March 26, 2001, is included under the caption "Transaction costs less phase-out income, less applicable taxes in the Consolidated Statement of Income. For further information, see Note 3 of Notes to Consolidated Financial Statements.
NOTE 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
PRINCIPLES OF CONSOLIDATION
The Consolidated Financial Statements include the accounts of Flowers Foods which represent the historical financial information of Flowers Bakeries and Mrs. Smith's Bakeries with Keebler presented as a discontinued operation. Intercompany transactions and balances are eliminated in consolidation.
FISCAL YEAR END
Flowers Foods fiscal year end is the Saturday nearest December 31.
RECLASSIFICATIONS
Certain reclassifications of prior year information were made to conform with the current presentation.
REVENUE RECOGNITION
Revenue from the sale of product is recognized at the time of delivery when title and risk of loss pass to the customer. Discounts to independent distributors are included in selling, marketing and administrative expense. During fiscal 2000 and 1998 no sales to a single customer accounted for more than 10% of the company's sales. Sales to one customer (Winn-Dixie) were 10.2% of the company's sales in fiscal 1999.
FLOWERS FOODS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
SHIPPING AND HANDLING
The company recognizes shipping and handling costs as a part of selling, marketing and administrative costs. Shipping and handling expense was $27.1 million, $31.2 million and $26.0 million, in fiscal 2000, 1999 and 1998, respectively.
CASH AND CASH EQUIVALENTS
The company considers deposits in banks, certificates of deposits and short-term investments with original maturities of three months or less as cash and cash equivalents.
ACCOUNTS RECEIVABLE
Accounts receivable consists of trade receivables, current portion of notes receivable and miscellaneous receivables. Allowances of $19.3 million and $13.4 million were recorded at December 30, 2000 and January 1, 2000, respectively.
CONCENTRATION OF CREDIT RISK
The company grants credit to its customers who are primarily in the grocery and foodservice markets.
INVENTORIES
Inventories are carried at the lower of cost or market. Inventories at December 30, 2000 and January 1, 2000, respectively, are valued using the first-in-first-out method ("FIFO"). At December 30, 2000 and January 1, 2000, inventories are shown net of allowances for slow-moving and aged inventory of $3.1 million and $6.3 million, respectively.
PROPERTY, PLANT AND EQUIPMENT AND DEPRECIATION
Property, plant and equipment is stated at cost. Depreciation expense is computed using the straight-line method based on the estimated useful lives of the depreciable assets. Certain facilities and equipment held under capital leases are classified as property, plant and equipment and the related obligations are recorded as liabilities. Lease amortization is included in depreciation expense.
Buildings are depreciated over ten to forty years, machinery and equipment over three to twenty-five years, and furniture, fixtures and transportation equipment over three to fifteen years. Property under capital leases is amortized over the lease term. Capitalized interest at December 30, 2000 and January 1, 2000, was $1.0 million and $3.4 million, respectively. Depreciation expense for fiscal 2000, 1999 and 1998 was $59.7 million, $48.6 million and $49.3 million, respectively.
SERVICING INCOME
Prior to March 26, 2001, Flowers Foods' independent distributor loans were made directly between the distributor and a financial institution and, pursuant to an agreement, Flowers Foods acted as the servicing agent for the financial institution and received a fee for these services which is classified as other income in selling, general and administrative costs. Commencing late March 2001, the company will provide financing arrangements for the purchase of routes directly to the distributors.
FLOWERS FOODS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
COST IN EXCESS OF NET TANGIBLE ASSETS
DECEMBER 30, 2000 JANUARY 1, 2000
----------------- ---------------
(AMOUNTS IN THOUSANDS)
Goodwill, net............................................... $ 97,980 $100,269
Trademarks and trade names, net............................. 27,380 28,486
-------- --------
$125,360 $128,755
======== ========
|
Costs in excess of the net tangible assets acquired are, in the opinion of management, attributable to long-lived intangibles having continuing value. Goodwill related to the purchases of businesses are amortized over twenty to forty years from the acquisition date using the straight-line method. Costs of purchased trademark and trade name rights are amortized over the period of expected future benefit, ranging from ten to forty years. Amortization expense, included in income from continuing operations, for fiscal 2000, 1999 and 1998 was $7.4 million, $5.3 million and $4.2 million, respectively. The carrying value of goodwill is evaluated periodically in relation to the operating performance and future undiscounted cash flows of the underlying businesses.
DERIVATIVE FINANCIAL INSTRUMENTS
The company uses derivative financial instruments as part of an overall strategy to manage market risk. The company uses forward commodity futures and options contracts to hedge existing or future exposure to changes in commodity prices. The company does not enter into these derivative financial instruments for trading or speculative purposes.
In June 1998, the Financial Accounting Standards Board ("FASB") issued Statement of Financial Accounting Standards No. 133, Accounting for Derivative Instruments and Hedging Activities. The standard, as amended by Statement of Financial Accounting Standards No. 137, Accounting for Derivative Instruments and Hedging Activities Deferral of the Effective Date of FASB Statement No. 133, an amendment of FASB Statement No. 133, and Statement of Financial Accounting Standards No. 138, Accounting for Certain Derivative Instruments and Certain Hedging Activities, an amendment of FASB Statement No. 133 (referred to hereafter as "FAS 133"), is effective for the company on December 31, 2000 (the first day of fiscal year 2001). FAS 133 requires that all derivative instruments be recorded on the balance sheet at their fair value. Changes in the fair value of derivatives are recorded each period in current earnings or in other comprehensive income, depending on whether a derivative is designated as part of a hedging relationship and, if it is, depending on the type of hedging relationship.
While FAS 133 provides a significant change in the accounting guidance related to derivative instruments and hedging activities, the company has determined that the more stringent accounting and documentation requirements under FAS 133 will not cause any significant changes in its overall risk management strategy and in its overall hedging activities.
In accordance with the transition provisions of FAS 133, on December 31, 2000, the company recorded a net-of-tax cumulative-effect-type adjustment of $(0.5) million in accumulated other comprehensive income to recognize at fair value all derivative instruments that had previously been designated in a hedging relationship of the variable cash flow exposure of a forecasted (anticipated) transaction. Related gains of $6.0 million, deferred on the balance sheet, were reclassified to shareholders' equity through a net-of-tax cumulative-effect-type adjustment in other comprehensive income.
COUPONS
On May 18, 2000, the Emerging Issues Task Force ("EITF") of the FASB reached consensus on Issue No. 00-14 Accounting for Certain Sales Incentives. This issue addresses the recognition, measurement, and
FLOWERS FOODS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
income statement classification of sales incentives offered by vendors (including manufacturers) that have the effect of reducing the price of a product or service to a customer at the point of sale. For cash sales incentives within the scope of this issue, costs are generally recognized at the date on which the related revenue is recorded by the vendor and are to be classified as a reduction of revenue. For non-cash sales incentives, such as package inserts, costs are to be classified within cost of sales. This issue is effective for the company for the second quarter of fiscal 2001. Management has assessed the impact of this guidance and determined that adoption will not result in a material reclassification between sales and selling, general, and administrative expense. The company currently records coupon expenses as selling, marketing and administrative expenses. Coupon expenses were $2.6 million, $2.2 million and $2.1 million, for the fiscal years 2000, 1999 and 1998, respectively. Upon adoption of EITF 00-14, the company will record coupon expense as a reduction to arrive at sales. This issuance will not affect net income.
CUSTOMER INCENTIVES
In January 2001, the EITF reached a consensus on how a vendor should account for an offer to a customer to rebate or refund a specified amount of cash only if the customer completes a specified cumulative level of revenue transactions or remains a customer for a specified time period. This issue is one of many issues contained in EITF 00-22, Accounting for "Points" and Certain Other Time-Based or Volume-Based Sales Incentive Offers, and Offers for Free Products or Services to be Delivered in the Future. This consensus states that a vendor should recognize a liability for the rebate at the point of revenue recognition for the underlying revenue transactions that result in progress by the customer toward earning the rebate. Measurement of the liability should be based on the estimated number of customers that will ultimately earn and claim rebates or refunds under the offer. The vendor should classify the cost of the rebate as a reduction of revenue in the income statement. This consensus is effective for the company in the first quarter of fiscal 2001. The company currently records such sales incentives as selling, marketing and administrative expenses. Such expenses were $51.4 million, $56.9 million and $51.9 million for fiscal years 2000, 1999 and 1998, respectively. Upon adoption of this consensus, the company will record such expenses as reductions to arrive at sales. This consensus will not affect net income.
TREASURY STOCK
The company records acquisitions of its common stock for treasury at cost. Differences between proceeds for reissuances of treasury stock and average cost are credited or charged to capital in excess of par value to the extent of prior credits and thereafter to retained earnings.
ADVERTISING AND CONSUMER PROMOTION
Advertising and consumer promotion costs are generally expensed as incurred or no later than when the advertisement appears or the event is run. Advertising and consumer promotion expense was approximately $16.3 million for fiscal 2000, $23.9 million for fiscal 1999 and $21.2 million for fiscal 1998.
STOCK-BASED COMPENSATION
The company applies Accounting Principles Board Opinion No.
25 -- Accounting for Stock Issued to Employees ("APB 25") in accounting for its
plans. The excess of the market price at the date of grant over the purchase
price to be paid by the grantee, if any, is recognized ratably by the company,
as compensation expense, over the vesting period.
IMPAIRMENT OF LONG-LIVED ASSETS
The company determines whether there has been an impairment of long-lived assets and the related unamortized goodwill, based on whether certain indicators of impairment are present. In the event that facts
FLOWERS FOODS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
and circumstances indicate that the cost of any long-lived assets and the related unamortized goodwill may be impaired, an evaluation of recoverability would be performed. If an evaluation is required, the estimated future gross, undiscounted cash flows associated with the asset would be compared to the asset's carrying amount to determine if a write-down to market value or discounted cash flow value is required.
SOFTWARE DEVELOPMENT COSTS
The company expenses software development costs incurred in the preliminary project stage, and thereafter, capitalizes costs incurred in developing or obtaining internally used software.
Certain costs, such as maintenance and training, are expensed as incurred. Capitalized costs are amortized over a period of not more than five years and are subject to impairment evaluation. The Company capitalized software development costs of $5.1 million and $14.7 million in fiscal 2000 and fiscal 1999, respectively.
NET INCOME PER COMMON SHARE
Basic net income per share is computed by dividing net income by weighted average common shares outstanding for the period. Diluted net income per share is computed by dividing net income by weighted average common and common equivalent shares outstanding for the period. Common stock equivalents consist of the incremental shares associated with the company's stock option plans, as determined under the treasury stock method.
CHANGES IN ACCOUNTING PRINCIPLES
On April 3, 1998, the Accounting Standards Executive Committee, a subcommittee of the American Institute of Certified Public Accountants, issued SOP 98-5 -- Reporting on the Costs of Start-Up Activities. SOP 98-5 requires costs of start-up activities and organizational costs to be expensed as incurred. As a result of adopting SOP 98-5, the company recorded a cumulative after-tax charge of $3.1 million, or $0.16 per share, in fiscal 1998.
COMPREHENSIVE INCOME
During fiscal 2000 and the prior periods presented, total comprehensive income equaled net income.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.
NOTE 3. DISCONTINUED OPERATIONS
On March 26, 2001, FII completed a transaction that resulted in the spin-off to its existing shareholders of the stock of a new corporation, Flowers Foods. FII, whose assets and liabilities then consisted of its holding of Keebler common stock and certain debt and other liabilities, was simultaneously acquired by Kellogg.
For accounting purposes, Flowers Foods is presented as the continuing entity that includes the historical financial information of Flowers Bakeries and Mrs. Smith's Bakeries with Keebler presented as a discontinued operation as of December 30, 2000. Accordingly, the operations (including amortization of Keebler goodwill and other intangible assets of $7.4 million, $6.6 million and $6.1 million for fiscal 2000, 1999 and 1998,
FLOWERS FOODS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
respectively) of Keebler are included in "Income from discontinued operations, less applicable taxes" in the Consolidated Statement of Income. In addition, costs related to the transactions less all estimated income and expense activity of Keebler from the period December 31, 2000 through March 26, 2001 is included under the caption "Transaction costs less phase-out income, less applicable taxes" in the Consolidated Statement of Income.
The spin-off and merger transaction consisted of the following:
- FII transferred the stock of its two wholly-owned subsidiaries, Flowers Bakeries and Mrs. Smith's Bakeries, and all other assets and liabilities directly held by FII, except for its majority interest in Keebler and certain other liabilities, to the newly formed company, Flowers Foods. At that point FII's sole asset was its majority interest in Keebler and $698.7 million in debt and certain other liabilities not transferred to Flowers Foods.
- All of the outstanding shares of Flowers Foods common stock were distributed to existing FII shareholders such that each shareholder received one share of Flowers Foods stock for every five shares of FII stock they owned.
- Kellogg then acquired all of the outstanding common stock of FII by way of a merger, immediately after the spin-off.
- Cash paid by Kellogg for FII less the $698.7 million of liabilities, transaction costs, separation agreement payments and other contractual payments under benefit programs, was distributed to the FII shareholders. The amount of the distribution paid directly to FII shareholders was $1,241.6 million.
Keebler's sales for fiscal 2000, 1999 and 1998 were $2,757.0 million, $2,667.8 million and $2,226.5 million, respectively.
TRANSACTION COSTS LESS PHASE-OUT INCOME
A reconciliation of the caption "Transaction costs less phase-out income, less applicable taxes" included in the Consolidated Statement of Income for the year ended December 30, 2000 is presented as follows:
Transaction costs........................................... $(51,282)
Estimated Keebler income and expense activity from the
period December 31, 2000 through March 26, 2001, less
applicable taxes of $6,619................................ $ 10,800
--------
$(40,482)
========
|
In connection with the spin-off and merger transactions, various transaction costs were incurred by FII and Keebler. These costs are included in discontinued operations, net of tax, at December 30, 2000 with a corresponding credit to "Liabilities to be Settled by Others" (see below).
Financial advisor fees...................................... $32,374
Early debt repayments penalties............................. 11,480
Legal, accounting, and other................................ 4,861
Deferred financing costs.................................... 2,567
-------
$51,282
=======
|
In the first quarter of fiscal year 2001, these amounts will be recorded in capital in excess of par value.
FLOWERS FOODS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
NET ASSETS OF DISCONTINUED OPERATIONS
At December 30, 2000 and January 1, 2000, net assets of discontinued operations is comprised of:
DECEMBER 30, 2000 JANUARY 1, 2000
----------------- ---------------
FLOWERS INDUSTRIES:
Goodwill and other intangible assets.................... $ 270,185 $ 276,764
Minority interest....................................... (257,086) (183,578)
Deferred taxes.......................................... (8,324) (5,823)
--------- ---------
4,775 87,363
--------- ---------
KEEBLER:
Current assets.......................................... 328,819 335,579
Property and equipment, net............................. 629,548 553,031
Other assets............................................ 814,521 639,573
Current liabilities..................................... (431,483) (457,485)
Other liabilities....................................... (778,731) (661,383)
--------- ---------
562,674 409,315
--------- ---------
Net assets of discontinued operations................... $ 567,449 $ 496,678
========= =========
|
LIABILITIES TO BE SETTLED BY OTHERS
In connection with the spin-off and merger transaction, approximately $698.7 million of debt and other liabilities were settled by other parties on March 26, 2001. The debt and liabilities settled included certain amounts outstanding at December 30, 2000 as well as amounts incurred subsequent to December 30, 2000. The amounts as of December 30, 2000 and corresponding balances at January 1, 2000 are set forth below. Additional liabilities settled relate primarily to additional borrowings subsequent to December 30, 2000 (See Note 5) and payments under compensation plans.
DECEMBER 30, 2000 JANUARY 1, 2000
----------------- ---------------
DEBT SETTLED BY KELLOGG:
Syndicated loan facility................................ $(405,000) $(350,000)
Senior notes............................................ (125,000) (125,000)
Other................................................... (9,990) (11,015)
--------- ---------
(539,990) (486,015)
--------- ---------
OTHER LIABILITIES:
Transaction costs less phase out income, less applicable
taxes................................................. (35,732) --
Accrued obligations under stock and incentive
programs.............................................. (5,997) (9,234)
Accrued interest on debt assumed........................ (2,479) (1,119)
--------- ---------
(44,208) (10,353)
--------- ---------
Liabilities to be settled by others..................... $(584,198) $(496,368)
========= =========
|
SEPARATION AND OTHER CONTRACTUAL PAYMENTS
In connection with the spin-off and merger transaction, various separation and other contractual payments under FII stock and incentive programs of $38.7 million were paid to executive officers and non-executive officers and employees. Of this amount, $6.0 million was accrued at December 30, 2000 and
FLOWERS FOODS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
$10.1 million will be recorded to stock compensation adjustments in shareholders' equity. Accordingly, a charge of $22.6 million will be recorded in Flowers Foods' continuing operations with a corresponding credit to capital in excess of par value in the first quarter of 2001.
NOTE 4. OTHER ACCRUED LIABILITIES
Other accrued liabilities consist of:
DECEMBER 30, JANUARY 1,
2000 2000
------------ ----------
(AMOUNTS IN THOUSANDS)
Employee compensation....................................... $18,005 $16,566
Rent........................................................ 7,191 1,550
Insurance................................................... 9,886 9,002
Interest.................................................... 6,001 3,144
Other....................................................... 27,529 29,679
------- -------
Total............................................. $68,612 $59,941
======= =======
|
NOTE 5. DEBT AND LEASE COMMITMENTS
Long-term debt consisted of the following at December 30, 2000 and January 1, 2000:
INTEREST FINAL DECEMBER 30, JANUARY 1,
RATE MATURITY 2000 2000
-------- --------- ------------ ----------
(AMOUNTS IN THOUSANDS)
Debentures.................................. 7.15% 2028 $200,000 $200,000
Commercial Paper............................ -- 2000 -- 25,027
Capital Lease Obligations................... 8.38% Various 45,282 51,317
Other....................................... 6.24% 2004-2017 10,080 37,394
-------- --------
255,362 313,738
-------- --------
Due within one year......................... 7,515 9,783
-------- --------
Due after one year.......................... $247,847 $303,955
======== ========
|
At December 30, 2000, in addition to the amounts shown above, FII had long-term debt outstanding consisting of $405 million of borrowings under a syndicated loan facility with a final maturity date of 2003, $125 million of senior notes due 2016 and certain Industrial Revenue Bonds aggregating $9.9 million. On March 26, 2001, this aggregate outstanding debt balance was retained by FII and settled in connection with the transaction discussed in Note 3. Accordingly, these amounts, as well as the corresponding amounts outstanding at January 1, 2000 ($486 million aggregate), are included in "Liabilities to be Settled by Others" in the Balance Sheet.
Subsequent to December 30, 2000, the company purchased certain fixed assets which were previously leased. In addition, the company purchased outstanding notes payable to SunTrust Bank from certain of the company's independent distributors in connection with the independent distributors' purchase of routes. On March 26, 2001, the company completed a tender offer for the $200 million aggregate principle amount of 7.15% Debentures due 2028 (the "debentures") and repurchased substantially all the debentures at a discount. Accordingly, in the first quarter of fiscal 2001 the company will record an extraordinary gain of approximately $5.0 million, net of tax, related to the early extinguishment of these debentures.
The purchase of the fixed assets, distributor notes and debentures was financed primarily from the proceeds of a new credit agreement entered into on March 26, 2001. The new credit agreement provides for
FLOWERS FOODS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
total borrowings of up to $380 million consisting of term loans of $100 million ("Term Loan A") and $150 million ("Term Loan B") and a revolving loan facility of $130 million (the "revolving loan facility").
As a result of the transaction discussed in the preceding paragraph, total debt outstanding (in thousands) at March 27, 2001 consisted of:
Revolving loan facility..................................... $ 11,190
Term Loan A................................................. 100,000
Term Loan B................................................. 150,000
Capitalized leases.......................................... 60,850
Other....................................................... 10,395
--------
$332,435
========
|
Term Loan A requires quarterly principal payments of $5.0 million beginning September 30, 2001, increasing to $5.6 million beginning March 31, 2002 and to $7.5 million beginning March 31, 2003 through maturity, March 26, 2005. Term Loan B requires quarterly principal payments of $0.38 million beginning September 30, 2001, increasing to $13.8 million beginning March 31, 2005 with a final payment of $34.8 million at maturity, March 26, 2007. Under the revolving loan facility the company may borrow up to $130.0 million through March 26, 2005.
Interest is due quarterly on outstanding borrowings under the new credit agreement at the eurodollar rate or base rate plus applicable margin. This underlying rate is defined as either rates offered in the interbank eurodollar market or the higher of the prime rate or federal funds rate plus 0.5%. The applicable margin is based on the company's leverage ratio and can range from 2.5% - 0.5% for Term Loan A and the revolving loan facility and 3.00% - 1.75% for Term Loan B. The current rate is approximately 7.75% for Term Loan A and the revolving loan facility and 8.25% for Term Loan B. In addition, a commitment fee of 0.5% - .375% is due quarterly on all commitments not utilized under the new credit agreement.
The new credit agreement includes certain restrictions, which, among other things, require maintenance of financial covenants, restrict encumbrance of assets and creation of indebtedness and limit capital expenditures, repurchases of common shares and dividends that can be paid. Restrictive financial covenants include such ratios as a consolidated interest coverage ratio, a consolidated fixed charge coverage ratio and a maximum leverage ratio. Capital expenditures cannot exceed $50.0 million in fiscal 2001 and 2002. No dividend can be paid in fiscal 2001. Commencing in fiscal 2002, the maximum amount of dividends that can be paid cannot exceed $5.0 million, unless certain requirements are met. Loans under the credit agreement are secured by substantially all assets of the company, excluding real property.
The company paid financing costs of $9.4 million in connection with the new credit agreement. These costs will be deferred on the balance sheet and amortized over the term of the agreement using the interest method.
Assets recorded under capital lease agreements included in property, plant and equipment consist of machinery and equipment.
The company has also guaranteed approximately $10.0 million of loans of its independent distributors, relating to distribution vehicle financing obtained by certain distributors from a third party.
FLOWERS FOODS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Aggregate maturities of debt outstanding, including capital leases, as of March 27, 2001 are as follows:
2001.................................................. $ 15,867
2002.................................................. 30,192
2003.................................................. 37,465
2004.................................................. 40,611
2005.................................................. 77,954
2006 and thereafter................................... 130,346
--------
Total....................................... $332,435
========
|
LEASES
The company leases certain property and equipment under various operating and capital lease arrangements that expire over the next 25 years. Most of these operating leases provide the company with the option, after the initial lease term, either to purchase the property at the then fair value or renew its lease at the then fair value for periods from one month to ten years. Future minimum lease payments under scheduled operating leases that have initial or remaining noncancelable terms in excess of one year, at March 27, 2001, are as follows (amounts in thousands):
2001........................................................ $17,632
2002........................................................ 14,253
2003........................................................ 12,355
2004........................................................ 10,958
2005........................................................ 9,887
2006 and thereafter......................................... 26,578
-------
Total minimum payments...................................... $91,663
=======
|
Rent expense for all operating leases amounted to $52.2 million for fiscal 2000, $46.1 million for fiscal 1999 and $22.6 million for fiscal 1998.
NOTE 6. FAIR VALUE OF FINANCIAL INSTRUMENTS
The fair market value of short and long-term borrowings was estimated using discounted cash flow analysis based on current interest rates which would be obtained for similar financial instruments. The carrying value of cash and cash equivalents and short-term debt approximates fair value, because of the short-term maturity of the instruments. The fair value of the company's long-term debt at March 27, 2001 approximated recorded value. The fair value of the company's outstanding commodity derivative financial instruments, based on the stated market value as of December 30, 2000 and January 1, 2000, was $.3 million and $43.3 million, respectively.
NOTE 7. COMMODITY PURCHASE AGREEMENTS
The company's primary raw materials are flour, sugar, shortening, fruits and dairy products. Amounts payable or receivable under the commodity agreements which qualify as hedges are recognized as deferred gains or losses when the positions are closed, and are charged or credited to cost of sales as the related raw materials are used in production. To qualify as a hedge, a commodity agreement must reduce the exposure of the company to price risk and must show high correlation of changes in value with the value of the hedged item. For fiscal 2000, 1999 and 1998, losses of $5.5 million, $2.7 million and $.3 million, respectively, were recorded. As of December 30, 2000 and January 1, 2000, deferred losses on closed contracts accounted for as hedges were $6.0 million and $5.8 million, respectively. Gains and losses on agreements which do not qualify as hedges are marked to market and recorded immediately as other income or expense. For fiscal 2000 and
FLOWERS FOODS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
1999, losses of $1.3 million and $3.5 million were recorded, respectively. For fiscal 1998, a gain of $1.1 million was recorded.
The company's various commodity purchase agreements effectively commit the company to purchase raw materials in amounts approximating $41.0 million at December 30, 2000, which will be used in production in future periods.
NOTE 8. FACILITY CLOSING COSTS AND SEVERANCE
NON-RECURRING CHARGES
During the fourth quarter of fiscal 2000, Mrs. Smith's Bakeries recorded an asset impairment of $17.4 million representing the impairment of goodwill and other identifiable intangible assets relating to the Pet-Ritz and Banquet lines, both of which were acquired in fiscal 1998. The impairment of these intangible assets is a result of the company's decision to discontinue certain products under the Banquet product line and decreased forecasted sales volumes for the Pet-Ritz and Banquet product lines.
During the fourth quarter of fiscal 2000, Mrs. Smith's Bakeries implemented a plan to transfer production from its facility in Forest Park, Georgia to an existing facility in Spartanburg, South Carolina. This decision was made to take advantage of more highly automated production capacities at the Spartanburg plant. As a direct result, Mrs. Smith's Bakeries recorded a charge of $1.5 million which consisted of $1.0 million of noncash asset impairments and $0.5 million of related exit costs. This plan is expected to be substantially complete by the second quarter of fiscal 2001.
During the fourth quarter of fiscal 1998, the Board of Directors of FII approved a plan to realign production and distribution at Flowers Bakeries and Mrs. Smith's Bakeries in order to enhance efficiency. The company recorded a pre-tax non-recurring charge of $64.5 million ($32.2 million and $32.3 million for Flowers Bakeries and Mrs. Smith's Bakeries, respectively). The charge included $55.6 million of noncash asset impairments, $3.6 million of severance costs and $5.3 million of other related exit costs. The plan involved closing six less efficient facilities of Flowers Bakeries and Mrs. Smith's Bakeries and shifting their production and distribution to highly automated facilities. As a direct result of management's decision to implement production line rationalizations, asset impairments were recorded to write-down the closed facilities to net realizable value, less cost to sell, based on management's estimate of fair value, and the related cost in excess of net tangible assets. Also, as part of this plan, asset impairments were recorded to write-off certain duplicate machinery and equipment designated for disposal. The plan included severance costs for 695 employees, and, as of January 1, 2000, all such employees had been terminated. During fiscal 2000, Flowers Bakeries recorded adjustments to the fiscal 1998 restructuring reserve of $1.2 million. This adjustment was the result of Flowers Bakeries' decision to reopen a closed bakery located in Norfolk, Virginia in order to meet the demands of our growing foodservice business. This bakery will be operational in the spring of 2001. During fiscal 1999, Flowers Bakeries and Mrs. Smith's Bakeries recorded adjustments to the fiscal 1998 restructuring reserve of $1.1 million and $4.9 million, respectively. These adjustments are the result of reduced carrying costs of plants held for sale, an adjustment to the value of these assets due to the identification of a buyer and changes in estimates of severance and other employee termination costs. As of January 1, 2000, all significant actions related to the plans have been completed. The remaining exit costs are insignificant.
PURCHASE ACCOUNTING RESERVES
As part of the acquisition of the business of Mrs. Smith's in 1996, Flowers Foods recorded a purchase accounting reserve of $37.1 million in order to realign production and distribution at Mrs. Smith's Bakeries. With the exception of noncancelable lease obligations and building maintenance costs that continue through fiscal 2006, this plan was substantially complete as of the end of fiscal 1998.
FLOWERS FOODS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Activity with respect to the non-recurring charges and purchase accounting reserves was as follows (amounts in thousands):
Non-Recurring Charges:
BALANCE AT BALANCE AT
JANUARY 2, PROVISION/ NONCASH JANUARY 1,
1999 ADJUSTMENTS REDUCTIONS SPENDING 2000
---------- ----------- ---------- -------- ----------
Noncash impairments.................. $ -- $(3,375) $3,375 $ -- $ --
Severance............................ 1,435 (102) -- (1,333) --
Noncancelable lease obligations and
facility closure costs............. 2,836 (1,645) -- (927) 264
Other................................ 1,981 (871) -- (365) 745
------ ------- ------ ------- ------
Total...................... $6,252 $(5,993) $3,375 $(2,625) $1,009
====== ======= ====== ======= ======
|
BALANCE AT BALANCE AT
JANUARY 1, PROVISION/ NONCASH DECEMBER 30,
2000 ADJUSTMENTS REDUCTIONS SPENDING 2000
---------- ----------- ---------- -------- ------------
Noncash impairments................ $ -- $17,269 $(17,269) $ -- $ --
Noncancelable lease obligations and
facility closure costs........... 264 180 -- (264) 180
Other.............................. 745 255 -- (252) 748
------ ------- -------- ----- ----
Total.................... $1,009 $17,704 $(17,269) $(516) $928
====== ======= ======== ===== ====
|
Purchase Accounting Reserves:
BALANCE AT BALANCE AT
JANUARY 2, PROVISION/ JANUARY 1,
1999 ADJUSTMENTS SPENDING 2000
---------- ----------- -------- ----------
Severance..................................... $ 1,347 $ -- $(1,347) $ --
Noncancelable lease obligations and other
facility closure costs...................... 25,799 (1,405) (4,208) 20,186
Other......................................... 3,761 -- (1,285) 2,476
------- ------- ------- -------
Total............................... $30,907 $(1,405) $(6,840) $22,662
======= ======= ======= =======
|
BALANCE AT BALANCE AT
JANUARY 1, PROVISION/ DECEMBER 30,
2000 ADJUSTMENTS SPENDING 2000
---------- ----------- -------- ------------
Noncancelable lease obligations and other
facility closure costs.................... $20,186 $ -- $(3,565) $16,621
Other....................................... 2,476 -- (669) 1,807
------- -------- ------- -------
Total............................. $22,662 $ -- $(4,234) $18,428
======= ======== ======= =======
|
NOTE 9. INSURANCE PROCEEDS
The company maintains insurance for property damage, mechanical breakdown, product liability, product contamination and business interruption applicable to its production facilities. During fiscal 1999, Mrs. Smith's Bakeries incurred substantial costs related to mechanical breakdown and product contamination at certain plants. Mrs. Smith's Bakeries filed claims under the company's insurance policies for a portion of these costs that it believed to be insured. During fiscal 2000, Mrs. Smith's Bakeries recovered insurance
FLOWERS FOODS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
proceeds of $17.2 million related to product contamination, mechanical breakdown and business interruption coverage. Subsequent to year end, the company finalized these insurance claims and received an additional $10.0 million of the $10.7 million final settlement. This additional amount will be reported in the first quarter of fiscal 2001 as a separate line item in the Consolidated Statement of Income.
NOTE 10. SHAREHOLDERS' EQUITY
The Balance Sheet at December 30, 2000 reflects total equity at December 30, 2000 reclassified for the capital structure of Flowers Foods based on the transaction completed on March 26, 2001.
The following briefly describes the capital structure of FII prior to March 26, 2001.
FII's articles of incorporation provided that the authorized capital of FII consist of 350,000,000 shares of common stock of $.625 par value per share, 10,467 shares of preferred stock, par value $100 per share, convertible into FII common stock, and 249,533 shares of preferred stock, par value $100 per share that, at the discretion of the FII board of directors, could be either convertible or non-convertible, of which 100,000 shares were designated as Series A Junior Participating Preferred Stock.
On March 19, 1999, the FII board of directors adopted a shareholder rights plan. Under that plan, each holder of FII common stock received a dividend of one preferred-share-purchase right for each share of FII common stock held, to become exercisable if a person or group acquired 15 percent or more of the outstanding FII common stock. On October 26, 2000, the FII board of directors amended the plan to render the rights inapplicable to the merger of FII with Kellogg and the rights were extinguished in connection with the merger.
FII's 1989 executive stock incentive plan and nonemployee director's equity plan contained change-of-control provisions that accelerated vesting of outstanding options to acquire FII stock as a result of the completion of the merger with Kellogg. Unexercised options held by a current or former employee or director were cancelled in exchange for cash payment by Flowers Foods. See Note 3 for further information.
The following describes the capital structure of Flowers Foods.
Flowers Foods' articles of incorporation provide that the authorized
capital of Flowers Foods consist of 100,000,000 shares of common stock having a
par value of $.01 per share and 1,000,000 shares of preferred stock, of which
(a) 100,000 shares have been designated by the Board of Directors as Series A
Junior Participating Preferred Stock, having a par value per share of $100 and
(b) 900,000 shares of preferred stock, having a par value per share of $.01,
have not been designated by the Board of Directors. No shares of preferred stock
have been issued by Flowers Foods.
Common Stock
The holders of Flowers Foods common stock are entitled to one vote for each share held of record on all matters submitted to a vote of shareholders. Subject to preferential rights of any issued and outstanding preferred stock, including the Series A Preferred Stock, holders of Flowers Foods common stock are entitled to receive ratably such dividends, if any, as may be declared by the Board of Directors out of funds legally available therefor. In the event of a liquidation, dissolution or winding-up of Flowers Foods, holders of Flowers Foods common stock are entitled to share ratably in all assets of Flowers Foods, if any, remaining after payment of liabilities and the liquidation preferences of any issued an outstanding preferred stock, including the Series A Preferred Stock. Holders of Flowers Foods common stock have no preemptive rights, no cumulative voting rights and no rights to convert their shares of Flowers Foods common stock into any other securities of Flowers Foods or any other person.
FLOWERS FOODS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Preferred Stock
The Board of Directors has the authority to issue up to 1,000,000 shares of preferred stock in one or more series and to fix the designations, relative powers, preferences, rights, qualifications, limitations and restrictions of all shares of each such series, including without limitation, dividend rates, conversion rights, voting rights, redemption and sinking fund provisions, liquidation preferences and the number of shares constituting each such series, without any further vote or action by the holders of Flowers Foods common stock. Pursuant to such authority, the Board of Directors has designated 100,000 shares of preferred stock as Series A Junior Participating Preferred Stock in connection with the adoption of the rights plan described below. Although the Board of Directors does not presently intend to do so, it could issue from the 900,000 undesignated preferred shares, additional series of preferred stock, with rights that could adversely affect the voting power and other rights of holders of Flowers Foods common stock without obtaining the approval of Flowers Foods shareholders. In addition, the issuance of preferred shares could delay or prevent a change in control of Flowers Foods without further action by its shareholders.
Shareholder Rights Plan
The Flowers Foods Board of Directors has approved and adopted a shareholder rights plan that provides that one right will be issued for each share of Flowers Foods common stock held by shareholders of record on March 26, 2001. Under the plan, the rights will initially trade together with the common stock and will not be exercisable. In the absence of further Board action, the rights generally will become exercisable, and allow the holder to acquire additional common stock, if a person or group acquired 15 percent or more of the outstanding shares of Flowers Foods' common stock. Rights held by persons who exceed the applicable threshold will be void. Flowers Foods' Board of Directors may, at its option, redeem all rights for $.01 per right generally at any time prior to the rights becoming exercisable. The rights will expire on March 26, 2011, unless earlier redeemed, exchanged or amended by the Board of Directors.
Stock Incentive Plans
Flowers Foods has established an equity performance and incentive plan which authorizes the Board of Directors to make awards of (1) options to purchase shares of Flowers Foods common stock, (2) performance stock and performance units, (3) restricted stock and (4) deferred stock. The Board of Directors has authorized its compensation committee to oversee the plan and to make awards and grants under the plan. No options or awards have been granted as of March 27, 2001.
Effects of Merger and Spinoff Transaction
On March 26, 2001, in conjunction with the transaction described in Note 3, Flowers Foods issued one share of its common stock for each five shares of FII common stock outstanding. For accounting purposes, this has been treated as a one for five stock split. This split resulted in the retirement of 80,658 shares of common stock and is reflected in the December 30, 2000 financial statements as a decrease of $62.6 million in common stock at par value with a corresponding increase in capital in excess of par value. All references to the number of shares, per share amounts and any other reference to shares in the Consolidated Financial Statements and the accompanying Notes to Consolidated Financial Statements, have been adjusted to reflect the stock split on a retroactive basis.
In addition to the transaction described in Note 3, all FII treasury shares were cancelled. This cancellation is reflected in the December 30, 2000 financial statements as a decrease in common stock at par value of $0.3 million representing the par value of the treasury shares. The remainder of $7.8 million represents treasury shares at cost over par value and is recorded as a decrease to retained earnings at December 30, 2000.
FLOWERS FOODS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
NOTE 11. RETIREMENT PLANS
DEFINED BENEFIT PLANS
In connection with the spin-off and merger transaction on March 26, 2001, all FII postretirement and postemployment plans were transferred to Flowers Foods.
The company has a trusteed, noncontributory defined benefit pension plan covering certain employees. The benefits are based on years of service and the employee's career earnings. The plan is funded at amounts deductible for income tax purposes but not less than the minimum funding required by the Employee Retirement Income Security Act of 1974 ("ERISA"). As of December 30, 2000 and January 1, 2000, the assets of the plan included certificates of deposit, marketable equity securities, mutual funds, corporate and government debt securities and annuity contracts. The marketable equity securities include shares of the company's common stock, with a fair value of approximately $ 14.4 and $14.6 million at December 30, 2000 and January 1, 2000, respectively. In addition to the pension plan, the company also has an unfunded supplemental retirement plan for certain highly compensated employees. Benefits provided by this supplemental plan are reduced by benefits provided under the defined benefit pension plan.
The net periodic pension cost for the company plans that are not fully funded include the following components:
FOR THE 52 WEEKS ENDED
--------------------------------------
DECEMBER 30, JANUARY 1, JANUARY 2,
2000 2000 1999
------------ ---------- ----------
(AMOUNTS IN THOUSANDS)
Service cost......................................... $ 6,988 $ 7,698 $ 6,108
Interest cost........................................ 12,909 11,900 10,819
Expected return on plan assets....................... (13,565) (13,844) (13,635)
Amortization of transition assets.................... (841) (841) (841)
Prior service cost................................... 48 47 48
Recognized net actuarial gain........................ (25) 53 (346)
-------- -------- --------
Net periodic pension cost............................ $ 5,514 $ 5,013 $ 2,153
======== ======== ========
|
FLOWERS FOODS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The funding status and the amounts recognized in the consolidated balance sheet for the company plans that are not fully funded are as follows:
DECEMBER 30, JANUARY 1,
2000 2000
------------ ----------
(AMOUNTS IN THOUSANDS)
Change in benefit obligation:
Benefit obligation at beginning of year................... $162,805 $172,424
Service cost.............................................. 6,988 7,698
Interest cost............................................. 12,909 11,900
Actuarial (gain).......................................... (4,914) (21,854)
Benefits paid............................................. (7,723) (7,363)
-------- --------
Benefit obligation at end of year......................... 170,065 162,805
-------- --------
Change in plan assets:
Fair value of plan assets at beginning of year............ 153,939 146,659
Actual return on plan assets.............................. 21,834 14,428
Employer contribution..................................... 214
Benefits paid............................................. (7,723) (7,362)
-------- --------
Fair value of plan assets at end of year.................. 168,050 153,939
-------- --------
Funded status............................................. (2,015) (8,866)
Unrecognized net actuarial gain........................... (18,293) (5,134)
Unrecognized prior service cost........................... 386 433
Unrecognized net transition asset......................... (1,633) (2,472)
-------- --------
Net amount recognized at end of year...................... $(21,555) $(16,039)
======== ========
|
Assumptions used in accounting for the company's plans that are not fully funded at each of the respective period-ends are as follows:
DECEMBER 30, JANUARY 1, JANUARY 2,
2000 2000 1999
------------ ---------- ----------
Weighted average assumptions:
Measurement date................................ 9/30/2000 9/30/1999 9/30/1998
Discount rate................................... 8.00% 7.75% 6.75%
Expected return on plan assets.................. N/A N/A N/A
Rate of compensation increase................... 5.50% 5.25% 4.25%
|
OTHER PLANS
The company contributes to various multiemployer, union-administered defined benefit and defined contribution pension plans. Benefits provided under the multiemployer pension plans are generally based on years of service and employee age. Expense under these plans was $1.0 million for fiscal 2000, $.5 million for fiscal 1999 and $.3 million for fiscal 1998.
The Flowers Foods 401(k) Retirement Savings Plan covers substantially all of the company's employees who have completed certain service requirements. Generally, the cost and contributions for employees who participate in the defined benefit pension plan is 25% of the first $400 contributed by the employee. The costs and contributions for employees who do not participate in the defined benefit pension plan is 2% of compensation and 25% of the employees' contributions, up to 6% of compensation. During fiscal 2000, 1999 and 1998, the total cost and contributions were $2.1 million, $1.9 million and $1.3 million, respectively.
FLOWERS FOODS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
NOTE 12. INCOME TAXES
The company's provision for income taxes consists of the following:
FOR THE 52 WEEKS ENDED
--------------------------------------
DECEMBER 30, JANUARY 1, JANUARY 2,
2000 2000 1999
------------ ---------- ----------
(AMOUNTS IN THOUSANDS)
Current Taxes:
Federal................................................... $ -- $(11,655) $13,852
State..................................................... 2,871 2,464 1,392
-------- -------- -------
2,871 (9,191) 15,244
-------- -------- -------
Deferred Taxes:
Federal................................................... (18,131) (6,391) (11,840)
State..................................................... (1,197) (1,333) (1,975)
-------- -------- -------
(19,328) (7,724) (13,815)
-------- -------- -------
Provision for income taxes.................................. $(16,457) $(16,915) $ 1,429
-------- -------- -------
|
Deferred tax liabilities (assets) are comprised of the following:
DECEMBER 30, JANUARY 1,
2000 2000
------------ ----------
(AMOUNTS IN THOUSANDS)
Depreciation and amortization............................... $ 80,356 $ 62,597
Other....................................................... 6,639 10,540
-------- --------
Gross deferred tax liabilities.................... 86,995 73,137
-------- --------
Self insurance.............................................. (3,807) (3,375)
Compensation and employee benefits.......................... (15,252) (15,866)
Accrued reserves............................................ (10,027) (10,849)
Deductible goodwill......................................... (5,532) --
Loss carryforwards.......................................... (60,638) (26,596)
Purchase accounting reserve................................. (6,660) (8,396)
Other....................................................... (7,033) (4,055)
-------- --------
Gross deferred tax assets......................... (108,949) (69,137)
Deferred tax assets valuation allowance..................... 6,747 3,012
-------- --------
$(15,207) $ 7,012
-------- --------
|
The provision for income taxes differs from the amount computed by applying the U.S. federal income tax rate (35%) because of the effect of the following items:
FOR THE 52 WEEKS ENDED
--------------------------------------
DECEMBER 30, JANUARY 1, JANUARY 2,
2000 2000 1999
------------ ---------- ----------
Tax at U.S. federal income tax rate......................... $(20,558) $(18,081) $ 73
State income taxes, net of U.S. federal income tax
benefit................................................... 2,741 1,074 (515)
Benefit of operating loss carryforwards..................... (534) (522) --
Intangible amortization..................................... 468 532 1,621
Dividends received from majority owned subsidiary........... 1,455 -- --
Other....................................................... (29) 82 250
-------- -------- -------
Provision for income taxes........................ $(16,457) $(16,915) $ 1,429
======== ======== =======
|
FLOWERS FOODS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The amount of federal net operating losses to be carried forward by Flowers Foods is $109.0 million with expiration dates through fiscal year 2019. The company does not anticipate any limitations on the utilization of these carryforwards prior to their expiration. Various subsidiaries have state net operating loss carryforwards of $308.0 million with expiration dates through fiscal 2014.
NOTE 13. SEGMENT REPORTING
The company has two reportable segments: Flowers Bakeries and Mrs. Smith's Bakeries. Flowers Bakeries produces fresh breads and rolls, Mrs. Smith's Bakeries produces fresh and frozen baked desserts, snacks, breads and rolls.
The accounting policies of the segments are substantially the same as those described in Note 2. The company evaluates each segment's performance based on income or loss before interest and income taxes, excluding corporate and other unallocated expenses and non-recurring charges. Information regarding the operations in these reportable segments is as follows:
FOR THE 52 WEEKS ENDED
-----------------------------------------------------
DECEMBER 30, 2000 JANUARY 1, 2000 JANUARY 2, 1999
----------------- --------------- ---------------
(AMOUNTS IN THOUSANDS)
Sales:
Flowers Bakeries......................... $ 1,016,235 $ 961,700 $ 939,119
Mrs. Smith's Bakeries.................... 666,170 673,133 672,821
Eliminations(1).......................... (62,425) (66,593) (73,053)
----------- ---------- ----------
$ 1,619,980 $1,568,240 $1,538,887
=========== ========== ==========
Depreciation and Amortization:
Flowers Bakeries......................... $ 38,224 $ 32,865 $ 33,487
Mrs. Smith's Bakeries.................... 28,392 20,127 18,676
Other.................................... 486 898 1,381
----------- ---------- ----------
$ 67,102 $ 53,890 $ 53,544
=========== ========== ==========
Non-Recurring (Credit) Charge:
Flowers Bakeries......................... $ (1,154) $ (1,120) $ 32,161
Mrs. Smith's Bakeries.................... 18,858 (4,874) 32,300
----------- ---------- ----------
$ 17,704 $ (5,994) $ 64,461
=========== ========== ==========
Insurance Proceeds:
Mrs. Smith's Bakeries.................... $ (17,193) $ -- $ --
=========== ========== ==========
Income (Loss) from Operations:
Flowers Bakeries......................... $ 62,919 $ 66,995 $ 75,779
Mrs. Smith's Bakeries.................... (28,032) (53,254) 45,855
Other.................................... (24,742) (26,705) (14,727)
Insurance proceeds....................... 17,193 -- --
Non-recurring (charge) credit............ (17,704) 5,994 (64,461)
----------- ---------- ----------
$ 9,634 $ (6,970) $ 42,446
=========== ========== ==========
Interest Expense, net...................... $ 68,373 $ 44,691 $ 42,225
=========== ========== ==========
(Loss) Income From Continuing Operations
Before Income Taxes...................... $ (58,739) $ (51,661) $ 221
=========== ========== ==========
|
FLOWERS FOODS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
FOR THE 52 WEEKS ENDED
-----------------------------------------------------
DECEMBER 30, 2000 JANUARY 1, 2000 JANUARY 2, 1999
----------------- --------------- ---------------
(AMOUNTS IN THOUSANDS)
Capital Expenditures:
Flowers Bakeries......................... 18,686 73,553 38,573
Mrs. Smith's Bakeries.................... 21,212 127,340 34,711
Other.................................... 27 12,435 193
----------- ---------- ----------
$ 39,925 $ 213,328 $ 73,477
=========== ========== ==========
Assets:
Flowers Bakeries......................... 499,227 491,396 458,966
Mrs. Smith's Bakeries.................... 507,366 506,586 459,652
Other.................................... 556,053 568,981 464,259
----------- ---------- ----------
$ 1,562,646 $1,566,963 $1,382,877
=========== ========== ==========
|
(1) Primarily represents elimination of intersegment sales from Mrs. Smith's Bakeries to Flowers Bakeries.
NOTE 14. UNAUDITED QUARTERLY FINANCIAL INFORMATION
Results of operations for each of the four quarters in the respective fiscal years are as follows (each quarter represents a period of twelve weeks, except the first quarter, which includes sixteen weeks):
FIRST QUARTER SECOND QUARTER THIRD QUARTER FOURTH QUARTER
------------- -------------- ------------- --------------
(AMOUNTS IN THOUSANDS EXCEPT PER SHARE DATA)
Sales......................... 2000 461,553 363,514 380,764 414,149
1999 449,662 352,487 367,379 398,712
Gross margin.................. 2000 217,208 159,042 166,543 176,989
1999 213,216 158,102 132,145 180,895
Net income (loss)............. 2000 16,757 5,529 12,958 (30,199)
1999 24,836 (27,735) (9,103) 19,296
Basic net income (loss) per
common share................ 2000 0.84 0.29 0.64 (1.52)
1999 1.26 (1.40) (0.45) 0.95
Diluted net income (loss) per
common share................ 2000 0.84 0.29 0.64 (1.52)
1999 1.26 (1.40) (0.45) 0.95
Discontinued operations, less
applicable taxes............ 2000 24,053 16,500 20,358 (13,584)
1999 15,993 (13,312) 16,194 23,165
|
FLOWERS FOODS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
SCHEDULE II
VALUATION AND QUALIFYING ACCOUNTS
Those valuation and qualifying accounts which are deducted in the balance sheet from the assets to which they apply:
BEGINNING ADDITIONS CHARGED ADDITIONS CHARGED ENDING
BALANCE TO EXPENSES TO OTHER ACCOUNTS DEDUCTIONS BALANCE
--------- ----------------- ----------------- ---------- -------
Classification:
Year Ended December 30, 2000
Discounts and doubtful
accounts..................... $13,413 $53,943 $48,068 $19,288
Inventory reserves............. $ 6,312 2,558 -- 5,724 $ 3,146
Year Ended January 1, 2000
Discounts and doubtful
accounts..................... $ -- 60,281 -- 46,868 $13,413
Inventory reserves............. $ -- 6,312 -- -- $ 6,312
Year Ended January 2, 1999
Discounts and doubtful
accounts..................... $ -- -- -- -- $ --
Inventory reserves............. $ -- -- -- -- $ --
|
EXHIBIT 2.2
EXHIBIT A
AMENDMENT NO. 1 TO DISTRIBUTION AGREEMENT
Amendment No. 1, dated as of March 12, 2001 (this "Amendment"), between Flowers Industries, Inc. ("Flowers Industries") and Flowers Foods, Inc. ("Flowers Foods").
WHEREAS, Flowers Industries and Flowers Foods are parties to that certain Distribution Agreement dated as of October 26, 2000 (the "Distribution Agreement");
WHEREAS, pursuant to that certain Indenture, dated as of April 27, 1998 (the "Indenture"), between Flowers Industries and SunTrust Bank (formerly known as SunTrust Bank, Atlanta), as Trustee, Flowers Industries issued $200,000,000 in aggregate principal amount of its 7.15% Debentures due 2028 (the "Debentures");
WHEREAS, Flowers Industries intends to commence an offer to purchase any and all of the outstanding Debentures (as such tender offer may hereafter be amended from time to time with the prior written consent of Kellogg Company ("Kellogg"), and any transaction contemplated by or undertaken in connection with such tender offer, the "Tender Offer") pursuant to a Debenture Tender Agreement, dated as of March 12, 2001, by and among Flowers Industries, Flowers Foods and each of the parties listed on the signature page thereto (the "Debenture Tender Agreement");
WHEREAS, the parties hereto desire to amend the Distribution Agreement in connection with the Tender Offer; and
WHEREAS, the parties hereto desire to amend and restate Section 4.03 of the Distribution Agreement to clarify the meaning of Section 4.03 of the Distribution Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Defined terms used but not defined herein shall have the respective meanings assigned to them in the Distribution Agreement.
2. The following definition is hereby added to Section 1.01 of the Distribution Agreement: ""TENDER OFFER" shall mean Tulip's offer to purchase any and all of its issued and outstanding 7.15% Debentures due 2028 commenced pursuant to the Debenture Tender Agreement and any transaction contemplated by or undertaken in connection with such tender offer or the Debenture Tender Agreement, which tender offer shall not be extended, supplemented or otherwise amended without the prior written consent of Parent.""
3. The following definition is hereby added to Section 1.01 of the Distribution Agreement: ""DEBENTURE TENDER AGREEMENT" shall mean the Debenture Tender Agreement, dated as of March 12, 2001, by and among Tulip, Spinco and each of the parties listed on the signature page thereto.""
4. The definition of "Company Debt" is hereby amended by adding the following as the last sentence thereof: "Notwithstanding anything to the contrary, in addition to Tulip's 7.15% Debentures due 2028 that are not tendered pursuant to the Tender Offer, "COMPANY
DEBT" shall include the principal amount of any of Tulip's 7.15% Debentures due 2028 that are (i) not accepted for payment pursuant to the Tender Offer for any reason prior to 4:00 p.m. on the date the Merger Effective Time occurs or (ii) accepted for payment pursuant to the Tender Offer, but not paid for, as evidenced by wire transfer confirmation, prior to 4:00 p.m. on the date that the Merger Effective Time occurs.
5. The last sentence of the definition of "Parent-Directed Transactions" is hereby replaced in its entirety by the following: "For the absence of doubt, neither the Distribution, the Restructuring, the Tender Offer, the Merger, the ELF Merger or any transaction undertaken in anticipation thereof shall be considered a Parent-Directed Transaction."
6. The definition of "Spinco Group Liabilities" is hereby amended by adding the following as the last sentence thereof: "Notwithstanding anything to the contrary, "SPINCO GROUP LIABILITIES" shall include all Liabilities (including Liabilities arising out of any litigation), whether arising before, at or after the Distribution Time, relating to, arising out of or resulting from the Tender Offer.
7. Section 4.03 of the Distribution Agreement is hereby replaced in its entirety by the following: "If an Indemnified Party shall receive any amount of Insurance Proceeds or any other amount from a third party in compensation for a specific Liability giving rise to indemnification hereunder (other than Insurance Proceeds or other amounts from a third party in compensation for a specific Liability or Liabilities giving rise to indemnification hereunder above $750,000 in the aggregate received by the Tulip Indemnitees pursuant to insurance policies or other agreements entered into to protect against nonperformance of the obligations of Spinco under Section 4.01 of this Agreement) (i) at any time subsequent to the actual receipt of a payment in full of indemnification of such Liability hereunder, then such Indemnified Party shall reimburse the Indemnifying Party for any such indemnification payment made up to the amount of such Insurance Proceeds or other amounts actually received or (ii) at any time prior to the receipt of any indemnification payment in respect of such Liability hereunder, then the indemnification to be paid under Section 4.01 or 4.02 shall be paid net of the amount of any such Insurance Proceeds or other amounts actually received. Notwithstanding this Section 4.03, (x) in no event shall any Indemnified Party be required (i) to take any action, or forebear from exercising any right, under the Merger Agreement or any Distribution Document or (ii) to take any action with respect to, make any demand under or claim any coverage in connection with, any Policy, and (y) nothing herein shall permit any Indemnifying Party to delay or refrain from making any payment to any Indemnified Party because of the availability or alleged availability of any Policy or Insurance Proceeds."
8. Section 8.03(b) and (c) of the Distribution Agreement are hereby replaced in their entirety with the following: "(b) the Restructuring or the Tender Offer, (c) any transaction undertaken in anticipation of the Distribution, the Restructuring or the Tender Offer,".
9. In satisfaction of its obligations under Section 4.01 of the Distribution Agreement and in recognition that the aggregate Merger Consideration (as defined in the Merger Agreement) includes an amount equal to the purchase price to be paid for the Debentures in the Tender Offer, Flowers Foods hereby agrees (i) to pay for all Debentures tendered in the Tender Offer not later than the date that the Merger Effective Time occurs, subject to the terms and condi-
tions of the Debenture Tender Agreement, and (ii) that all expenses and costs incurred in connection with the Tender Offer or Debenture Tender Agreement shall be for the account of Flowers Foods and shall be paid by Flowers Foods.
10. (a) Neither Flowers Foods nor Flowers Industries shall amend or waive any provision of the Debenture Tender Agreement, or distribute any offer to purchase or related letter of transmittal in connection with the Tender Offer, without the prior written consent of Kellogg.
(b) The Tender Offer shall be made by Flowers Industries pursuant to an offer to purchase and related letter of transmittal, drafts of which will be provided to counsel for Kellogg for prior review and comment.
(c) Flowers Foods and Flowers Industries shall promptly notify Kellogg of any communication from any of the parties to the Debenture Tender Agreement and permit Kellogg to review in advance any proposed written communication to any of the foregoing and to accept all reasonable additions, deletions or changes suggested by Kellogg in connection therewith.
11. Except as expressly modified by this Amendment, the Distribution Agreement shall continue to be and remain in full force and effect in accordance with its terms. Any future reference to the Distribution Agreement shall be deemed to be a reference to the Distribution Agreement as modified by this Amendment.
12. Subject to the provisions of the Georgia Business Corporate Code applicable to the Distribution, this Amendment shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the conflict of laws and rules thereof.
13. This Amendment may be executed in two or more counterparts, each of which shall be considered an original, but all of which together shall constitute the same instrument.
IN WITNESS WHEREOF, the undersigned parties have duly executed this Amendment as of the date first written above.
FLOWERS INDUSTRIES, INC.
By: /s/ G. Anthony Campbell -------------------------------------- Title: G. Anthony Campbell Name: Secretary and General Counsel |
FLOWERS FOODS, INC.
By: /s/ G. Anthony Campbell -------------------------------------- Title: G. Anthony Campbell Name: Secretary and General Counsel |
EXHIBIT 3.1
RESTATED ARTICLES OF INCORPORATION
OF
FLOWERS FOODS, INC.
I
The name of the corporation is Flowers Foods, Inc. (the "Corporation").
II
SECTION 1. Authorized Capital Stock. The Corporation shall have
the authority to issue not more than one hundred and one million (101,000,000)
shares of capital stock consisting of one hundred million (100,000,000) shares
of Common Stock having a par value of $.01 per share, and one million
(1,000,000) shares of Preferred Stock of which: (i) one hundred thousand
(100,000) shares shall be designated Series A Junior Participating Preferred
Stock, having a par value per share of $100 (the "Series A Preferred Stock") and
(ii) nine hundred thousand (900,000) shares of preferred stock, having a par
value per share of $0.01 (the "Preferred Stock") to be issued in one or more
series, in the manner provided below.
The Board of Directors is hereby authorized to issue the shares of undesignated Preferred Stock in such series and to fix from time to time before issuance the number of shares to be included in any series and the designation, relative powers, preferences and rights and qualifications, limitations or restrictions of all shares of such series. The authority of the Board of Directors with respect to each series shall include, without limiting the generality of the foregoing, the determination of any or all of the following:
(a) the number of shares of any series and the designation to distinguish the shares of such series from the shares of all other series;
(b) the voting powers, if any, and whether such voting powers are full or limited in such series;
(c) the redemption provisions, if any, applicable to such series, including the redemption price or prices to be paid;
(d) whether dividends, if any, shall be cumulative or noncumulative, the dividend rate of such series, and the dates and preferences of dividends on such series;
(e) the rights of such series upon the voluntary or involuntary dissolution of, or upon any distribution of the assets of, the Corporation;
(f) the provisions, if any, pursuant to which the shares of such series are convertible into, or exchangeable for, shares of any other class or classes or of any other series of the same or any other class or classes of stock of the Corporation or any other corporation, and the price or prices or the rates of exchange applicable thereto;
(g) the right, if any, to subscribe for or to purchase any securities of the Corporation or any other corporation;
(h) the provisions, if any, of a sinking fund applicable to such series; and
(i) any other relative, participating, optional or other special powers, preferences, rights, qualifications, limitations or restrictions thereof;
all as shall be determined from time to time by the Board of Directors and stated in the resolution or resolutions providing for the issuance of such Preferred Stock (a "Preferred Stock Designation").
SECTION 2. Voting Entitlement. A holder of Common Stock shall be entitled to one (1) vote on each matter submitted to a vote at a meeting of shareholders for each share of the Common Stock held of record by such holder as of the record date for such meeting. Except as may be provided by applicable law, in these Articles of Incorporation or by the Board of Directors in a Preferred Stock Designation, the Common Stock shall have the exclusive right to vote for the election of directors and for all other purposes, and holders of Preferred Stock shall not be entitled to receive notice of any meeting of shareholders at which they are not entitled to vote or consent.
SECTION 3. Preemptive Rights. No holder of shares of any class of stock shall have preemptive rights, and the Corporation shall have the right to issue and to sell any shares of its Common Stock without first offering such shares to any holder of shares of Common Stock of the Corporation.
III
SECTION 1. Designation and Amount. There shall be a series designed as "Series A Junior Participating Preferred Stock" (the "Series A Preferred Stock"). The number of shares constituting such series shall be 100,000 and such series shall have the rights and preferences and limitations set forth below.
SECTION 2. Dividends and Distributions.
(a) The holders of shares of Series A Preferred Stock, in preference to the holders of Common Stock and of any other junior stock, shall be entitled to receive, when, as and if declared by the Board of Directors out of funds legally available for the purpose, quarterly dividends payable in cash on the payment date of any quarterly dividend for the Common Stock, or if there should be no such payment date, then on the 45th day after the end of each fiscal quarter (each such date being referred to herein as a "Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend Payment Date after the first issuance of a share or fraction of a share of Series A Preferred Stock, in an amount per share (rounded to the nearest cent) equal to the greater of (i) $50 or (ii) subject to the provision for adjustment hereinafter set forth, 1,000 times the aggregate per share amount of all cash dividends, and 1,000 times the aggregate per share amount (payable in kind) of all non-cash dividends or other distributions other than a dividend payable in shares of Common Stock of the Corporation or a subdivision of the outstanding shares of Common Stock (by reclassification or otherwise), declared on the Common Stock since the immediately preceding Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a share of Series A Preferred Stock. In the event the Corporation shall at any time after the date hereof declare or pay any dividend on Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise) into a greater or lesser number of shares of Common Stock, then in each such case the amount to which holders of shares of Series A Preferred Stock were entitled immediately prior to such event under clause (b) of the preceding sentence shall be automatically adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.
(b) The Corporation shall declare a dividend or distribution on the Series A Preferred Stock as provided in subparagraph (a) of this Section 2 immediately after it declares a dividend or distribution on the Common Stock (other than a dividend payable in shares of Common Stock); provided that, in the event no dividend or distribution shall have been declared on the Common Stock during the period between any Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend Payment Date, a dividend of $50 per share on the Series A Preferred Stock shall nevertheless be payable on such subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on outstanding shares of Series A Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of issue of such shares of Series A Preferred Stock, unless the date of issue of such shares is prior to the record date for the first Quarterly Dividend Payment Date, in which case dividends on such shares shall begin to
accrue from the date of issue of such shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a date after the record date for the determination of holders of shares of Series A Preferred Stock entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either of which events such dividends shall begin to accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares of Series A Preferred Stock in an amount less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares at the time outstanding. The Board of Directors may fix a record date for the determination of holders of shares of Series A Preferred Stock entitled to receive payment of a dividend or distribution declared thereon, which record date shall be not more than 60 days prior to the date fixed for the payment thereof.
SECTION 3. Voting Rights. The holders of shares of Series A Preferred Stock shall have the following voting rights:
(a) Subject to the provision for adjustment hereinafter set forth, each share of Series A Preferred Stock shall entitle the holder thereof to 1,000 votes on all matters submitted to a vote of the shareholders of the Corporation. In the event the Corporation shall at any time after the date hereof declare or pay any dividend on Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise) into a greater or lesser number of shares of Common Stock, then in each such case the number of votes per share to which holders of shares of Series A Preferred Stock were entitled immediately prior to such event shall be automatically adjusted by multiplying such number by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.
(b) Except as otherwise provided herein or by law, the holders of shares of Series A Preferred Stock and the holders of shares of Common Stock and any other capital stock of the Corporation having general voting rights shall vote together as one voting group on all matters submitted to a vote of shareholders of the Corporation.
(c) Except as set forth herein, holders of Series A Preferred Stock shall have no special voting rights and their consent shall not be required (except to the extent they are entitled to vote with holders of Common Stock and any other capital stock of the Corporation having general voting rights as set forth herein) for taking any corporate action.
SECTION 4. Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares of
Series A Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(1) declare or pay dividends on, or make any other distributions on, any shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred Stock;
(2) declare or pay dividends on or make any other distributions on any shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Preferred Stock, except dividends paid ratably on the Series A Preferred Stock and all such parity stock on which dividends are payable or in arrears in proportion to the total amounts to which the holders of all such shares are then entitled;
(3) redeem or purchase or otherwise acquire for consideration shares of any stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred Stock, provided that the Corporation may at any time redeem, purchase or otherwise acquire shares of any such junior stock in exchange for shares of any stock of the Corporation ranking junior (either as to dividends or upon dissolution, liquidation or winding up) to the Series A Preferred Stock; or
(4) purchase or otherwise acquire for consideration any shares of Series A Preferred Stock, or any shares of stock ranking on a parity with the Series A Preferred Stock, except in accordance with a purchase offer made in writing or by publication (as determined by the Board of Directors) to all holders of such shares upon such terms as the Board of Directors, after consideration of the respective annual dividend rates and other relative rights and preferences of the respective series and classes, shall determine in good faith will result in fair and equitable treatment among the respective series or classes.
(b) The Corporation shall not permit any subsidiary of the Corporation to purchase or otherwise acquire for consideration any shares of stock of the Corporation unless the Corporation could, under subsection (a) of this Section 4, purchase or otherwise acquire such shares at such time and in such manner.
SECTION 5. Reacquired Shares. Any shares of Series A Preferred Stock purchased or otherwise acquired by the Corporation in any manner whatsoever shall be retired and canceled promptly after the acquisition thereof. All such shares shall upon their cancellation become authorized but unissued shares of Preferred Stock and may be
reissued as part of a new series of Preferred Stock to be created by resolution or resolutions of the Board of Directors, subject to the conditions and restrictions on issuance set forth herein.
SECTION 6. Liquidation, Dissolution or Winding Up. Upon any liquidation, dissolution or winding up of the Corporation, no distribution shall be made (a) to the holders of shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred Stock unless, prior thereto, the holders of shares of Series A Preferred Stock shall have received $1,000 per share, plus an amount equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the date of such payment, provided that the holders of shares of Series A Preferred Stock shall be entitled to receive an aggregate amount per share, subject to the provision for adjustment hereinafter set forth, equal to 1,000 times the aggregate amount to be distributed per share to holders of Common Stock, or (b) to the holders of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Preferred Stock, except distributions made ratably on the Series A Preferred Stock and all other such parity stock in proportion to the total amounts to which the holders of all such shares are entitled upon such liquidation, dissolution or winding up. In the event the Corporation shall at any time after the date hereof declare or pay any dividend on Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise) into a greater or lesser number of shares of Common Stock, then in each such case the aggregate amount to which holders of shares of Series A Preferred Stock were entitled immediately prior to such event under the proviso in clause (a) of the preceding sentence shall be automatically adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.
SECTION 7. Consolidation, Merger etc. In case the Corporation shall enter into any consolidation, merger, combination or other transaction in which the shares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then in any such case the shares of Series A Preferred Stock shall at the same time be similarly exchanged or changed in an amount per share (subject to the provision for adjustment hereinafter set forth) equal to 1,000 times the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, into which or for which each share of Common Stock is changed or exchanged. In the event the Corporation shall at any time after the date hereof declare or pay any dividend on Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise) into a greater or lesser number of shares of Common Stock, then in each such case the amount set forth in the preceding sentence with respect to the exchange or change of shares of Series A Preferred Stock shall be adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.
SECTION 8. No Redemption. The shares of Series A Preferred Stock shall not be redeemable.
SECTION 9. Rank. The Series A Preferred Stock shall rank junior with respect to payment of dividends and on liquidation to all other series of the Corporation's Preferred Stock outstanding on the date hereof and to all such other series that specifically provide that they shall rank senior to the Series A Preferred Stock.
SECTION 10. Amendment. The Articles of Incorporation of the Corporation shall not be amended in any manner that would materially alter or change the powers, preferences or special rights of the Series A Preferred Stock so as to affect them adversely without the affirmative vote of the holders of two-thirds of the outstanding shares of Series A Preferred Stock, voting together as a single class.
IV
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the Georgia Business Corporation Code.
V
The Board of Directors shall have the power to make, amend and repeal the Bylaws of the Corporation. Any Bylaws made by the Board of Directors under the powers conferred hereby may be amended or repealed by the Board of Directors (except as specified in any such Bylaw so made or amended) or by the shareholders in the manner provided in the Bylaws of the Corporation. The Corporation may in its Bylaws confer powers upon its Board of Directors in addition to the foregoing and in addition to the powers and authorities expressly conferred upon the Board of Directors by applicable law. Notwithstanding anything contained in these Articles of Incorporation to the contrary, unless otherwise required by applicable law, the affirmative vote of the holders of at least 66-2/3% of the voting power of the then outstanding shares of Common Stock shall be required to amend or repeal, or to adopt any provisions inconsistent with, this Article V.
VI
Any action required or permitted to be taken by the shareholders of the Corporation must be effected at a duly called annual or special meeting of shareholders of the Corporation or by the consent in writing of the holders of at least 75% of the voting power of the then outstanding shares of Common Stock entitled to vote on the action. Special meetings of shareholders of the Corporation may be called only by the Chairman of the Board of Directors, or by the Chairman of the Board of Directors or the Secretary within 10 days after receipt of the written request of a majority of the total number of Directors which the Corporation would have if there were no vacancies or upon receipt of the written request of the holders of at least 75% of the voting power of the then outstanding shares of Common Stock. At any annual meeting or special meeting of shareholders of the Corporation, only such business shall be conducted or considered as shall have been brought before such meeting in the manner provided in the Bylaws of the
Corporation. Notwithstanding anything contained in these Articles of Incorporation to the contrary, unless otherwise required by applicable law, the affirmative vote of at least 66-2/3% of the voting power of the then outstanding shares of Common Stock shall be required to amend or repeal, or adopt any provision inconsistent with this Article VI.
VII
SECTION 1. Number, Election and Terms of Directors. The number of the Directors of the Corporation shall not be less than 3 nor more than 16 and shall be fixed from time to time in the manner described in the Bylaws.
The Directors shall be classified with respect to the time for which they severally hold office into three classes, as nearly equal in number as possible, designated Class I, Class II and Class III. The Directors first appointed to Class I shall hold office for a term expiring at the annual meeting of shareholders to be held in 2002, Directors first appointed to Class II shall hold office for a term expiring at the annual meeting of shareholders to be held in 2003 and the Directors first appointed to Class III shall hold office for a term expiring at the annual meeting of shareholders to be held in 2004 with the members of each class to hold office until their successors are elected and qualified. Unless otherwise required by applicable law, at each succeeding annual meeting of the shareholders of the Corporation, the successors of the class of Directors whose term expires at that meeting shall be elected by a plurality vote of all votes cast at such meeting to hold office for a term expiring at the annual meeting of shareholders held in the third year following the year of their election. Notwithstanding the foregoing, if at the time of any annual meeting of shareholders, the Corporation is prohibited by applicable law from having a classified Board of Directors, all of the Directors shall be elected at such annual meeting for a one year term only. If at the time of any subsequent annual meeting of shareholders the Corporation is no longer prohibited by applicable law from having a classified Board of Directors, the Board of Directors shall again be classified in accordance with the first sentence of this paragraph, and at such annual meeting Directors initially shall be elected to serve in either Class I, Class II or Class III to hold office for a term expiring at the first, second or third succeeding annual meeting of the shareholders, respectively; thereafter successors to each Class shall be elected in accordance with the third sentence of this paragraph; such classified Board of Directors at all times being subject to the immediately preceding sentence of this paragraph. Elections of Directors need not be by written ballot unless requested by the Chairman of the Board of Directors or by the holders of a majority of the voting power of the then outstanding shares of Common Stock present in person or represented by proxy at a meeting of the shareholders at which Directors are to be elected.
SECTION 2. Nomination of Director Candidates. Advance notice of shareholder nominations for the election of Directors shall be given in the manner provided in the Bylaws of the Corporation.
SECTION 3. Newly Created Directorships and Vacancies. Unless otherwise required by applicable law, newly created directorships resulting from any increase in the number of Directors and any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other cause shall be filled solely by the affirmative vote of a majority of the remaining Directors then in office, even though less than a quorum of the Board of Directors, or by a sole remaining Director. Any Director elected in accordance with the preceding sentence shall hold office for the remainder of the full term of the class of Directors in which the new directorship was created or the vacancy occurred and until such Director's successor shall have been elected and qualified. No decrease in the number of Directors constituting the Board of Directors shall shorten the term of an incumbent Director.
SECTION 4. Removal. Unless otherwise required by applicable law, any Director may be removed from office by the shareholders only for cause and only in the manner provided in this Section 4 of Article VII. At any annual meeting or special meeting of the shareholders of the Corporation, the notice of which shall state that the removal of a Director or Directors is among the purposes of the meeting, unless otherwise required by applicable law, the affirmative vote of the holders of at least 66-2/3% of the voting power of the then outstanding Common Stock may remove such Director or Directors for cause.
SECTION 5. Amendment, Repeal, Etc. Notwithstanding anything contained in these Articles of Incorporation to the contrary, unless otherwise required by applicable law, the affirmative vote of at least 66-2/3% of the voting power of the then outstanding Common Stock shall be required to amend or repeal, or adopt any provision inconsistent with, this Article VII.
VIII
In discharging the duties of their respective positions and in determining what is believed to be in the best interests of the Corporation, the Board of Directors, committees of the Board of Directors, and individual Directors, in addition to considering the effects of any action on the Corporation or its shareholders, may consider the interests of employees, customers, suppliers and creditors of the Corporation and its subsidiaries, the communities in which offices or other establishments of the Corporation and its subsidiaries are located, and all other factors such Directors deem pertinent; provided, however, that this Article VIII shall be deemed solely to grant discretionary authority to the Directors and shall not be deemed to provide to any constituency any right to be considered.
IX
A Director of the Corporation shall not be liable to the Corporation or its shareholders for or with respect to any acts or omissions in the performance of his duties as a Director, except to the extent such exemption from liability or limitation thereof is not permitted under the Georgia Business Corporation Code as currently in effect or as the same may be hereafter amended or under any other applicable law currently or hereafter in effect. No amendment, modification or repeal of this Article shall adversely affect any right or protection of a Director that exists at the time of such amendment, modification, or repeal.
X
Each person who is or was or had agreed to become a Director or officer of the Corporation, or each such person who is or was serving or who had agreed to serve at the request of the Board of Directors or an officer of the Corporation as an employee or agent of the Corporation or as a Director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise (including the heirs, executors, administrators or estate of such person), shall be indemnified by the Corporation to the fullest extent permitted by the Georgia Business Corporation Code or any other applicable laws as presently or hereafter in effect. The right to indemnification granted by this Article X shall include the right to be paid in advance expenses incurred in defending a proceeding. The Corporation may, by action of the Board of Directors, provide indemnification to other employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of Directors and officers. The right of indemnification provided in this Article X shall not be exclusive of any other rights to which any person seeking indemnification may otherwise be entitled, and shall be applicable to matters otherwise within its scope irrespective of whether such matters arose or arise before or after the adoption of this Article X. Without limiting the generality or the effect of the foregoing, the Corporation may adopt Bylaws, or enter into one or more agreements with any person, which provide for indemnification greater or different than that provided in this Article X. No amendment, modification or repeal of this Article shall adversely affect any right or protection of a Director, officer, employee or agent that exists at the time of such amendment, modification or repeal.
XI
Any issued and outstanding shares of stock of the Corporation which are repurchased by the Corporation shall become treasury shares which shall be held in treasury by the Corporation until resold or retired and canceled in the discretion of the Board of Directors. Any treasury shares which are retired and canceled shall constitute authorized but unissued shares.
EXHIBIT 3.2
RESTATED BYLAWS
OF
FLOWERS FOODS, INC.
ARTICLE 1.
OFFICES
Flowers Foods, Inc. (the "Corporation") shall maintain at all times a registered office in the State of Georgia and a registered agent at that address, but may have other offices located within or without the State of Georgia as the Board of Directors may determine.
ARTICLE 2.
MEETINGS OF SHAREHOLDERS
2.1 Place and Time of Meetings. All meetings of the shareholders shall be held at such time and at such place, within or without the State of Georgia, as may be designated by the Board of Directors or, in the absence of a designation by the Board of Directors, by the Chairman of the Board of Directors, the President or the Secretary, and stated in the notice of the meeting. The Chairman of the Board of Directors may postpone and reschedule any previously scheduled annual or special meeting of the shareholders of the Corporation.
2.2 Annual Meeting. An annual meeting of the shareholders shall be held at such date, time and place as shall be designated from time to time by the Board of Directors, at which meeting the shareholders shall elect by a plurality vote the Directors to succeed those whose terms expire and shall transact such other business as may be properly brought before the meeting in accordance with Section 2.10 of these Bylaws.
2.3 Special Meetings. Special meetings of the shareholders may be called only as provided in this Section 2.3. Special meetings may be called by the Chairman of the Board of Directors, and shall be called by the Chairman of the Board of Directors or the Secretary within 10 days after receipt of the written request of a majority of the total number of Directors which the Corporation would have if there were no vacancies (the "Whole Board") or upon receipt of the written request of the holders of at least 75% of the voting power of the then outstanding shares of Common Stock. Any such request by a majority of the Whole Board or the holders of at least 75% of the voting power of the then outstanding shares of Common Stock shall be sent to the Chairman of the Board of Directors and the Secretary and shall state the purpose or purposes of the proposed meeting. At a special meeting of shareholders, only such business shall be conducted or considered as shall have been stated in the notice of the meeting given by or at the direction of the Board of Directors.
2.4 Notice of Meeting. Written notice of every meeting of the shareholders, stating the place, day, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be given not fewer than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder of record entitled to vote at such meeting. Written notice shall be given personally, by mail, by private courier, by facsimile transmission, or by telegraph, teletype or other form of wire or wireless communication. If mailed, notice shall be deemed to be delivered when deposited in the United States mail with first-class postage thereon prepaid, addressed to the shareholder at his address as it appears on the stock transfer books of the Corporation. When a meeting of the shareholders is adjourned to another place, date or time, by the holders of a majority of the voting power of the voting shares represented at a meeting, whether or not a quorum is present, notice need not be given of the
adjourned meeting if the date, time, and place to which the meeting is adjourned are announced at the meeting at which the adjournment is taken; provided, however, if the Board is required to fix a new record date pursuant to Section 7.5(a) of these Bylaws, notice must be given to persons who are shareholders as of the new record date entitled to vote as such meeting. At an adjourned meeting at which a quorum is present or represented, any business that could have been transacted at the meeting originally called may be transacted.
2.5 Waiver of Notice. Notice of a meeting need not be given to any shareholder who signs a waiver of notice, in person or by proxy, either before or after the date and time stated in the notice. Waiver must be in writing and delivered to the Corporation for inclusion in the minutes or for filing with the corporate records. Attendance of a shareholder at a meeting, either in person or by proxy, shall of itself constitute waiver of notice and waiver of any and all objections to: (1) lack of notice or defective notice of a meeting, unless the shareholder at the beginning of the meeting objects to holding the meeting or transacting business at the meeting; and (2) consideration at the meeting of a particular matter that is not within the purpose or purposes described in the meeting notice, unless the shareholder objects to considering the matter when it is presented. Neither the business transacted nor the purpose of the meeting need be specified in the waiver, except that any waiver by a shareholder of the notice of a meeting of shareholders with respect to an amendment of the Articles of Incorporation, a plan of merger or share exchange, a sale of assets, or any other action which would entitle the shareholder to dissent and obtain payment for his shares shall not be effective unless: (a) prior to execution of the waiver, the shareholder is furnished with the same material required to be sent to the shareholder in a notice of the meeting, including notice of any applicable dissenters' rights; or (b) the waiver expressly waives the right to receive the materials required to be furnished.
2.6 Inspectors. The Board of Directors shall appoint one or more inspectors of election to act as judges of the voting and to determine those entitled to vote at any meeting of the shareholders, or any adjournment thereof, in advance of such meeting, but if the Board of Directors fails to make such appointment(s) or if an appointee fails to serve, the presiding officer of the meeting of the shareholders may appoint one or more inspectors (or substitute inspectors) to act at the meeting.
2.7 Quorum. Except as may be provided in the Articles of Incorporation, a majority of the votes entitled to be cast on a matter by the voting group, represented in person or by proxy, shall constitute a quorum of that voting group for action on that matter. Once a share is represented at a meeting for any purpose, other than solely to object to holding the meeting or transacting business at the meeting, it is deemed present for quorum purposes for the remainder of the meeting and for any adjournment of that meeting unless a new record date is or must be set for the adjourned meeting.
2.8 Voting. Except as provided in the Articles of Incorporation or as otherwise provided by law, each outstanding share shall be entitled to one vote on each matter submitted to a vote at a meeting of the shareholders. The vote upon any question brought before a meeting of the shareholders may be by voice vote, unless otherwise required by the Articles of Incorporation or these Bylaws or unless the presiding officer or the holders of a majority of the voting power of the then outstanding shares of all classes of stock entitled to vote thereon present in person or by proxy at such meeting shall determine otherwise. Every vote taken by written ballot shall be counted by the inspector(s) of election. Except as provided in these Bylaws, the Articles of Incorporation or by law, if a quorum exists, action on a matter (other than the election of Directors) by a voting group is approved if the votes cast within the voting group favoring the
action exceed the votes cast opposing the action. Directors shall be elected at the annual meeting by a plurality of the votes cast by shares entitled to vote in the election.
2.9 Proxies. A shareholder may vote his shares in person or by proxy. A shareholder may appoint a proxy by executing a writing which authorizes another person or persons to vote or otherwise act on the shareholder's behalf. Execution may be accomplished by any reasonable means, including facsimile transmission. A proxy is effective when received by the inspector of elections and is valid for eleven (11) months from the date of its execution, unless a longer period is expressly provided in the appointment form. An appointment of proxy is revocable by a shareholder unless the appointment form conspicuously states that it is irrevocable and the appointment is coupled with an interest.
2.10 Order of Business.
(a) The Chairman of the Board of Directors, or such officer of the Corporation designated by a majority of the Whole Board (as such term is defined in Section 2.3 of these Bylaws), shall call meetings of the shareholders of the Corporation to order and shall act as presiding officer thereof. Unless otherwise determined by the Board of Directors prior to the meeting, the presiding officer of the meeting of the shareholders shall determine the order of business and shall have the authority in his discretion to regulate the conduct of any such meeting, including, without limitation, by imposing restrictions on the persons (other than shareholders of the Corporation or their duly appointed proxies) who may attend any such shareholders' meeting; by excluding any shareholder or his proxy from any such meeting based upon the determination by the presiding officer, in his sole discretion, that any such person has unduly disrupted or is likely to disrupt the proceedings thereat; and by determining the circumstances in which any person may make a statement or ask questions at any such meeting.
(b) At an annual meeting of the shareholders, only such business shall be conducted or considered as shall have been properly brought before the meeting. To be properly brought before an annual meeting, business must be (i) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors, (ii) otherwise properly brought before the meeting by or at the direction of a majority of the Whole Board, or (iii) otherwise properly requested to be brought before the meeting by a shareholder of the Corporation.
(c) For business to be properly requested to be brought
before an annual meeting by a shareholder of the Corporation, the shareholder
(i) must be a shareholder of record at the time of the giving of the notice for
such annual meeting provided for in the Bylaws of this Corporation, (ii) must be
entitled to vote at such meeting, and (iii) must have given timely notice
thereof in writing to the Secretary of the Corporation. To be timely, a
shareholder's notice must be delivered to or mailed and received at the
principal executive offices of the Corporation not fewer than 60 days nor more
than 90 days prior to the first anniversary of the preceding year's annual
meeting; provided, however, that in the event that the date of the annual
meeting is changed by more than 30 days from such anniversary date, notice by
the shareholder to be timely must be so received not later than the close of
business on the 10th day following the day on which public announcement is first
made of the changed date of the meeting. A shareholder's notice to the Secretary
shall set forth as to each matter the shareholder proposes to bring before the
meeting (i) a brief description of the business desired to be brought before the
annual meeting and the reasons for conducting such business at the annual
meeting, (ii) the name and address, as they appear on the Corporation's books,
of the shareholder proposing such business and the beneficial owner, if any, on
whose behalf the proposal is made, (iii) the class and number of
shares of the Corporation that are owned beneficially and of record by the
shareholder proposing such business and by the beneficial owner, if any, on
whose behalf the proposal is made, and (iv) any material interest of such
shareholder proposing such business and the beneficial owner, if any, on whose
behalf the proposal is made, in such business. Notwithstanding anything in this
Section 2.10 to the contrary, no business shall be conducted at an annual
meeting except in accordance with the procedures set forth in this Section 2.10.
The presiding officer of the annual meeting shall, if the facts warrant,
determine that business was not properly brought before the meeting in
accordance with the procedures prescribed in this Section 2.10 and, if he should
so determine, he shall so declare to the meeting and any such business not
properly brought before the meeting shall not be transacted. Notwithstanding the
foregoing provisions of this Section 2.10, a shareholder shall also comply with
all applicable requirements of the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder with respect to the matters set forth
in this Section 2.10. For purposes of this Section 2.10 and Section 3.5 of these
Bylaws, "public announcement" shall mean disclosure in a press release reported
by the Dow Jones News Service, Associated Press or comparable national news
service, in a document publicly filed by the Corporation with the Securities and
Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Securities
Exchange Act of 1934, as amended, or in shareholder correspondence or a
shareholder report. Nothing in this Bylaw shall be deemed to affect any rights
of shareholders to request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, as
amended, including, but not limited to, the time periods specified to exercise
such rights.
ARTICLE 3.
DIRECTORS
3.1 Powers. The business and affairs of the Corporation shall be managed under the direction of its Board of Directors, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by law or by the Articles of Incorporation directed or required to be exercised or done by the shareholders.
3.2 Number, Qualification and Term of Office. The authorized number of Directors may be determined from time to time only by a vote of a majority of the Whole Board (as defined in Section 2.3 of these Bylaws) or by the affirmative vote of the holders of at least 66-2/3% of the voting power of the then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of Directors, voting together as a single class, but in no case shall the number of Directors be fewer than 3 or more than 16. The Directors shall be natural persons of the age of eighteen (18) years or older, but need not be residents of the State of Georgia or hold shares of stock in the Corporation. The Directors shall be classified with respect to the time for which they severally hold office into three classes, as nearly equal in number as possible, designated Class I, Class II and Class III. The Directors first appointed to Class I shall hold office for a term expiring at the annual meeting of shareholders to be held in 2002; the Directors first appointed to Class II shall hold office for a term expiring at the annual meeting of shareholders to be held in 2003; and the Directors first appointed to Class III shall hold office for a term expiring at the annual meeting of shareholders to be held in 2004, with the members of each class to hold office until their successors are elected and qualified. At each succeeding annual meeting of the shareholders of the Corporation, the successors of the class of Directors whose term expires at that meeting shall be elected by plurality vote of all votes cast at such
meeting to hold office for a term expiring at the annual meeting of shareholders held in the third year following the year of their election.
3.3 Vacancies and Newly Created Directorships. Newly created directorships resulting from any increase in the number of Directors and any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal or other cause shall be filled solely by the affirmative vote of a majority of the remaining Directors then in office, even though less than a quorum of the Board of Directors, or by a sole remaining Director. Any Director elected in accordance with the preceding sentence shall hold office for the remainder of the full term of the class of Directors in which the new directorship was created or the vacancy occurred and until such Director's successor shall have been elected and qualified. No decrease in the number of Directors constituting the Board of Directors shall shorten the term of an incumbent Director. A vacancy that will occur at a specific later date (including but not limited to a resignation that specifies a later date) may be filled before the vacancy occurs, but the new Director may not take office until the vacancy occurs.
3.4 Removal of Directors. Any or all of the Directors of the Corporation may be removed with cause by the affirmative vote of the holders of at least 66-2/3% of the voting power of the then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of Directors, voting together as a single class. A Director may be removed by the shareholders only at a meeting called for the purpose of removing him, and the meeting notice must state that the purpose, or one of the purposes, of the meeting is removal of the Director.
3.5 Nominations of Directors; Election. Only persons who are nominated in accordance with the following procedures shall be eligible for election as Directors of the Corporation. Nominations of persons for election as Directors of the Corporation may be made
by (i) the Board of Directors or a committee appointed by the Board of Directors, or (ii) any person who is a shareholder of record at the time of giving of notice for the meeting provided for in these Bylaws, who is entitled to vote for the election of Directors and who complies with the procedures set forth in this Section 3.5. All nominations by shareholders shall be made pursuant to timely notice in proper written form to the Secretary of the Corporation. To be timely, a shareholder's notice shall be delivered to or mailed and received at the principal executive offices of the Corporation: (i) in the case of an annual meeting, not fewer than 60 days nor more than 90 days prior to the first anniversary of the preceding year's annual meeting; provided, however, that in the event that the date of the annual meeting is changed by more than 30 days from such anniversary date, notice by the shareholder to be timely must be so received not later than the close of business on the 10th day following the day on which public announcement is first made of the changed date of the meeting; and (ii) in the case of a special meeting at which Directors are to be elected, not later than the close of business on the 10th day following the day on which public announcement is first made of the changed date of the meeting. To be in proper written form, such shareholder's notice shall set forth or include (i) the name and address, as they appear on the Corporation's books, of the shareholder giving the notice and of the beneficial owner, if any, on whose behalf the nomination is made; (ii) a representation that the shareholder giving the notice is a holder of record of stock of the Corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice; (iii) the class and number of shares of stock of the Corporation owned beneficially and of record by the shareholder giving the notice and by the beneficial owner, if any, on whose behalf the nomination is made; (iv) a description of all arrangements or understandings between or among any of (A) the shareholder giving the notice, (B) the beneficial
owner on whose behalf the notice is given, (C) each nominee, and (D) any other
person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the shareholder giving the notice;
(v) such other information regarding each nominee proposed by the shareholder
giving the notice as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission, had the
nominee been nominated, or intended to be nominated, by the Board of Directors;
and (vi) the signed consent of each nominee to serve as a Director of the
Corporation if so elected. At the request of the Board of Directors, any person
nominated by the Board of Directors for election as a Director shall furnish to
the Secretary of the Corporation that information required to be set forth in a
shareholder's notice of nomination which pertains to the nominee. The presiding
officer of the meeting for election of Directors shall, if the facts warrant,
determine that a nomination was not made in accordance with the procedures
prescribed by this Section 3.5, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
Notwithstanding the foregoing provisions of this Section 3.5, a shareholder
shall also comply with all applicable requirements of the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder with respect
to the matters set forth in this Section 3.5.
3.6 Resignation. Any Director may resign at any time by giving written notice of his resignation to the Board of Directors, the Chairman of the Board of Directors or the Corporation.
3.7 Compensation. The Board of Directors may establish the compensation for, and reimbursement of the expenses of, Directors for membership on the Board of Directors and on committees of the Board of Directors, attendance at meetings of the Board of Directors or committees of the Board of Directors, and for other services by Directors to the Corporation.
3.8 Interested Director Transactions. An interested Director is one who is a party to a contract or transaction with the Corporation or who is an officer or Director of, or has a financial interest in, another corporation, partnership, association, or other entity which is a party to a contract or transaction with the Corporation. Transactions involving such a Director shall be governed by Section 14-2-860, et seq., of the Georgia Business Corporation Code, as the same may hereinafter be amended.
ARTICLE 4.
MEETINGS OF THE BOARD
4.1 Regular Meetings. Regular meetings of the Board of Directors may be held without notice immediately after the annual meeting of the shareholders and at such other time and place either within or without the State of Georgia as shall from time to time be determined by the Board of Directors.
4.2 Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors or the President, on one day's written notice to each Director by whom such notice is not waived. Notice shall be given personally, by mail, by private courier, by facsimile transmission, or by telegraph, teletype or other form of wire or wireless communication, and need not describe the business to be transacted at, or the purpose of, the special meeting. Special meetings of the Board of Directors may be held at such time and place either within or without the State of Georgia as is determined by the Board of Directors or specified in the notice of any such meeting.
4.3 Waiver of Notice. A Director may waive any notice either before or after the date and time stated in the notice. Such a waiver must be in writing, signed by the Director and delivered to the Corporation for inclusion in the minutes or filing with the corporate records.
Attendance of a Director at a meeting shall constitute a waiver of notice of that meeting unless the Director at the beginning of the meeting (or promptly upon arrival) objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting.
4.4 Quorum. A quorum of the Board of Directors consists of a
majority of the number of Directors then in office. If a quorum is present, the
acts of a majority of the Directors in attendance shall be the acts of the Board
of Directors. A Director who is present at a meeting of the Board of Directors
when corporate action is taken is deemed to have assented to the action taken
unless: (a) that Director objects at the beginning of the meeting (or promptly
upon arrival) to holding the meeting or to transacting business at the meeting;
(b) the dissent or abstention of that Director from the action taken is entered
into the minutes of the meeting; or (c) that Director delivers written notice of
dissent or abstention to the presiding officer of the meeting before, or to the
Corporation immediately after, adjournment of the meeting. The right of dissent
is not available to a Director who votes in favor of an action taken.
4.5 Adjournment. A meeting of the Board of Directors may be adjourned by a majority of the Directors present, whether or not a quorum exists. Notice of the time and the place of the adjourned meeting and of the business to be transacted thereat, other than by announcement at the meeting at which the adjournment is taken, shall not be necessary. At an adjourned meeting at which a quorum is present, any business may be transacted which could have been transacted at the meeting originally called.
4.6 Participation in Meetings Other Than in Person. Members of the Board of Directors may participate in a meeting of the Board by any means of communication by which
all persons participating in the meeting can hear each other. Participation in a meeting in such manner shall constitute presence in person at such meeting.
4.7 Rules. The Board of Directors may adopt rules and regulations that are not inconsistent with law or these Bylaws for the conduct of their meetings and the management of the affairs of the Corporation.
ARTICLE 5.
COMMITTEES
5.1 Formation and Powers. The Board of Directors, by resolution
passed by a majority of the Whole Board (as defined in Section 2.3 of these
Bylaws), may create one or more committees and appoint members of the Board of
Directors to serve thereon. Each committee shall have such lawfully delegable
powers and duties as the Board of Directors may confer. However, a committee
shall not have the power to: (i) approve or propose to shareholders action that
the Georgia Business Corporation Code requires to be approved by shareholders;
(ii) fill vacancies on the Board of Directors or on any of its committees; (iii)
amend the Articles of Incorporation pursuant to Section 14-2-1002 of the Georgia
Business Corporation Code, as it may hereafter be amended; (iv) adopt, amend or
repeal these Bylaws; or (v) approve a plan of merger not requiring shareholder
approval. Any committee or committees so designated by the Board of Directors
shall have such name or names as may be determined from time to time by
resolution adopted by the Board of Directors. Unless otherwise prescribed by the
Board of Directors, a majority of the members of the committee shall constitute
a quorum for the transaction of business, and the act of a majority of the
members present at a meeting at which there is a quorum shall be the act of such
committee. Each committee shall prescribe its own rules for calling and holding
meetings and its method of procedure, subject to any rules
prescribed by the Board of Directors or by applicable law, and shall keep a written record of all actions taken by it.
5.2 Removal. The Board of Directors shall have power at any time to remove any member of any committee, with or without cause, to fill vacancies on any committee, and to dissolve any committee.
ARTICLE 6.
OFFICERS
6.1 Generally. The officers of the Company shall be elected by the Board of Directors and shall consist of a Chief Executive Officer, a President, a Secretary, and a Treasurer. The Board of Directors may also choose any or all of the following: a Controller, one or more Vice Presidents (who may be given particular designations with respect to authority, function, or seniority), and such other officers as the Board of Directors may from time to time determine. Notwithstanding the foregoing, by specific action the Board of Directors may authorize the Chairman of the Board of Directors to appoint any person to any office other than Chief Executive Officer, President, Secretary, or Treasurer. Any number of offices may be held by the same person. Any of the offices may be left vacant from time to time as the Board of Directors may determine. In the case of the absence or disability of any officer of the Company or for any other reason deemed sufficient by a majority of the Board of Directors, the Board of Directors may delegate the absent or disabled officer's powers or duties to any other officer or to any Director.
6.2 Compensation. The compensation of all officers and agents of the Company who are also Directors of the Company shall be fixed by the Board of Directors or by a committee of the Board of Directors. The Board of Directors may fix the compensation of other officers and
agents of the Company or delegate the power to fix such compensation to an officer of the Company.
6.3 Succession. The officers of the Company will hold office until their successors are elected and qualified. Any officer may be removed at any time by the affirmative vote of a majority of the Whole Board. Any vacancy occurring in any office of the Company may be filled by the Board of Directors or by the Chairman of the Board of Directors as provided in Section 6.1 of these Bylaws.
6.4 Authority and Duties. Each of the officers of the Corporation shall have such authority and shall perform such duties as are customarily incident to their respective offices, or as may be specified from time to time by the Board of Directors.
6.5 Interested Officer Transactions. An interested officer is one who is a party to a contract or transaction with the Corporation or who is an officer or Director of, or has a financial interest in, another corporation, partnership, association, or other entity which is a party to a contract or transaction with the Corporation. Transactions involving such an officer shall be governed by Section 14-2-864 of the Georgia Business Corporation Code, as the same may hereinafter be amended.
ARTICLE 7.
CAPITAL STOCK
7.1 Certificates. The interest of each shareholder may be evidenced by a certificate or certificates representing shares of stock of the Corporation, which shall be in such form as the Board of Directors may from time to time adopt, shall be numbered and shall be entered in the books of the Corporation as they are issued. Each share certificate shall state, on its face, the name of the Corporation and that it is organized under the laws of Georgia, the name of the
person to whom it is issued, and the number and class of shares and the
designation of the series, if any, that the certificate represents. Also, each
certificate may bear the seal of the Corporation or a facsimile thereof and
shall be signed, either manually or in facsimile, by any one of the following:
the President, the Secretary or an Assistant Secretary, or other officer
designated by the Board of Directors for such purpose. If the certificate is
signed in facsimile, it must be countersigned by a transfer agent or registered
by a registrar other than the Corporation itself or an employee of the
Corporation. The transfer agent or registrar may sign either manually or by
facsimile.
7.2 Transfers. Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the Corporation to issue, or to cause its transfer agent to issue, a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books.
7.3 Lost, Stolen or Destroyed Certificates. The Secretary may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact, satisfactory to the Secretary, by the person claiming the certificate of stock to be lost, stolen or destroyed. As a condition precedent to the issuance of a new certificate or certificates, the Secretary may require the owners of such lost, stolen or destroyed certificate or certificates to give the Corporation a bond in such sum and with such surety or sureties as the Secretary may direct as indemnity against any claims that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed or the issuance of the new certificate.
7.4 Certificateless Shares. The Board of Directors of the Corporation may authorize the issuance of some or all of the shares of stock, of any or all of its classes or series, without certificates. Within a reasonable time after the issue or transfer of the shares without certificates, the Corporation shall send the shareholder to whom a share is to be issued a written statement specifying the name of the Corporation, that the Corporation is organized under the laws of Georgia, the name of the person to whom the shares are issued or transferred, the number and class of shares and the designation of the series, if any, that the certificate represents, and any applicable restriction on the transfer of such shares.
7.5 Record Dates.
(a) In order that the Corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to take any other action, the Board of Directors shall in advance fix 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 70 days before the date of such meeting. If no record date is fixed, the record date for determining shareholders entitled to notice of or to vote at any meeting of shareholders shall be the close of business on the day before the first notice is delivered to shareholders. A determination of shareholders of record entitled to notice of or to vote at a meeting of the shareholders shall apply to any adjournment of the meeting; provided, however, if the meeting is adjourned to a date more than 120 days after the date fixed for the original meeting, the Board of Directors shall fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the shareholders entitled to receive payment of any dividend or other distribution, 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 70 days prior to such payment. If no record date is fixed, the record date for determining shareholders for any such purpose shall be at the close of business on the day on which the Board of Directors authorizes the distribution.
(c) The Corporation shall be entitled to treat the person in whose name any share of its stock is registered as the owner thereof for all purposes, and shall not be bound to recognize any equitable or other claim to, or interest in, such share on the part of any other person, whether or not the Corporation shall have notice thereof, except as expressly provided by applicable law.
ARTICLE 8.
MISCELLANEOUS
8.1 Amendments. Notwithstanding anything contained in the Corporation's Articles of Incorporation to the contrary, unless otherwise required by applicable law, Sections 2.3 (Special Meetings), 2.10 (Order of Business), 3.2 (Number, Qualification and Term of Office), 3.3 (Vacancies and Newly Created Directorships), 3.4 (Removal of Directors), 3.5 (Nominations of Directors; Election), 8.8 (Fair Price Requirements) and 8.9 (Business Combinations with Interested Shareholders) of these Bylaws shall not be amended or repealed by the shareholders, and no provision inconsistent therewith shall be adopted by the shareholders, without the affirmative vote of the holders of at least 66 2/3% of the voting power of the then outstanding shares of Common Stock and outstanding shares of preferred stock voting together, to the extent the outstanding shares of preferred stock are afforded voting rights and powers generally equal to the voting rights and powers of shares of Common Stock.
8.2 Inspection of Books.
(a) A shareholder may inspect and copy, during regular
business hours at the Corporation's principal office, the following if he gives
the Corporation written notice of his demand at least five (5) business days
prior to the requested date of inspection: (1) the Corporation's Articles of
Incorporation and all amendments to them currently in effect; (2) the
Corporation's Bylaws and all amendments to them currently in effect; (3)
resolutions adopted by either the shareholders or Board of Directors increasing
or decreasing the number of Directors, the classification of Directors, if any,
and the names and residence addresses of all members of the Board of Directors;
(4) resolutions adopted by the Board of Directors creating one or more classes
or series of shares, and fixing their relative rights, preferences, and
limitations, if shares issued pursuant to those resolutions are outstanding, and
any resolutions adopted by the Board of Directors that affect the size of the
board of Directors; (5) the minutes of all shareholders' meetings, executed
waivers of notice of meetings, and executed written consents evidencing all
action taken by shareholders without a meeting, for the previous three years;
(6) all written communications to shareholders generally within the previous
three years and the financial statements required to be made available to the
shareholders for the previous three years under Section 14-2-1620 of the Georgia
Business Corporation Code as it may hereinafter be amended; (7) a list of the
names and business addresses of its current Directors and officers; and (8) the
Corporation's most recent annual registration delivered to the Secretary of
State under Section 14-2-1622 of the Georgia Business Corporation Code.
(b) A shareholder may inspect and copy, during regular business hours at a reasonable location specified by the Corporation (1) excerpts from minutes of any meeting of the Board of Directors, records of any action of a committee of the Board of Directors while acting in place of the Board of Directors on behalf of the Corporation, minutes of any meeting of the
shareholders, and records of action taken by the shareholders or Board of
Directors without a meeting, to the extent not subject to inspection under
Section 8.1(a); (2) accounting records of the Corporation; and (3) the record of
shareholders. A shareholder may inspect these records of the Corporation only
if: (i) his demand is made in good faith and for a proper purpose that is
reasonably relevant to his legitimate interest as a shareholder; (ii) he
describes with reasonable particularity his purpose and the records he desires
to inspect; (iii) the records are directly connected with his purpose; (iv) the
records are to be used only for the stated purpose; and (v) the shareholder owns
more than two percent (2%) of the outstanding shares of the Corporation at the
date of his request.
8.3 Seal. The corporate seal shall be in such form as the Board of Directors may from time to time determine. In the event that it is inconvenient at any time to use the corporate seal of the Corporation, the words "Seal" or "Corporate Seal" enclosed in parentheses or scroll shall be deemed the corporate seal of the Corporation.
8.4 Checks, Notes, Drafts, Etc. Checks, notes, drafts, acceptances, bills of exchange, and other orders or obligations for the payment of money shall be signed by such officer or officers or person or persons as the Board of Directors by resolution shall from time to time designate.
8.5 Fiscal Year. The fiscal year of the Corporation shall be fixed from time to time by the Board of Directors.
8.6 Reliance upon Books, Reports and Records. Each Director, each member of a committee designated by the Board of Directors, and each officer of the Corporation shall, in the performance of his or her duties, be fully protected in relying in good faith upon such information, opinions, reports or statements, including financial statements and other financial
data, prepared or presented to the Corporation by: (i) any of the Corporation's officers or employees who the Director reasonably believes to be reliable and competent in the matters presented; (ii) legal counsel, public accountants, investment bankers or other persons engaged by the Corporation as to matters the Director reasonably believes are within the person's professional or expert competence; or (iii) committees of the Board of Directors of which he is not a member if the Director reasonably believes the committee merits confidence.
8.7 Time Periods. In applying any provision of these Bylaws that requires that an act be done or not be done a specified number of days prior to an event, or that an act be done during a period of a specified number of days prior to an event, calendar days shall be used, the day of the doing of the act shall be excluded, and the day of the event shall be included.
8.8 Fair Price Requirements. The Corporation shall be governed by all of the requirements of Part 2 of Article 11 of the Georgia Business Corporation Code, as amended.
8.9 Business Combinations with Interested Shareholders. The Corporation shall be governed by all of the requirements of Part 3 of Article 11 of the Georgia Business Corporation Code, as amended.
8.10 Indemnification. Each person who is or was or had agreed to become a Director or officer of the Corporation, or each such person who is or was serving or who had agreed to serve at the request of the Board of Directors or an officer of the Corporation as an employee or agent of the Corporation or as a Director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise (including the heirs, executors, administrators or estate of such person), shall be indemnified by the Corporation to the fullest extent permitted by the Georgia Business Corporation Code or any other applicable laws as presently or hereafter in effect. The right to indemnification granted by this Section 8.10 shall include the right to be
paid in advance expenses incurred in defending a proceeding. The Corporation may, by action of the Board of Directors, provide indemnification to other employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of Directors and officers. The right of indemnification provided in this Section 8.10 shall not be exclusive of any other rights to which any person seeking indemnification may otherwise be entitled, and shall be applicable to matters otherwise within its scope irrespective of whether such matters arose or arise before or after the adoption of this Section 8.10. Without limiting the generality or the effect of the foregoing, the Corporation may enter into one or more agreements with any person, which provide for indemnification greater or different than that provided in this Section 8.10. No amendment, modification or repeal of this Article shall adversely affect any right or protection of a Director, officer, employee or agent that exists at the time of such amendment, modification or repeal.
EXHIBIT 4.1
NUMBER
FF
INCORPORATED UNDER THE THIS CERTIFICATE IS TRANSFERABLE
LAWS OF THE STATE OF GEORGIA IN CHARLOTTE, NC AND NEW YORK, NY
[GRAPHIC]
COMMON STOCK SEE REVERSE FOR
CERTAIN RIGHTS INFORMATION
PAR VALUE
$.01
CUSIP 343498 10 1
|
SEE REVERSE FOR
CERTAIN DEFINITIONS
FLOWERS FOODS, INC.
This Certifies that
is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK OF
Flowers Foods, Inc. transferable on the books of the corporation by the holder hereof in person or by duly authorized attorney upon surrender of this certificate duly endorsed. This certificate and the shares represented hereby are subject to all of the provisions of the Certificate of Incorporation of the corporation and amendments thereto, a copy of each of which is on file in the offices of the corporation and with the transfer agent, to which the holder by acceptance hereof assents. This certificate is not valid until countersigned and registered by the Transfer Agent and Registrar.
In Witness Whereof, the corporation has caused its corporate seal to be hereunto affixed and this certificate to be signed by its duly authorized officers.
DATED:
Countersigned and Registered:
FIRST UNION NATIONAL BANK
(CHARLOTTE, NC)
Transfer Agent
By and Registrar
/s/ G. Anthony Campbell /s/ Amos R. McMullian
Secretary Chairman of the Board
Authorized Signature
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FLOWERS FOODS, INC.
This Certificate also evidences and entitles the holder hereof to certain Rights as set forth in a Rights Agreement between Flowers Foods, Inc. and First Union National Bank, (the "Rights Agreement"), the terms of which are hereby incorporated herein by reference and a copy of which is on file at the principal executive offices of Flowers Foods, Inc. The Rights are not exercisable prior to the occurrence of certain events specified in the Rights Agreement. Under certain circumstances, as set forth in the Rights Agreement, such Rights may be redeemed, may be exchanged, may expire, may be amended, or may be evidenced by separate certificates and no longer be evidenced by this Certificate. Flowers Foods, Inc. will mail to the holder of this Certificate a copy of the Rights Agreement, as in effect on the date of mailing, without charge promptly after receipt of a written request therefor. Under certain circumstances as set forth in the Rights Agreement, Rights that are or were beneficially owned by an Acquiring Person or any Affiliate or Associate of an Acquiring Person (as such terms are defined in the Rights Agreement) may become null and void.
The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM -as tenants in common UNIF GIFT MIN ACT-_____________Custodian_____________
TEN ENT -as tenants by the entireties (Cust.) (Minor)
JT TEN -as joint tenants with right of
survivorship and not as tenants under Uniform Gifts to Minors
in common Act_____________________
(State)
|
Additional abbreviations may also be used though not in the above list.
For value received, _____________________________________________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
__________________________________________________________________________Shares of the capital stock represented by the within Certificate and do hereby irrevocably constitute and appoint______________________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM) PURSUANT TO S.E.C. RULE 17Ad-15.
NOTICE: THE SIGNATURE(S) ON THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME(S) AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER.
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN, MUTILATED OR DESTROYED, THE CORPORATION WILL REQUIRE A BOND OF INDEMNITY AS A CONDITION TO THE ISSUANCE OF A REPLACEMENT CERTIFICATE.
EXHIBIT 4.2
RIGHTS AGREEMENT
Dated as of March 23, 2001
By and Between
Flowers Foods, Inc.
and
First Union National Bank,
as Rights Agent
TABLE OF CONTENTS
Page
----
1. Certain Definitions.........................................................................................1
2. Appointment of Rights Agent.................................................................................5
3. Issue of Right Certificates.................................................................................5
4. Form of Right Certificates..................................................................................7
5. Countersignature and Registration...........................................................................7
6. Transfer, Split Up, Combination and Exchange of Right Certificates; Mutilated,
Destroyed, Lost or Stolen Right Certificates.............................................................8
7. Exercise of Rights; Purchase Price; Expiration Date of Rights...............................................8
8. Cancellation and Destruction of Right Certificates..........................................................9
9. Company Covenants Concerning Securities and Rights.........................................................10
10. Record Date................................................................................................11
11. Adjustment of Purchase Price, Number and Kind of Securities or Number of Rights............................12
12. Certificate of Adjusted Purchase Price or Number of Securities.............................................20
13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power.......................................20
14. Fractional Rights and Fractional Securities................................................................22
15. Rights of Action...........................................................................................24
16. Agreement of Rights Holders................................................................................24
17. Right Certificate Holder Not Deemed a Shareholder..........................................................25
18. Concerning the Rights Agent................................................................................25
19. Merger or Consolidation or Change of Name of Rights Agent..................................................26
20. Duties of Rights Agent.....................................................................................26
21. Change of Rights Agent.....................................................................................28
22. Issuance of New Right Certificates.........................................................................29
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23. Redemption.................................................................................................30 24. Exchange...................................................................................................31 25. Notice of Certain Events...................................................................................32 26. Notices....................................................................................................32 27. Supplements and Amendments.................................................................................33 28. Successors; Certain Covenants..............................................................................34 29. Benefits of This Agreement.................................................................................34 30. Governing Law..............................................................................................34 31. Severability...............................................................................................34 32. Descriptive Headings, Etc..................................................................................34 33. Determinations and Actions by the Directors................................................................34 34. Counterparts...............................................................................................35 Exhibit A.......................................................................................................A-1 Exhibit B.......................................................................................................B-1 Exhibit C.......................................................................................................C-1 |
RIGHTS AGREEMENT
This RIGHTS AGREEMENT, dated as of March 23, 2001 (this "Agreement"), is made and entered into by and between Flowers Foods, Inc., a Georgia corporation (the "Company"), and First Union National Bank (the "Rights Agent").
RECITALS
WHEREAS, on March 23, 2001, the Directors of the Company authorized and declared a dividend distribution of one right (a "Right") for each share of Common Stock, par value $.01 per share, of the Company (a "Common Share") outstanding as of the Close of Business (as hereinafter defined) on March 26, 2001 (the "Record Date"), each Right initially representing the right to purchase one thousandth of a Preferred Share (as hereinafter defined), on the terms and subject to the conditions herein set forth, and further authorized and directed the issuance of one Right (subject to adjustment as provided herein) with respect to each Common Share issued or delivered by the Company (whether originally issued or delivered from the Company's treasury) after the Record Date but prior to the earlier of the Distribution Date (as hereinafter defined) and the Expiration Date (as hereinafter defined) or as provided in Section 22. Notwithstanding anything in this Agreement to the contrary, this Agreement shall not take effect until the Close of Business on March 26, 2001.
NOW, THEREFORE, in consideration of the mutual agreements herein set forth, the parties hereto hereby agree as follows:
1. Certain Definitions. For purposes of this Agreement, the following terms have the meanings indicated:
(a) "Acquiring Person" means any Person (other than the Company or any Related Person) who or which, together with all Affiliates and Associates of such Person, is the Beneficial Owner of 15% or more of the then-outstanding Common Shares; provided, however, that a Person will not be deemed to have become an Acquiring Person solely as a result of a reduction in the number of Common Shares outstanding unless and until such time as (i) such Person or any Affiliate or Associate of such Person thereafter becomes the Beneficial Owner of additional Common Shares representing 1% or more of the then-outstanding Common Shares, other than as a result of a stock dividend, stock split or similar transaction effected by the Company in which all holders of Common Shares are treated equally, or (ii) any other Person who is the Beneficial Owner of Common Shares representing 1% or more of the then-outstanding Common Shares thereafter becomes an Affiliate or Associate of such Person. Notwithstanding the foregoing, (i) the term "Acquiring Person" shall not include Flowers Industries, Inc. prior to the distribution of the Common Shares; and (ii) if the Continuing Directors of the Company determine in good faith that a Person who would otherwise be an "Acquiring Person" as defined pursuant to the foregoing provisions of this paragraph (a), has become such inadvertently, and such Person divests as promptly as practicable a sufficient number of Common Shares so that such Person would no longer be an "Acquiring Person" as defined pursuant to the foregoing provisions of this paragraph (a), then such Person shall not be deemed to be an "Acquiring Person" for any purposes of this Agreement.
(b) "Affiliate" and "Associate" will have the respective meanings ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under the Exchange Act, as in effect on the date of this Agreement, provided, however, that a Person will not be deemed to be an Affiliate or Associate of another Person solely because either or both Persons are or were Directors of the Company.
(c) A Person will be deemed the "Beneficial Owner" of, and to "Beneficially Own," any securities:
(i) which such Person or any of such Person's Affiliates or Associates beneficially owns, directly or indirectly;
(ii) the beneficial ownership of which such Person or any of such Person's Affiliates or Associates, directly or indirectly, has the right to acquire (whether such right is exercisable immediately or only after the passage of time) pursuant to any agreement, arrangement or understanding (whether or not in writing), or upon the exercise of conversion rights, exchange rights, warrants, options or other rights (in each case, other than upon exercise or exchange of the Rights); provided, however, that a Person will not be deemed the Beneficial Owner of, or to Beneficially Own, securities tendered pursuant to a tender or exchange offer made by or on behalf of such Person or any of such Person's Affiliates or Associates until such tendered securities are accepted for purchase or exchange; or
(iii) which such Person or any of such Person's Affiliates or Associates, directly or indirectly, has or shares the right to vote or dispose of, including pursuant to any agreement, arrangement or understanding (whether or not in writing); or
(iv) of which any other Person is the Beneficial Owner, if such Person or any of such Person's Affiliates or Associates has any agreement, arrangement or understanding (whether or not in writing) with such other Person (or any of such other Person's Affiliates or Associates) with respect to acquiring, holding, voting or disposing of any securities of the Company;
provided, however, that a Person will not be deemed the Beneficial Owner of, or
to Beneficially Own, any security (A) if such Person has the right to vote such
security pursuant to an agreement, arrangement or understanding (whether or not
in writing) which (1) arises solely from a revocable proxy given to such Person
in response to a public proxy or consent solicitation made pursuant to, and in
accordance with, the applicable rules and regulations of the Exchange Act and
(2) is not also then reportable on Schedule 13D under the Exchange Act (or any
comparable or successor report), or (B) if such beneficial ownership arises
solely as a result of such Person's status as a "clearing agency," as defined in
Section 3(a)(23) of the Exchange Act; provided further, however, that nothing in
this paragraph (c) will cause a Person engaged in business as an underwriter of
securities to be the Beneficial Owner of, or to Beneficially Own, any securities
acquired through such Person's participation in good faith in an underwriting
syndicate until the expiration of 40 calendar days after the date of such
acquisition, or such later date as the Continuing Directors of the Company may
determine in any specific case.
(d) "Business Day" means any day other than a Saturday, Sunday or a day on which banking institutions in the State of Georgia (or such other state in which the principal office of the Rights Agent is located) are authorized or obligated by law or executive order to close.
(e) "Close of Business" on any given date means 5:00 P.M., Atlanta time, on such date; provided, however, that if such date is not a Business Day it means 5:00 P.M., Atlanta time, on the next succeeding Business Day.
(f) "Common Shares" when used with reference to the Company means the shares of Common Stock, par value $.01 per share, of the Company; provided, however, that, if the Company is the continuing or surviving corporation in a transaction described in Section 13(a)(ii), "Common Shares" when used with reference to the Company means shares of the capital stock or units of the equity interests with the greatest aggregate voting power of the Company. "Common Shares" when used with reference to any corporation or other legal entity other than the Company, including an Issuer, means shares of the capital stock or units of the equity interests with the greatest aggregate voting power of such corporation or other legal entity.
(g) "Company" means Flowers Foods, Inc., a Georgia corporation.
(h) "Continuing Director" shall mean (i) any member of the
Board of Directors of the Company, while such Person is a member of the Board,
who is not an Acquiring Person, or an Affiliate or Associate of an Acquiring
Person, or a representative of an Acquiring Person or of any such Affiliate or
Associate, and was a member of the Board prior to the date of this Agreement, or
(ii) any Person who subsequently becomes a member of the Board, while such
Person is a member of the Board, who is not an Acquiring Person, or an Affiliate
or Associate of an Acquiring Person, or a representative of an Acquiring Person
or of any such Affiliate or Associate, if such Person's nomination for election
or election to the Board is recommended or approved by a majority of the
Continuing Directors.
(i) "Distribution Date" means the earlier of: (i) the Close of Business on the tenth calendar day following the Share Acquisition Date, or (ii) the Close of Business on the tenth Business Day (or, unless the Distribution Date shall have previously occurred, such later date as may be specified by the Continuing Directors of the Company) after the commencement of a tender or exchange offer by any Person (other than the Company or any Related Person), if upon the consummation thereof such Person would be the Beneficial Owner of 15% or more of the then-outstanding Common Shares.
(j) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
(k) "Expiration Date" means the earliest of (i) the Close of Business on the Final Expiration Date, (ii) the time at which the Rights are redeemed as provided in Section 23, and (iii) the time at which all exercisable Rights are exchanged as provided in Section 24.
(l) "Final Expiration Date" means the tenth anniversary of the Record Date.
(m) "Flip-in Event" means any event described in clauses (A), (B) or (C) of Section 11(a)(ii).
(n) "Flip-over Event" means any event described in clauses
(i), (ii) or (iii) of Section 13(a).
(o) "Issuer" has the meaning set forth in Section 13(b).
(p) "Nasdaq" means The NASDAQ Stock Market.
(q) "Person" means any individual, firm, corporation or other legal entity, and includes any successor (by merger or otherwise) of such entity.
(r) "Preferred Shares" means shares of Series A Junior Participating Preferred Stock, par value $100 per share, of the Company having the rights and preferences as set forth in Exhibit A.
(s) "Purchase Price" means initially $80.00 per one thousandth of a Preferred Share, subject to adjustment from time to time as provided in this Agreement.
(t) "Record Date" has the meaning set forth in the Recitals to this Agreement.
(u) "Redemption Price" means $.01 per Right, subject to adjustment by resolution of the Directors of the Company to reflect any stock split, stock dividend or similar transaction occurring after the Record Date.
(v) "Related Person" means (i) any Subsidiary of the Company or (ii) any employee benefit or stock ownership plan of the Company or of any Subsidiary of the Company or any entity holding Common Shares for or pursuant to the terms of any such plan.
(w) "Right" has the meaning set forth in the Recitals to this Agreement.
(x) "Right Certificates" means certificates evidencing the Rights, in substantially the form attached as Exhibit B.
(y) "Rights Agent" means First Union National Bank, unless and until a successor Rights Agent has become such pursuant to the terms of this Agreement, and thereafter, "Rights Agent" means such successor Rights Agent.
(z) "Securities Act" means the Securities Act of 1933, as amended.
(aa) "Share Acquisition Date" means the first date of public announcement by the Company (by press release, filing made with the Securities and Exchange Commission or otherwise) that an Acquiring Person has become such.
(bb) "Subsidiary" when used with reference to any Person means any corporation or other legal entity of which a majority of the voting power of the voting equity securities or equity interests is owned, directly or indirectly, by such Person; provided, however,
that for purposes of Section 13(b), "Subsidiary" when used with reference to any Person means any corporation or other legal entity of which at least 20% of the voting power of the voting equity securities or equity interests is owned, directly or indirectly, by such Person.
(cc) "Trading Day" means any day on which the principal national securities exchange on which the Common Shares are listed or admitted to trading is open for the transaction of business or, if the Common Shares are not listed or admitted to trading on any national securities exchange, a Business Day.
(dd) "Triggering Event" means any Flip-in Event or Flip-over Event.
2. Appointment of Rights Agent. The Company hereby appoints the Rights Agent to act as agent for the Company and the holders of the Rights (who, in accordance with Section 3, will also be, prior to the Distribution Date, the holders of the Common Shares) in accordance with the terms and conditions hereof, and the Rights Agent hereby accepts such appointment and hereby certifies that it complies with the requirements of the New York Stock Exchange governing transfer agents and registrars. The Company may from time to time act as Co-Rights Agent or appoint such Co-Rights Agents as it may deem necessary or desirable. Any actions which may be taken by the Rights Agent pursuant to the terms of this Agreement may be taken by any such Co-Rights Agent. To the extent that any Co-Rights Agent takes any action pursuant to this Agreement, such Co-Rights Agent will be entitled to all of the rights and protections of, and subject to all of the applicable duties and obligations imposed upon, the Rights Agent pursuant to the terms of this Agreement. The Rights Agent shall have no duty to supervise, and shall in no event be liable for, the acts or omissions of any such Co-Rights Agent. In the event the Company appoints one or more Co-Rights Agents, the respective duties of the Rights Agent and any Co-Rights Agents will be as the Company may determine.
3. Issue of Right Certificates.
(a) Until the Distribution Date, (i) the Rights will be evidenced by the certificates representing Common Shares registered in the names of the record holders thereof (which certificates representing Common Shares will also be deemed to be Right Certificates), (ii) the Rights will be transferable only in connection with the transfer of the underlying Common Shares, and (iii) the surrender for transfer of any certificates evidencing Common Shares in respect of which Rights have been issued will also constitute the transfer of the Rights associated with the Common Shares evidenced by such certificates. On or as promptly as practicable after the Record Date, the Company will send by first class, postage prepaid mail, to each record holder of Common Shares as of the Close of Business on the Record Date, at the address of such holder shown on the records of the Company as of such date, a copy of a Summary of Rights to Purchase Preferred Stock in substantially the form attached as Exhibit C.
(b) Rights will be issued by the Company in respect of all Common Shares (other than Common Shares issued upon the exercise or exchange of any Right) issued or delivered by the Company (whether originally issued or delivered from the Company's treasury) after the Record Date but prior to the earlier of the Distribution Date and the Expiration Date. Certificates evidencing such Common Shares will have stamped on, impressed on, printed on, written on, or otherwise affixed to them the following legend or such similar legend as the Company may deem
appropriate and as is not inconsistent with the provisions of this Agreement, or as may be required to comply with any applicable law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange or transaction reporting system on which the Common Shares may from time to time be listed or quoted, or to conform to usage:
This Certificate also evidences and entitles the holder hereof to certain Rights as set forth in a Rights Agreement between Flowers Foods, Inc. and First Union National Bank, dated as of March 23, 2001 (the "Rights Agreement"), the terms of which are hereby incorporated herein by reference and a copy of which is on file at the principal executive offices of Flowers Foods, Inc. The Rights are not exercisable prior to the occurrence of certain events specified in the Rights Agreement. Under certain circumstances, as set forth in the Rights Agreement, such Rights may be redeemed, may be exchanged, may expire, may be amended, or may be evidenced by separate certificates and no longer be evidenced by this Certificate. Flowers Foods, Inc. will mail to the holder of this Certificate a copy of the Rights Agreement, as in effect on the date of mailing, without charge promptly after receipt of a written request therefor. Under certain circumstances as set forth in the Rights Agreement, Rights that are or were beneficially owned by an Acquiring Person or any Affiliate or Associate of an Acquiring Person (as such terms are defined in the Rights Agreement) may become null and void.
(c) Any Right Certificate issued pursuant to this Section 3 that represents Rights beneficially owned by an Acquiring Person or any Associate or Affiliate thereof and any Right Certificate issued at any time upon the transfer of any Rights to an Acquiring Person or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate and any Right Certificate issued pursuant to Section 6 or 11 hereof upon transfer, exchange, replacement or adjustment of any other Right Certificate referred to in this sentence, shall be subject to and contain the following legend or such similar legend as the Company may deem appropriate and as is not inconsistent with the provisions of this Agreement, or as may be required to comply with any applicable law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on which the Rights may from time to time be listed, or to conform to usage:
The Rights represented by this Right Certificate are or were beneficially owned by a Person who was an Acquiring Person or an Affiliate or an Associate of an Acquiring Person (as such terms are defined in the Rights Agreement). This Right Certificate and the Rights represented hereby may become null and void in the circumstances specified in Section 11(a)(ii) or Section 13 of the Rights Agreement.
(d) As promptly as practicable after the Distribution Date, the Company will prepare and execute, the Rights Agent will countersign and the Company will send or cause to be
sent (and the Rights Agent will, if requested, send), by first class, insured, postage prepaid mail, to each record holder of Common Shares as of the Close of Business on the Distribution Date, at the address of such holder shown on the records of the Company, a Right Certificate evidencing one Right for each Common Share so held, subject to adjustment as provided herein. As of and after the Distribution Date, the Rights will be evidenced solely by such Right Certificates.
(e) In the event that the Company purchases or otherwise acquires any Common Shares after the Record Date but prior to the Distribution Date, any Rights associated with such Common Shares will be deemed canceled and retired so that the Company will not be entitled to exercise any Rights associated with the Common Shares so purchased or acquired.
4. Form of Right Certificates. The Right Certificates (and the form of election to purchase and the form of assignment to be printed on the reverse thereof) will be substantially in the form attached as Exhibit B with such changes and marks of identification or designation, and such legends, summaries or endorsements printed thereon, as the Company may deem appropriate and as are not inconsistent with the provisions of this Agreement, or as may be required to comply with any applicable law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange or transaction reporting system on which the Rights may from time to time be listed or quoted, or to conform to usage. Subject to the provisions of Section 22, the Right Certificates, whenever issued, on their face will entitle the holders thereof to purchase such number of one thousandths of a Preferred Share as are set forth therein at the Purchase Price set forth therein, but the Purchase Price, the number and kind of securities issuable upon exercise of each Right and the number of Rights outstanding will be subject to adjustment as provided herein.
5. Countersignature and Registration.
(a) The Right Certificates will be executed on behalf of the Company by its Chairman, its President or any Vice President, either manually or by facsimile signature, and will have affixed thereto the Company's seal or a facsimile thereof which will be attested by the Secretary or an Assistant Secretary of the Company, either manually or by facsimile signature. The Right Certificates will be manually countersigned by the Rights Agent and will not be valid for any purpose unless so countersigned. In case any officer of the Company who signed any of the Right Certificates ceases to be such officer of the Company before countersignature by the Rights Agent and issuance and delivery by the Company, such Right Certificates, nevertheless, may be countersigned by the Rights Agent, and issued and delivered by the Company with the same force and effect as though the person who signed such Right Certificates had not ceased to be such officer of the Company; and any Right Certificate may be signed on behalf of the Company by any person who, at the actual date of the execution of such Right Certificate, is a proper officer of the Company to sign such Right Certificate, although at the date of the execution of this Rights Agreement any such person was not such officer.
(b) Following the Distribution Date, the Rights Agent will keep or cause to be kept, at the principal office of the Rights Agent designated for such purpose and at such other offices as may be required to comply with any applicable law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange or any transaction reporting system on which the Rights may from time to time be listed or quoted, books for
registration and transfer of the Right Certificates issued hereunder. Such books will show the names and addresses of the respective holders of the Right Certificates, the number of Rights evidenced on its face by each of the Right Certificates and the date of each of the Right Certificates.
6. Transfer, Split Up, Combination and Exchange of Right Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates.
(a) Subject to the provisions of Sections 7(d) and 14, at any time after the Close of Business on the Distribution Date and prior to the Expiration Date, any Right Certificate or Right Certificates representing exercisable Rights may be transferred, split up, combined or exchanged for another Right Certificate or Right Certificates, entitling the registered holder to purchase a like number of one thousandths of a Preferred Share (or other securities, as the case may be) as the Right Certificate or Right Certificates surrendered then entitled such holder (or former holder in the case of a transfer) to purchase. Any registered holder desiring to transfer, split up, combine or exchange any such Right Certificate or Rights Certificates must make such request in a writing delivered to the Rights Agent and must surrender the Right Certificate or Right Certificates to be transferred, split up, combined or exchanged at the principal office of the Rights Agent designated for such purpose. Thereupon or as promptly as practicable thereafter, subject to the provisions of Sections 7(d) and 14, the Company will prepare, execute and deliver to the Rights Agent, and the Rights Agent will countersign and deliver, a Right Certificate or Right Certificates, as the case may be, as so requested. The Company may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer, split up, combination or exchange of Right Certificates.
(b) Upon receipt by the Company and the Rights Agent of evidence reasonably satisfactory to them of the loss, theft, destruction or mutilation of a Right Certificate and, in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to them, and, if requested by the Company, reimbursement to the Company and the Rights Agent of all reasonable expenses incidental thereto, and upon surrender to the Rights Agent and cancellation of the Right Certificate if mutilated, the Company will prepare, execute and deliver a new Right Certificate of like tenor to the Rights Agent and the Rights Agent will countersign and deliver such new Right Certificate to the registered holder in lieu of the Right Certificate so lost, stolen, destroyed or mutilated.
7. Exercise of Rights; Purchase Price; Expiration Date of Rights.
(a) The registered holder of any Right Certificate may exercise the Rights evidenced thereby (except as otherwise provided herein) in whole or in part at any time after the Distribution Date and prior to the Expiration Date, upon surrender of the Right Certificate, with the form of election to purchase on the reverse side thereof duly executed, to the Rights Agent at the office or offices of the Rights Agent designated for such purpose, together with payment in cash, in lawful money of the United States of America by certified check or bank draft payable to the order of the Company, equal to the sum of (i) the exercise price for the total number of securities as to which such surrendered Rights are exercised and (ii) an amount equal to any applicable transfer tax required to be paid by the holder of such Right Certificate in accordance with the provisions of Section 9(d).
(b) Upon receipt of a Right Certificate representing
exercisable Rights with the form of election to purchase duly executed,
accompanied by payment as described above, the Rights Agent will promptly (i)
requisition from any transfer agent of the Preferred Shares (or make available,
if the Rights Agent is the transfer agent) certificates representing the number
of one thousandths of a Preferred Share to be purchased (and the Company hereby
irrevocably authorizes and directs its transfer agent to comply with all such
requests), or, if the Company elects to deposit Preferred Shares issuable upon
exercise of the Rights hereunder with a depositary agent, requisition from the
depositary agent depositary receipts representing such number of one thousandths
of a Preferred Share as are to be purchased (and the Company hereby irrevocably
authorizes and directs such depositary agent to comply with all such requests),
(ii) after receipt of such certificates (or depositary receipts, as the case may
be), cause the same to be delivered to or upon the order of the registered
holder of such Right Certificate, registered in such name or names as may be
designated by such holder, (iii) when appropriate, requisition from the Company
or any transfer agent therefor (or make available, if the Rights Agent is the
transfer agent) certificates representing the number of equivalent common shares
to be issued in lieu of the issuance of Common Shares in accordance with the
provisions of Section 11(a)(iii), (iv) when appropriate, after receipt of such
certificates, cause the same to be delivered to or upon the order of the
registered holder of such Right Certificate, registered in such name or names as
may be designated by such holder, (v) when appropriate, requisition from the
Company the amount of cash to be paid in lieu of the issuance of fractional
shares in accordance with the provisions of Section 14 or in lieu of the
issuance of Common Shares in accordance with the provisions of Section
11(a)(iii), (vi) when appropriate, after receipt, deliver such cash to or upon
the order of the registered holder of such Right Certificate, and (vii) when
appropriate, deliver any due bill or other instrument provided to the Rights
Agent by the Company for delivery to the registered holder of such Right
Certificate as provided by Section 11(l).
(c) In case the registered holder of any Right Certificate exercises less than all the Rights evidenced thereby, the Company will prepare, execute and deliver a new Right Certificate evidencing Rights equivalent to the Rights remaining unexercised and the Rights Agent will countersign and deliver such new Right Certificate to the registered holder of such Right Certificate or to his duly authorized assigns, subject to the provisions of Section 14.
(d) Notwithstanding anything in this Agreement to the
contrary, neither the Rights Agent nor the Company will be obligated to
undertake any action with respect to any purported transfer, split up,
combination or exchange of any Right Certificate pursuant to Section 6 or
exercise of a Right Certificate as set forth in this Section 7 unless the
registered holder of such Right Certificate has (i) completed and signed the
certificate following the form of assignment or the form of election to
purchase, as applicable, set forth on the reverse side of the Right Certificate
surrendered for such transfer, split up, combination, exchange or exercise and
(ii) provided such additional evidence of the identity of the Beneficial Owner
(or former Beneficial Owner) or Affiliates or Associates thereof as the Company
may reasonably request.
8. Cancellation and Destruction of Right Certificates. All Right Certificates surrendered for the purpose of exercise, transfer, split up, combination or exchange will, if surrendered to the Company or to any of its stock transfer agents, be delivered to the Rights Agent for cancellation or in canceled form, or, if surrendered to the Rights Agent, will be canceled by it, and no Right Certificates will be issued in lieu thereof except as expressly permitted by the provisions of this
Agreement. The Company will deliver to the Rights Agent for cancellation and retirement, and the Rights Agent will so cancel and retire, any other Right Certificate purchased or acquired by the Company otherwise than upon the exercise thereof. The Rights Agent will deliver all canceled Right Certificates to the Company, or will, at the written request of the Company, destroy such canceled Right Certificates, and in such case will deliver a certificate of destruction thereof to the Company.
9. Company Covenants Concerning Securities and Rights. The Company covenants and agrees that:
(a) It will cause to be reserved and kept available out of its authorized and unissued Preferred Shares or any Preferred Shares held in its treasury, a number of Preferred Shares that will be sufficient to permit the exercise in full of all outstanding Rights in accordance with Section 7.
(b) So long as the Preferred Shares (and, following the occurrence of a Triggering Event, Common Shares and/or other securities) issuable upon the exercise of the Rights may be listed on a national securities exchange, or quoted on Nasdaq, it will endeavor to cause, from and after such time as the Rights become exercisable, all securities reserved for issuance upon the exercise of Rights to be listed on such exchange, or quoted on Nasdaq, upon official notice of issuance upon such exercise.
(c) It will take all such action as may be necessary to ensure that all Preferred Shares (and, following the occurrence of a Triggering Event, Common Shares and/or other securities) delivered upon exercise of Rights, at the time of delivery of the certificates for such securities, will be (subject to payment of the Purchase Price) duly authorized, validly issued, fully paid and nonassessable securities.
(d) It will pay when due and payable any and all federal and state transfer taxes and charges that may be payable in respect of the issuance or delivery of the Right Certificates and of any certificates representing securities issued upon the exercise of Rights; provided, however, that the Company will not be required to pay any transfer tax or charge which may be payable in respect of any transfer or delivery of Right Certificates to a person other than, or the issuance or delivery of certificates or depositary receipts representing securities issued upon the exercise of Rights in a name other than that of, the registered holder of the Right Certificate evidencing Rights surrendered for exercise, or to issue or deliver any certificates or depositary receipts representing securities issued upon the exercise of any Rights until any such tax or charge has been paid (any such tax or charge being payable by the holder of such Right Certificate at the time of surrender) or until it has been established to the Company's reasonable satisfaction that no such tax is due.
(e) It will use its best efforts (i) to file on an appropriate form, as soon as practicable following the later of the Share Acquisition Date and the Distribution Date, a registration statement under the Securities Act with respect to the securities issuable upon exercise of the Rights, (ii) to cause such registration statement to become effective as soon as practicable after such filing, and (iii) to cause such registration statement to remain effective (with a prospectus at all times meeting the requirements of the Securities Act) until the earlier of
(A) the date as of which the Rights are no longer exercisable for such securities and (B) the Expiration Date. The Company will also take such action as may be appropriate under, or to ensure compliance with, the securities or "blue sky" laws of the various states in connection with the exercisability of the Rights. The Company may temporarily suspend, for a period of time after the date set forth in clause (i) of the first sentence of this Section 9(e), the exercisability of the Rights in order to prepare and file such registration statement and to permit it to become effective. Upon any such suspension, the Company will issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. In addition, if the Company determines that a registration statement should be filed under the Securities Act or any state securities laws following the Distribution Date, the Company may temporarily suspend the exercisability of the Rights in each relevant jurisdiction until such time as a registration statement has been declared effective and, upon any such suspension, the Company will issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. Notwithstanding anything in this Agreement to the contrary, the Rights will not be exercisable in any jurisdiction if the requisite registration or qualification in such jurisdiction has not been effected or the exercise of the Rights is not permitted under applicable law.
(f) Notwithstanding anything in this Agreement to the contrary, after the later of the Share Acquisition Date and the Distribution Date it will not take (or permit any Subsidiary to take) any action if at the time such action is taken it is reasonably foreseeable that such action will eliminate or otherwise diminish the benefits intended to be afforded by the Rights.
(g) In the event that the Company is obligated to issue other securities of the Company and/or pay cash pursuant to Section 11, 13, 14 or 24 it will make all arrangements necessary so that such other securities and/or cash are available for distribution by the Rights Agent, if and when appropriate.
10. Record Date. Each Person in whose name any certificate representing Preferred Shares (or Common Shares and/or other securities, as the case may be) is issued upon the exercise of Rights will for all purposes be deemed to have become the holder of record of the Preferred Shares (or Common Shares and/or other securities, as the case may be) represented thereby on, and such certificate will be dated, the date upon which the Right Certificate evidencing such Rights was duly surrendered and payment of the Purchase Price (and all applicable transfer taxes) was made; provided, however, that if the date of such surrender and payment is a date upon which the transfer books of the Company for the Preferred Shares (or Common Shares and/or other securities, as the case may be) are closed, such Person will be deemed to have become the record holder of such securities on, and such certificate will be dated, the next succeeding Business Day on which the transfer books of the Company for the Preferred Shares (or Common Shares and/or other securities, as the case may be) are open. Prior to the exercise of the Rights evidenced thereby, the holder of a Right Certificate will not be entitled to any rights of a holder of any security for which the Rights are or may become exercisable, including, without limitation, the right to vote, to receive dividends or other distributions, or to exercise any preemptive rights, and will not be entitled to receive any notice of any proceedings of the Company, except as provided herein.
11. Adjustment of Purchase Price, Number and Kind of Securities or Number of Rights. The Purchase Price, the number and kind of securities issuable upon exercise of each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(a) (i) In the event that the Company at any time after the
Record Date (A) declares a dividend on the Preferred Shares payable in
Preferred Shares, (B) subdivides the outstanding Preferred Shares, (C)
combines the outstanding Preferred Shares into a smaller number of
Preferred Shares, or (D) issues any shares of its capital stock in a
reclassification of the Preferred Shares (including any such
reclassification in connection with a consolidation or merger in which
the Company is the continuing or surviving corporation), except as
otherwise provided in this Section 11(a), the Purchase Price in effect
at the time of the record date for such dividend or of the effective
date of such subdivision, combination or reclassification and/or the
number and/or kind of shares of capital stock issuable on such date
upon exercise of a Right, will be proportionately adjusted so that the
holder of any Right exercised after such time is entitled to receive
upon payment of the Purchase Price then in effect the aggregate number
and kind of shares of capital stock which, if such Right had been
exercised immediately prior to such date and at a time when the
transfer books of the Company for the Preferred Shares were open, the
holder of such Right would have owned upon such exercise (and, in the
case of a reclassification, would have retained after giving effect to
such reclassification) and would have been entitled to receive by
virtue of such dividend, subdivision, combination or reclassification;
provided, however, that in no event shall the consideration to be paid
upon the exercise of one Right be less than the aggregate par value of
the shares of capital stock issuable upon exercise of one Right. If an
event occurs which would require an adjustment under both this Section
11(a)(i) and Section 11(a)(ii) or Section 13, the adjustment provided
for in this Section 11(a)(i) will be in addition to, and will be made
prior to, any adjustment required pursuant to Section 11(a)(ii) or
Section 13.
(ii) Subject to the provisions of Section 24, if:
(A) any Person becomes an Acquiring Person; or
(B) any Acquiring Person or any Affiliate or Associate of any Acquiring Person, directly or indirectly, (1) merges into the Company or otherwise combines with the Company and the Company is the continuing or surviving corporation of such merger or combination (other than in a transaction subject to Section 13), (2) merges or otherwise combines with any Subsidiary of the Company, (3) in one or more transactions (otherwise than in connection with the exercise, exchange or conversion of securities exercisable or exchangeable for or convertible into shares of any class of capital stock of the Company or any of its Subsidiaries) transfers cash, securities or any other property to the Company or any of its Subsidiaries in exchange (in whole or in part) for shares of any class of capital stock of the Company or any of its Subsidiaries or for securities exercisable or exchangeable for or convertible into shares of any class of capital stock of the Company or any of its Subsidiaries, or otherwise obtains from the Company or any of its Subsidiaries, with or without consideration, any additional
shares of any class of capital stock of the Company or any of
its Subsidiaries or securities exercisable or exchangeable for
or convertible into shares of any class of capital stock of
the Company or any of its Subsidiaries (otherwise than as part
of a pro rata distribution to all holders of shares of any
class of capital stock of the Company, or any of its
Subsidiaries), (4) sells, purchases, leases, exchanges,
mortgages, pledges, transfers or otherwise disposes (in one or
more transactions) to, from, with or of, as the case may be,
the Company or any of its Subsidiaries (otherwise than in a
transaction subject to Section 13), any property, including
securities, on terms and conditions less favorable to the
Company than the Company would be able to obtain in an
arm's-length transaction with an unaffiliated third party, (5)
receives any compensation from the Company or any of its
Subsidiaries other than compensation as a director or a
regular full-time employee, in either case at rates consistent
with the Company's (or its Subsidiaries') past practices, or
(6) receives the benefit, directly or indirectly (except
proportionately as a shareholder), of any loans, advances,
guarantees, pledges or other financial assistance or any tax
credits or other tax advantage provided by the Company or any
of its Subsidiaries; or
(C) during such time as there is an Acquiring Person, there is any reclassification of securities of the Company (including any reverse stock split), or any recapitalization of the Company, or any merger or consolidation of the Company with any of its Subsidiaries, or any other transaction or series of transactions involving the Company or any of its Subsidiaries (whether or not with or into or otherwise involving an Acquiring Person), other than a transaction subject to Section 13, which has the effect, directly or indirectly, of increasing by more than 1% the proportionate share of the outstanding shares of any class of equity securities of the Company or any of its Subsidiaries, or of securities exercisable or exchangeable for or convertible into equity securities of the Company or any of its Subsidiaries, of which an Acquiring Person, or any Affiliate or Associate of any Acquiring Person, is the Beneficial Owner;
then, and in each such case, from and after the latest of the Distribution Date, the Share Acquisition Date and the date of the occurrence of such Flip-in Event, proper provision will be made so that each holder of a Right, except as provided below, will thereafter have the right to receive, upon exercise thereof in accordance with the terms of this Agreement at an exercise price per Right equal to the product of the then-current Purchase Price multiplied by the number of one thousandths of a Preferred Share for which a Right was exercisable immediately prior to the date of the occurrence of such Flip-in Event (or, if any other Flip-in Event shall have previously occurred, the product of the then-current Purchase Price multiplied by the number of one thousandths of a Preferred Share for which a Right was exercisable immediately prior to the date of the first occurrence of a Flip-in Event), in lieu of Preferred Shares, such number of Common Shares as equals the result obtained by (x) multiplying the then-current Purchase Price by the number of one thousandths of a Preferred Share for which a Right was exercisable immediately prior to the date of the occurrence of such Flip-in Event (or, if any other Flip-in Event shall have previously occurred, multiplying the then-current Purchase Price by the number of one thousandths of a Preferred Share for which a Right was exercisable
immediately prior to the date of the first occurrence of a Flip-in
Event), and dividing that product by (y) 50% of the current per share
market price of the Common Shares (determined pursuant to Section
11(d)) on the date of the occurrence of such Flip-in Event.
Notwithstanding anything in this Agreement to the contrary, from and
after the first occurrence of a Flip-in Event, any Rights that are
Beneficially Owned by (A) any Acquiring Person (or any Affiliate or
Associate of any Acquiring Person), (B) a transferee of any Acquiring
Person (or any such Affiliate or Associate) who becomes a transferee
after the occurrence of a Flip-in Event, or (C) a transferee of any
Acquiring Person (or any such Affiliate or Associate) who became a
transferee prior to or concurrently with the occurrence of a Flip-in
Event pursuant to either (1) a transfer from an Acquiring Person to
holders of its equity securities or to any Person with whom it has any
continuing agreement, arrangement or understanding regarding the
transferred Rights or (2) a transfer which a majority of the Continuing
Directors of the Company have determined is part of a plan, arrangement
or understanding which has the purpose or effect of avoiding the
provisions of this Section 11(a)(ii), and subsequent transferees of any
of such Persons, will be void without any further action and any holder
of such Rights will thereafter have no rights whatsoever with respect
to such Rights under any provision of this Agreement. The Company will
use all reasonable efforts to ensure that the provisions of this
Section 11(a)(ii) are complied with, but will have no liability to any
holder of Right Certificates or any other Person as a result of its
failure to make any determinations with respect to an Acquiring Person
or its Affiliates, Associates or transferees hereunder. Upon the
occurrence of a Flip-in Event, no Right Certificate that represents
Rights that are or have become void pursuant to the provisions of this
Section 11(a)(ii) will thereafter be issued pursuant to Section 3 or
Section 6, and any Right Certificate delivered to the Rights Agent that
represents Rights that are or have become void pursuant to the
provisions of this Section 11(a)(ii) will be canceled. Upon the
occurrence of a Flip-over Event, any Rights that shall not have been
previously exercised pursuant to this Section 11(a)(ii) shall
thereafter be exercisable only pursuant to Section 13 and not pursuant
to this Section 11(a)(ii).
(iii) Upon the occurrence of a Flip-in Event, if there are not sufficient Common Shares authorized but unissued or issued but not outstanding to permit the issuance of all the Common Shares issuable in accordance with Section 11(a)(ii) upon the exercise of a Right, the Directors of the Company will use their best efforts promptly to authorize and, subject to the provisions of Section 9(e), make available for issuance additional Common Shares or other equity securities of the Company having equivalent voting rights and an equivalent value (as determined in good faith by the Directors of the Company) to the Common Shares (for purposes of this Section 11(a)(iii), "equivalent common shares"). In the event that equivalent common shares are so authorized, upon the exercise of a Right in accordance with the provisions of Section 7, the registered holder will be entitled to receive (A) Common Shares, to the extent any are available, and (B) a number of equivalent common shares, which the Directors of the Company have determined in good faith to have a value equivalent to the excess of (x) the aggregate current per share market value on the date of the occurrence of the most recent Flip-in Event of all the Common Shares issuable in accordance with Section 11(a)(ii) upon the exercise of a Right (the "Exercise Value") over (y) the aggregate current per share market value on the date of the occurrence of the most recent Flip-in Event of any Common
Shares available for issuance upon the exercise of such Right; provided, however, that if at any time after 90 calendar days after the latest of the Share Acquisition Date, the Distribution Date and the date of the occurrence of the most recent Flip-in Event, there are not sufficient Common Shares and/or equivalent common shares available for issuance upon the exercise of a Right, then the Company will be obligated to deliver, upon the surrender of such Right and without requiring payment of the Purchase Price, Common Shares (to the extent available), equivalent common shares (to the extent available) and then cash (to the extent permitted by applicable law and any agreements or instruments to which the Company is a party in effect immediately prior to the Share Acquisition Date), which securities and cash have an aggregate value equal to the excess of (1) the Exercise Value over (2) the product of the then-current Purchase Price multiplied by the number of one thousandths of a Preferred Share for which a Right was exercisable immediately prior to the date of the occurrence of the most recent Flip-in Event (or, if any other Flip-in Event shall have previously occurred, the product of the then-current Purchase Price multiplied by the number of one thousandths of a Preferred Share for which a Right would have been exercisable immediately prior to the date of the occurrence of such Flip-in Event if no other Flip-in Event had previously occurred). To the extent that any legal or contractual restrictions prevent the Company from paying the full amount of cash payable in accordance with the foregoing sentence, the Company will pay to holders of the Rights as to which such payments are being made all amounts which are not then restricted on a pro rata basis and will continue to make payments on a pro rata basis as promptly as funds become available until the full amount due to each such Rights holder has been paid.
(b) In the event that the Company fixes a record date for the issuance of rights, options or warrants to all holders of Preferred Shares entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Preferred Shares (or securities having equivalent rights, privileges and preferences as the Preferred Shares (for purposes of this Section 11(b), "equivalent preferred shares")) or securities convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or equivalent preferred share (or having a conversion price per share, if a security convertible into Preferred Shares or equivalent preferred shares) less than the current per share market price of the Preferred Shares (determined pursuant to Section 11(d)) on such record date, the Purchase Price to be in effect after such record date will be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which is the number of Preferred Shares outstanding on such record date plus the number of Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or equivalent preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current per share market price and the denominator of which is the number of Preferred Shares outstanding on such record date plus the number of additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible); provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock issuable upon exercise of one Right. In case such subscription price may be paid in a consideration part or all of which is in a form other than cash, the value of such consideration will be as determined in good faith by the Directors of the Company, whose determination will be described in a statement filed with
the Rights Agent. Preferred Shares owned by or held for the account of the Company will not be deemed outstanding for the purpose of any such computation. Such adjustment will be made successively whenever such a record date is fixed, and in the event that such rights, options or warrants are not so issued, the Purchase Price will be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(c) In the event that the Company fixes a record date for the making of a distribution to all holders of Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash (other than a regular periodic cash dividend), assets, stock (other than a dividend payable in Preferred Shares) or subscription rights, options or warrants (excluding those referred to in Section 11(b)), the Purchase Price to be in effect after such record date will be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which is the current per share market price of the Preferred Shares (as determined pursuant to Section 11(d)) on such record date or, if earlier, the date on which Preferred Shares begin to trade on an ex-dividend or when issued basis for such distribution, less the fair market value (as determined in good faith by the Directors of the Company, whose determination will be described in a statement filed with the Rights Agent) of the portion of the evidences of indebtedness, cash, assets or stock so to be distributed or of such subscription rights, options or warrants applicable to one Preferred Share, and the denominator of which is such current per share market price of the Preferred Shares; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock issuable upon exercise of one Right. Such adjustments will be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price will again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(d) (i) For the purpose of any computation hereunder, the "current per share market price" of Common Shares on any date will be deemed to be the average of the daily closing prices per share of such Common Shares for the 30 consecutive Trading Days immediately prior to such date; provided, however, that in the event that the current per share market price of the Common Shares is determined during a period following the announcement by the issuer of such Common Shares of (A) a dividend or distribution on such Common Shares payable in such Common Shares or securities convertible into such Common Shares (other than the Rights) or (B) any subdivision, combination or reclassification of such Common Shares, and prior to the expiration of 30 Trading Days after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, then, and in each such case, the current per share market price will be appropriately adjusted to take into account ex-dividend trading or to reflect the current per share market price per Common Share equivalent. The closing price for each day will be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the Common Shares are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the
Common Shares are listed or admitted to trading or, if the Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by Nasdaq or such other system then in use, or, if on any such date the Common Shares are not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Common Shares selected by the Directors of the Company. If the Common Shares are not publicly held or not so listed or traded, or are not the subject of available bid and asked quotes, "current per share market price" will mean the fair value per share as determined in good faith by the Directors of the Company, whose determination will be described in a statement filed with the Rights Agent.
(ii) For the purpose of any computation hereunder,
the "current per share market price" of the Preferred Shares will be
determined in the same manner as set forth above for Common Shares in
Section 11(d)(i), other than the last sentence thereof. If the current
per share market price of the Preferred Shares cannot be determined in
the manner provided above, the "current per share market price" of the
Preferred Shares will be conclusively deemed to be an amount equal to
the current per share market price of the Common Shares multiplied by
one thousand (as such number may be appropriately adjusted to reflect
events such as stock splits, stock dividends, recapitalizations or
similar transactions relating to the Common Shares occurring after the
date of this Agreement). If neither the Common Shares nor the Preferred
Shares are publicly held or so listed or traded, or the subject of
available bid and asked quotes, "current per share market price" of the
Preferred Shares will mean the fair value per share as determined in
good faith by the Directors of the Company, whose determination will be
described in a statement filed with the Rights Agent. For all purposes
of this Agreement, the current per share market price of one thousandth
of a Preferred Share will be equal to the current per share market
price of one Preferred Share divided by one thousand.
(e) Except as set forth below, no adjustment in the Purchase Price will be required unless such adjustment would require an increase or decrease of at least 1% in such price; provided, however, that any adjustments which by reason of this Section 11(e) are not required to be made will be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 11 will be made to the nearest cent or to the nearest one one-millionth of a Preferred Share or one ten-thousandth of a Common Share or other security, as the case may be. Notwithstanding the first sentence of this Section 11(e), any adjustment required by this Section 11 will be made no later than the earlier of (i) three years from the date of the transaction which requires such adjustment and (ii) the Expiration Date.
(f) If as a result of an adjustment made pursuant to Section
11(a), the holder of any Right thereafter exercised becomes entitled to receive
any securities of the Company other than Preferred Shares, thereafter the number
and/or kind of such other securities so receivable upon exercise of any Right
(and/or the Purchase Price in respect thereof) will be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the Preferred Shares (and the Purchase Price
in respect thereof) contained in this Section 11, and the provisions of Sections
7, 9, 10, 13 and 14 with respect to the
Preferred Shares (and the Purchase Price in respect thereof) will apply on like terms to any such other securities (and the Purchase Price in respect thereof).
(g) All Rights originally issued by the Company subsequent to any adjustment made to the Purchase Price hereunder will evidence the right to purchase, at the adjusted Purchase Price, the number of one thousandths of a Preferred Share issuable from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein.
(h) Unless the Company has exercised its election as provided
in Section 11(i), upon each adjustment of the Purchase Price pursuant to Section
11(b) or Section 11(c), each Right outstanding immediately prior to the making
of such adjustment will thereafter evidence the right to purchase, at the
adjusted Purchase Price, that number of one thousandths of a Preferred Share
(calculated to the nearest one one-millionth of a Preferred Share) obtained by
(i) multiplying (x) the number of one thousandths of a Preferred Share issuable
upon exercise of a Right immediately prior to such adjustment of the Purchase
Price by (y) the Purchase Price in effect immediately prior to such adjustment
of the Purchase Price and (ii) dividing the product so obtained by the Purchase
Price in effect immediately after such adjustment of the Purchase Price.
(i) The Company may elect, on or after the date of any adjustment of the Purchase Price, to adjust the number of Rights in substitution for any adjustment in the number of one thousandths of a Preferred Share issuable upon the exercise of a Right. Each of the Rights outstanding after such adjustment of the number of Rights will be exercisable for the number of one thousandths of a Preferred Share for which a Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such adjustment of the number of Rights will become that number of Rights (calculated to the nearest one thousandth) obtained by dividing the Purchase Price in effect immediately prior to adjustment of the Purchase Price by the Purchase Price in effect immediately after adjustment of the Purchase Price. The Company will make a public announcement of its election to adjust the number of Rights, indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment to be made. Such record date may be the date on which the Purchase Price is adjusted or any day thereafter, but, if the Right Certificates have been issued, will be at least 10 calendar days later than the date of the public announcement. If Right Certificates have been issued, upon each adjustment of the number of Rights pursuant to this Section 11(i), the Company will, as promptly as practicable, cause to be distributed to holders of record of Right Certificates on such record date Right Certificates evidencing, subject to the provisions of Section 14, the additional Rights to which such holders are entitled as a result of such adjustment, or, at the option of the Company, will cause to be distributed to such holders of record in substitution and replacement for the Right Certificates held by such holders prior to the date of adjustment, and upon surrender thereof if required by the Company, new Right Certificates evidencing all the Rights to which such holders are entitled after such adjustment. Right Certificates so to be distributed will be issued, executed, and countersigned in the manner provided for herein (and may bear, at the option of the Company, the adjusted Purchase Price) and will be registered in the names of the holders of record of Right Certificates on the record date specified in the public announcement.
(j) Without respect to any adjustment or change in the Purchase Price and/or the number and/or kind of securities issuable upon the exercise of the Rights, the Right Certificates
theretofore and thereafter issued may continue to express the Purchase Price and the number and kind of securities which were expressed in the initial Right Certificate issued hereunder.
(k) Before taking any action that would cause an adjustment reducing the Purchase Price below one thousandth of the then par value, if any, of the Preferred Shares or below the then par value, if any, of any other securities of the Company issuable upon exercise of the Rights, the Company will take any corporate action which may, in the opinion of its counsel, be necessary in order that the Company may validly and legally issue fully paid and nonassessable Preferred Shares or such other securities, as the case may be, at such adjusted Purchase Price.
(l) In any case in which this Section 11 otherwise requires that an adjustment in the Purchase Price be made effective as of a record date for a specified event, the Company may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date the number of Preferred Shares or other securities of the Company, if any, issuable upon such exercise over and above the number of Preferred Shares or other securities of the Company, if any, issuable upon such exercise on the basis of the Purchase Price in effect prior to such adjustment; provided, however, that the Company delivers to such holder a due bill or other appropriate instrument evidencing such holder's right to receive such additional Preferred Shares or other securities upon the occurrence of the event requiring such adjustment.
(m) Notwithstanding anything in this Agreement to the
contrary, the Company will be entitled to make such reductions in the Purchase
Price, in addition to those adjustments expressly required by this Section 11,
as and to the extent that in its good faith judgment the Continuing Directors of
the Company determine to be advisable in order that any (i) consolidation or
subdivision of the Preferred Shares, (ii) issuance wholly for cash of Preferred
Shares at less than the current per share market price therefor, (iii) issuance
wholly for cash of Preferred Shares or securities which by their terms are
convertible into or exchangeable for Preferred Shares, (iv) stock dividends, or
(v) issuance of rights, options or warrants referred to in this Section 11,
hereafter made by the Company to holders of its Preferred Shares is not taxable
to such shareholders.
(n) Notwithstanding anything in this Agreement to the
contrary, in the event that the Company at any time after the Record Date and
prior to the Distribution Date (i) pays a dividend on the outstanding Common
Shares payable in Common Shares, (ii) subdivides the outstanding Common Shares,
(iii) combines the outstanding Common Shares into a smaller number of shares, or
(iv) issues any shares of its capital stock in a reclassification of the
outstanding Common Shares (including any such reclassification in connection
with a consolidation or merger in which the Company is the continuing or
surviving corporation), the number of Rights associated with each Common Share
then outstanding, or issued or delivered thereafter but prior to the
Distribution Date, will be proportionately adjusted so that the number of Rights
thereafter associated with each Common Share following any such event equals the
result obtained by multiplying the number of Rights associated with each Common
Share immediately prior to such event by a fraction the numerator of which is
the total number of Common Shares outstanding immediately prior to the
occurrence of the event and the denominator of which is the total number of
Common Shares outstanding immediately following the occurrence of such event.
The adjustments provided for in this Section 11(n) will be made
successively whenever such a dividend is paid or such a subdivision, combination or reclassification is effected.
12. Certificate of Adjusted Purchase Price or Number of Securities. Whenever an adjustment is made as provided in Section 11 or Section 13, the Company will promptly (a) prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment, (b) file with the Rights Agent and with each transfer agent for the Preferred Shares and the Common Shares a copy of such certificate, and (c) if such adjustment is made after the Distribution Date, mail a brief summary of such adjustment to each holder of a Right Certificate in accordance with Section 26. The Rights Agent shall be fully protected in relying on any such certificate and on any adjustment therein and shall not be obligated or responsible for calculating any adjustment nor shall it be deemed to have knowledge of any such adjustment unless and until it shall have received such a certificate.
13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power.
(a) In the event that:
(i) at any time after a Person has become an Acquiring Person, the Company consolidates with, or merges with or into, any other Person and the Company is not the continuing or surviving corporation of such consolidation or merger; or
(ii) at any time after a Person has become an Acquiring Person, any Person consolidates with the Company, or merges with or into the Company, and the Company is the continuing or surviving corporation of such merger or consolidation and, in connection with such merger or consolidation, all or part of the Common Shares is changed into or exchanged for stock or other securities of any other Person or cash or any other property; or
(iii) at any time after a Person has become an Acquiring Person, the Company, directly or indirectly, sells or otherwise transfers (or one or more of its Subsidiaries sells or otherwise transfers), in one or more transactions, assets or earning power (including without limitation securities creating any obligation on the part of the Company and/or any of its Subsidiaries) representing in the aggregate more than 50% of the assets or earning power of the Company and its Subsidiaries (taken as a whole) to any Person or Persons other than the Company or one or more of its wholly owned Subsidiaries;
then, and in each such case, proper provision will be made so that from and after the latest of the Share Acquisition Date, the Distribution Date and the date of the occurrence of such Flip-over Event (A) each holder of a Right thereafter has the right to receive, upon the exercise thereof in accordance with the terms of this Agreement at an exercise price per Right equal to the product of the then-current Purchase Price multiplied by the number of one thousandths of a Preferred Share for which a Right was exercisable immediately prior to the Share Acquisition Date, such number of duly authorized, validly issued, fully paid, nonassessable and freely tradeable Common Shares of the Issuer, free and clear of any liens, encumbrances and other adverse claims and not subject to any rights of call or first refusal, as equals the result obtained by (x)
multiplying the then-current Purchase Price by the number of one thousandths of
a Preferred Share for which a Right is exercisable immediately prior to the
Share Acquisition Date and dividing that product by (y) 50% of the current per
share market price of the Common Shares of the Issuer (determined pursuant to
Section 11(d)), on the date of the occurrence of such Flip-over Event; (B) the
Issuer will thereafter be liable for, and will assume, by virtue of the
occurrence of such Flip-over Event, all the obligations and duties of the
Company pursuant to this Agreement; (C) the term "Company" will thereafter be
deemed to refer to the Issuer; and (D) the Issuer will take such steps
(including without limitation the reservation of a sufficient number of its
Common Shares to permit the exercise of all outstanding Rights) in connection
with such consummation as may be necessary to assure that the provisions hereof
are thereafter applicable, as nearly as reasonably may be possible, in relation
to its Common Shares thereafter deliverable upon the exercise of the Rights.
(b) For purposes of this Section 13, "Issuer" means (i) in the case of any Flip-over Event described in Sections 13(a)(i) or (ii) above, the Person that is the continuing, surviving, resulting or acquiring Person (including the Company as the continuing or surviving corporation of a transaction described in Section 13(a)(ii) above), and (ii) in the case of any Flip-over Event described in Section 13(a)(iii) above, the Person that is the party receiving the greatest portion of the assets or earning power (including without limitation securities creating any obligation on the part of the Company and/or any of its Subsidiaries) transferred pursuant to such transaction or transactions; provided, however, that, in any such case, (A) if (1) no class of equity security of such Person is, at the time of such merger, consolidation or transaction and has been continuously over the preceding 12-month period, registered pursuant to Section 12 of the Exchange Act, and (2) such Person is a Subsidiary, directly or indirectly, of another Person, a class of equity security of which is and has been so registered, the term "Issuer" means such other Person; and (B) in case such Person is a Subsidiary, directly or indirectly, of more than one Person, a class of equity security of two or more of which are and have been so registered, the term "Issuer" means whichever of such Persons is the issuer of the equity security having the greatest aggregate market value. Notwithstanding the foregoing, if the Issuer in any of the Flip-over Events listed above is not a corporation or other legal entity having outstanding equity securities, then, and in each such case, (x) if the Issuer is directly or indirectly wholly owned by a corporation or other legal entity having outstanding equity securities, then all references to Common Shares of the Issuer will be deemed to be references to the Common Shares of the corporation or other legal entity having outstanding equity securities which ultimately controls the Issuer, and (y) if there is no such corporation or other legal entity having outstanding equity securities, (I) proper provision will be made so that the Issuer creates or otherwise makes available for purposes of the exercise of the Rights in accordance with the terms of this Agreement, a kind or kinds of security or securities having a fair market value at least equal to the economic value of the Common Shares which each holder of a Right would have been entitled to receive if the Issuer had been a corporation or other legal entity having outstanding equity securities; and (II) all other provisions of this Agreement will apply to the issuer of such securities as if such securities were Common Shares.
(c) The Company will not consummate any Flip-over Event if,
(i) at the time of or immediately after such Flip-over Event, there are or would
be any rights, warrants, instruments or securities outstanding or any agreements
or arrangements in effect which would eliminate or substantially diminish the
benefits intended to be afforded by the Rights, (ii) prior
to, simultaneously with or immediately after such Flip-over Event, the
shareholders of the Person who constitutes, or would constitute, the Issuer for
purposes of Section 13(a) shall have received a distribution of Rights
previously owned by such Person or any of its Affiliates or Associates, or (iii)
the form or nature of the organization of the Issuer would preclude or limit the
exercisability of the Rights. In addition, the Company will not consummate any
Flip-over Event unless the Issuer has a sufficient number of authorized Common
Shares (or other securities as contemplated in Section 13(b) above) which have
not been issued or reserved for issuance to permit the exercise in full of the
Rights in accordance with this Section 13 and unless prior to such consummation
the Company and the Issuer have executed and delivered to the Rights Agent a
supplemental agreement providing for the terms set forth in subsections (a) and
(b) of this Section 13 and further providing that as promptly as practicable
after the consummation of any Flip-over Event, the Issuer will:
(A) prepare and file a registration statement under the Securities Act with respect to the Rights and the securities issuable upon exercise of the Rights on an appropriate form, and use its best efforts to cause such registration statement to (1) become effective as soon as practicable after such filing and (2) remain effective (with a prospectus at all times meeting the requirements of the Securities Act) until the Expiration Date;
(B) take all such action as may be appropriate under, or to ensure compliance with, the securities or "blue sky" laws of the various states in connection with the exercisability of the Rights; and
(C) deliver to holders of the Rights historical financial statements for the Issuer and each of its Affiliates which comply in all respects with the requirements for registration on Form 10 under the Exchange Act.
(d) The provisions of this Section 13 will similarly apply to successive mergers or consolidations or sales or other transfers. In the event that a Flip-over Event occurs at any time after the occurrence of a Flip-in Event, except for Rights that have become void pursuant to Section 11(a)(ii), Rights that shall not have been previously exercised will cease to be exercisable in the manner provided in Section 11(a)(ii) and will thereafter be exercisable in the manner provided in Section 13(a).
14. Fractional Rights and Fractional Securities.
(a) The Company will not be required to issue fractions of
Rights or to distribute Right Certificates which evidence fractional Rights. In
lieu of such fractional Rights, the Company will pay as promptly as practicable
to the registered holders of the Right Certificates with regard to which such
fractional Rights otherwise would be issuable, an amount in cash equal to the
same fraction of the current market value of one Right. For the purposes of this
Section 14(a), the current market value of one Right is the closing price of the
Rights for the Trading Day immediately prior to the date on which such
fractional Rights otherwise would have been issuable. The closing price for any
day is the last sale price, regular way, or, in case no such sale takes place on
such day, the average of the closing bid and asked prices, regular way, in
either case as reported in the principal consolidated transaction reporting
system with respect
to securities listed or admitted to trading on the New York Stock Exchange or, if the Rights are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Rights are listed or admitted to trading or, if the Rights are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by Nasdaq or such other system then in use, or, if on any such date the Rights are not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Rights selected by the Directors of the Company. If the Rights are not publicly held or are not so listed or traded, or are not the subject of available bid and asked quotes, the current market value of one Right will mean the fair value thereof as determined in good faith by the Directors of the Company, whose determination will be described in a statement filed with the Rights Agent.
(b) The Company will not be required to issue fractions of Preferred Shares (other than fractions which are integral multiples of one thousandth of a Preferred Share) upon exercise of the Rights or to distribute certificates which evidence fractional Preferred Shares (other than fractions which are integral multiples of one thousandth of a Preferred Share). Fractions of Preferred Shares in integral multiples of one thousandth of a Preferred Share may, at the election of the Company, be evidenced by depositary receipts pursuant to an appropriate agreement between the Company and a depositary selected by it, provided that such agreement provides that the holders of such depositary receipts have all the rights, privileges and preferences to which they are entitled as beneficial owners of the Preferred Shares represented by such depositary receipts. In lieu of fractional Preferred Shares that are not integral multiples of one thousandth of a Preferred Share, the Company may pay to any Person to whom or which such fractional Preferred Shares would otherwise be issuable an amount in cash equal to the same fraction of the current market value of one Preferred Share. For purposes of this Section 14(b), the current market value of one Preferred Share is the closing price of the Preferred Shares (as determined in the same manner as set forth for Common Shares in the second sentence of Section 11(d)(i)) for the Trading Day immediately prior to the date of such exercise; provided, however, that if the closing price of the Preferred Shares cannot be so determined, the closing price of the Preferred Shares for such Trading Day will be conclusively deemed to be an amount equal to the closing price of the Common Shares (determined pursuant to the second sentence of Section 11(d)(i)) for such Trading Day multiplied by one thousand (as such number may be appropriately adjusted to reflect events such as stock splits, stock dividends, recapitalizations or similar transactions relating to the Common Shares occurring after the date of this Agreement); provided further, however, that if neither the Common Shares nor the Preferred Shares are publicly held or listed or admitted to trading on any national securities exchange, or the subject of available bid and asked quotes, the current market value of one Preferred Share will mean the fair value thereof as determined in good faith by the Directors of the Company, whose determination will be described in a statement filed with the Rights Agent.
(c) Following the occurrence of a Triggering Event, the Company will not be required to issue fractions of Common Shares or other securities issuable upon exercise or exchange of the Rights or to distribute certificates which evidence any such fractional securities. In lieu of issuing any such fractional securities, the Company may pay to any Person to whom or which such fractional securities would otherwise be issuable an amount in cash equal to the same
fraction of the current market value of one such security. For purposes of this
Section 14(c), the current market value of one Common Share or other security
issuable upon the exercise or exchange of Rights is the closing price thereof
(as determined in the same manner as set forth for Common Shares in the second
sentence of Section 11(d)(i)) for the Trading Day immediately prior to the date
of such exercise or exchange; provided, however, that if neither the Common
Shares nor any such other securities are publicly held or listed or admitted to
trading on any national securities exchange, or the subject of available bid and
asked quotes, the current market value of one Common Share or such other
security will mean the fair value thereof as determined in good faith by the
Directors of the Company, whose determination will mean the fair value thereof
as will be described in a statement filed with the Rights Agent.
15. Rights of Action. All rights of action in respect of this
Agreement, excepting the rights of action given to the Rights Agent under
Section 18, are vested in the respective registered holders of the Right
Certificates (and, prior to the Distribution Date, the registered holders of the
Common Shares); and any registered holder of any Right Certificate (or, prior to
the Distribution Date, of the Common Shares), without the consent of the Rights
Agent or of the holder of any other Right Certificate (or, prior to the
Distribution Date, of the holder of any Common Shares), may in his own behalf
and for his own benefit enforce, and may institute and maintain any suit, action
or proceeding against the Company to enforce, or otherwise act in respect of,
his right to exercise the Rights evidenced by such Right Certificate in the
manner provided in such Right Certificate and in this Agreement. Without
limiting the foregoing or any remedies available to the holders of Rights, it is
specifically acknowledged that the holders of Rights would not have an adequate
remedy at law for any breach of this Agreement and will be entitled to specific
performance of the obligations under this Agreement, and injunctive relief
against actual or threatened violations of the obligations of any Person subject
to this Agreement.
16. Agreement of Rights Holders. Every holder of a Right by accepting the same consents and agrees with the Company and the Rights Agent and with every other holder of a Right that:
(a) Prior to the Distribution Date, the Rights are transferable only in connection with the transfer of the Common Shares;
(b) After the Distribution Date, the Right Certificates are transferable only on the registry books of the Rights Agent if surrendered at the principal office of the Rights Agent designated for such purpose, duly endorsed or accompanied by a proper instrument of transfer;
(c) The Company and the Rights Agent may deem and treat the person in whose name the Right Certificate (or, prior to the Distribution Date, the associated Common Share certificate) is registered as the absolute owner thereof and of the Rights evidenced thereby (notwithstanding any notations of ownership or writing on the Right Certificate or the associated Common Share certificate made by anyone other than the Company or the Rights Agent) for all purposes whatsoever, and neither the Company nor the Rights Agent will be affected by any notice to the contrary;
(d) Such holder expressly waives any right to receive any fractional Rights and any fractional securities upon exercise or exchange of a Right, except as otherwise provided in Section 14.
(e) Notwithstanding anything in this Agreement to the contrary, neither the Company nor the Rights Agent will have any liability to any holder of a Right or other Person as a result of its inability to perform any of its obligations under this Agreement by reason of any preliminary or permanent injunction or other order, decree or ruling issued by a court of competent jurisdiction or by a governmental, regulatory or administrative agency or commission, or any statute, rule, regulation or executive order promulgated or enacted by any governmental authority, prohibiting or otherwise restraining performance of such obligation; provided, however, that the Company will use its best efforts to have any such order, decree or ruling lifted or otherwise overturned as soon as possible.
17. Right Certificate Holder Not Deemed a Shareholder. No holder, as such, of any Right Certificate will be entitled to vote, receive dividends, or be deemed for any purpose the holder of Preferred Shares or any other securities of the Company which may at any time be issuable upon the exercise of the Rights represented thereby, nor will anything contained herein or in any Right Certificate be construed to confer upon the holder of any Right Certificate, as such, any of the rights of a shareholder of the Company or any right to vote for the election of Directors or upon any matter submitted to shareholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting shareholders (except as provided in Section 25), or to receive dividends or subscription rights, or otherwise, until the Right or Rights evidenced by such Right Certificate shall have been exercised in accordance with the provisions of this Agreement or exchanged pursuant to the provisions of Section 24.
18. Concerning the Rights Agent.
(a) The Company will pay to the Rights Agent reasonable compensation for all services rendered by it hereunder and, from time to time, on demand of the Rights Agent, its reasonable expenses and counsel fees and other disbursements incurred in the administration and execution of this Agreement and the exercise and performance of its duties hereunder. The Company will also indemnify the Rights Agent, its directors, officers, employees and agents for, and hold each of them harmless against, any loss, liability, suit, action, proceeding or expense, incurred without gross negligence, bad faith, or willful misconduct on the part of the Rights Agent, for anything done or omitted to be done by the Rights Agent or such other indemnified party in connection with the acceptance and administration of this Agreement or the performance of the Rights Agent's duties hereunder, including the costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly.
(b) The Rights Agent will be protected and will incur no liability for or in respect of any action taken, suffered, or omitted by it in connection with its administration of this Agreement in reliance upon any Right Certificate or certificate evidencing Preferred Shares or Common Shares or other securities of the Company, instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, direction, consent, certificate, statement or
other paper or document believed by it to be genuine and to be signed, executed, and, where necessary, verified or acknowledged, by the proper Person or Persons.
(c) The indemnity provided in this Section 18 shall survive the expiration of the Rights and the termination of this Agreement.
19. Merger or Consolidation or Change of Name of Rights Agent.
(a) Any corporation into which the Rights Agent or any successor Rights Agent may be merged or with which it may be consolidated, or any corporation resulting from any merger or consolidation to which the Rights Agent or any successor Rights Agent is a party, or any corporation succeeding to the corporate trust business of the Rights Agent or any successor Rights Agent, will be the successor to the Rights Agent under this Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto, provided that such corporation would be eligible for appointment as a successor Rights Agent under the provisions of Section 21. If at the time such successor Rights Agent succeeds to the agency created by this Agreement any of the Right Certificates shall have been countersigned but not delivered, any such successor Rights Agent may adopt the countersignature of the predecessor Rights Agent and deliver such Right Certificates so countersigned; and if at that time any of the Right Certificates shall not have been countersigned, any successor Rights Agent may countersign such Right Certificates either in the name of the predecessor Rights Agent or in the name of the successor Rights Agent; and in all such cases such Right Certificates will have the full force provided in the Right Certificates and in this Agreement.
(b) If at any time the name of the Rights Agent changes and at such time any of the Right Certificates have been countersigned but not delivered, the Rights Agent may adopt the countersignature under its prior name and deliver Right Certificates so countersigned; and if at that time any of the Right Certificates have not been countersigned, the Rights Agent may countersign such Right Certificates either in its prior name or in its changed name; and in all such cases such Right Certificates will have the full force provided in the Right Certificates and in this Agreement.
20. Duties of Rights Agent. The Rights Agent undertakes the duties and obligations imposed by this Agreement upon the following terms and conditions, by all of which the Company and the holders of Right Certificates, by their acceptance thereof, will be bound:
(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the advice or opinion of such counsel will be full and complete authorization and protection to the Rights Agent as to any action taken or omitted by it in good faith and in accordance with such advice or opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent deems it necessary or desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate signed by any one of the Chairman, the President, any Vice President, the Secretary or the Treasurer of the Company and delivered to the Rights Agent,
and such certificate will be full authorization to the Rights Agent for any action taken or suffered in good faith by it under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent will be liable hereunder only for its own gross negligence, bad faith or willful misconduct.
(d) The Rights Agent will not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Right Certificates (except its countersignature thereof) or be required to verify the same, but all such statements and recitals are and will be deemed to have been made by the Company only.
(e) The Rights Agent will not be under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Rights Agent) or in respect of the validity or execution of any Right Certificate (except its countersignature thereof); nor will it be responsible for any breach by the Company of any covenant contained in this Agreement or in any Right Certificate; nor will it be responsible for any adjustment required under the provisions of Sections 11 or 13 (including any adjustment which results in Rights becoming void) or responsible for the manner, method or amount of any such adjustment or the ascertaining of the existence of facts that would require any such adjustment (except with respect to the exercise of Rights evidenced by Right Certificates after actual notice of any such adjustment); nor will it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any shares of stock or other securities to be issued pursuant to this Agreement or any Right Certificate or as to whether any shares of stock or other securities will, when issued, be duly authorized, validly issued, fully paid and nonassessable.
(f) The Company will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its duties hereunder from any one of the Chairman, the President, any Vice President, the Secretary or the Treasurer of the Company, and to apply to such officers for advice or instructions in connection with its duties, and it will not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions of any such officer or for any delay in acting while awaiting instructions. Any application by the Rights Agent for written instructions from the Company may, at the option of the Rights Agent, set forth in writing any action proposed to be taken or omitted by the Rights Agent under this Agreement and the date on or after which such action shall be taken or such omission shall be effective. The Rights Agent shall not be liable for any action taken by, or omission of, the Rights Agent in accordance with a proposal included in any such application on or after the date specified in such application (which date shall not be less than five Business Days after the date any officer of the Company actually receives such application, unless any such officer shall have consented in writing to an earlier date) unless, prior to taking any such action (or the effective date in the date of an omission), the Rights Agent shall have received written instructions in response to such application specifying the action to be taken or omitted.
(h) The Rights Agent and any shareholder, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or other securities of the Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company or otherwise act as fully and freely as though it were not Rights Agent under this Agreement. Nothing herein will preclude the Rights Agent from acting in any other capacity for the Company or for any other Person.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys or agents, and the Rights Agent will not be answerable or accountable for any act, default, neglect or misconduct of any such attorneys or agents or for any loss to the Company resulting from any such act, default, neglect or misconduct, provided the Rights Agent was not grossly negligent in the selection and continued employment thereof. The Rights Agent will not be under any duty or responsibility to ensure compliance with any applicable federal or state securities laws in connection with the issuance, transfer or exchange of Right Certificates.
(j) If, with respect to any Right Certificate surrendered to the Rights Agent for exercise, transfer, split up, combination or exchange, either (i) the certificate attached to the form of assignment or form of election to purchase, as the case may be, has either not been completed or indicates an affirmative response to clause 1 or 2 thereof, or (ii) any other actual or suspected irregularity exists, the Rights Agent will not take any further action with respect to such requested exercise, transfer, split up, combination or exchange without first consulting with the Company, and will thereafter take further action with respect thereto only in accordance with the Company's written instructions.
(k) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured to it.
(l) The Rights Agent undertakes only the express duties and obligations imposed on it by this Agreement, and no implied duties or obligations shall be read into this Agreement against the Rights Agent.
(m) Anything in this Agreement to the contrary notwithstanding, in no event shall the Rights Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever, including, but not limited to, lost profits.
21. Change of Rights Agent. The Rights Agent or any successor Rights Agent may resign and be discharged from its duties under this Agreement upon 30 calendar days' notice in writing mailed to the Company and to each transfer agent of the Preferred Shares or the Common Shares by registered or certified mail, and to the holders of the Right Certificates by first class mail. The Company may remove the Rights Agent or any successor Rights Agent upon 30 calendar days' notice in writing, mailed to the Rights Agent or successor Rights Agent, as the case may be, and to each transfer agent of the Preferred Shares and the Common Shares by registered or certified mail, and to the holders of the Right Certificates by first class mail. If the
Rights Agent resigns or is removed or otherwise becomes incapable of acting, the Company will appoint a successor to the Rights Agent. If the Company fails to make such appointment within a period of 30 calendar days after giving notice of such removal or after it has been notified in writing of such resignation or incapacity by the resigning or incapacitated Rights Agent or by the holder of a Right Certificate (who will, with such notice, submit his Right Certificate for inspection by the Company), then the registered holder of any Right Certificate may apply to any court of competent jurisdiction for the appointment of a new Rights Agent. Any successor Rights Agent, whether appointed by the Company or by such a court, will be a corporation or other legal entity organized and doing business under the laws of the United States or of the State of New York (or of any other state of the United States so long as such corporation is authorized to do business as a banking institution in the State of New York), in good standing, having a principal office in the State of New York, which is authorized under such laws to exercise corporate trust or stock transfer powers and is subject to supervision or examination by federal or state authority and which has at the time of its appointment as Rights Agent a combined capital and surplus of at least $50 million. After appointment, the successor Rights Agent will be vested with the same powers, rights, duties and responsibilities as if it had been originally named as Rights Agent without further act or deed; but the predecessor Rights Agent will deliver and transfer to the successor Rights Agent any property at the time held by it hereunder, and execute and deliver any further assurance, conveyance, act or deed necessary for the purpose. Not later than the effective date of any such appointment, the Company will file notice thereof in writing with the predecessor Rights Agent and each transfer agent of the Preferred Shares or the Common Shares, and mail a notice thereof in writing to the registered holders of the Right Certificates. Failure to give any notice provided for in this Section 21, however, or any defect therein, will not affect the legality or validity of the resignation or removal of the Rights Agent or the appointment of the successor Rights Agent, as the case may be.
22. Issuance of New Right Certificates. Notwithstanding any of the provisions of this Agreement or of the Rights to the contrary, the Company may, at its option, issue new Right Certificates evidencing Rights in such form as may be approved by its Directors to reflect any adjustment or change in the Purchase Price per share and the number or kind of securities issuable upon exercise of the Rights made in accordance with the provisions of this Agreement. In addition, in connection with the issuance or sale by the Company of Common Shares following the Distribution Date and prior to the Expiration Date, the Company (a) will, with respect to Common Shares so issued or sold pursuant to the exercise, exchange or conversion of securities (other than Rights) issued prior to the Distribution Date which are exercisable or exchangeable for, or convertible into Common Shares, and (b) may, in any other case, if deemed necessary, appropriate or desirable by the Continuing Directors of the Company, issue Right Certificates representing an equivalent number of Rights as would have been issued in respect of such Common Shares if they had been issued or sold prior to the Distribution Date, as appropriately adjusted as provided herein as if they had been so issued or sold; provided, however, that (i) no such Right Certificate will be issued if, and to the extent that, in its good faith judgment the Directors of the Company determine that the issuance of such Right Certificate could have a material adverse tax consequence to the Company or to the Person to whom or which such Right Certificate otherwise would be issued and (ii) no such Right Certificate will be issued if, and to the extent that, appropriate adjustment otherwise has been made in lieu of the issuance thereof.
23. Redemption.
(a) Prior to the Expiration Date, the Directors of the Company may, at their option, redeem all but not less than all of the then-outstanding Rights at the Redemption Price at any time prior to the Close of Business on the later of (i) the Distribution Date and (ii) Share Acquisition Date; provided, however, if the Directors of the Company authorize redemption of the Rights in either of the circumstances set forth in this Section 23, then there must be Continuing Directors then in office and such authorization shall require the concurrence of a majority of such Continuing Directors: (A) such authorization occurs on or after the time a Person becomes an Acquiring Person, or (B) such authorization occurs on or after the date of a change in a majority of the directors in office within a two year period following a proxy or consent solicitation or solicitations if any Person who is a participant in any such solicitation or solicitations has stated (or, if upon the commencement of the earliest such solicitation, a majority of the Continuing Directors of the Company has determined in good faith) that such Person (or any of its Affiliates or Associates) intends to take, or may consider taking, any action which would result in such Person becoming an Acquiring Person or which would cause the occurrence of a Triggering Event. Any such redemption will be effective immediately upon the action of the Directors of the Company ordering the same, unless such action of the Directors of the Company expressly provides that such redemption will be effective at a subsequent time or upon the occurrence or nonoccurrence of one or more specified events (in which case such redemption will be effective in accordance with the provisions of such action of the Directors of the Company).
(b) Immediately upon the effectiveness of the redemption of
the Rights as provided in Section 23(a), and without any further action and
without any notice, the right to exercise the Rights will terminate and the only
right thereafter of the holders of Rights will be to receive the Redemption
Price, without interest thereon. Promptly after the effectiveness of the
redemption of the Rights as provided in Section 23(a), the Company will publicly
announce such redemption and, within 10 calendar days thereafter, will give
notice of such redemption to the holders of the then-outstanding Rights by
mailing such notice to all such holders at their last addresses as they appear
upon the registry books of the Company; provided, however, that the failure to
give, or any defect in, any such notice will not affect the validity of the
redemption of the Rights. Any notice that is mailed in the manner herein
provided will be deemed given, whether or not the holder receives the notice.
The notice of redemption mailed to the holders of Rights will state the method
by which the payment of the Redemption Price will be made. The Company may, at
its option, pay the Redemption Price in cash, Common Shares (based upon the
current per share market price of the Common Shares (determined pursuant to
Section 11(d)) at the time of redemption), or any other form of consideration
deemed appropriate by the Directors of the Company (based upon the fair market
value of such other consideration, determined by the Directors of the Company in
good faith) or any combination thereof. The Company may, at its option, combine
the payment of the Redemption Price with any other payment being made
concurrently to holders of Common Shares and, to the extent that any such other
payment is discretionary, may reduce the amount thereof on account of the
concurrent payment of the Redemption Price. If legal or contractual restrictions
prevent the Company from paying the Redemption Price (in the form of
consideration deemed appropriate by the Directors) at the time of redemption,
the Company will pay the Redemption Price, without interest, promptly after such
time as the Company ceases to be so prevented from paying the Redemption Price.
24. Exchange.
(a) The Directors of the Company may, at their option, at any
time after the later of the Share Acquisition Date and the Distribution Date,
exchange all or part of the then-outstanding and exercisable Rights (which will
not include Rights that have become void pursuant to the provisions of Section
11(a)(ii)) for Common Shares at an exchange ratio of one Common Share per Right,
appropriately adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the Record Date (such exchange ratio being
hereinafter referred to as the "Exchange Ratio"). Any such exchange will be
effective immediately upon the action of the Directors of the Company ordering
the same, unless such action of the Directors of the Company expressly provides
that such exchange will be effective at a subsequent time or upon the occurrence
or nonoccurrence of one or more specified events (in which case such exchange
will be effective in accordance with the provisions of such action of the
Directors of the Company). Notwithstanding the foregoing, (i) the Directors of
the Company will not be empowered to effect such exchange at any time after any
Person (other than the Company or any Related Person), who or which, together
with all Affiliates and Associates of such Person, becomes the Beneficial Owner
of 50% or more of the then-outstanding Common Shares and (ii) no exchange shall
be effected in the circumstances set forth in clauses (A) or (B) of the proviso
to Section 23(a) unless there are Continuing Directors then in office and such
exchange is approved by a majority of such Continuing Directors.
(b) Immediately upon the effectiveness of the exchange of any Rights as provided in Section 24(a), and without any further action and without any notice, the right to exercise such Rights will terminate and the only right with respect to such Rights thereafter of the holder of such Rights will be to receive that number of Common Shares equal to the number of such Rights held by such holder multiplied by the Exchange Ratio. Promptly after the effectiveness of the exchange of any Rights as provided in Section 24(a), the Company will publicly announce such exchange and, within 10 calendar days thereafter, will give notice of such exchange to all of the holders of such Rights at their last addresses as they appear upon the registry books of the Rights Agent; provided, however, that the failure to give, or any defect in, such notice will not affect the validity of such exchange. Any notice that is mailed in the manner herein provided will be deemed given, whether or not the holder receives the notice. Each such notice of exchange will state the method by which the exchange of the Common Shares for Rights will be effected and, in the event of any partial exchange, the number of Rights which will be exchanged. Any partial exchange will be effected pro rata based on the number of Rights (other than Rights which have become void pursuant to the provisions of Section 11(a)(ii)) held by each holder of Rights.
(c) In any exchange pursuant to this Section 24, the Company, at its option, may substitute for any Common Share exchangeable for a Right (i) equivalent common shares (as such term is used in Section 11(a)(iii)), (ii) cash, (iii) debt securities of the Company, (iv) other assets, or (v) any combination of the foregoing, in any event having an aggregate value, as determined in good faith by the Directors of the Company (whose determination will be described in a statement filed with the Rights Agent), equal to the current market value of one Common Share (determined pursuant to Section 11(d)) on the Trading Day immediately preceding the date of the effectiveness of the exchange pursuant to this Section 24.
25. Notice of Certain Events.
(a) If, after the Distribution Date, the Company proposes (i) to pay any dividend payable in stock of any class to the holders of Preferred Shares or to make any other distribution to the holders of Preferred Shares (other than a regular periodic cash dividend), (ii) to offer to the holders of Preferred Shares rights, options or warrants to subscribe for or to purchase any additional Preferred Shares or shares of stock of any class or any other securities, rights or options, (iii) to effect any reclassification of its Preferred Shares (other than a reclassification involving only the subdivision of outstanding Preferred Shares), (iv) to effect any consolidation or merger into or with, or to effect any sale or other transfer (or to permit one or more of its Subsidiaries to effect any sale or other transfer), in one or more transactions, of assets or earning power (including, without limitation, securities creating any obligation on the part of the Company and/or any of its Subsidiaries) representing more than 50% of the assets and earning power of the Company and its Subsidiaries, taken as a whole, to any other Person or Persons other than the Company or one or more of its wholly owned Subsidiaries, (v) to effect the liquidation, dissolution or winding up of the Company, or (vi) to declare or pay any dividend on the Common Shares payable in Common Shares or to effect a subdivision, combination or reclassification of the Common Shares then, in each such case, the Company will give to each holder of a Right Certificate, to the extent feasible and in accordance with Section 26, a notice of such proposed action, which specifies the record date for the purposes of such stock dividend, distribution or offering of rights, options or warrants, or the date on which such reclassification, consolidation, merger, sale, transfer, liquidation, dissolution or winding up is to take place and the date of participation therein by the holders of the Common Shares and/or Preferred Shares, if any such date is to be fixed, and such notice will be so given, in the case of any action covered by clause (i) or (ii) above, at least 10 calendar days prior to the record date for determining holders of the Preferred Shares for purposes of such action, and, in the case of any such other action, at least 10 calendar days prior to the date of the taking of such proposed action or the date of participation therein by the holders of the Common Shares and/or Preferred Shares, whichever is the earlier.
(b) In case any Triggering Event occurs, then, in any such case, the Company will as soon as practicable thereafter give to the Rights Agent and each holder of a Right Certificate, in accordance with Section 26, a notice of the occurrence of such event, which specifies the event and the consequences of the event to holders of Rights.
26. Notices.
(a) Notices or demands authorized by this Agreement to be given or made by the Rights Agent or by the holder of any Right Certificate to or on the Company will be sufficiently given or made if sent by first class mail, postage prepaid, addressed (until another address is filed in writing with the Rights Agent) as follows:
Flowers Foods, Inc. 1919 Flowers Circle Thomasville, Georgia 31757 Attention: G. Anthony Campbell, Esq.
with a copy to:
Jones, Day, Reavis & Pogue 3500 SunTrust Plaza 303 Peachtree Street, N.E.
Atlanta, Georgia 30308-3242
Attention: Robert W. Smith, Esq.
(b) Subject to the provisions of Section 21 hereof, any notice or demand authorized by this Agreement to be given or made by the Company or by the holder of any Right Certificate to or on the Rights Agent will be sufficiently given or made if sent by first-class mail, postage prepaid, addressed (until another address is filed in writing with the Company) as follows:
First Union National Bank 1525 West W. T. Harris Boulevard, 3C3 Charlotte, North Carolina 28288-1153 Attention: Shareholder Services Group
(c) Notices or demands authorized by this Agreement to be given or made by the Company or the Rights Agent to the holder of any Right Certificate (or, if prior the Distribution Date, to the holder of any certificate evidencing Common Shares) will be sufficiently given or made if sent by first class mail, postage prepaid, addressed to such holder at the address of such holder as shown on the registry books of the Company.
27. Supplements and Amendments. Subject to the penultimate sentence of
this Section 27, this Agreement may be supplemented or amended at the times and
for the purposes set forth below; provided, however, that no proposed supplement
or amendment to this Agreement shall be effective unless (i) there are
Continuing Directors and (ii) a majority of such Continuing Directors, at a
meeting of Directors duly called and held, votes in favor of the adoption of
such proposed supplement or amendment. Prior to the time at which the Rights
cease to be redeemable pursuant to Section 23, and subject to the last sentence
of this Section 27, the Company may in its sole and absolute discretion, and the
Rights Agent will if the Company so directs, supplement or amend any provision
of this Agreement in any respect without the approval of any holders of Rights
or Common Shares. From and after the time at which the Rights cease to be
redeemable pursuant to Section 23, and subject to the last sentence of this
Section 27, the Company may, and the Rights Agent will if the Company so
directs, supplement or amend this Agreement without the approval of any holders
of Rights or Common Shares in order (i) to cure any ambiguity, (ii) to correct
or supplement any provision contained herein which may be defective or
inconsistent with any other provisions herein, (iii) to shorten or lengthen any
time period hereunder, or (iv) to supplement or amend the provisions hereunder
in any manner which the Company may deem desirable; provided that no such
supplement or amendment shall adversely affect the interests of the holders of
Rights as such (other than an Acquiring Person or an Affiliate or Associate of
an Acquiring Person), and no such supplement or amendment shall cause the Rights
again to become redeemable or cause this Agreement again to become
supplementable or amendable otherwise than in accordance with the provisions of
this sentence. Without limiting the generality or effect of the foregoing, this
Agreement may be
supplemented or amended to provide for such voting powers for the Rights and such procedures for the exercise thereof, if any, as the Continuing Directors of the Company may determine to be appropriate. Upon the delivery of a certificate that is signed by a Continuing Director and which states that the proposed supplement or amendment is in compliance with the terms of this Section 27, the Rights Agent will execute such supplement or amendment; provided, however, that the failure or refusal of the Rights Agent to execute such supplement or amendment will not affect the validity of any supplement or amendment adopted by the Continuing Directors of the Company, any of which will be effective in accordance with the terms thereof. Notwithstanding anything in this Agreement to the contrary, no supplement or amendment may be made which decreases the stated Redemption Price to an amount less than $.01 per Right or may change the rights or duties of the Rights Agent under this Agreement without the execution of such supplement or amendment by the Rights Agent.
28. Successors; Certain Covenants. All the covenants and provisions of this Agreement by or for the benefit of the Company or the Rights Agent will be binding on and inure to the benefit of their respective successors and assigns hereunder.
29. Benefits of This Agreement. Nothing in this Agreement will be construed to give to any Person other than the Company, the Rights Agent, and the registered holders of the Right Certificates (and, prior to the Distribution Date, the Common Shares) any legal or equitable right, remedy or claim under this Agreement. This Agreement will be for the sole and exclusive benefit of the Company, the Rights Agent, and the registered holders of the Right Certificates (or prior to the Distribution Date, the Common Shares).
30. Governing Law. This Agreement, each Right and each Right Certificate issued hereunder will be deemed to be a contract made under the internal substantive laws of the State of Georgia and for all purposes will be governed by and construed in accordance with the internal substantive laws of such State applicable to contracts to be made and performed entirely within such State.
31. Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement will remain in full force and effect and will in no way be affected, impaired or invalidated; provided, however, that nothing contained in this Section 31 will affect the ability of the Company under the provisions of Section 27 to supplement or amend this Agreement to replace such invalid, void or unenforceable term, provision, covenant or restriction with a legal, valid and enforceable term, provision, covenant or restriction.
32. Descriptive Headings, Etc. Descriptive headings of the several Sections of this Agreement are inserted for convenience only and will not control or affect the meaning or construction of any of the provisions hereof. Unless otherwise expressly provided, references herein to Articles, Sections and Exhibits are to Articles, Sections and Exhibits of or to this Agreement.
33. Determinations and Actions by the Directors. For all purposes of this Agreement, any calculation of the number of Common Shares outstanding at any particular time, including
for purposes of determining the particular percentage of such outstanding Common Shares of which any Person is the Beneficial Owner, will be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act. The Directors of the Company will have the exclusive power and authority to administer this Agreement and to exercise all rights and powers specifically granted to the Directors of the Company or to the Company, or as may be necessary or advisable in the administration of this Agreement, including without limitation the right and power to (i) interpret the provisions of this Agreement and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including any determination as to whether particular Rights shall have become void). All such actions, calculations, interpretations and determinations (including, for purposes of clause (y) below, any omission with respect to any of the foregoing) which are done or made by the Directors of the Company in good faith will (x) be final, conclusive and binding on the Company, the Rights Agent, the holders of the Rights and all other parties and (y) not subject the Directors of the Company to any liability to any Person, including without limitation the Rights Agent and the holders of the Rights.
34. Counterparts. This Agreement may be executed in any number of counterparts and each of such counterparts will for all purposes be deemed to be an original, and all such counterparts will together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and their respective corporate seals to be hereunto affixed and attested, all as of the day and year first above written.
[SEAL]
Attest: FLOWERS FOODS, INC.
/s/ G. Anthony Campbell /s/ Amos R. McMullian
------------------------------------ ------------------------------------
Name: G. Anthony Campbell Name: Amos R. McMullian
Title: General Counsel and Secretary Title: Chairman and Chief Executive
Officer
FIRST UNION NATIONAL BANK
/s/ Kristin N. Knapp
------------------------------------
Name: Kristin N. Knapp
Title: Assistant Vice President,
Equity Services
|
EXHIBIT A
PREFERENCES AND RIGHTS OF
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
OF
FLOWERS FOODS, INC.
1. Designation and Amount. The shares of such series shall be designated as "Series A Junior Participating Preferred Stock" (the "Series A Preferred Stock"). The number of shares constituting such series shall be 100,000 and such series shall have the rights and preferences and limitations as set forth below.
2. Dividends and Distributions.
(i) The holders of shares of Series A Preferred Stock, in preference to the holders of Common Stock and of any other junior stock, shall be entitled to receive, when, as and if declared by the Board of Directors out of funds legally available for the purpose, quarterly dividends payable in cash on the payment date of any quarterly dividend for the Common Stock, or if there should be no such payment date, then on the 45th day after the end of each fiscal quarter (each such date being referred to herein as a "Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend Payment Date after the first issuance of a share or fraction of a share of Series A Preferred Stock, in an amount per share (rounded to the nearest cent) equal to the greater of (a) $50 or (b) subject to the provision for adjustment hereinafter set forth, 1,000 times the aggregate per share amount of all cash dividends, and 1,000 times the aggregate per share amount (payable in kind) of all non-cash dividends or other distributions other than a dividend payable in shares of Common Stock of the Company or a subdivision of the outstanding shares of Common Stock (by reclassification or otherwise), declared on the Common Stock since the immediately preceding Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a share of Series A Preferred Stock. In the event the Company shall at any time after the date hereof declare or pay any dividend on Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise) into a greater or lesser number of shares of Common Stock, then in each such case the amount to which holders of shares of Series A Preferred Stock were entitled immediately prior to such event under clause (b) of the preceding sentence shall be automatically adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.
(ii) The Company shall declare a dividend or distribution on the Series A Preferred Stock as provided in subparagraph (i) of this paragraph 2 immediately after it declares a dividend or distribution on the Common Stock (other than a dividend payable in shares of
Common Stock); provided that, in the event no dividend or distribution shall have been declared on the Common Stock during the period between any Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend Payment Date, a dividend of $50 per share on the Series A Preferred Stock shall nevertheless be payable on such subsequent Quarterly Dividend Payment Date.
(iii) Dividends shall begin to accrue and be cumulative on outstanding shares of Series A Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of issue of such shares of Series A Preferred Stock, unless the date of issue of such shares is prior to the record date for the first Quarterly Dividend Payment Date, in which case dividends on such shares shall begin to accrue from the date of issue of such shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a date after the record date for the determination of holders of shares of Series A Preferred Stock entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either of which events such dividends shall begin to accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares of Series A Preferred Stock in an amount less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares at the time outstanding. The Board of Directors may fix a record date for the determination of holders of shares of Series A Preferred Stock entitled to receive payment of a dividend or distribution declared thereon, which record date shall be not more than 60 days prior to the date fixed for the payment thereof.
3. Voting Rights. The holders of shares of Series A Preferred Stock shall have the following voting rights:
(i) Subject to the provision for adjustment hereinafter set forth, each share of Series A Preferred Stock shall entitle the holder thereof to 1,000 votes on all matters submitted to a vote of the shareholders of the Company. In the event the Company shall at any time after the date hereof declare or pay any dividend on Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise) into a greater or lesser number of shares of Common Stock, then in each such case the number of votes per share to which holders of shares of Series A Preferred Stock were entitled immediately prior to such event shall be automatically adjusted by multiplying such number by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.
(ii) Except as otherwise provided herein or by law, the holders of shares of Series A Preferred Stock and the holders of shares of Common Stock and any other capital stock of the Company having general voting rights shall vote together as one voting group on all matters submitted to a vote of shareholders of the Company.
(iii) Except as set forth herein, holders of Series A Preferred Stock shall have no special voting rights and their consent shall not be required (except to the extent they are entitled to vote with holders of Common Stock and any other capital stock of the Company having general voting rights as set forth herein) for taking any corporate action.
4. Certain Restrictions.
(i) Whenever quarterly dividends or other dividends or distributions payable on the Series A Preferred Stock as provided in Section 2 are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or not declared, on shares of Series A Preferred Stock outstanding shall have been paid in full, the Company shall not:
(a) declare or pay dividends on, or make any other distributions on, any shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred Stock;
(b) declare or pay dividends on or make any other distributions on any shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Preferred Stock, except dividends paid ratably on the Series A Preferred Stock and all such parity stock on which dividends are payable or in arrears in proportion to the total amounts to which the holders of all such shares are then entitled;
(c) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series A Preferred Stock, provided that the Company may at any time
redeem, purchase or otherwise acquire shares of any such junior stock
in exchange for shares of any stock of the Company ranking junior
(either as to dividends or upon dissolution, liquidation or winding up)
to the Series A Preferred Stock; or
(d) purchase or otherwise acquire for consideration any shares of Series A Preferred Stock, or any shares of stock ranking on a parity with the Series A Preferred Stock, except in accordance with a purchase offer made in writing or by publication (as determined by the Board of Directors) to all holders of such shares upon such terms as the Board of Directors, after consideration of the respective annual dividend rates and other relative rights and preferences of the respective series and classes, shall determine in good faith will result in fair and equitable treatment among the respective series or classes.
(ii) The Company shall not permit any subsidiary of the Company to purchase or otherwise acquire for consideration any shares of stock of the Company unless the Company could, under subsection (i) of this Section 4, purchase or otherwise acquire such shares at such time and in such manner.
5. Reacquired Shares. Any shares of Series A Preferred Stock purchased or otherwise acquired by the Company in any manner whatsoever shall be retired and canceled promptly after the acquisition thereof. All such shares shall upon their cancellation become authorized but unissued shares of Preferred Stock and may be reissued as part of a new series of Preferred Stock to be created by resolution or resolutions of the Board of Directors, subject to the conditions and restrictions on issuance set forth herein.
6. Liquidation, Dissolution or Winding Up. Upon any liquidation, dissolution or winding up of the Company, no distribution shall be made (a) to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred Stock unless, prior thereto, the holders of shares of Series A Preferred Stock shall have received $1,000 per share, plus an amount equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the date of such payment, provided that the holders of shares of Series A Preferred Stock shall be entitled to receive an aggregate amount per share, subject to the provision for adjustment hereinafter set forth, equal to 1,000 times the aggregate amount to be distributed per share to holders of Common Stock, or (b) to the holders of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Preferred Stock, except distributions made ratably on the Series A Preferred Stock and all other such parity stock in proportion to the total amounts to which the holders of all such shares are entitled upon such liquidation, dissolution or winding up. In the event the Company shall at any time after the date hereof declare or pay any dividend on Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise) into a greater or lesser number of shares of Common Stock, then in each such case the aggregate amount to which holders of shares of Series A Preferred Stock were entitled immediately prior to such event under the proviso in clause (a) of the preceding sentence shall be automatically adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.
7. Consolidation, Merger etc. In case the Company shall enter into any consolidation, merger, combination or other transaction in which the shares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then in any such case the shares of Series A Preferred Stock shall at the same time be similarly exchanged or changed in an amount per share (subject to the provision for adjustment hereinafter set forth) equal to 1,000 times the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, into which or for which each share of Common Stock is changed or exchanged. In the event the Company shall at any time after the date hereof declare or pay any dividend on Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise) into a greater or lesser number of shares of Common Stock, then in each such case the amount set forth in the preceding sentence with respect to the exchange or change of shares of Series A Preferred Stock shall be adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.
8. No Redemption. The shares of Series A Preferred Stock shall not be redeemable.
9. Rank. The Series A Preferred Stock shall rank junior with respect to payment of dividends and on liquidation to all other series of the Company's preferred stock outstanding on the date hereof and to all such other series that specifically provide that they shall rank senior to the Series A Preferred Stock.
10. Amendment. The Articles of Incorporation of the Company shall not be amended in any manner that would materially alter or change the powers, preferences or special rights of the Series A Preferred Stock so as to affect them adversely without the affirmative vote of the holders of two-thirds of the outstanding shares of Series A Preferred Stock, voting together as a single class.
EXHIBIT B
FORM OF RIGHT CERTIFICATE
Certificate No. R- Rights
----------
NOT EXERCISABLE AFTER MARCH 26, 2011 (SUBJECT TO
POSSIBLE EXTENSION AT THE OPTION OF THE COMPANY) OR
EARLIER IF REDEEMED, EXCHANGED OR AMENDED. THE
RIGHTS ARE SUBJECT TO REDEMPTION, EXCHANGE AND
AMENDMENT AT THE OPTION OF THE COMPANY, ON THE TERMS
SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES SPECIFIED IN THE RIGHTS AGREEMENT,
RIGHTS THAT ARE OR WERE BENEFICIALLY OWNED BY AN
ACQUIRING PERSON OR AN AFFILIATE OR AN ASSOCIATE OF
AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN
THE RIGHTS AGREEMENT) OR A TRANSFEREE THEREOF MAY
BECOME NULL AND VOID.
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Right Certificate
FLOWERS FOODS, INC.
This certifies that _______________, or registered assigns, is the registered owner of the number of Rights set forth above, each of which entitles the owner thereof, subject to the terms, provisions, and conditions of the Rights Agreement, dated as of March 23, 2001 (the "Rights Agreement"), between Flowers Foods, Inc., a Georgia corporation (the "Company"), and First Union National Bank (the "Rights Agent"), to purchase from the Company at any time after the Distribution Date (as such term is defined in the Rights Agreement) and prior to 5:00 P.M. (Eastern time) on the Expiration Date (as such term is defined in the Rights Agreement) at the principal office or offices of the Rights Agent designated for such purpose, one thousandth of a fully paid nonassessable share of Series A Junior Participating Preferred Stock, par value $100 per share (the "Preferred Shares"), of the Company, at a purchase price of $80.00 per one thousandth of a Preferred Share (the "Purchase Price"), upon presentation and surrender of this Right Certificate with the Form of Election to Purchase and related Certificate duly executed. If this Right Certificate is exercised in part, the holder will be entitled to receive upon surrender hereof another Right Certificate or Right Certificates for the number of whole Rights not exercised. The number of Rights evidenced by this Right Certificate (and the number of one thousandths of a Preferred Share which may be purchased upon exercise thereof) set forth above, and the Purchase Price set forth above, are the number and Purchase Price as of the date of the Rights Agreement, based on the Preferred Shares as constituted at such date.
As provided in the Rights Agreement, the Purchase Price and/or the number and/or kind of securities issuable upon the exercise of the Rights evidenced by this Right Certificate are subject to adjustment upon the occurrence of certain events.
This Right Certificate is subject to all of the terms, provisions and conditions of the Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and made a part hereof and to which Rights Agreement reference is hereby made for a
full description of the rights, limitations of rights, obligations, duties and immunities of the Rights Agent, the Company and the holders of the Right Certificates, which limitations of rights include the temporary suspension of the exercisability of the Rights under the circumstances specified in the Rights Agreement. Copies of the Rights Agreement are on file at the above-mentioned office of the Rights Agent and can be obtained from the Company without charge upon written request therefor. Terms used herein with initial capital letters and not defined herein are used herein with the meanings ascribed thereto in the Rights Agreement.
Pursuant to the Rights Agreement, from and after the occurrence of a Flip-in Event, any Rights that are Beneficially Owned by (i) any Acquiring Person (or any Affiliate or Associate of any Acquiring Person), (ii) a transferee of any Acquiring Person (or any such Affiliate or Associate) who becomes a transferee after the occurrence of a Flip-in Event, or (iii) a transferee of any Acquiring Person (or any such Affiliate or Associate) who became a transferee prior to or concurrently with the Flip-in Event pursuant to either (a) a transfer from an Acquiring Person to holders of its equity securities or to any Person with whom it has any continuing agreement, arrangement or understanding regarding the transferred Rights or (b) a transfer which the Directors of the Company have determined is part of a plan, arrangement or understanding which has the purpose or effect of avoiding certain provisions of the Rights Agreement, and subsequent transferees of any of such Persons, will be void without any further action and any holder of such Rights will thereafter have no rights whatsoever with respect to such Rights under any provision of the Rights Agreement. From and after the occurrence of a Flip-in Event, no Right Certificate will be issued that represents Rights that are or have become void pursuant to the provisions of the Rights Agreement, and any Right Certificate delivered to the Rights Agent that represents Rights that are or have become void pursuant to the provisions of the Rights Agreement will be canceled.
This Right Certificate, with or without other Right Certificates, may be transferred, split up, combined or exchanged for another Right Certificate or Right Certificates entitling the holder to purchase a like number of one thousandths of a Preferred Share (or other securities, as the case may be) as the Right Certificate or Right Certificates surrendered entitled such holder (or former holder in the case of a transfer) to purchase, upon presentation and surrender hereof at the principal office of the Rights Agent designated for such purpose, with the Form of Assignment (if appropriate) and the related Certificate duly executed.
Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate may be redeemed by the Company at its option at a redemption price of $.01 per Right or may be exchanged in whole or in part. The Rights Agreement may be supplemented and amended by the Company, as provided therein.
The Company is not required to issue fractions of Preferred Shares (other than fractions which are integral multiples of one thousandth of a Preferred Share, which may, at the option of the Company, be evidenced by depositary receipts) or other securities issuable upon the exercise of any Right or Rights evidenced hereby. In lieu of issuing such fractional Preferred Shares or other securities, the Company may make a cash payment, as provided in the Rights Agreement.
No holder of this Right Certificate, as such, will be entitled to vote or receive dividends or be deemed for any purpose the holder of the Preferred Shares or of any other securities of the
Company which may at any time be issuable upon the exercise of the Right or Rights represented hereby, nor will anything contained herein or in the Rights Agreement be construed to confer upon the holder hereof, as such, any of the rights of a shareholder of the Company or any right to vote for the election of directors or upon any matter submitted to shareholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting shareholders (except as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise, until the Right or Rights evidenced by this Right Certificate have been exercised in accordance with the provisions of the Rights Agreement.
This Right Certificate will not be valid or obligatory for any purpose until it has been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company and its corporate seal. Dated as of ________, ____.
[SEAL]
ATTEST: FLOWERS FOODS, INC.
By:
------------------------------------ ---------------------------------
Name:
Title:
Countersigned:
------------------------------------
By:
----------------------------------
Authorized Signature
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Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer the Right Certificate)
FOR VALUE RECEIVED, _______________ hereby sells, assigns and transfers unto________________________________________________________
(Please print name and address of transferee)
Dated:
-----------, ----
Signature Guaranteed:
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Right Certificate [ ] are [ ] are not being sold, assigned, transferred, split up, combined or exchanged by or on behalf of a Person who is or was an Acquiring Person or an Affiliate or Associate of any such Person (as such terms are defined in the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it
[ ] did [ ] did not acquire the Rights evidenced by this Right Certificate from
any Person who is, was or became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated:
------------, ----
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Right Certificate)
To Flowers Foods, Inc.:
The undersigned hereby irrevocably elects to exercise __________ Rights represented by this Right Certificate to purchase the one thousandths of a Preferred Share or other securities issuable upon the exercise of such Rights and requests that certificates for such securities be issued in the name of and delivered to:
If such number of Rights is not all the Rights evidenced by this Right Certificate, a new Right Certificate for the balance remaining of such Rights will be registered in the name of and delivered to:
Dated:
------------, ----
Signature Guaranteed:
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Right Certificate [ ] are [ ] are not being exercised by or on behalf of a Person who is or was an Acquiring Person or an Affiliate or Associate of any such Person (as such terms are defined pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it
[ ] did [ ] did not acquire the Rights evidenced by this Right Certificate from
any Person who is, was, or became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated:
------------, ----
NOTICE
SIGNATURES ON THE FOREGOING FORM OF ASSIGNMENT AND FORM OF ELECTION TO PURCHASE AND IN THE RELATED CERTIFICATES MUST CORRESPOND TO THE NAME AS WRITTEN UPON THE FACE OF THIS RIGHT CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER.
SIGNATURES MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED MEDALLION SIGNATURE PROGRAM) PURSUANT TO RULE 17AD-15 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
EXHIBIT C
SUMMARY OF RIGHTS TO PURCHASE PREFERRED STOCK
The Directors (the "Directors") of Flowers Foods, Inc. (the "Company") have declared a dividend distribution of one right (a "Right") for each outstanding share of Common Stock, par value $.01 per share (the "Common Shares"), of the Company. The distribution is payable on March 26, 2001 (the "Record Date") to the shareholders of record as of the close of business on the Record Date. Each Right entitles the registered holder thereof to purchase from the Company one thousandth of a share of Series A Junior Participating Preferred Stock, par value $100 per share (the "Preferred Shares"), of the Company at a price (the "Purchase Price") of $80.00 per one thousandth of a Preferred Share, subject to adjustment. The description and terms of the Rights are set forth in a Rights Agreement, dated as of March 23, 2001 (the "Rights Agreement"), between the Company and First Union National Bank, as Rights Agent (the "Rights Agent").
Under the Rights Agreement, the Rights will be evidenced by the certificates evidencing Common Shares until the earlier (the "Distribution Date") of: (i) the close of business on the tenth calendar day following the first date (the "Share Acquisition Date") of public announcement that a person or group (other than the Company, a subsidiary or employee benefit or stock ownership plan of the Company or any of its affiliates or associates), together with its affiliates and associates, has acquired beneficial ownership of 15% or more of the outstanding Common Shares (any such person or group being hereinafter called an "Acquiring Person") or (ii) the close of business on the tenth business day (or such later date as may be specified by the Directors) following the commencement of a tender offer or exchange offer by a person (other than the Company, a subsidiary or employee benefit or stock ownership plan of the Company or any of its affiliates or associates), the consummation of which would result in beneficial ownership by such person of 15% or more of the outstanding Common Shares.
The Rights Agreement provides that, until the Distribution Date, the Rights may be transferred with and only with the Common Shares. Until the Distribution Date (or earlier redemption, exchange or expiration of the Rights), any certificate evidencing Common Shares of the Company issued upon transfer or new issuance of the Common Shares will contain a notation incorporating the Rights Agreement by reference. Until the Distribution Date (or earlier redemption, exchange or expiration of the Rights), the surrender for transfer of any certificates evidencing Common Shares will also constitute the transfer of the Rights associated with such certificates. As soon as practicable following the Distribution Date, separate certificates evidencing the Rights ("Right Certificates") will be mailed to holders of record of Common Shares as of the close of business on the Distribution Date and such separate Right Certificates alone will evidence the Rights. No Right is exercisable at any time prior to the Distribution Date. The Rights will expire on the tenth anniversary of the Record Date (the "Final Expiration Date") unless earlier redeemed, exchanged or amended by the Company as described below. Until a Right is exercised, the holder thereof, as such, will have no rights as a shareholder of the Company, including the right to vote or to receive dividends.
The Purchase Price payable, and the number of the Preferred Shares or other securities issuable, upon exercise of the Rights will be subject to adjustment from time to time to prevent
dilution (i) in the event of a stock dividend on, or a subdivision, combination or reclassification of, the Preferred Shares, (ii) upon the grant to holders of Preferred Shares of certain rights or warrants to subscribe for or purchase the Preferred Shares at a price, or securities convertible into the Preferred Shares with a conversion price, less than the then-current market price of the Preferred Shares, or (iii) upon the distribution to holders of the Preferred Shares of evidences of indebtedness, cash (excluding regular periodic cash dividends), assets, stock (excluding dividends payable in the Preferred Shares) or subscription rights or warrants (other than those referred to above). The number of outstanding Rights and the number of one thousandths of the Preferred Shares issuable upon exercise of each Right will be subject to adjustment in the event of a stock dividend on the Common Shares payable in Common Shares or a subdivision, combination or reclassification of Common Shares occurring, in any such case, prior to the Distribution Date.
Rights will be exercisable to purchase Preferred Shares only after the Distribution Date occurs and prior to the occurrence of a Flip-in Event as described below. A Distribution Date resulting from the commencement of a tender offer or exchange offer described in clause (ii) of the second paragraph of this summary could precede the occurrence of a Flip-in Event and thus result in the Rights being exercisable to purchase Preferred Shares. A Distribution Date resulting from any occurrence described in clause (i) of the second paragraph of this summary would necessarily follow the occurrence of a Flip-in Event and thus result in the Rights being exercisable to purchase Common Shares or other securities as described below.
Under the Rights Agreement, in the event (a "Flip-in Event") that (i) any person or group, together with its affiliates and associates, becomes an Acquiring Person (ii) any Acquiring Person or any affiliate or associate thereof merges into or combines with the Company and the Company is the surviving corporation, (iii) any Acquiring Person or any affiliate or associate thereof effects certain other transactions with the Company, or (iv) during such time as there is an Acquiring Person the Company effects certain transactions, in each case as described in the Rights Agreement, then, in each such case, proper provision will be made so that from and after the latest of the Share Acquisition Date, the Distribution Date and the date of the occurrence of such Flip-in Event each holder of a Right, other than Rights that are or were owned beneficially by an Acquiring Person (which, from and after the date of a Flip-in Event, will be void), will have the right to receive, upon exercise thereof at the then-current exercise price of the Right, that number of Common Shares (or, under certain circumstances, an economically equivalent security or securities of the Company) that at the time of such Flip-in Event have a market value of two times the exercise price of the Right.
In the event (a "Flip-over Event") that, at any time after a person has become an Acquiring Person, (i) the Company merges with or into any person and the Company is not the surviving corporation, (ii) any person merges with or into the Company and the Company is the surviving corporation, but all or part of the Common Shares are changed or exchanged for stock or other securities of any other person or cash or any other property, or (iii) 50% or more of the Company's assets or earning power, including securities creating obligations of the Company, are sold, in each case as described in the Rights Agreement, then, and in each such case, proper provision will be made so that from and after the latest of the Share Acquisition Date, the Distribution Date and the date of the occurrence of such Flip-over Event, each holder of a Right, other than Rights which have become void, will thereafter have the right to receive, upon the
exercise thereof at the then-current exercise price of the Right, that number of shares of common stock (or, under certain circumstances, an economically equivalent security or securities) of such other person that at the time of such Flip-over Event have a market value of two times the exercise price of the Right.
From and after the later of the Share Acquisition Date and the Distribution Date, Rights (other than any Rights that have become void) will be exercisable as described above, upon payment of the aggregate exercise price in cash. In addition, at any time after the later of the Share Acquisition Date and the Distribution Date and prior to the acquisition by any person or group of affiliated or associated persons of 50% or more of the outstanding Common Shares, the Company may exchange the Rights (other than any rights that have become void), in whole or in part, at an exchange ratio of one Common Share per Right (subject to adjustment). Notwithstanding the foregoing, a majority of the continuing directors on the Board (defined to include incumbent Directors of the Company and their successors who are nominated for election by a majority of the incumbent Directors, but specifically excluding representatives of Acquiring Persons) must concur with the exchange of any of the Rights on or following the date (i) a person becomes an Acquiring Person or (ii) a majority of the Board is replaced due to the actions of any person or persons who may become an Acquiring Person or who may cause a Flip-in Event of Flip-over Event.
With certain exceptions, no adjustment in the Purchase Price will be required until cumulative adjustments require an adjustment in the Purchase Price of at least 1%. The Company will not be required to issue fractional Preferred Shares (other than fractions that are integral multiples of one thousandth of a Preferred Share, which may, at the option of the Company, be evidenced by depositary receipts) or fractional Common Shares or other securities issuable upon the exercise of Rights. In lieu of issuing such securities, the Company may make a cash payment, as provided in the Rights Agreement.
The Company may, at its option, redeem the Rights in whole, but not in part, at a price of $.01 per Right, subject to adjustment (the "Redemption Price"), at any time prior to the close of business on the later of the Distribution Date and the Share Acquisition Date. Immediately upon any redemption of the Rights, the right to exercise the Rights will terminate and the only right of the holders of Rights will be to receive the Redemption Price. Notwithstanding the foregoing, a majority of the continuing directors on the Board (defined to include incumbent Directors of the Company and their successors who are nominated for election by a majority of the incumbent Directors, but specifically excluding representatives of Acquiring Persons) must concur with the redemption of the Rights on or following the date (i) a person becomes an Acquiring Person or (ii) a majority of the Board is replaced due to the actions of any person or persons who may become an Acquiring Person or who may cause a Flip-in Event of Flip-over Event.
The Rights Agreement may be amended in certain instances so long as there are Continuing Directors and a majority of such Continuing Directors votes in favor of the proposed amendment. The Rights Agreement may be amended without the approval of any holders of Rights Certificates, including amendments that increase or decrease the Purchase Price, that add other events requiring adjustment to the Purchase Price payable and the number of the Preferred Shares or other securities issuable upon the exercise of the Rights or that modify procedures
relating to the redemption of the Rights, except that no amendment may be made that decreases the stated Redemption Price to an amount less than $.01 per Right.
The Directors will have the exclusive power and authority to administer the Rights Agreement and to exercise all rights and powers specifically granted to the Directors or to the Company therein, or as may be necessary or advisable in the administration of the Rights Agreement, including without limitation the right and power to interpret the provisions of the Rights Agreement and to make all determinations deemed necessary or advisable for the administration of the Rights Agreement (including any determination to redeem or not redeem the Rights or to amend or not amend the Rights Agreement). All such actions, calculations, interpretations and determinations (including any omission with respect to any of the foregoing) which are done or made by the Directors in good faith will be final, conclusive and binding on the Company, the Rights Agent, the holders of the Rights and all other parties and will not subject the Directors to any liability to any person, including without limitation the Rights Agent and the holders of the Rights.
A copy of the Rights Agreement has been filed with the Securities and Exchange Commission as an exhibit to a Registration Statement on Form 10. A copy of the Rights Agreement is available free of charge from the Company.
This summary description of the Rights is as of the Record Date, does not purport to be complete and is qualified in its entirety by reference to the
Rights Agreement, which is incorporated herein by this reference.
EXHIBIT 10.3
EXECUTION COPY
FLOWERS FOODS, INC.
RETIREMENT PLAN NO. 1
AS AMENDED AND RESTATED EFFECTIVE AS OF MARCH 26, 2001
FLOWERS FOODS, INC.
RETIREMENT PLAN NO. 1
TABLE OF CONTENTS
Page
----
PREAMBLE .................................................................. 1
ARTICLE I. DEFINITIONS....................................................... 2
1.01 Accrual Computation Period ................................................. 2
1.02 Accrued Benefit ............................................................ 2
1.03 Actuarial Equivalent or Actuarially Equivalent ............................. 3
1.04 Age ........................................................................ 3
1.05 Annuity Starting Date ...................................................... 3
1.06 Applicable Interest Rate ................................................... 3
1.07 Beneficiary ................................................................ 4
1.08 Board ...................................................................... 4
1.09 Break in Service or One Year Break in Service .............................. 4
1.10 Code ....................................................................... 4
1.11 Committee .................................................................. 4
1.12 Company .................................................................... 4
1.13 Compensation ............................................................... 4
1.14 Controlled Group ........................................................... 6
1.15 Death Benefit .............................................................. 6
1.16 Delayed Retirement Benefit ................................................. 6
1.17 Delayed Retirement Benefit Amount .......................................... 6
1.18 Delayed Retirement Date .................................................... 6
1.19 Disability Retirement Benefit .............................................. 6
1.20 Earliest Retirement Age .................................................... 6
1.21 Early Retirement Benefit ................................................... 6
1.22 Early Retirement Benefit Amount ............................................ 7
1.23 Early Retirement Date ...................................................... 7
1.24 Effective Date ............................................................. 7
1.25 Eligibility Computation Period ............................................. 7
1.26 Eligible Employee .......................................................... 7
1.27 Employee ................................................................... 7
1.28 Employer ................................................................... 8
1.29 Employment Commencement Date ............................................... 8
1.30 Enrolled Actuary ........................................................... 8
1.31 ERISA ...................................................................... 8
1.32 Highly Compensated Employee ................................................ 8
1.33 Hour of Service ............................................................ 9
1.34 Leased Employee ............................................................11
1.35 Normal Retirement Age means Age 65 .........................................11
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1.36 Normal Retirement Benefit ..................................................11 1.37 Normal Retirement Benefit Amount ...........................................12 1.38 Normal Retirement Date .....................................................16 1.39 Participant ................................................................16 1.40 Plan .......................................................................16 1.41 Plan Administrator .........................................................16 1.42 Plan Year ..................................................................16 1.43 Predecessor Company ........................................................16 1.44 Predecessor Plan ...........................................................17 1.45 Qualified Joint and Survivor Annuity .......................................17 1.46 Qualified Spousal Waiver ...................................................17 1.47 Repayment Rate .............................................................17 1.48 Required Beginning Date ....................................................17 1.49 Spouse .....................................................................17 1.50 Standard Form ..............................................................17 1.51 Super Highly Compensated Employee ..........................................17 1.52 Surviving Spouse ...........................................................17 1.53 Termination Benefit ........................................................18 1.54 Totally and Permanently Disabled ...........................................18 1.55 Trust Agreement ............................................................18 1.56 Trust Fund or Trust ........................................................18 1.57 Trustee ....................................................................18 1.58 Vesting Computation Period .................................................18 1.59 Year of Benefit Service ....................................................18 1.60 Year of Eligibility Service ................................................21 1.61 Year of Vesting Service ....................................................21 1.62 Use of Terms ...............................................................23 ARTICLE II. ELIGIBILITY.......................................................24 2.01 Attainment of Participant Status ...........................................24 2.02 Reemployment of Former Employees ...........................................25 2.03 Transfers from/to Eligible Class ...........................................26 2.04 Transfer of Participants ...................................................26 ARTICLE III. VESTING IN ACCRUED BENEFITS.......................................28 3.01 Vesting in Accrued Benefits ................................................28 3.02 Amendments to Vesting Schedule .............................................28 3.03 Vesting Upon Termination ...................................................29 3.04 Forfeitures ................................................................29 3.05 Recrediting Certain Forfeitures upon Return to Service .....................29 3.06 Vesting of Employees of Rio Grande Foods Manpower, Inc. ....................30 |
ARTICLE IV. BENEFITS PAYABLE..................................................31
4.01 Application for Commencement of Benefits ...................................31
4.02 Normal Retirement Benefits .................................................31
4.03 Delayed Retirement Benefits ................................................31
4.04 Early Retirement Benefits ..................................................32
4.05 Disability Benefits ........................................................32
4.06 Termination Benefits .......................................................33
4.07 Death Benefits .............................................................33
4.08 Maximum Benefit Limitations ................................................35
4.09 Special Provisions Regarding Benefits Payable ..............................39
ARTICLE V. STANDARD AND OPTIONAL FORMS OF RETIREMENT INCOME..................40
5.01 Standard Form of Retirement Income .........................................40
5.02 Automatic Forms of Retirement Income .......................................40
5.03 Optional Forms of Retirement Income ........................................41
5.04 Conditions Relative to all Standard and Optional Forms .....................43
5.05 Automatic and Optional Forms for Termination Benefits ......................44
5.06 Automatic and Optional Forms for Death Benefits ............................45
5.07 Suspension upon Delayed Retirement or Reemployment After Annuity
Starting Date ..............................................................46
5.08 Required Distributions .....................................................47
5.09 Code ss. 401(a)(31) Requirement ............................................52
ARTICLE VI. CONTRIBUTIONS AND TRUST FUND......................................55
6.01 Required Participant Contributions .........................................55
6.02 Contributions by the Employer ..............................................55
6.03 Return of Contributions ....................................................55
ARTICLE VII. ADMINISTRATION....................................................57
7.01 Committee ..................................................................57
7.02 Plan Administrator .........................................................57
7.03 Delegation of Duties .......................................................57
7.04 Plan Records ...............................................................57
7.05 Committee Liability ........................................................57
7.06 Committee Indemnification ..................................................57
7.07 Committee Expenses .........................................................58
7.08 Interpretation of the Plan and Findings of Facts ...........................58
ARTICLE VIII. THE TRUST FUND AND TRUSTEE........................................59
8.01 Existence of Trust .........................................................59
8.02 Exclusive Benefit Rule .....................................................59
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8.03 Removal of Trustee .........................................................59 8.04 Powers of Trustee ..........................................................59 8.05 Integration of Trust .......................................................59 8.06 Liability for Payments .....................................................59 ARTICLE IX. MISCELLANEOUS PROVISIONS..........................................60 9.01 Exclusive Benefit Rule .....................................................60 9.02 Merger or Consolidation of Company .........................................60 9.03 Nonalienation or Assignment ................................................60 9.04 Plan Continuance Voluntary .................................................62 9.05 Plan not an Employment Contract ............................................62 9.06 Payments to Minors and Others ..............................................62 9.07 Governing Law ..............................................................62 9.08 Indemnification ............................................................62 9.09 Gender and Number ..........................................................63 9.10 Headings ...................................................................63 9.11 Claims Procedure ...........................................................63 9.12 Misstatement in Application for Retirement Income ..........................64 9.13 Liability Limited ..........................................................64 9.14 Location of Participant or Beneficiary Unknown .............................64 9.15 Forfeitures and Investment Income ..........................................65 9.16 Prohibited Discrimination ..................................................65 9.17 Correction of Participants' Benefits .......................................65 9.18 Action of Employer, Committee and Plan Administrator .......................65 9.19 Employer Records ...........................................................65 ARTICLE X. AMENDMENT, TERMINATION AND ADOPTION...............................66 10.01 Permanency of Plan and Trust ...............................................66 10.02 Right to Amend Plan ........................................................66 10.03 Right to Terminate Plan and Trust ..........................................67 10.04 Merger, Consolidation, or Transfer of Assets ...............................67 10.05 Distribution of Assets of Trust Fund .......................................67 10.06 Adoption of the Plan by Members of Controlled Group ........................68 10.07 Early Plan Termination Provision ...........................................69 10.08 Military Service ...........................................................70 10.09 Electronic Means of Communication ..........................................70 ARTICLE XI. TOP HEAVY PROVISIONS..............................................71 11.01 Applicability ..............................................................71 11.02 Definitions ................................................................71 11.03 Minimum Accrued Benefit ....................................................73 11.04 Minimum Vesting ............................................................74 11.05 Impact on Code ss. 415 Limitations .........................................74 |
11.06 Compensation Limitation ....................................................74
11.07 No Duplication of Benefits .................................................74
ARTICLE XII. SPECIAL PROVISIONS REGARDING THE MERGER OF THE
STORCK BAKING COMPANY PENSION PLAN WITH AND
INTO THE PLAN.....................................................75
12.01 General Provisions .........................................................75
12.02 Transfer of Plan Assets ....................................................75
12.03 Conditions for Merger and Transfer .........................................75
12.04 Additional Optional Form of Benefit ........................................75
12.05 Actuarial Equivalent Amounts ...............................................75
12.06 Vesting ....................................................................76
12.07 Vested Cash Values .........................................................76
12.08 Special Rule on Termination ................................................77
ARTICLE XIII. SPECIAL PROVISIONS REGARDING THE MERGER OF THE
SHIPLEY BAKING COMPANY DEFINED BENEFIT PENSION
PLAN AND TRUST WITH AND INTO THE PLAN.............................78
13.01 General Provisions .........................................................78
13.02 Transfer of Plan Assets ....................................................78
13.03 Conditions for Merger and Transfer .........................................78
13.04 Additional Optional Form of Benefit ........................................78
13.05 Actuarial Equivalent Amounts ...............................................78
13.06 Vesting ....................................................................79
13.07 Special Rule on Termination ................................................79
13.08 Employee Contribution Accounts .............................................79
APPENDIX B ADDITIONAL RETIREMENT BENEFITS....................................81
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FLOWERS FOODS, INC.
RETIREMENT PLAN NO. 1
PREAMBLE
Flowers Industries, Inc., a Georgia corporation, adopted by resolution of its Board of Directors on February 28, 1971, the Retirement Plan for Non-Bargaining Employees of Flowers Industries, Inc. (the "Plan"). The Plan was amended in its entirety, effective March 1, 1974, and designated the Flowers Industries, Inc. Retirement Plan for Non-Bargaining Employees. The Plan was again amended in its entirety effective March 1, 1976, January 1, 1978, and January 1, 1982, and redesignated the Flowers Industries, Inc. Retirement Plan. Subsequently, several further amendments were made to the Plan, and the Plan was designated the Flowers Industries, Inc. Retirement Plan No. 1, and the Plan was amended and restated effective as of January 1, 1987. The Plan was again amended and restated effective as of January 1, 1997.
Effective as of March 26, 2001, Flowers Foods, Inc., a Georgia corporation, has assumed the sponsorship of the Plan, and the name of the Plan has been changed to the Flowers Foods, Inc. Retirement Plan No. 1. The Plan is herein amended and restated in its entirety, effective as of March 26, 2001.
The Plan is intended to comply with the Tax Reform Act of 1986 and all subsequent applicable rulings and legislation, including the Omnibus Budget Reconciliation Act of 1986, the Omnibus Budget Reconciliation Act of 1987, the Technical and Miscellaneous Revenue Act of 1988, the Omnibus Budget Reconciliation Act of 1989, the Omnibus Budget Reconciliation Act of 1990, the Unemployment Compensation Amendments of 1992, the Revenue Reconciliation Act of 1993, the Uruguay Round Agreements Act, the Uniformed Services Employment and Reemployment Rights Act of 1994, the Small Business Job Protection Act of 1996, the Taxpayer Relief Act of 1997, and the Internal Revenue Service Restructuring and Reform Act of 1998. This Plan, and the Trust which forms a part of the Plan, are intended to be and to remain qualified and exempt from taxation under Sections 401 and 501 of the Internal Revenue Code of 1986, and shall be interpreted and administered in such manner as shall be necessary to carry out this intention.
The effective date of the amendment and restatement of this Plan is March 26, 2001, except where certain provisions have other effective dates as indicated, and this amendment and restatement shall apply only to a Participant who is credited with an Hour of Service on or after that date except as otherwise provided herein. The rights and benefits of a Participant who is not credited with an Hour of Service on or after March 26, 2001 shall be determined in accordance with the terms of the Plan in effect on the date of the Participant's termination of employment with the Employer. Certain provisions of this amended and restated Plan are effective on other, stated dates, as specifically provided herein.
ARTICLE I.
DEFINITIONS
The following words and phrases, whenever capitalized in this document or the accompanying Trust Agreement, shall have the following meanings unless the context clearly indicates otherwise:
1.01 Accrual Computation Period.
(a) For purposes of determining Years of Benefit Service and One-Year Breaks in Service for purposes of Benefit Accrual, the Accrual Computation Period shall be the 12 consecutive month period coincident with the Plan Year.
(b) If the Company shall amend the Plan to change the Accrual Computation Period, such amendment shall comply with the provisions of DOL Reg. ss. 2530.204-2(e).
1.02 Accrued Benefit.
(a) In General. Accrued Benefit, with respect to a Participant, means the benefit determined in accordance with Section 1.37 and Article IV (excluding Sections 4.05 and 4.07) which the Participant has accrued under this Plan (which may or may not be vested).
(b) Transitional Rules. Notwithstanding any other contrary provision of the Plan, in order that benefit accruals arising during the Plan Years (and portions thereof) before December 31, 1991, will not cause this Plan to fail to meet the requirements of Code ss.ss. 401(a)(4) and 401(a)(26) for such Plan Years, the following provisions are added to the Plan effective as noted below:
(i) A Plan Participant who is a Super Highly Compensated Employee may not receive a distribution after January 31, 1989, of a benefit that exceeds the benefit that such Participant had accrued as of the last day of the Plan Year beginning in 1988 until such time as the Accrued Benefit for that Participant under the Plan as in existence after December 31, 1991, exceeds such Participant's Accrued Benefit as of the last day of the Plan Year beginning in 1988.
(ii) Benefit accruals for Participants who are not Highly Compensated Employees shall continue at more than a de minimis level under this Plan after December 31, 1991.
(iii) No amendment decreasing benefit accruals of Participants who are not Highly Compensated Employees that do not correspondingly affect Participants who are Highly Compensated Employees or amendment increasing benefit accruals shall be adopted during the period beginning December 13, 1988 and ending on December 31, 1991.
It is the intention of the provisions of this subsection (b) to reflect the adoption of Alternative IID, as promulgated by the Internal Revenue Service in Notice 88-131, for the period beginning January 1, 1989 and ending on December 31, 1991, in order to ensure that benefit accruals arising prior to January 1, 1992, will not cause the Plan to fail to meet the requirements of Code ss.ss. 401(a)(4) and 401(a)(26) for such period.
(c) Transfer of Participants. The Accrued Benefit of any Participant who transfers from the employment of one Employer to that of a member of the Controlled Group who is not an Employer or any Participant who transfers from the employment of a member of the Controlled Group who is not an Employer to that of an Employer shall be determined using only Compensation received and Years of Benefit Service earned while the Participant was employed by an Employer. See also Sections 1.59(b)(ii) and 2.04(b)(i).
1.03 Actuarial Equivalent or Actuarially Equivalent means a benefit of equivalent value as of the Participant's or Beneficiary's, as applicable, Annuity Starting Date, computed on the basis of tables adopted by the Pension Committee of the Board for purposes of calculating actuarially equivalent benefits. For purposes of computing lump sum amounts under Sections 5.02(a), 5.03(d), 5.03(e)(iii), 5.05(a), 5.05(b)(iii), 5.06(a) and (b), 12.04, and 13.04, such tables shall be based upon (a) a mortality table prescribed by the Secretary of the Treasury, based on the prevailing commissioners' standard table (described in Section 807(d)(5)(A) of the Code) used to determine reserves for group annuity contracts issued on the date as of which present value is being determined (without regard to any other subparagraph of Section 807(d)(5) of the Code), and (b) the annual rate of interest on 30-year Treasury securities for the month before the beginning of the Plan Year in which the lump sum distribution occurs. Exhibit A to the Plan contains the current Actuarial Equivalent tables which may be changed from time to time by the Pension Committee of the Board with written documentation of such action by the Pension Committee of the Board. In no event shall the Accrued Benefit of a Participant as adjusted by the Actuarial Equivalent tables which are current at his Age when benefits commence be less than his Accrued Benefit determined as of any earlier date as adjusted by the Actuarial Equivalent tables in effect on such earlier date but based upon his Age when benefits commence; provided, however, that the preceding clause shall not apply to the extent permitted by Section 767(d)(2) of the Retirement Protection Act of 1994.
1.04 Age means the age, in years and completed months, of an Employee as of the date of determination.
1.05 Annuity Starting Date means, with respect to a Participant or Beneficiary, (i) the first day of the first period for which an amount is paid as an annuity or (ii) in the case of a benefit not payable in the form of an annuity, the first day on which all events have occurred which entitle the Participant or Beneficiary to such benefit, in accordance with Treas. Reg. ss. 1.401(a)-20(Q&A-10)(b).
1.06 Applicable Interest Rate means the interest rate or rates which would be used by the Pension Benefit Guaranty Corporation for purposes of determining the present value of a lump sum distribution on termination of a plan. For purposes of determining the present value of lump sum distributions from this Plan, such interest rates shall be determined as of the first day
of the Plan Year during which the later of the Annuity Starting Date or the lump sum distribution occurs.
1.07 Beneficiary means the person or persons, including a trust for the
benefit of individuals, designated by the terms of this Plan or last designated
by a Participant, by written notice filed with the Committee, to receive a
survivor benefit (if applicable) upon his death. If, at any time, no Beneficiary
has been designated by a Participant, or the designated Beneficiary is no longer
living or no longer exists, whichever is applicable, then the Participant's
Beneficiary shall be deemed to be the Participant's Spouse or, if no such Spouse
is then living, the Participant's estate; provided, however, nothing in this
Section shall be interpreted so as to require a benefit for such Beneficiary
except as set forth elsewhere in this Plan. Once a benefit is in pay status, the
Beneficiary of a Participant hereunder may not be changed.
1.08 Board means the Board of Directors of the Company.
1.09 Break in Service or One Year Break in Service means any period of time which would count as a Year of Eligibility Service, a Year of Vesting Service or a Year of Benefit Service, as applicable, if a Participant had been credited with at least 1000 Hours of Service during such period, but for which the Participant was credited with 500 or fewer Hours of Service.
1.10 Code means the Internal Revenue Code of 1986, as amended.
1.11 Committee means the administrative Committee comprised of one or more persons designated by the President of the Company in accordance with Article VII hereof.
1.12 Company means Flowers Foods, Inc., including any successor by merger, purchase or otherwise which shall adopt the Plan with the approval of its Board of Directors. With respect to periods of time prior to March 26, 2001, this term means Flowers Industries, Inc.
1.13 Compensation.
(a) General Definition. Subject to subsections (b) through (e) below, Compensation for a Plan Year with respect to an Employee shall mean the Employee's "wages" as defined in Code ss. 3401(a) for purposes of income tax withholding at the source paid by an Employer but determined without regard to any rules that limit the remuneration included in wages based on the nature or location of the employment or the services performed (such as the exception for agricultural labor in Code ss. 3401(a)(2)) and all other payments of compensation (in the course of the Employer's trade or business) for which the Employer is required to furnish the Employee a written statement under Code ss.ss. 6041(d), 6051(a)(3) and 6052 which are paid by the Employer to such Employee for such Plan Year.
(b) Safe Harbor Exclusions. Notwithstanding the provisions of subsection (a) above, none of the following items shall be included in the definition of Compensation, whether or not includable in taxable gross income:
(i) reimbursements or other expense allowances;
(ii) fringe benefits (cash and noncash);
(iii) moving expenses;
(iv) deferred compensation;
(v) welfare benefits;
and, additionally, solely with respect to Highly Compensated Employees:
(vi) amounts received from the exercise of any nonqualified stock options issued by an Employer;
(vii) amounts received from the sale or exchange of stock transferred pursuant to the exercise of an incentive stock option; and
(viii) amounts required to be reported as income pursuant to Code ss. 7872.
(c) Salary Reduction Arrangements. Notwithstanding the preceding subsections of this Section, Compensation shall include any amount which is contributed by the Employer pursuant to a salary reduction agreement and which is not includable in the gross income of the Employee under Code ss.ss. 125, 402(e)(3), 402(h) or 403(b).
(d) Limitation. The annual Compensation of an Employee taken into account in determining contributions or benefits under the Plan for any Plan Year beginning after December 31, 1988, shall not exceed $200,000 as adjusted by the Secretary of the Treasury at the same time and in the same manner as under Code ss. 415(d). If the Plan determines Compensation on a period of time that contains fewer than 12 calendar months, the above limitation shall be proportionately reduced; provided, however, no proration is required for Employees who are covered under the Plan for less than 1 full year if the Plan formula for accruals is based on Compensation for a period of at least 12 months.
In addition to other applicable limitations set forth in the Plan, and notwithstanding any other provision of the Plan to the contrary, for Plan Years beginning on or after January 1, 1994, the annual compensation of each employee taken into account under the Plan shall not exceed the OBRA '93 annual compensation limit. The OBRA '93 annual compensation limit is $150,000, as adjusted by the Commissioner for increases in the cost of living in accordance with section 401(a)(17)(B) of the Internal Revenue Code. The cost-of-living adjustment in effect for a calendar year applies to any period, not exceeding 12 months, over which compensation is determined (determination period) beginning in such calendar year.
For Plan Years beginning on or after January 1, 1994, any reference in this Plan to the limitation under section 401(a)(17) of the Code shall mean the OBRA '93 annual compensation limit set forth in this provision.
(e) Special Provisions. The term Compensation may be specially defined for purposes of certain provisions of this Plan. See Section 4.08(f)(i).
(f) Limitation. Notwithstanding any other provision herein, "Compensation" shall not include amounts paid by Flowers Foods, Inc. attributable to services performed on and after March 26, 2001.
1.14 Controlled Group means the Company and any other entity which is
required to be aggregated with the Company pursuant to Code ss.ss. 414(b), (c),
(m) or (o). For purposes of Section 4.08 hereof and any other part of the Plan
referring to the Code ss.415 limitations, the definition of Controlled Group
shall be modified pursuant to Code ss. 415(h).
1.15 Death Benefit means the benefit to which the Surviving Spouse of a Participant is entitled upon the death of the Participant prior to his Annuity Starting Date as set forth in Section 4.07 herein.
1.16 Delayed Retirement Benefit means the benefit to which a Participant is entitled upon continuing in the employ of an Employer beyond his Normal Retirement Date as set forth in Section 4.03 herein.
1.17 Delayed Retirement Benefit Amount means the Participant's Normal
Retirement Benefit Amount, determined as of his date of severance from
employment with all members of the Controlled Group, unadjusted actuarially to
reflect a delay in the payment of benefits after the Participant's Normal
Retirement Date, and not offset by any earlier payments of benefits required by
Section 5.08 herein.
1.18 Delayed Retirement Date. See Section 4.03 of this Plan.
1.19 Disability Retirement Benefit means the benefit to which a Participant is entitled upon severance from employment with all members of the Controlled Group as a result of becoming Totally and Permanently Disabled as set forth in Section 4.05 herein.
1.20 Earliest Retirement Age means the earliest age at which a Participant could sever from employment with all members of the Controlled Group and receive a distribution, in accordance with Treas. Reg. ss. 1.401(a)-20(Q&A-17)(b).
1.21 Early Retirement Benefit means the benefit to which a Participant is entitled upon attainment of his Early Retirement Date while in the service of an Employer as set forth in Section 4.04 herein.
1.22 Early Retirement Benefit Amount means the amount payable each month to a Participant as of the Participant's selected Annuity Starting Date, which shall be equal to the Participant's Normal Retirement Benefit Amount determined as of his date of severance from employment with all members of the Controlled Group, multiplied by the appropriate factor from Table 1 in Exhibit A as determined by the period of time prior to the Participant's Normal Retirement Date that his Annuity Starting Date occurs.
1.23 Early Retirement Date means, with respect to a Participant, the first day of any month prior to his attainment of Normal Retirement Age and coincident with or immediately following the date the Participant has completed all of the following requirements: (a) attainment of Age 55 ("Early Retirement Age"), (b) completion of 5 Years of Vesting Service (10 Years of Vesting Service for Employees who do not have at least one Hour of Service in a Plan Year beginning after December 31, 1988), and (c) severance from employment with all members of the Controlled Group. See Section 4.04 of this Plan.
1.24 Effective Date means the Effective Date of this restated and amended Plan, which is March 26, 2001.
1.25 Eligibility Computation Period means, with respect to an Employee, the following for purposes of determining Years of Eligibility Service and One Year Breaks in Service for purposes of eligibility:
(a) The initial Eligibility Computation Period is the 12-consecutive-month period beginning on the Employee's Employment Commencement Date.
(b) Succeeding 12-consecutive-month periods which are the Plan Years that include each anniversary of the Employee's Employment Commencement Date shall constitute subsequent Eligibility Computation Periods for the Employee.
1.26 Eligible Employee means an Employee who (i) is employed by an Employer, and (ii) is eligible to participate in this Plan and become a Participant for all or a portion of a Plan Year pursuant to Article II of this Plan. Leased Employees and Employees described in Section 2.01(d) and (e) are excluded from participating in this Plan; provided that Leased Employees who are Highly Compensated Employees, Leased Employees who are not Highly Compensated Employees and Employees described in Section 2.01(e), are included in the coverage test performed for this Plan under Code Section 410(b).
1.27 Employee means an individual currently performing services as a common law employee of any member of the Controlled Group. The term "Employee" shall also include any Highly Compensated Leased Employee and any Non-Highly Compensated Leased Employee of an Employer or any member of the Controlled Group. The term "Employee" shall not include an individual who provides services to the Employer or another Controlled Group member pursuant to a contractual arrangement with another entity, but who is not deemed to constitute a Leased Employee. It is expressly intended that individuals not treated as common law employees by the Employer or Controlled Group member on their payroll records are to be excluded from Plan participation even if a court or administrative agency determines that such individuals are common law employees and not independent contractors.
1.28 Employer means the Company and any other member of the Controlled Group that adopts the Plan with the consent of the Board of the Company pursuant to Section 10.06.
1.29 Employment Commencement Date means the date on which an Employee first performs an Hour of Service for the Employer or any other member of the Controlled Group.
1.30 Enrolled Actuary means an individual who has been approved and enrolled by the Joint Board for the Enrollment of Actuaries to perform actuarial services required by ERISA or the regulations thereunder.
1.31 ERISA means the Employee Retirement Income Security Act of 1974, as amended.
1.32 Highly Compensated Employee means the following:
(a) An Employee shall be a Highly Compensated Employee, with respect to a Plan Year, if the Employee is described under either or both paragraph (b) or paragraph (c) below.
(b) An Employee is described under this paragraph (b) if the Employee is performing services during the Determination Year for an Employer and: (1) the Employee received compensation from the Employer during the Look-Back Year in excess of $80,000 and was a member of the top-paid group (as defined in Treas. Reg. ss. 1.414(q)-1T(Q&A-9)) for such Look-Back Year; or (2) the Employee was a "5-percent owner" (as defined in Treas. Reg. ss. 1.414(q)-1T(Q&A-8)) at any time during either or both the Look-Back Year or the Determination Year.
(c) An Employee is described under this paragraph (c) if the individual was, at one time, an Employee of the Employer and the individual separated from service (or was deemed to have separated from service pursuant to Treas. Reg. ss. 1.414(q)-1T(Q&A5)) from the Employer prior to the Determination Year, such individual performs no service for the Employer during the Determination Year, and such individual is a "highly compensated employee" (as defined in Code ss. 414(q) for either the Determination Year during which the individual separated from service with the Employer or any Determination Year ending on or after the individual's 55th birthday.
(d) For purposes of this Section, the applicable dollar amount specified in subparagraph (1) of paragraph (b) shall be the applicable dollar amount prescribed in Code ss.ss. 414(q)(1)(B) as adjusted pursuant to the last sentence of Code ss. 414(q)(1).
(e) For purposes of this Section, the term "Determination Year" shall mean the respective Plan Year specified in paragraph (a) above, and the term "Look-Back Year" shall mean the 12 month period immediately preceding the Determination Year.
(f) The determination of who is a Highly Compensated Employee, including the determinations of the number and identity of the Employees in the top-paid group, and the compensation that is considered, will be made in accordance with Code ss. 414(q) and the regulations thereunder. For purposes of this Section, "compensation" shall be
defined as set forth in Section 4.08(f)(i), except compensation for each year shall include any amount which is contributed by an Employer pursuant to a salary reduction arrangement and which is not includable in the gross income of the Employee under Code ss.ss. 125, 402(e)(3) or 403(b).
1.33 Hour of Service means the following:
(a) An Employee shall receive credit for an Hour of Service for each hour for which he is paid or entitled to payment by an Employer for the performance of duties.
(b) An Employee shall also receive credit for an Hour of Service for each hour for which he is paid or entitled to payment by an Employer on account of a period of time during which no duties are performed (irrespective of whether the employment relationship has terminated) due to vacation, holiday, illness, incapacity (including disability), layoff, jury duty, military duty or leave of absence; provided, however, that:
(i) No more than 501 Hours of Service shall be credited because of this subsection (b) to an Employee on account of any single continuous period during which the Employee performs no duties (whether or not said period occurs in a single computation period);
(ii) An hour for which an Employee is directly or indirectly paid or entitled to payment on account of a period during which no duties are performed shall not be credited to an Employee if said payment is made or due under a plan maintained solely for the purpose of complying with applicable worker's compensation, unemployment compensation, or disability insurance laws; and
(iii) Hours of Service shall not be credited for a payment which reimburses an Employee solely for medical or medically related expenses incurred by the Employee.
For purposes of this subsection (b), a payment shall be deemed to be made by or due from an Employer regardless of whether said payment is made by or due from an Employer directly or indirectly through, among others, a trust fund or insurer to which an Employer contributes or pays premiums and regardless of whether contributions made or due to the trust fund, insurer or other entity are for the benefit of particular Employees or are on behalf of a group of Employees in the aggregate.
(c) An Employee shall also receive credit for an Hour of Service for each hour for which back pay, irrespective of mitigation of damages, is either awarded or agreed to by an Employer provided that no Hour of Service shall be credited pursuant both to this subsection (c) and subsections (a) or (b) above. Crediting of Hours of Service for back pay awarded or agreed to with respect to periods described in subsection (b) above shall be subject to the limitations set forth in that subsection.
(d) In addition to the Service for which an Hour of Service must be credited pursuant to subsections (a), (b) and (c) above, an Employee shall receive credit for an Hour of Service for:
(i) Each hour, whether or not said Employee is paid therefor, during which he would otherwise perform an Hour of Service, except for the fact that he is on an approved leave of absence (not to exceed 24 months). If he does not return to work on or before the end of his leave, Service will be deemed to have terminated as of the end of his leave (unless the Employee terminated earlier); and
(ii) Each hour for which an Employee performs no duties due to absence during any military service to the extent required by law.
(e) Each Employee for whom the Employer does not keep records of actual Hours of Service shall be credited with 45 Hours of Service for each week for which said Employee would be required to be credited with at least one (1) Hour of Service, in accordance with this Section and applicable regulations promulgated by the Department of Labor. If, based on the preceding sentence, an Employee would not be credited with 1,000 Hours of Service in an eligibility computation period, a vesting computation period or an accrual computation period, Hours of Service shall be determined from the record of hours worked or hours for which payment is made or owing.
(f) In determining the number of Hours of Service to be credited to an Employee, the provisions of DOL Reg. ss. 2530.200b-2(b) and (c) are incorporated herein by reference.
(g) If an Employee is absent from service with the Employer as a result of a Maternity/Paternity Absence, then, solely for purposes of determining whether the Employee incurs a One Year Break in Service for purposes of eligibility to participate and vesting in benefits, the Employee will be credited with up to 501 Hours of Service with respect to the period of Maternity/Paternity Absence. Such 501 Hours of Service shall be credited at the rate at which the Employee would have otherwise accrued Hours of Service but for the Maternity/Paternity Absence, provided that, if the Committee is unable to determine the Hours of Service that would have otherwise been credited, such Hours of Service shall be credited at the rate of eight hours for each day of the Maternity/Paternity Absence. Such 501 Hours of Service shall be credited only in the Computation Period in which the Employee's Maternity/Paternity Absence commences if the Employee would have incurred a One Year Break in Service in such Computation Period but for the crediting of the additional Hours of Service. If such 501 Hours of Service are not credited to the Computation Period in which the Maternity/Paternity Absence commences pursuant to the immediately preceding sentence, such Hours of Service shall be credited to the next Computation Period commencing after the Maternity/Paternity Absence commences. For purposes of this subsection, the term "Maternity/Paternity Absence" means an absence from service with the Employer by an Employee if the absence is caused:
(i) By reason of the pregnancy of the Employee;
(ii) By reason of the birth of a child of the Employee;
(iii) By reason of the placement of a child with the Employee in connection with the adoption of such child by the Employee; or
(iv) For purposes of caring for such child for a period beginning immediately following such birth or placement.
For purposes of this subsection (g), "Computation Period" shall mean the Eligibility Computation Period or Vesting Computation Period, as applicable.
(h) For purposes of this Section, service with any member of the Controlled Group during the period that it is a member thereof shall be treated as service with the Employer except as indicated to the contrary in this Plan, and prior service shall also be included if so provided in this Plan.
(i) Notwithstanding any other provision herein, effective as of March 26, 2001, Hours of Service shall not be credited under the foregoing provisions of this Section 1.33 with respect to hours that are both (1) attributable to Flowers Industries, Inc. and (2) allocable to periods of time after March 26, 2001.
1.34 Leased Employee.
(a) Leased Employee shall mean any person (other than an employee of the Employer) who pursuant to an agreement between the Employer and any other person ("leasing organization") has performed services for the Employer (or for the Employer and related persons determined in accordance with Code ss. 414(n)(6)) on a substantially full time basis for a period of at least one year, and such services are performed under the primary direction or control of the Employer. Contributions or benefits provided a Leased Employee by the leasing organization which are attributable to services performed for the Employer shall be treated as provided by the Employer.
(b) A Leased Employee shall not, however, be considered an
Employee of the Employer if: (i) such Employee is covered by a money
purchase pension plan of his legal employer providing: (1) a
nonintegrated employer contribution rate of at least 10% of
compensation (as defined in Code ss. 415(c)(3), but excluding amounts
contributed pursuant to a salary reduction agreement which are
excludable from the employee's gross income under Code ss.ss. 125,
402(e)(3), 402(h) or 403(b)), (2) immediate participation, and (3) full
and immediate vesting; and (ii) Leased Employees do not constitute more
than 20% of the Employer's nonhighly compensated workforce. For
purposes of this subsection (b), the term "nonhighly compensated
workforce" means the total number of individuals (other than Highly
Compensated Employees) who are either Employees of the Employer or
Leased Employees of the Employer.
1.35 Normal Retirement Age means Age 65.
1.36 Normal Retirement Benefit means the benefit to which a Participant is entitled upon attainment of his Normal Retirement Age while in the service of an Employer as set forth in Section 4.02 herein.
1.37 Normal Retirement Benefit Amount means the amount payable each month to a Participant as of the later of the Participant's attainment of his Normal Retirement Age, or the Participant's date of actual severance from employment with all members of the Controlled Group, unless the Participant continues to work past his Required Beginning Date, in which event Normal Retirement Benefit Amount shall mean the amount payable each month to the Participant as of his Required Beginning Date, with subsequent accruals by the Participant to be taken into account in accordance with Section 5.08(f). A Participant's Normal Retirement Benefit Amount shall be determined as of the earlier of (1) the Participant's Annuity Starting Date, or (2) the Participant's date of death, in the following manner:
(a) General Rule. The Normal Retirement Benefit Amount for any Participant shall be equal to the sum of the Participant's Plan Year Accruals ("PYA's") for each Accrual Computation Period as calculated in paragraphs (i) through (v) below, but not less than the amount calculated in subsection (b) below.
(i) Post 1988 PYA's. For each Accrual Computation Period beginning on or after January 1, 1989, the Participant's Plan Year Accrual with respect to such Accrual Computation Period shall be equal to:
PYA = (1/12) x [(0.0135 x A) + (0.0065 x B)],
for each of the first 35 Years of Benefit Service of the Participant, less any Years of Benefit Service which are taken into consideration under paragraphs (ii), (iii) and (iv) of this subsection (a), and shall be equal to:
PYA = (1/12) x (0.0180 x A)
for each Year of Benefit Service of the Participant thereafter, where:
A = The Participant's Compensation during the Accrual Computation Period; and
B = The Participant's Compensation in excess of $10,000 during the Accrual Computation Period.
(ii) 1976 to 1988 PYA's. For each Year of Benefit Service completed during an Accrual Computation Period beginning on or after January 1, 1976, but prior to January 1, 1989, the Participant's Plan Year Accrual shall be equal to the following amount:
PYA = (1/12) x [(0.0090 x C) + (0.0110 x D)]
where:
C = The Participant's Earnings during the Accrual
Computation Period; and
D = The Participant's Earnings in excess of $7,800 during the Accrual Computation Period.
(iii) 1971 to 1975 PYA's. For each Year of Benefit Service completed during an Accrual Computation Period beginning on or after March 1, 1971, but prior to January 1, 1976, the Participant's Plan Year Accrual shall be equal to the following amount:
PYA = (1/12) x [(0.0090 x C) + (0.0060 x D)]
where C and D have the meanings given in paragraph (ii) above.
(iv) Pre-1971 PYA's. For each Year of Benefit Service completed during Accrual Computation Periods prior to March 1, 1971, the Participant's Plan Year Accrual shall be equal to the following amount:
PYA = (1/12) x [(0.0090 x E) + (0.0060 x F)] x G
where:
E = The Participant's Average Earnings as of
March 1, 1971; and
F = The Participant's Average Earnings as of
March 1, 1971, in excess of $7,800; and
G = The Participant's Years of Benefit Service
prior to March 1, 1971;
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provided, however, that a Participant's aggregate Plan Year Accruals for Accrual Computation Periods prior to March 1, 1971, shall not be less than the monthly amount of payments which could be provided by a benefit payable in the Standard Form which is Actuarially Equivalent to (i) the total cash surrender value of the individual policies or annuity contracts which were being purchased for the Participant under any pension or profit sharing plan which has been merged into this Plan, or (ii) the fair market value of the assets allocated to the Participant under any such plan on the day before the date such plan was merged into this Plan.
(v) Definitions and Rules. Solely for purposes of this subsection (a), the following definitions and rules shall apply:
(A) "Earnings" of an Employee for an Accrual Computation Period shall mean the total compensation actually paid to an Employee by an Employer as reported on Form W-2 including overtime pay, premium pay, incentive pay, bonuses, expense allowances or any other special payments. Effective as of July 1, 1987, for purposes of determining Earnings, Earnings shall include any amount which is contributed by the Employer pursuant to a salary reduction agreement and which is not
includable in the gross income of the Employee under
Code ss. 125. (Note that for purposes of paragraph
(i), Compensation as defined in Section 1.13, and not
Earnings, is used to determine the Normal Retirement
Benefit Amount.)
(B) "Average Earnings" of an Employee for an Accrual Computation Period as of a date shall mean the average of the Employee's "Earnings" (as defined in subparagraph (A) above) over the 5 year period (or the total period of service of the Employee if less than 5 years) ending on such date.
(C) Should a record of Earnings not exist for any year in which service is to be credited for benefits, such Earnings shall be computed upon the assumption that Earnings for any year prior to the earliest year of known Earnings are lower than the Earnings for the years following. The assumed Earnings will be determined as if they have increased at the rate of 5% per year to the earliest year of known Earnings.
(D) For purposes of paragraphs (i), (ii) and
(iii) above, a Participant's Compensation or Earnings
during an Accrual Computation Period shall only
include amounts paid during such Accrual Computation
Period for service rendered which service would be
included and not excluded under paragraphs (ii)
through (ix) of Section 1.59(b).
(b) Transitional Rule. The Accrued Benefit for the period
beginning January 1, 1989, and ending on the December 31, 1991, of any
Plan Participant who is not a Super Highly Compensated Employee shall
be equal to the greater of (1) his Normal Retirement Benefit Amount
calculated under subsection (a) above for the entire period, or (2) his
Normal Retirement Benefit Amount calculated under subsection (a) above
for the entire period with the following inserted in lieu of paragraph
(i) of subsection (a):
(i) Post 1988 PYA's. For each Accrual Computation Period of a Participant beginning on or after January 1, 1989, the Participant's Plan Year Accrual with respect to such Accrual Computation Period shall be equal to the following amount:
PYA = (1/12) x [(0.0090 x H) + (0.0110 x I)]
where:
H = The Participant's Maximum Earnings during the Accrual Computation Period; and
I = The Participant's Maximum Earnings in excess of $7,800 during the Accrual Computation Period;
and with the following added to paragraph (v) of subsection (a):
(E) "Maximum Earnings" of an Employee for a Plan Year shall mean the "Earnings" (as defined in subparagraph (A) above) of the Employee subject to the limitation provisions of Section 1.13(d).
(c) Accruals Beyond Normal Retirement Date. Notwithstanding the provisions of Section 1.37, with respect to a Participant who continues to work beyond his Normal Retirement Date, such Participant shall accrue no further benefit after reaching his Normal Retirement Date for any Plan Year beginning before January 1, 1988, unless such Participant is credited with at least one Hour of Service in a Plan Year beginning on or after January 1, 1988, in which event, such Participant shall continue to accrue further benefits in accordance with the terms and provisions of this Plan. Such accruals shall include accruals for Years of Benefit Service completed during Plan Years beginning before January 1, 1988. The provisions of this subsection (c) shall be interpreted in accordance with Prop. Treas. Reg. ss. 1.411(b)-2(f) and any corresponding future regulations under Sections 9201 through 9204 of the Omnibus Budget Reconciliation Act of 1986.
(d) In the event that either the annual overall permitted disparity limit, or the cumulative permitted disparity limit, under Treas. Reg. 1.40(l)-5 would be exceeded for any Participant for a given Plan year, the benefits under this Plan which would otherwise accrue pursuant to the provisions hereof shall be changed, depending on whether or not the Participant is a Highly Compensated Employee, as follows:
(i) For Highly Compensated Employees, the excess benefit percentage factor of 0.0065 described in section 1.37(a)(i) hereof shall be reduced to the extent required to avoid said disparity.
(ii) For Employees who are not Highly Compensated Employees, the base benefit percentage factor of 0.0135 described in Section 1.37(a)(i) hereof shall be increased to the extent required to avoid said disparity. In the case of a Participant whose years of Benefit Service exceed 34, any such adjustment required because of participation in another retirement plan shall be effected in said other plan.
(e) The Accrued Benefit determined under subsection (a) above on or after January 1, 1992, shall not be less than the Accrued Benefit determined under subsection (b) above as of December 31, 1991.
(f) Accruals for Certain Highly Compensated Employees. With respect to those Plan Years beginning on or after January 1, 1995 and prior to December 31, 2001, no Participant who
(i) is a Highly Compensated Employee in the current Plan Year (but determined solely on the basis of compensation, as defined in Section 1.32(g), received in the Look-Back Year),
(ii) is, or has at any time been, a participant in the Flowers Industries, Inc. 1989 Executive Stock Incentive Plan, and
(iii) is an Employee of Flowers Industries, Inc., on January 1 of the Plan Year in question,
will accrue any benefit for said Plan Year until after the end of said Plan Year. The benefit which will then accrue retroactively for each such Participant will be limited to the maximum benefit that said Participant can accrue for the Plan Year without causing the Plan to violate Code Section 410(b) as determined by the Plan's Actuary, as soon as practicable after the end of each Plan Year, using substantiation quality data as defined in relevant Internal Revenue Service publications. For each Plan Year when such Participants are prevented from accruing the benefit they would accrue without the application of Code Section 410(b) by virtue of this subparagraph, the Actuary will determine the accruals by reducing on a uniform basis the level of Compensation which can be taken into account under subparagraph 1.37(a) to the level required to satisfy Code Section 410(b).
(g) Subject to subsection (f) of this Section 1.37, in the case of a Participant whose Social Security Number is listed in Appendix B to the Plan, the Normal Retirement Benefit Amount and Accrued Benefit shall be equal to the sum of (i) the amount determined under the provisions of subsections (a) through (f) above, as if this subsection (g) had not been added to the Plan, plus (ii) the "Additional Retirement Benefit" applicable to such Participant, as set forth opposite such Participant's Social Security Number in said Appendix B. This subsection (g) shall be effective as of January 1, 1996.
1.38 Normal Retirement Date means the first day of the month coincident with or next following the date on which the Participant attains his Normal Retirement Age.
1.39 Participant means an Employee who has satisfied the requirements for participation pursuant to Article II. A Participant shall continue to be a Participant (whether or not he continues to be credited with Years of Vesting Service or Years of Benefit Service) until his benefits have been fully distributed, although he may or may not accrue additional benefits under this Plan.
1.40 Plan means the Flowers Foods, Inc. Retirement Plan No. 1, as set forth herein and as from time to time amended.
1.41 Plan Administrator means the person or persons appointed by the Committee pursuant to Article VII herein. If no such appointment is made, the Committee shall be the Plan Administrator.
1.42 Plan Year means the period for keeping the books and records of the Plan, which shall be the calendar year.
1.43 Predecessor Company means a company which has heretofore or hereafter been merged, consolidated or otherwise absorbed by a member of the Controlled Group or all or a substantial part of the assets or business of which have been or shall be acquired by a member of the Controlled Group.
1.44 Predecessor Plan means a plan which has heretofore or hereafter been merged, consolidated or otherwise absorbed by this Plan or all or a substantial part of the assets and liabilities of which have been or shall be transferred to this Plan.
1.45 Qualified Joint and Survivor Annuity means an annuity for the life of the Participant with a survivor annuity for the life of the Participant's Spouse, under which the Spouse's monthly benefit is 50% of the amount of the Participant's monthly benefit.
1.46 Qualified Spousal Waiver means a written election, delivered to the Committee, signed by the Participant's Spouse, and witnessed by a notary public or an authorized Plan representative, which consents to the payment of all or a specified part of the Participant's benefit to a named Beneficiary other than the Participant's Spouse, and/or in a specified form other than a Qualified Joint and Survivor Annuity. Such election may not be changed without Spousal consent (unless the consent expressly permits designations by the Participant without further consent of the Spouse). A Participant may, however, revoke a Qualified Spousal Waiver at any time prior to his Annuity Starting Date by way of a written signed statement to the Committee, and a Qualified Spousal Waiver shall not be effective at any time following delivery of such a revocation to the Committee provided that such revocation is received by the Committee prior to his Annuity Starting Date. If a Participant revokes a Qualified Spousal Waiver, the Participant's benefits automatically shall become payable in the form of a Qualified Joint and Survivor Annuity unless the Spouse thereafter consents to the payment of benefits in a form other than a Qualified Joint and Survivor Annuity pursuant to a Qualified Spousal Waiver.
1.47 Repayment Rate means, with respect to a Participant, 120% of the Federal mid-term rate as in effect under Code ss. 1274 for the first month of the applicable Plan Year.
1.48 Required Beginning Date. See Section 5.08(b)(i) of this Plan.
1.49 Spouse means the legally recognized Spouse of a Participant determined as of the Participant's Annuity Starting Date, or if earlier, determined as of the Participant's date of death, under the laws of the state in which the Participant is domiciled.
1.50 Standard Form means a life annuity payable monthly on the first day of each month during the lifetime of the applicable Participant or Beneficiary and ending on the first day of the month coincident with or immediately preceding the Participant's or Beneficiary's date of death.
1.51 Super Highly Compensated Employee means an Employee who is a Highly Compensated Employee as described in subsections (b)(1), (b)(4) or (b)(7) of Section 1.32 of this Plan (as the Plan was amended and restated effective as of January 1, 1987). For purposes of Sections 1.02 and 1.37, a Participant who is a Super Highly Compensated Employee for a 1989 Plan Year shall also be considered a Super Highly Compensated Employee for the 1990 and 1991 Plan Years.
1.52 Surviving Spouse means the surviving Spouse, if any, of a deceased Participant determined as of the Participant's date of death.
1.53 Termination Benefit means the benefit to which a Participant is entitled upon severance from employment with all members of the Controlled Group as set forth in Section 4.06 herein.
1.54 Totally and Permanently Disabled means any medically determinable physical or mental impairment arising after an Employee has become a Participant and while employed by an Employer resulting from demonstrable injury or disease that can be expected to continue for an indefinite period of greater than 12 months or to result in death and which prevents the Participant from engaging in his occupation or performing any gainful occupation for which he is qualified by reason of education, training or experience as determined by a qualified physician selected by the Committee.
1.55 Trust Agreement means the Master Trust Agreement entered into between the Company and the Trustee, as it may subsequently be amended from time to time, whereby the Trustee holds the assets of this Plan. The terms of the Master Trust Agreement are hereby incorporated by reference herein.
1.56 Trust Fund or Trust means all assets held by the Trustee pursuant to the terms of the Master Trust Agreement.
1.57 Trustee means the person(s), corporation, association, or a combination thereof who shall accept the appointment by the Company to execute the duties of the Trustee as stated in this Plan and in the Master Trust Agreement.
1.58 Vesting Computation Period means, for purposes of determining Years of Vesting Service and One-Year Breaks in Service for purposes of Vesting, the following:
(a) The Vesting Computation Period shall be the 12 consecutive month period coincident with the Plan Year.
(b) If the Company shall amend the Plan to change the Vesting Computation Period, such amendment shall comply with the requirements of DOL Reg. ss. 2530.203-2(c).
1.59 Year of Benefit Service.
(a) Pre-1976 Service. For Plan Years beginning before January 1, 1976, a Participant's Years of Benefit Service shall be the number of years or fractional parts thereof for which the Participant received credit in accordance with the applicable provisions of this Plan as in effect on December 31, 1975.
(b) Post-1975 Service. For Plan Years beginning after December 31, 1975, the following rules shall apply in determining a Participant's Years of Benefit Service:
(i) In General. Year of Benefit Service shall mean an Accrual Computation Period during which the Employee completes 1,000 Hours of Service.
(ii) Other Controlled Group Service. With respect to Plan Years beginning before December 31, 1998, for purposes of determining Years of Benefit Service, service with any member of the Controlled Group during the period that it is (1) a member thereof, and (2) an Employer, shall be treated as service with the Employer; provided, however, that for a Participant who transfers from the employment of an Employer to that of a member of the Controlled Group who is not an Employer, such a Participant shall be deemed to be employed by an Employer while employed by such Controlled Group member if such Participant is not eligible to participate in any other retirement plan qualified under Code ss. 401(a) to which the Company or any other Controlled Group member makes contributions on his behalf. Notwithstanding any provision of this Plan to the contrary including Section 1.33(h), service with any member of the Controlled Group shall otherwise not be treated as service with the Employer, except as provided in paragraph (ix) below. See also Sections 1.02(c) and 2.04(b)(i).
(iii) Service While Ineligible. For purposes of determining Years of Benefit Service, notwithstanding any provision of this Plan to the contrary including Section 1.33, service with any member of the Controlled Group during the period that an Employee is not an Eligible Employee shall not be treated as service with the Employer, except as provided in paragraph (ix) below.
(iv) Imputed Service. For purposes of determining Years of Benefit Service, notwithstanding any provision of this Plan to the contrary including Section 1.33, Hours of Service credited under Section 1.33(d)(i) shall not be considered in determining a Participant's Years of Benefit Service, but Hours of Service credited under Section 1.33(d)(ii) shall be considered in determining a Participant's Years of Benefit Service.
(v) Service While Contribution Required. Years of Benefit Service of an Employee during a period for which the Employee declined to make any required contribution to this Plan, or a Predecessor Plan or any employee benefit pension plan maintained by a Predecessor Company shall be disregarded. If an Employee contributes any part of the required contributions for a year, such year may not be excluded under this paragraph.
(vi) Service While no Plan in Existence. Years of Benefit Service of an Employee during any period for which the Employer did not maintain this Plan or a predecessor plan shall be disregarded, except as provided in paragraph (ix) below. For purposes of this paragraph, whether the Employer maintained a "predecessor plan" shall be determined in accordance with Treas. Reg. ss. 1.411(a)-5(b)(3).
(vii) Rule of Parity. Any former Employee (1) who does not have any vested right under the Plan to his Accrued Benefit, and (2) for whom the number of consecutive One-Year Breaks in Service prior to such Employee's reemployment equals or exceeds the greater of 5 or the aggregate number of
Years of Benefit Service before such Breaks in Service shall not receive credit for service prior to such Breaks in Service.
(viii) Service Where Benefit has been Distributed.
For purposes of determining Years of Benefit Service, service
(which would otherwise constitute Years of Benefit Service)
performed by an Employee with respect to which the Employee
has received (or has been deemed to receive) a distribution
under this Plan of the present value of his entire Accrued
Benefit at the time of such distribution due to the
termination of such Employee's participation in the Plan shall
be excluded. However, such Years of Benefit Service shall not
be excluded under this paragraph if the Employee, after
returning to the employ of an Employer, repays to the Trustee
the entire amount of the distribution he received (or was
deemed to have received) from the Plan (with interest
compounded annually at the Repayment Rate for the entire
period of time beginning with the date such distribution was
made and ending with the date such repayment occurs) before
the earlier of (1) 5 years after the first date on which the
Employee is subsequently reemployed by an Employer, or (2) the
end of the first period of 5 consecutive One-Year Breaks in
Service after the distribution. A Participant who has been
deemed to have received a distribution under this Plan and who
incurs a forfeiture and returns to service with a member of
the Controlled Group, prior to incurring 5 consecutive
One-Year Breaks-in-Service shall be deemed to have repaid his
deemed distribution upon said return.
(ix) Past Service Credit. An Employee shall, subject to the foregoing provisions of this Section, receive Years of Benefit Service in accordance with any applicable document referred to in Section 10.06(a).
(x) Fractional Years of Benefit Service. In determining an Employee's Years of Benefit Service, an Employee will be credited with fractional Years of Benefit Service based on the percentage of the Accrual Computation Period during which he was employed; provided, however, to receive such credit, the Employee must complete during such portion of the Accrual Computation Period a minimum number of Hours of Service determined by multiplying 1,000 by the percentage of the Accrual Computation Period during which he was employed.
(xi) Service with Flowers Industries, Inc. or Flowers Foods, Inc. after March 26, 2001. Notwithstanding any other provision herein, effective as of March 26, 2001, a Participant shall not earn Years of Benefit Service based upon service or Hours of Service that are both (1) attributable to Flowers Industries, Inc. or Flowers Foods, Inc. and (2) allocable to periods of time after March 26, 2001; provided, however, that nothing in this Section 1.59(b)(xi) shall affect the continued crediting of Years of Benefit Service, and the continued accrual of benefits, on and after March 26, 2001, with respect to Eligible Employees of participating Employers (other than Flowers Industries, Inc. and Flowers Foods, Inc.).
1.60 Year of Eligibility Service.
(a) In General. Year of Eligibility Service shall mean an Eligibility Computation Period during which the Employee completes 1,000 Hours of Service.
(b) Other Controlled Group Service. For purposes of this Section, employment with any member of the Controlled Group shall be considered employment with an Employer. In addition, in the case of a Leased Employee of any member of the Controlled Group, employment with such member of the Controlled Group shall be considered employment with an Employer.
(c) Service with Predecessor Employers. For purposes of this Section, in any case in which the Employer maintains a plan of a predecessor employer, service for such predecessor shall be treated as service for the Employer.
(d) Service with Flowers Industries, Inc. after March 26, 2001. Notwithstanding any other provision herein, effective as of March 26, 2001, an Employee shall not earn Years of Eligibility Service based upon service or Hours of Service that are both (1) attributable to Flowers Industries, Inc. and (2) allocable to periods of time after March 26, 2001.
1.61 Year of Vesting Service.
(a) Pre-1976 Service. For Plan Years beginning before January 1, 1976, an Employee's Years of Vesting Service shall be the number of years or fractional parts thereof as an Employee of an Employer.
(b) Post-1975 Service. For Plan Years beginning after December 31, 1975, the following rules shall apply in determining a Participant's Years of Vesting Service:
(i) In General. Year of Vesting Service shall mean a Vesting Computation Period during which an Employee completes 1,000 Hours of Service.
(ii) Other Controlled Group Service. For purposes of this Section, employment with any member of the Controlled Group during the period that it is a member thereof shall be considered employment with an Employer. In addition, in the case of a Leased Employee of any member of the Controlled Group, employment with such member of the Controlled Group during the period that it is a member thereof shall be considered employment with an Employer. However, service with any member of the Controlled Group shall otherwise not be treated as service with the Employer, except as provided in paragraph (viii) below.
(iii) Service with Predecessor Employers. For purposes of this Section, in any case in which the Employer maintains a plan of a predecessor employer, service for such predecessor shall be treated as service for the Employer.
(iv) Imputed Service. For purposes of determining Years of Vesting Service, notwithstanding any provision of this Plan to the contrary including Section 1.33, Hours of Service credited under Section 1.33(d)(i) shall not be considered in determining a Participant's Years of Vesting Service, but Hours of Service credited under Section 1.33(d)(ii) shall be considered in determining a Participant's Years of Vesting Service.
(v) Service While Contributions Required. Years of Vesting Service of an Employee during a period for which the Employee declined to make any required contribution to this Plan, or a Predecessor Plan or any employee benefit pension plan maintained by a Predecessor Company shall be disregarded. If an Employee contributes any part of the required contributions for a year, such year may not be excluded under this paragraph.
(vi) Service While no Plan in Existence. Years of Vesting Service of an Employee during any period for which the Employer did not maintain this Plan or a predecessor plan shall be disregarded, except as provided in paragraph (viii) below. For purposes of this paragraph, whether the Employer maintained a "predecessor plan" shall be determined in accordance with Treas. Reg. ss. 1.411(a)-5(b)(3).
(vii) Rule of Parity. Any former Employee (1) who does not have any vested right under the Plan to his Accrued Benefit, and (2) for whom the number of consecutive One-Year Breaks in Service prior to such Employee's reemployment equals or exceeds the greater of 5 or the aggregate number of Years of Vesting Service before such Breaks in Service shall not receive credit for service prior to such Breaks in Service.
(viii) Past Service Credit. An Employee shall, subject to the foregoing provisions of this Section, receive credit for Years of Vesting Service in accordance with any applicable document referred to in Section 10.06(a).
(ix) Fractional Years of Vesting Service. In determining an Employee's Years of Vesting Service, an Employee will be credited with fractional Years of Vesting Service based on the percentage of the Vesting Computation Period during which he was employed; provided, however, that to receive such credit, the Employee must complete during such portion of the Vesting Computation Period a minimum number of Hours of Service determined by multiplying 1,000 by the percentage of the Vesting Computation Period during which he was employed.
(x) Service with Flowers Industries, Inc. after March 26, 2001. Notwithstanding any other provision herein, effective as of March 26, 2001, an Employee shall not earn Years of Vesting service based upon service or Hours of Service that are both (1) attributable to Flowers Industries, Inc. and (2) allocable to periods of time after March 26, 2001.
1.62 Use of Terms. Any words used in this Plan in the masculine shall be read and construed in the feminine where they would so apply. Words in the singular shall be read and construed in the plural in all cases where they would so apply.
ARTICLE II.
ELIGIBILITY
2.01 Attainment of Participant Status.
(a) Participants as of the Effective Date. Subject to subsections (c), (d), (e) and (f) below, all Eligible Employees who were Participants in this Plan immediately prior to the Effective Date shall remain and continue as Participants hereunder as of the Effective Date.
(b) Prerequisites for Participation. Subject to
subsections (c), (d), (e) and (f) below, prior to January 1, 1990, each
Eligible Employee who is not a Participant in accordance with
subsection (a) shall become a Participant as of the later of (i) the
date the Employee becomes an Eligible Employee, or (ii) the date on
which this Plan becomes effective with respect to the Employer of the
Employee. Subject to subsections (c), (d), (e), (f), (g), (h), (i) and
(j) below, on and after January 1, 1990, each Eligible Employee who is
not a Participant in accordance with subsection (a) or the preceding
sentence shall become a Participant as of the later of (i) the date the
Employee becomes an Eligible Employee, (ii) the date on which this Plan
becomes effective with respect to the Employer of the Employee, or
(iii) the date on which the Employee completes one Year of Eligibility
Service.
(c) Leased Employees. Leased Employees shall not be eligible to participate in this Plan unless they become the common law employees of an Employer.
(d) Collectively Bargained Employees. Employees who are included in a unit of Employees covered by a collective bargaining agreement between their collective bargaining representative and their Employer shall not be eligible to participate in this Plan.
(e) Employees Participating in Other Plans.
(i) Prior to January 1, 1993. Prior to January 1, 1993, Employees who are actively participating in any other retirement plan qualified under Code ss.401(a) (other than the Flowers Industries, Inc. Employee Stock Ownership Plan) to which their Employer makes contributions on their behalf shall not be eligible to participate in this Plan.
(ii) After December 31, 1992. After December 31, 1992, Employees who are actively participating in any other employee pension benefit plan (as defined in ERISA ss.3(2)) to which Title IV of ERISA applies and to which any member of the Controlled Group makes contributions on their behalf shall not be eligible to participate in this Plan.
(f) Distributors and Thrift Store Operators. Notwithstanding any provision of the Plan to the contrary, individuals who are distributors or thrift store operators and who have executed a written agreement with a member of the Controlled Group for the
distribution or sale of goods or products (and any employees, agents or independent contractors of such distributors or thrift store operators) shall not be eligible to participate in this Plan.
(g) Employees Hired After December 31, 1998. Notwithstanding any provision of the Plan to the contrary, an individual who is first credited with an Hour of Service with the Company or with another Controlled Group member on or after January 1, 1999 shall not be an "Eligible Employee" and shall not be eligible to participate in this Plan.
(h) Employees of Flowers Industries, Inc. after March 26, 2001. Notwithstanding any other provision herein, effective as of March 26, 2001 employees of Flowers Industries, Inc. shall not be eligible to participate in the Plan; provided, however, that individuals who were, prior to March 26, 2001 employees of Flowers Industries, Inc. and Participants in this Plan shall be entitled to all benefits accrued under this Plan prior to that date.
(i) Employees of Flowers Foods, Inc. Notwithstanding any other provision herein, employees of Flowers Foods, Inc. shall not be eligible to participate in this Plan; provided, however, that an individual who was a Participant in this Plan prior to becoming an employee of Flowers Foods, Inc. shall be entitled to all benefits accrued under this Plan prior to the individual's becoming an employee of Flowers Foods, Inc.; provided, further, that this Section 2.01(i) shall have no effect on the continued accrual of benefits, on and after March 26, 2001, with respect to Eligible Employees of participating Employers (other than Flowers Industries, Inc. and Flowers Foods, Inc.).
2.02 Reemployment of Former Employees.
(a) Prior to January 1, 1990, any former Employee who terminated employment with the Employer shall, upon being rehired by an Employer as an Eligible Employee, immediately become a Participant hereunder, subject to subsections (c), (d), (e), and (f) of Section 2.01 above.
(b) Effective on or after January 1, 1990, any former Employee who terminated employment with the Employer prior to having a vested Accrued Benefit hereunder shall:
(i) if such Employee has not incurred five
consecutive One Year Breaks in Service, become a Participant
as of the later of (1) his reemployment commencement date or
(2) the anniversary of his original employment commencement
date first following his completion of one Year of Eligibility
Service; or
(ii) if such Employee has incurred five consecutive One Year Breaks in Service, become a Participant in accordance with subsection (b) of Section 2.01 above.
Any other former Employee shall, upon being rehired by an Employer as
an Eligible Employee, immediately become a Participant hereunder,
subject to subsections (c), (d), (e), (f), (g), (h), (i) and (j) of
Section 2.01 above.
(c) Notwithstanding any other provision herein, effective January 1, 1999, any former Employee who terminated employment with the Employer and who on or after January 1, 1999 is rehired by an Employer as an Eligible Employee shall not accrue any additional benefits under the Plan, but shall be entitled to benefits (if any) based upon Years of Benefit Service and Compensation prior to the termination of employment.
2.03 Transfers from/to Eligible Class.
(a) Exclusion after Participation. A Participant who
ceases to be an Eligible Employee by reason of subsections (c), (d),
(e), (f), (h), (i) or (j) of Section 2.01 above but who remains
employed by a member of the Controlled Group shall continue to earn
Years of Eligibility Service and Years of Vesting Service, but during
the period the Participant is not an Eligible Employee by reason of
subsections (c), (d), (e), (f), (h),(i) or (j) of Section 2.01 above,
the Participant shall not be credited with Years of Benefit Service and
the Participant's Compensation during such period shall not be taken
into account for purposes of determining the Participant's Accrued
Benefit under this Plan.
(b) Participation after Exclusion. An individual who has
been employed by a member of the Controlled Group and who is not an
Eligible Employee by reason of subsections (c), (d), (e), or (f) of
Section 2.01 above but who becomes an Eligible Employee because he is
no longer in a status described in subsections (c), (d), (e), or (f) of
Section 2.01 above shall be eligible to participate in this Plan and
accrue benefits hereunder in accordance with Sections 2.01 through 2.02
above. Notwithstanding the foregoing, effective January 1, 1999, an
individual who has been employed by a member of the Controlled Group
and who is not an Eligible Employee by reason of subsections (c), (d),
(e), (f), (h), (i) or (j) of Section 2.01 above but who becomes an
Eligible Employee on or after January 1, 1999 because he is no longer
in a status described in subsections (c), (d), (e), (f), (h), (i) or
(j) of Section 2.01 above shall not be eligible to participate in this
Plan and shall not accrue additional benefits hereunder based upon
service on or after January 1, 1999.
2.04 Transfer of Participants.
(a) Transfers among Employers. Any Participant who transfers from the employment of one Employer to that of another Employer shall continue to participate hereunder without interruption or adverse effect because of such transfer if such Participant remains an Eligible Employee, subject to subsections (c), (d), (e), (f), (h) and (i) of Section 2.01.
(b) Transfers to/from Employer from/to Non-Employer Controlled Group Member.
(i) Transfer to Non-Employer Controlled Group Member. Any Participant who transfers from the employment of an Employer to that of a
member of the Controlled Group who is not an Employer shall remain a Participant hereunder but shall not accrue any further benefit hereunder. See also Sections 1.02(c) and 1.59(b)(ii).
(ii) Transfer to Employer. With respect to Plan Years beginning before December 31, 1998, any individual who transfers from the employment of a member of the Controlled Group to that of an Employer shall become a Participant hereunder (or shall continue participation hereunder) in accordance with the provisions of Sections 2.01 to 2.03 above. Notwithstanding any other provision herein, effective January 1, 1999 with respect to an individual who transfers on or after that date from the employment of a member of the Controlled Group that is not an Employer to the employment of an Employer shall not become a Participant hereunder (if the individual was not previously a Participant hereunder) and shall not accrue additional benefits hereunder based upon service on or after January 1, 1999 (if the individual was previously a Participant).
(c) Transfer to Holsum Baking Company. Notwithstanding the provisions of subsection (b) above or any provision of this Plan to the contrary, any Participant who transfers from the employment of an Employer to the employment of Holsum Baking Company shall continue to participate hereunder without interruption or adverse effect because of such transfer, subject to subsections (c), (d) and (e) of Section 2.01 above, until such time as Holsum Baking Company adopts the Flowers Industries, Inc. 401(k) Retirement Savings Plan in accordance with the provisions of Section 11.6 of such plan.
ARTICLE II.
VESTING IN ACCRUED BENEFITS
3.01 Vesting in Accrued Benefits.
(a) Full Vesting Events. A Participant shall be 100% vested in his Accrued Benefit upon the occurrence of any of the following events:
(i) The Participant attains Age 65 while still in service as an Employee;
(ii) The Participant becomes Totally and Permanently Disabled while still in service as an Employee; or
(iii) The Participant completes five (5) Years of Vesting Service (10 Years of Vesting Service for Participants who do not have at least one (1) Hour of Service in a Plan Year beginning after December 31, 1988).
A Participant whose Accrued Benefit is not 100% vested under the preceding provisions of this Section shall not be vested in any portion of his Accrued Benefit.
(b) Nonforfeitability by Participant Conduct. No portion of a Participant's Accrued Benefit shall be forfeited as a result of conduct of the Participant (other than his severance from employment prior to an event described in subsection (a) above).
3.02 Amendments to Vesting Schedule.
(a) General Rule. Notwithstanding Section 3.01, no Participant shall have his vested interest in his Accrued Benefit decreased as a result of the merger of a plan with this Plan, or as a result of any amendment which alters the vesting provisions hereof. Any Participant who has a vested accrued benefit under a plan merged with this Plan will receive no less than that vested accrued benefit under this Plan and any Participant who has a vested Accrued Benefit under this Plan prior to an amendment which alters the vesting provisions hereof shall receive no less than that vested Accrued Benefit under this Plan, as so amended. In addition, no such amendment shall reduce a Participant's vested percentage as of the effective date of said amendment.
(b) Application of Former Schedule. If the vesting schedule applicable to a Participant is amended, any Participant who has at least three (3) Years of Vesting Service (without regard to paragraphs (v) and (vi) of subsection (b) of Section 1.61) prior to the expiration of the election period described below may elect to have his vesting percentage computed without regard to the change in the vesting schedule. Such an election must be made within sixty (60) days after the later of (i) the date of issuance of a written notification by the Committee of the adoption of this Plan or of any subsequent amendment which alters the vesting provisions hereof; (ii) the date of the adoption of this Plan or of any subsequent amendment which alters the vesting provisions hereof; or (iii) the effective date of this Plan or of any subsequent amendment which alters the vesting
provisions hereof. Notwithstanding the foregoing, no election shall be provided for any Participant whose vested percentage under the Plan, or under the Plan as amended, at any time cannot be less than such percentage determined without regard to the Plan or the amendment. For Participants who have not completed at least one Hour of Service in any Plan Year beginning after December 31, 1988, this subsection (b) shall be applied by substituting "five (5) Years of Vesting Service" for "three (3) Years of Vesting Service" where such language appears.
(c) Automatic Amendments to Vesting Schedule. The rules of this Section shall apply to the automatic change in the vesting schedule in Section 3.01 above after the end of the Plan Year beginning on January 1, 1988. Furthermore, the rules of this Section shall apply to any automatic change in the vesting schedule caused by the operation of Article XI of this Plan.
(d) Determination of Amendment. For purposes of this Section, an amendment of a vesting schedule is any plan amendment which directly or indirectly affects the computation of the vested percentage of a Participant's Accrued Benefit, as described in Treas. Reg. ss. 1.411(a)-8(c).
3.03 Vesting Upon Termination. If, pursuant to Article X, this Plan is wholly or partially terminated, the rights of each affected Participant to his Accrued Benefit as of the date of such termination or partial termination, to the extent funded, shall be fully vested notwithstanding any other provisions of this Article III to the contrary. See Section 10.03(a) herein.
3.04 Forfeitures. In the event a Participant severs from employment with the Employer and receives (or, if applicable, begins receiving) or is deemed to have received a distribution of his vested Accrued Benefit, the non-vested portion of his Accrued Benefit shall be forfeited as of the date of the distribution (or, if applicable, commencement of distribution) and shall be used to reduce future contributions of the Employer. In the event a Participant severs from employment with the Employer and incurs a period of One-Year Breaks-in-Service (as defined in Section 1.09) such that the Participant's service prior to his severance may be disregarded under Section 1.61(b)(vii), the non-vested portion of his accrued benefits shall then be forfeited and shall be used to reduce future contributions of the employer.
3.05 Recrediting Certain Forfeitures upon Return to Service. If a Participant incurs a forfeiture prior to incurring five consecutive One Year Breaks in Service, the Participant shall have the previously forfeited Accrued Benefit restored if and when the Participant, after returning to service with the Employer, repays to the Trustee the entire amount of the distribution(s) he received from the Plan, with interest at the Repayment Rate computed on the amount of the distribution from the date of such distribution to the date of repayment, before the earlier of (i) 5 years after the first date on which the Participant is subsequently reemployed by the Employer, or (ii) the end of the first period of five consecutive One Year Breaks in Service after the distribution. A Participant who has been deemed to have received a distribution under this Plan and who otherwise is described in the preceding sentence shall be deemed to have repaid his deemed distribution and appropriate interest upon his return to service with an Employer.
3.06 Vesting of Employees of Rio Grande Foods Manpower, Inc. Notwithstanding the provisions of this Article III or any provision of this Plan to the contrary, effective April 1, 1995, each Employee of Rio Grande Foods Manpower, Inc. shall be 100% vested in his Accrued Benefit as of April 1, 1995.
ARTICLE III.
BENEFITS PAYABLE
4.01 Application for Commencement of Benefits.
(a) Benefits to Participants. A Participant must apply to have any benefits paid from this Plan pursuant to Sections 4.02 through 4.06 herein. The application for benefits must be made in the form prescribed by the Committee and must be filed with the Committee not less than 30 days prior to the Participant's Annuity Starting Date. Subject to Sections 5.02 and 5.08, no benefit will be payable to a Participant until proper application has been received by the Committee.
(b) Benefits Payable to Beneficiaries. A Beneficiary must apply to have any benefits paid from this Plan pursuant to Section 4.07 herein. The application for benefits must be made in the form prescribed by the Committee and must be filed with the Committee not less than 30 days prior to the Beneficiary's Annuity Starting Date. Subject to Sections 5.06 and 5.08, no benefit will be payable to a Beneficiary until proper application has been received by the Committee.
4.02 Normal Retirement Benefits. A Participant shall be entitled to
sever from employment with all members of the Controlled Group as of his
attainment of his Normal Retirement Age and receive a Normal Retirement Benefit
as defined below. Subject to the limitations of Section 4.08 and the applicable
provisions of Article V, a Participant's Normal Retirement Benefit shall be a
monthly pension payable in the Standard Form commencing on the Participant's
Normal Retirement Date (or as soon as is administratively practicable
thereafter, with retroactive payments if applicable) with the amount of the
Participant's monthly payments equal to the Participant's Normal Retirement
Benefit Amount, or, if greater and if applicable, the largest Early Retirement
Benefit Amount that would have been payable to the Participant had he (1)
selected an Annuity Starting Date on or after his Early Retirement Date, but
prior to his Normal Retirement Age, and (2) severed from employment with all
members of the Controlled Group immediately prior to such Annuity Starting Date.
A Participant who continues his employment with an Employer beyond his Normal
Retirement Age shall be entitled to receive a Delayed Retirement Benefit under
Section 4.03 below. A Participant who severs from employment with all members of
the Controlled Group as of his Normal Retirement Age and who begins receiving
benefits may have his benefits suspended upon reemployment with a member of the
Controlled Group under the provisions of Section 5.07. The form of payment of a
Participant's Normal Retirement Benefit shall be determined in accordance with
Sections 5.01 through 5.04.
4.03 Delayed Retirement Benefits. A Participant shall be entitled to continue in employment with an Employer past his Normal Retirement Date and receive a Delayed Retirement Benefit as defined below. Subject to the limitations of Section 4.08 and the applicable provisions of Article V, a Participant's Delayed Retirement Benefit shall be a monthly pension payable in the Standard Form commencing as of the earlier of (1) the first day of the month next following the date the Participant severs from employment with all members of the Controlled Group subsequent to his Normal Retirement Date (the Participant's "Delayed
Retirement Date") (or as soon as is administratively practicable thereafter,
with retroactive payments if applicable), or (2) the Participant's Required
Beginning Date, with the amount of the Participant's monthly payments equal to
the Participant's Delayed Retirement Benefit Amount. Delayed Retirement Benefits
shall take into account any Years of Benefit Service credited and any
Compensation earned after attainment of Normal Retirement Age (including any
such Years of Benefit Service completed or Compensation earned after the
Participant's Annuity Starting Date under this Section) subject to the
provisions of Section 1.37(c), but Delayed Retirement Benefits shall not be
actuarially adjusted to reflect the delay in the payment of benefits after the
Participant's Normal Retirement Date and the Participant shall be notified in
accordance with Section 5.07, and Delayed Retirement Benefits shall not be
offset by any earlier payments required under this Section in accordance with
Section 5.08. A Participant who severs from employment with all members of the
Controlled Group as of his Delayed Retirement Date and who has begun receiving
benefits may have his benefits suspended upon reemployment with a member of the
Controlled Group under the provisions of Section 5.07. The form of payment of a
Participant's Delayed Retirement Benefit shall be determined in accordance with
Sections 5.01 through 5.04 and 5.08.
4.04 Early Retirement Benefits. A Participant (1) who is employed by an Employer as of the date he has attained Age 55, and (2) who has completed 5 Years of Vesting Service (10 Years of Vesting Service for Participants who do not have at least one Hour of Service in a Plan Year beginning after December 31, 1988), shall be entitled to sever from employment with all members of the Controlled Group and receive an Early Retirement Benefit as defined below. Subject to the limitations of Section 4.08 and the applicable provisions of Article V, a Participant's Early Retirement Benefit shall be a deferred monthly pension payable in the Standard Form commencing on the Participant's Normal Retirement Date (or as soon as is administratively practicable thereafter, with retroactive payments if applicable) with the amount of the Participant's monthly payments equal to the Participant's Normal Retirement Benefit Amount. Alternatively, the Participant may elect to commence payments earlier as of his Early Retirement Date or on the first day of any month thereafter prior to his Normal Retirement Date (or as soon as is administratively practicable thereafter, with retroactive payments if applicable), with the amount of the Participant's monthly payments equal to the Participant's Early Retirement Benefit Amount. A Participant who severs from employment with all members of the Controlled Group as of his Early Retirement Date and who has begun receiving benefits may have his benefits suspended upon reemployment with a member of the Controlled Group under the provisions of Section 5.07. The form of payment of a Participant's Early Retirement Benefit shall be determined in accordance with Sections 5.01 through 5.04.
4.05 Disability Benefits. A Participant (1) who severs from
employment with all members of the Controlled Group as a result of his becoming
Totally and Permanently Disabled, (2) who is an Eligible Employee (or would be
an Eligible Employee but for Section 2.01(d)) at the time of such severance, and
(3) who survives until his applicable Annuity Starting Date, shall be entitled
to receive a Disability Retirement Benefit as defined below. Subject to the
limitations of Section 4.08 and the applicable provisions of Article V, a
Participant's Disability Retirement Benefit shall be a deferred monthly pension
payable in the Standard Form commencing on the Participant's Normal Retirement
Date (or as soon as is administratively practicable thereafter, with retroactive
payments if applicable) with the amount of the Participant's monthly payments
equal to the Participant's vested Normal Retirement Benefit Amount.
Alternatively, if applicable
(i.e., if it is possible for the Participant to have an Early Retirement Date prior to his Normal Retirement Date), the Participant may elect to commence payments as of the later of (1) his Early Retirement Date, or (2) his date of severance from employment with all members of the Controlled Group as a result of his becoming Totally and Permanently Disabled, or on the first day of any month thereafter prior to his Normal Retirement Date (or as soon as is administratively practicable thereafter, with retroactive payments if applicable), with the amount of the Participant's monthly payments equal to the Participant's vested Early Retirement Benefit Amount. A Participant who severs from employment with all members of the Controlled Group as a result of becoming Totally and Permanently Disabled and who has begun receiving benefits may have his benefits suspended upon reemployment with a member of the Controlled Group under the provisions of Section 5.07. The form of payment of a Participant's Disability Retirement Benefit shall be determined in accordance with Sections 5.01 through 5.04.
4.06 Termination Benefits. A Participant (1) who severs from employment with all members of the Controlled Group prior to his Normal Retirement Date or, if applicable, his Early Retirement Date (a "Severed Participant"), and (2) who survives until his applicable Annuity Starting Date, shall be entitled to receive a Termination Benefit as defined below. Subject to the limitations of Section 4.08 and the applicable provisions of Article V, a Participant's Termination Benefit shall be a deferred monthly pension payable in the Standard Form commencing on the Participant's Normal Retirement Date (or as soon as is administratively practicable thereafter, with retroactive payments if applicable), with the amount of the Participant's monthly payments equal to the Participant's vested Normal Retirement Benefit Amount. Alternatively, if applicable (i.e., if it is possible for the Participant to have an Early Retirement Date prior to his Normal Retirement Date), the Participant may elect to commence payments as of his Early Retirement Date or on the first day of any month thereafter prior to his Normal Retirement Date (or as soon as is administratively practicable thereafter, with retroactive payments if applicable), with the amount of the Participant's monthly payments equal to the Participant's vested Early Retirement Benefit Amount. A Participant who severs from employment with all members of the Controlled Group and who has begun receiving benefits may have his benefits suspended upon reemployment with a member of the Controlled Group under the provisions of Section 5.07. The form of payment of a Participant's Termination Benefit shall be determined in accordance with Section 5.05.
4.07 Death Benefits.
(a) Death Prior to Annuity Starting Date and On or Prior to Earliest Retirement Age. In the event a Participant dies (1) while he has a vested Accrued Benefit hereunder, (2) before his Annuity Starting Date, and (3) on or before his Earliest Retirement Age, the Surviving Spouse of the Participant, if any, shall, if such Spouse survives until such Spouse's applicable Annuity Starting Date, be entitled to receive a Death Benefit as defined below. Subject to the limitations of Section 4.08 and the applicable provisions of Article V, the Surviving Spouse's Death Benefit shall be a monthly pension payable in the Standard Form commencing on the first day of the month coincident with or immediately following the Participant's Earliest Retirement Age (or as soon as is administratively practicable thereafter, with retroactive payments if applicable) with the amount of the Spouse's monthly payments equal to the amount payable to such Spouse if the Participant had (1) severed from employment from all members of the
Controlled Group on his date of death, or, if earlier, his actual date of such severance, (2) survived to his Earliest Retirement Age, (3) commenced receiving his vested Accrued Benefit in the form of a Qualified Joint and Survivor Annuity at his Earliest Retirement Age, and (4) died immediately thereafter. Payment of such Death Benefit shall commence as of the first day of the month coincident with or next following the date on which the Participant would have attained his Normal Retirement Age, unless the Surviving Spouse elects to commence payments earlier, in which event payments shall commence as of the first day of any month after the month during which the Participant died but prior to the Participant's Normal Retirement Date (or as soon as is administratively practicable thereafter, with retroactive payments if applicable), with the amount of the Spouse's monthly payments such that the benefit paid is calculated to be Actuarially Equivalent to the Spouse's Death Benefit as of the Spouse's Annuity Starting Date.
(b) Death Prior to Annuity Starting Date And After Earliest Retirement Age. In the event a Participant dies (1) while he has a vested Accrued Benefit hereunder, (2) prior to his Annuity Starting Date, and (3) after his Earliest Retirement Age, the Surviving Spouse of the Participant, if any, shall, if such Spouse survives until such Spouse's applicable Annuity Starting Date, be entitled to receive a Death Benefit as defined below. Subject to the limitations of Section 4.08 and the applicable provisions of Article V, the Surviving Spouse's Death Benefit shall be a monthly pension payable in the Standard Form commencing on the first day of the month coincident with or immediately following the Participant's date of death (or as soon as is administratively practicable thereafter, with retroactive payments if applicable) with the amount of the Spouse's monthly payments equal to the amount payable to such Spouse if the Participant had (1) severed from employment from all members of the Controlled Group on the day before his date of death, and (2) elected that his vested Accrued Benefit be paid in the form of a Qualified Joint and Survivor Annuity with his Annuity Starting Date to occur as of the first day of the month coincident with or immediately following the Participant's date of death. Payment of such Death Benefit shall commence as of the first day of the month coincident with or next following the date on which the Participant would have attained his Normal Retirement Age, unless the Surviving Spouse elects to commence payments earlier, in which event payments shall commence as of the first day of any month after the month during which the Participant died but prior to the Participant's Normal Retirement Date (or as soon as is administratively practicable thereafter, with retroactive payments if applicable), with the amount of the Spouse's monthly payments such that the benefit paid is calculated to be Actuarially Equivalent to the Spouse's Death Benefit as of the Spouse's Annuity Starting Date.
(c) Death On or After Annuity Starting Date. In the event a Participant dies after his Annuity Starting Date, any further benefit payable shall be determined exclusively by the form of payment selected by the Participant under Article V and shall be determined using only the Beneficiary of the Participant as of the Participant's Annuity Starting Date.
(d) No Additional Death Benefits. Except as provided above, no benefit shall be paid under this Plan on behalf of a deceased Participant.
(e) Minimum Death Benefit. Notwithstanding any provision of this Section to the contrary, with respect to any Participant who has a total cash surrender value under any individual policies or annuity contracts being purchased for such Participant under a pension or profit-sharing plan which has been merged into this Plan or designated as a "Former Plan" by resolution of the Board, or who has assets allocated to him under such a plan on the day before such plan was so merged or designated, such cash value or assets, offset by any amounts required to be paid to the Participant's Surviving Spouse under the preceding subsections of this Section, shall be paid in the form of a single lump sum cash payment to the Participant's Beneficiary after all payments required under the preceding subsections of this Section have ended.
4.08 Maximum Benefit Limitations.
(a) General Rule. Except as otherwise provided in this Section, the benefits under the Plan with respect to a Participant for any Plan Year (which shall be the limitation year) shall not exceed, when expressed as an annual benefit in the form of a straight life annuity (with no ancillary benefits), the lesser of:
(i) the dollar limitation in effect for such year under Code ss. 415(b)(1)(A), or
(ii) one hundred percent (100%) of the Participant's average Compensation for the period of three (3) consecutive calendar years during which the Participant both was an active Participant in the Plan and had the greatest aggregate Compensation from the Controlled Group.
(b) Adjustments. Notwithstanding the foregoing provisions of this Section:
(i) If the benefit under the Plan is payable in any form other than the life annuity form, or if the Employees contribute to the Plan or make rollover contributions or plan to plan transfers, for purposes of determining whether the limitations described in Subsection (a) of this Section have been satisfied, such benefit shall be adjusted, in accordance with rules determined by the Commissioner of the Internal Revenue under Treasury Regulation Section 1.415-3(c), so that such benefit is equivalent to an annual benefit. For purposes of this part (i), any ancillary benefit which is not directly related to retirement income benefits shall not be taken into account, and that portion of any joint and survivor annuity which constitutes a qualified joint and survivor annuity (as defined in Code ss. 417(b)) shall not be taken into account.
(ii) If the benefit under the Plan begins before the Social Security Retirement Age, for purposes of determining whether the limitation set forth in Paragraph (i) of Subsection (a) has been satisfied, such benefit shall be reduced, in accordance with regulations prescribed by the Secretary of the Treasury, so that such limitation (as so reduced) equals an annual benefit (beginning when such benefit under the Plan begins) which is Actuarially Equivalent to an annual benefit equal to the limitation beginning at the Social Security Retirement Age
provided that such reduction shall be made in such manner as the Secretary of the Treasury may prescribe which is consistent with the reduction for old age insurance benefits commencing before the Social Security Retirement Age under the Social Security Act.
(iii) If the benefit under the Plan begins after the Social Security Retirement Age, for purposes of determining whether the limitation set forth in Paragraph (i) of Subsection (a) has been satisfied, such limitation shall be increased, in accordance with regulations prescribed by the Secretary of the Treasury, so that such limitation (as so increased) equals an annual benefit (beginning when such benefit under the Plan begins) which is Actuarially Equivalent to an annual benefit equal to the limitation beginning at the Social Security Retirement Age.
(iv) For purposes of adjusting any benefit or limitation under paragraph (i) or (ii) above, the factor to be used shall be the smaller of the Plan factor from Exhibit A or the factor based on the mortality table described in Section 1.03(a) and 5% interest; provided, however, that for purposes of adjusting any benefit under paragraph (i) for any form of benefit subject to Code ss. 417(e)(3), the factor shall be the smaller of the Plan factor from Exhibit A or the factor based on the mortality table and interest rate described in Sections 1.03(a) and 1.03(b) to determine the Actuarial Equivalent of the particular form of benefit in which the pension is to be paid. For purposes of adjusting any benefit or limitation under paragraph (iii) above, the factor shall be the smaller of the Plan factor from Exhibit A or the factor based upon the mortality table described in Section 1.03(a) and 5% interest.
(c) Multiple Defined Benefit Plan Limitation. The limitation of this Section with respect to any Participant who at any time has been a Participant in any other defined benefit plan maintained by the Employer or any other member of the Controlled Group which is qualified under Code ss.401(a) shall apply as if the total benefits payable under all such defined benefit plans in which the Participant has participated were payable from one plan.
(d) De Minimis Exception. In the event the annual benefit payable to a Participant under this Plan and all other defined benefit plans of the Employer or any other member of the Controlled Group does not exceed $10,000 for the Plan Year or any prior Plan Year, and the Participant has at no time participated in a defined contribution plan maintained by the Employer or any other member of the Controlled Group, the limitation otherwise imposed by this Section shall not apply.
(e) Benefits Phased by Participation.
(i) For purposes of subsections (b)(ii),
(b)(iii), and (c) above, the dollar limit specified in
subsection (a)(i) above for any Participant who has
participated for less than ten (10) years in a defined benefit
plan maintained by the Employer shall be reduced by
multiplying it by a fraction, the numerator of which
is the Participant's years (or part thereof) of participation and the denominator of which is ten (10). For purposes of determining a Participant's years of participation in a plan, the provisions of Notice 87-21, 1987-1 C.B. 458, shall govern until regulations under Code ss. 415(b)(5), as amended, are issued.
(ii) For purposes of the percentage limit under subsection (a)(ii) above and for purposes of subsection (d) above, the maximum retirement benefits to any Participant who has completed less than ten (10) Years of Vesting Service, shall be the amount determined in subsection (a)(ii) or (d) of this Section, as applicable, multiplied by a fraction, the numerator of which is the Participant's number of Years of Vesting Service and the denominator of which is ten (10).
(iii) In no event shall paragraphs (i) and (ii)
above reduce the limitations referred to in subsections (a)
and (d) above to an amount less than one-tenth (1/10) of such
limitation (as determined without regard to paragraphs (i) and
(ii) above). Furthermore, the limitations reduction referred
to in paragraphs (i) and (ii) above shall apply separately
with respect to each change in the benefit structure of a
plan, other than changes adopted and made effective prior to
May 17, 1989. For purposes of the preceding sentence, the
provisions of Notice 89-45 shall govern until regulations
under Code ss. 415(b)(5)(D), as amended, are issued.
(f) Definitions. For purposes of this Section the following terms shall have the following meanings:
(i) "Compensation" shall mean a Participant's
wages, salaries, fees for professional services and other
amounts received (without regard to whether or not an amount
is paid in cash) for personal services actually rendered in
the course of employment with an Employer maintaining the plan
to the extent that the amounts are includable in gross income
(including, but not limited to, commissions paid salesmen,
compensation for services on the basis of a percentage of
profits, commissions on insurance premiums, tips, bonuses,
fringe benefits, and reimbursements or other expense
allowances under a nonaccountable plan (as described in Treas.
Reg. ss. 1.62-2(c))), including foreign earned income (as
defined in Code ss. 911(b)) whether or not excludable from
gross income under Code ss. 911, and determined without regard
to the exclusions from gross income in Code ss. 931 and 933;
amounts described in Code ss. ss. 104(a)(3), 105(a) and
105(h), but only to the extent that these amounts are
includable in the gross income of the Participant; amounts
paid or reimbursed by the Employer for moving expenses
incurred by the Participant, but only to the extent that at
the time of the payment it is reasonable to believe that these
amounts are not deductible by the Participant under Code ss.
217; the value of a non-qualified stock option granted to the
Participant by the Employer, but only to the extent that the
value of the option is includable in the gross income of the
Participant for the taxable year in which granted; and the
amount includable in the gross income of the Participant upon
making a Code ss. 83(b) election; and excluding the following:
(a) Employer contributions to a plan of deferred compensation which are not (before the application of the Code ss. 415 limitations to the plan) includable in the Participant's gross income for the taxable year in which contributed, or Employer contributions under a simplified employee pension plan described in Code ss. 408(k), or any distributions from a plan of deferred compensation (whether or not includable in the Participant's gross income when distributed), except that amounts received by the Participant pursuant to an unfunded non-qualified plan shall be included in the year such amounts are includable in the gross income of the Participant;
(b) amounts realized from the exercise of a non-qualified stock option, or when restricted stock (or property) held by the Participant becomes freely transferable or is no longer subject to a substantial risk of forfeiture under Code ss. 83;
(c) amounts realized from the sale, exchange or other disposition of stock acquired under a qualified stock option; and
(d) other amounts which received special tax benefits such as premiums for group-term life insurance (but only to the extent that the premiums are not includable in the gross income of the Participant), or contributions made by the Employer (whether or not under a salary reduction agreement) towards the purchase of an annuity described in Code ss. 403(b) (whether or not the amounts are actually excludable from the gross income of the Participant).
Effective for Limitation Years beginning on and after January 1, 1998, Compensation shall also include any amount which is contributed by any member of the Controlled Group pursuant to a salary reduction agreement and which is not includable in the gross income of the Employee under Code ss. ss. 125, 402(e)(3) or 403(b).
For purposes of applying the Limitations of this Section, Compensation for a Limitation Year is the Compensation actually paid, made available or includable in gross income during such year. Notwithstanding the preceding sentence, Compensation for a Participant in a defined contribution plan who is "permanently and totally disabled" (as defined in Code ss. 22(e)(3)) is the compensation such Participant would have received for the Limitation Year if the Participant had been paid at the rate of compensation paid immediately before becoming permanently and totally disabled; such imputed compensation for the disabled Participant may be taken into account only if the Participant is not a Highly Compensated Employee and contributions made on behalf of such Participant are nonforfeitable when made. In interpreting this subsection (b), the provisions of Treas. Reg. ss. 1.415-2(d)(1), (2) and (3) or the corresponding provisions of any future Treasury Regulations shall control.
(ii) "Employer" shall mean, solely for purposes of this Section 4.08, an employer which adopts this Plan and all members of a controlled group of corporations (as defined in Code ss. 414(b), as modified by Code ss. 415(h)), all trades or businesses (whether or not incorporated) under common control (as defined by Code ss. 414(c), as modified by Code ss. 415(h)), or all members of an affiliated service group (as defined in Code ss. 414(m)) of which the adopting employer is a part.
(iii) "Limitation Year" shall mean the Plan Year.
(iv) "Social Security Retirement Age" shall mean the age used as the retirement age under Section 216(l) of the Social Security Act, except that such section shall be applied without regard to the age increase factor, and as if the early retirement age under section 216(l)(2) of such Act were 62.
4.09 Special Provisions Regarding Benefits Payable.
(a) Restriction. Notwithstanding anything in this Article to the contrary, no distribution may be made to any Participant prior to the Participant's "severance from employment" (as defined in Rev. Ruls. 56-693 and 60-323, Internal Revenue Service General Counsel Memorandum 39824, and any subsequent guidance issued by the Internal Revenue Service) with all members of the Controlled Group.
(b) Transferring Employees. See Sections 2.03 and 2.04 for special provisions regarding transferring Employees.
(c) QDRO Alternate Payees. See Section 9.03(b) for special provisions regarding alternate payees under a qualified domestic relations order.
ARTICLE IV.
STANDARD AND OPTIONAL FORMS OF RETIREMENT INCOME
5.01 Standard Form of Retirement Income. A Participant's vested Accrued Benefit payable under Sections 4.02, 4.03, 4.04 or 4.05, as applicable, shall be paid in the Standard Form with payments commencing as of a permissible Annuity Starting Date under said Section subject to the provisions of Sections 5.02 and 5.03 below.
5.02 Automatic Forms of Retirement Income. The following provisions apply to any distribution of a Participant's Normal, Delayed, Early or Disability Retirement Benefit.
(a) Automatic Cash-Outs. In the event that the Actuarially Equivalent present value of a Participant's vested Accrued Benefit does not exceed $3,500 (or, effective with respect to distributions that are made in Plan Years beginning on or after January 1, 1998, does not exceed $5,000 at any time after the Participant's termination of employment and prior to the Annuity Starting Date), the Participant's entire benefit shall be distributed in a lump sum payment as soon as possible after the date he severs from employment with all members of the Controlled Group, or, if earlier, his Required Beginning Date. If the Actuarially Equivalent present value of the Participant's vested Accrued Benefit at such time is zero, the Participant shall be deemed to have received a distribution of such Accrued Benefit.
(b) Automatic Form for Married Participants.
(i) Automatic QJSA. Unless otherwise elected as provided below and except as provided in subsection (a) above, if a Participant has a Spouse on his selected Annuity Starting Date, his benefit shall be paid in the form of a Qualified Joint and Survivor Annuity with the amount of the monthly payments such that the benefit payable will be Actuarially Equivalent to his vested benefit payable. (The amount of the Survivor's annuity shall be 50% of the amount of the payments made to the Participant.)
(ii) Waiver of Automatic QJSA. Any election to waive the Qualified Joint and Survivor Annuity provided for in this subsection must be made by the Participant in writing during the "election period" and must be consented to by the Participant's Spouse by way of a Qualified Spousal Waiver as defined in Section 1.46. However, such consent shall not be required if it is established to the satisfaction of the Committee that the required consent cannot be obtained because there is no Spouse, the Spouse cannot be located, or other circumstances that may be prescribed by regulations promulgated by the Secretary of the Treasury. Any such election may be revoked by the Participant in writing without the consent of the Spouse at any time during the election period. Any new election, however, must comply with the requirements of this subsection and must be made during the election period. In addition, a consent executed by a former Spouse shall not be binding on a subsequent Spouse.
(iii) Election Period for Waiver. The "election period" to waive the Qualified Joint and Survivor Annuity shall be the ninety (90) day period ending on the Annuity Starting Date.
(iv) Annuity Explanation. With respect to the election described in paragraph (iii) above, the Committee shall provide the Participant, no later than thirty (30) days and no more than ninety (90) days before the Annuity Starting Date, a written explanation of: (i) the terms and conditions of the Qualified Joint and Survivor Annuity, (ii) the Participant's right to make an election to waive the Qualified Joint and Survivor Annuity, (iii) the requirement for the Participant's Spouse to consent to any election to waive the Qualified Joint and Survivor Annuity, and (iv) the right of the Participant to revoke such election and the effect of such revocation. A Participant who so requests in writing shall have the right to receive a written, detailed explanation of the financial effects of electing an optional form of retirement income.
(v) Default Form. If a married Participant makes a valid election to waive the Qualified Joint and Survivor Annuity but fails to elect an optional form of benefit, then all of his benefit shall be payable in the Standard Form.
(vi) Special Provisions On and After April 1, 1999. Notwithstanding any other provision herein, effective with respect to Participants whose employment terminates on or after April 1, 1999, the written explanation described in paragraph (iv) above may be provided prior to or after the Annuity Starting Date, and such explanation shall clearly indicate that the Participant has a right to 30 days in which to consider the decision of whether to waive the Qualified Joint and Survivor Annuity and to choose another optional form of distribution. A Participant may waive his right to the 30-day period for considering whether to waive the Qualified Joint and Survivor Annuity and may elect an optional form of benefits at any time after the written explanation described in paragraph (iv) is provided to the Participant; provided, however, that the Participant shall be permitted to revoke a distribution election until the later of (A) the Annuity Starting Date, or (B) the 8th day after the written explanation described in paragraph (iv) is provided to the Participant. In no event shall distribution of the Participant's benefits actually begin in accordance with the election before the 8th day after the written explanation described in paragraph (iv) has been provided to the Participant.
5.03 Optional Forms of Retirement Income. In lieu of the Standard Form described in Section 5.01, or the automatic Qualified Joint and Survivor Annuity form payable to a married Participant as described in Section 5.02(b), a Participant may elect, in accordance with paragraphs (ii) through (v) of Section 5.02(b), and subject to subsection (a) of Section 5.02, to receive all of his vested Accrued Benefit payable under Sections 4.02, 4.03, 4.04 or 4.05, as applicable, in any one of the following forms with payments commencing as of the permissible Annuity Starting Date under Section 4.02, 4.03, 4.04 or 4.05, as applicable, selected by the Participant (subject to subsection (e) below) in an amount such that the form chosen will be Actuarially Equivalent to his vested benefit payable as of his selected Annuity Starting Date:
(a) Period Certain and Life Annuity Option. An income payable in the Standard Form, but guaranteed for at least 5 or 10 years (according to the election of the Participant) regardless of whether or not the Participant survives such 5 or 10 year period. The Participant shall designate the Beneficiary who will receive any guaranteed payments under this subsection (a), provided that if no such Beneficiary is designated or the Beneficiary designated fails to survive the Participant, the Actuarial Equivalent present value of the remaining guaranteed payments shall be paid in a lump sum to the Participant's estate. For purposes of this subsection (a), the Actuarially Equivalent present value shall be calculated by using the Applicable Interest Rate. If the designated Beneficiary of guaranteed payments dies after the Annuity Starting Date but before the guaranteed payments are paid in full, the Actuarial Equivalent of the remaining payments will be paid in a lump sum to the estate of said designated Beneficiary.
(b) Joint and Survivor Annuity Option. An income payable in the Standard Form, but further continuing after the first day of the month next following the death of the Participant at the rate of 50%, 75% or 100% (according to the election of the Participant) of the monthly amount which was paid to the Participant to his designated Beneficiary and ending on the first day of the month next following the Beneficiary's date of death. The designated Beneficiary may not subsequently be changed by the Participant after the Annuity Starting Date.
(c) Life Annuity Option. An income payable in the Standard Form.
(d) Level Income Annuity Option. An income payable in the Standard Form, but with the monthly payment amounts structured so as to provide larger monthly payments from commencement until the Participant would be eligible for primary Social Security benefits and smaller monthly payments thereafter, with the anticipated result being a level income to the Participant when primary Social Security benefits are taken into account.
(e) Immediate Payment Options. In the event that the
Actuarially Equivalent present value of a Participant's vested benefit
under Section 4.02, 4.03, 4.04 or 4.05, as applicable (determined after
reduction for an alternate payee's vested benefit, as described in
Section 9.03(b)(iii), if any), exceeds $3,500 (or, effective with
respect to distributions that are made in Plan Years beginning on or
after January 1, 1998, exceeds $5,000) but does not exceed $7,500, the
Participant shall have the following additional payment options with
his Annuity Starting Date to be the first day of the month next
following the date the Participant severs from employment with all
members of the Controlled Group rather than a permissible Annuity
Starting Date under Section 4.02, 4.03, 4.04 or 4.05, as applicable:
(i) Annuity Option for Single Participants.
Subject to paragraph (iii) below, such a Participant who is
not married as of his Annuity Starting Date may elect to
receive his benefit in the Standard Form, with the amount of
the Participant's monthly payments such that the vested
benefit payable under this paragraph (i) shall be Actuarially
Equivalent to the Participant's vested benefit payable under
Section 4.02, 4.03, 4.04 or 4.05, as applicable.
(ii) Annuity Option for Married Participants. Subject to paragraph (iii) below, such a Participant who is married as of his Annuity Starting Date may elect to receive his benefit in the form of a Qualified Joint and Survivor Annuity, with the amount of the Participant's and Surviving Spouse's monthly payments such that the vested benefit payable under this paragraph (ii) shall be Actuarially Equivalent to the Participant's vested benefit payable under Section 4.02, 4.03, 4.04 or 4.05, as applicable.
(iii) Lump Sum Option. Such a Participant whether married or single may elect to receive his vested benefit in the form of a single lump sum payment in an amount equal to the Actuarially Equivalent present value of the Participant's vested benefit payable under Section 4.02, 4.03, 4.04 or 4.05, as applicable.
5.04 Conditions Relative to all Standard and Optional Forms.
(a) Election of Optional Forms. To become effective, an
election by a married Participant of an optional form of payment must
be made during the "election period" described in Section 5.02(b)(iii)
and must satisfy the Spouse's consent requirements of Section
5.02(b)(ii). An election by an unmarried Participant of an optional
form of payment must be made during the "election period" described in
Section 5.02(b)(iii) to become effective.
(b) Revocation of Elections. A Participant may revoke his election of an optional form of retirement income at any time before his Annuity Starting Date.
(c) Special Provisions for Joint and Survivor Annuities. If a Participant has elected or is entitled to a joint and survivor annuity, then,
(i) if his joint annuitant under a joint and
survivor annuity election dies before the Participant's
Annuity Starting Date, the election shall thereupon become
void, and the Standard Form of retirement income under Section
5.01 (or a Qualified Joint and Survivor Annuity under Section
5.02(b) if the Participant is married) will be deemed to be
the Participant's election unless he elects otherwise; and
(ii) if the Participant dies before his Annuity
Starting Date, the election shall thereupon become void and
the Beneficiary or the joint annuitant shall not be entitled
to benefits under such option; instead, a death benefit, if
any, shall be payable in accordance with the provisions of
Section 4.07; and
(iii) if the joint annuitant under the joint and survivor annuity dies after Participant's Annuity Starting Date, but before the death of the Participant, the Participant shall nevertheless receive the reduced income payable to him in accordance with the form of benefit in effect.
(d) Reemployed Participants in Pay Status. If the Participant is reemployed by a member of the Controlled Group after benefits have commenced, his election shall
nevertheless continue to be effective, but payments under said election shall be suspended in accordance with Section 5.07.
(e) Additional Accruals After Annuity Starting Date. Any accrual of benefits by a Participant after the Participant's Annuity Starting Date shall be paid under the optional form of payment previously applicable to the Participant, unless the Participant's Annuity Starting Date occurred prior to his Normal Retirement Age.
(f) All Forms Subject to Code ss.401(a)(9).
Notwithstanding any provision of this Article V to the contrary, no
optional form of payment otherwise available to a Participant shall be
allowed to the extent such form fails to satisfy the provisions of
Section 5.08 herein.
5.05 Automatic and Optional Forms for Termination Benefits. The form of payment of the Termination Benefit of a Participant who has severed from employment with all members of the Controlled Group shall depend upon the amount of the benefit as follows:
(a) Automatic Cash-Out of Small Benefits. If the Actuarial Equivalent present value of a Participant's vested Termination Benefit does not exceed $3,500 (or, effective with respect to distributions that are made in Plan Years beginning on or after January 1, 1998, does not exceed $5,000), such Participant shall automatically receive his vested Termination Benefit in the form of a single lump sum payment in an amount equal to the Actuarially Equivalent present value of the Participant's vested Termination Benefit as soon as possible following his severance from employment with all members of the Controlled Group. For purposes of the preceding sentence, if the Actuarial Equivalent present value of the Participant's vested Termination Benefit is zero, the Participant shall be deemed to have received a distribution of such Termination Benefit under this subsection (a).
(b) Immediate or Deferred Payment Options. If the
Actuarial Equivalent present value of a Participant's vested
Termination Benefit does exceed $3,500 (or, effective with respect to
distributions that are made in Plan Years beginning on or after January
1, 1998, exceeds $5,000) but does not exceed $7,500, such Participant's
Termination Benefit shall be paid in the Standard Form subject to the
provisions of Sections 5.02 and 5.03 above, with payments commencing as
of a permissible Annuity Starting Date under Section 4.06 and elected
by the Participant, unless the Participant elects that his Annuity
Starting Date be the first day of the month next following the date the
Participant severs from employment with all members of the Controlled
Group or the first day of any month thereafter but prior to Normal
Retirement Date rather than a permissible Annuity Starting Date under
Section 4.06, in which event such Participant's Termination Benefit
shall be paid in accordance with the following provisions:
(i) Automatic Form for Single Participants. Subject to paragraph (iii) below, such a Participant who is not married as of his Annuity Starting Date shall automatically receive his Termination Benefit in the Standard Form with the amount of the Participant's monthly payments such that the vested benefit payable
under this paragraph (i) shall be Actuarially Equivalent to the Participant's vested Termination Benefit under Section 4.06.
(ii) Automatic Form for Married Participants. Subject to paragraph (iii) below, such a Participant who is married as of his Annuity Starting Date shall automatically receive his Termination Benefit in the form of a Qualified Joint and Survivor Annuity, with the amount of the Participant's monthly payments such that the vested benefit payable under this paragraph (ii) shall be Actuarially Equivalent to the Participant's vested Termination Benefit under Section 4.06.
(iii) Lump Sum Option. Such a Participant may elect, but only in accordance with paragraphs (ii) through (v) of Section 5.02(b), to receive his Termination Benefit in the form of a single lump sum payment in an amount equal to the Actuarially Equivalent present value of the Participant's vested Termination Benefit under Section 4.06. For purposes of this paragraph (iii), Actuarially Equivalent present value shall be calculated by using the Applicable Interest Rate and the UP-1984 Mortality Table.
(c) Deferred Payment Options. If the Actuarially Equivalent present value of a Participant's vested Termination Benefit does exceed $7,500, such Participant's vested Termination Benefit shall be paid in the Standard Form subject to the provisions of Sections 5.02 and 5.03 above, with payments commencing as of a permissible Annuity Starting Date under Section 4.06 selected by the Participant.
All forms of payment under this Section shall be Actuarially Equivalent, as of the Participant's Annuity Starting Date, to the Participant's vested Termination Benefit. Only the provisions of Sections 5.02(b)(i) (to the extent specified in subsection (c) above) and (b)(ii) through (v), 5.03 (to the extent specified in subsection (c) above), 5.04 and 5.07 of this Article V shall apply to any distribution of a Participant's vested Termination Benefit under this Section.
5.06 Automatic and Optional Forms for Death Benefits. The form of payment of a Surviving Spouse's Death Benefit shall depend upon the amount of the benefit as follows:
(a) Automatic Cash-Out of Small Benefits. If the Actuarially Equivalent present value of a Surviving Spouse's Death Benefit does not exceed $3,500 (or, effective with respect to distributions that are made in Plan Years beginning on or after January 1, 1998, does not exceed $5,000), such Surviving Spouse shall automatically receive his entire Death Benefit as soon as possible following the Participant's date of death in the form of a single lump sum payment in an amount equal to the Actuarially Equivalent present value of the Surviving Spouse's Death Benefit. For purposes of this subsection (a), Actuarially Equivalent present value shall be calculated by using the Applicable Interest Rate and the UP-1984 Mortality Table.
(b) Immediate Options. If the Actuarially Equivalent present value of a Surviving Spouse's Death Benefit exceeds $3,500 (or, effective with respect to distributions that are made in Plan Years beginning on or after January 1, 1998, exceeds $5,000), such Surviving Spouse's Death Benefit shall be paid in the Standard Form with
payments commencing as of the applicable Annuity Starting Date specified in Section 4.07, unless the Actuarially Equivalent present value of a Surviving Spouse's Death Benefit does exceed $3,500 (or, effective with respect to distributions that are made in Plan Years beginning on or after January 1, 1998, exceeds $5,000) but does not exceed $7,500, in which event, the Surviving Spouse may elect that payment of such Death Benefit be made in the form of a single lump sum payment in an amount equal to the Actuarially Equivalent present value of the Surviving Spouse's Death Benefit.
(c) Payment of Minimum Death Benefit. To the extent that any amount is payable to the Beneficiary of a deceased Participant under the provisions of subsection (e) of Section 4.07, such amount shall be paid in a single lump sum cash payment as soon as practicable following the death of the Participant or the death of the Participant's Surviving Spouse, as applicable.
All forms of payment under this Section shall be Actuarially Equivalent, as of the Surviving Spouse's Annuity Starting Date, to the Surviving Spouse's Death Benefit.
5.07 Suspension upon Delayed Retirement or Reemployment After Annuity Starting Date.
(a) Suspension of Benefits. The benefits otherwise payable under the Plan to a Participant who has severed from employment and who has commenced receiving benefits shall be suspended if such Participant has become reemployed and has completed 40 or more hours of "section 203(a)(3)(B) service" (as defined in DOL Reg.ss.2530.203-3(c)) with any member of the Controlled Group in a four week payroll period ending in such calendar month. Such Participant's benefits shall resume as of the first day of the month following his subsequent severance from employment and, except as provided in (b) below, shall be the same amount and paid in the same form as the Participant was previously receiving. A Participant who continues in employment with the Employer past his Normal Retirement Date and who is eligible to receive a Delayed Retirement Benefit under Section 4.03 shall, although not entitled to a benefit until his severance from employment, be deemed to have his benefits suspended under this Section 5.07 until his severance from employment or until his Required Beginning Date, whichever first occurs. Such cessation or suspension of benefits shall not affect the payment of benefits after the death of a reemployed Participant under any form of benefit which shall at that time be in effect.
(b) Resumption of Benefits. In the case where payment of benefits is suspended on account of reemployment, the amount of benefits to be paid upon subsequent severance from employment shall be based on a Participant's Years of Benefit Service rendered and Compensation earned during that period of his reemployment, as well as his Years of Benefit Service rendered and Compensation earned prior to the date of his previous severance from employment, to the extent that such Years of Benefit Service were completed and Compensation was earned prior to the Participant's Normal Retirement Date, and, if the Participant has completed at least one Hour of Service in a Plan Year beginning after December 31, 1988, to the extent that such Years of Benefit Service were completed and Compensation was earned after the Participant's Normal
Retirement Date. In any case of reemployment, the benefit payments upon an Employee's subsequent severance from employment shall be reduced by the Actuarial Equivalent of any benefit payments he previously received from the Plan prior to his Required Beginning Date.
(c) Notification Required. No payment of benefits shall be withheld by the Plan pursuant to this Section 5.07 unless the Committee notifies the Employee, by personal delivery or first class mail during the first calendar month in which the Plan withholds payments, that his benefits are suspended. Such notification shall contain a description of the specific reasons why benefit payments are being suspended, a description of the Plan provision relating to the suspension of payments, a copy of such provisions and a statement to the effect that the applicable Department of Labor regulations may be found in section 2530.203-3 of the Code of Federal Regulations. In addition, the notice shall inform the Employee of the Plan's procedures for affording a review of the suspension of benefits. Requests for such reviews may be considered in accordance with the claims procedure established by the Committee.
(d) Accrual Required During Suspension. See Section
11.03(e) herein for a special rule relating to the application of this
Section if the Plan is a Top-Heavy Plan.
(e) Suspension of Required Distributions. Notwithstanding the preceding provisions of this Section, retirement benefits shall not be suspended on and after the Required Beginning Date of a Participant.
5.08 Required Distributions.
(a) General Rules. The requirements of this Section 5.08
shall apply to any distribution of a Participant's benefit payable
under this Plan made on or after the Participant's first Distribution
Calendar Year and will take precedence over any provisions of this Plan
which are less restrictive. All distributions required under this
Section 5.08 shall be determined and made in accordance with Code
ss.401(a)(9) and the regulations promulgated thereunder, including the
minimum distribution incidental benefit requirement of Treas. Reg.
ss.1.401(a)(9)-2.
(b) Definitions. For purposes of this Section 5.08, the following terms and phrases shall have the meanings indicated below:
(i) Required Beginning Date -
(A) General Rule - The Required Beginning Date of a Participant is the first day of April of the calendar year following the calendar year in which the Participant attains age 70-1/2, subject to the transitional rule of subparagraph (B) below.
(B) Transitional Rule - The Required Beginning Date of a Participant who attains age 70-1/2 before January 1, 1988, shall be determined in accordance with (1) or (2) below:
(1) Non-5-Percent Owners. The Required Beginning Date of a Participant who is not a 5-Percent Owner (as defined in subparagraph (C) below) during any Plan Year beginning after December 31, 1979, is the first day of April of the calendar year following the calendar year in which the later of retirement or attainment of age 70-1/2 occurs.
(2) 5-Percent Owners. The Required Beginning Date of a Participant who is a 5-Percent Owner (as defined in subparagraph (C) below) during any Plan Year beginning after December 31, 1979, is the first day of April following the later of the calendar year in which the Participant attains age 70-1/2, or the earlier of (1) the calendar year with or within which ends the Plan Year in which the Participant becomes a 5-Percent Owner or (2) the calendar year in which the Participant retires.
(C) 5-Percent Owner - A Participant is treated as a 5-Percent Owner for purposes of this paragraph (i) if such Participant is a 5-Percent Owner as defined in Code ss. 416(i) at any time during the Plan Year ending with or within the calendar year in which such Participant attains age 66-1/2 or any subsequent Plan Year.
(D) Once distributions have begun to a 5-Percent Owner under this Section, they must continue to be distributed, even if the Participant ceases to be a 5-Percent Owner in a subsequent year.
(ii) Distribution Calendar Year - A calendar year for which a minimum distribution is required. For distributions beginning before the Participant's death, the first Distribution Calendar Year is the calendar year immediately preceding the calendar year which contains the Participant's Required Beginning Date. For distributions beginning after the Participant's death, the first Distribution Calendar Year is the calendar year in which distributions are required to begin pursuant to subsection (d) below.
(iii) Designated Beneficiary - The individual(s) who is (are) designated as the Beneficiary under the Plan by the terms of the Plan or by an affirmative election by the Participant (and/or the Participant's Spouse) consistent with the requirements of the Plan. Designated Beneficiaries must be identifiable (within the meaning of Treas. Reg. ss. 1.401(a)(9)-1(D-2)) as of the Participant's Required Beginning Date, or as of the Participant's death, and at all subsequent times.
(iv) Applicable Life Expectancy - The life expectancy (or joint and last survivor expectancy) calculated using the attained age of the Participant (or Designated Beneficiary) as of the Participant's (or Designated Beneficiary's) birthday in the applicable calendar year reduced by one for each calendar year which has elapsed since the date life expectancy was first calculated. If life expectancy is being recalculated, the applicable life expectancy shall be the life
expectancy as so recalculated. The applicable calendar year shall be the first Distribution Calendar Year, and if life expectancy is being recalculated, such succeeding calendar year. If annuity payments commence before the Required Beginning Date, the applicable calendar year is the year such payments commence. If distribution is in the form of an immediate annuity purchased after the Participant's death with the Participant's remaining interest, the applicable calendar year is the year of purchase.
(v) Life Expectancy - Life expectancy and joint
and last survivor expectancy are computed by use of the
expected return multiples in Tables V and VI of Treas. Reg.
ss. 1.72-9. Unless otherwise elected by the Participant (or
Spouse, in the case of distributions described in subsection
(d)(ii)(B) below) by the time distributions are required to
begin, life expectancies shall be recalculated annually. Such
election shall be irrevocable as to the Participant (or
Spouse) and shall apply to all subsequent years. The life
expectancy of a nonspouse Beneficiary may not be recalculated.
(c) Required Distribution Rule. The entire interest of a Participant must be distributed or begin to be distributed no later than the Participant's Required Beginning Date.
(d) Death Distribution Provisions.
(i) Distribution Beginning Before Death - If the Participant dies after distribution of his or her interest has begun, the remaining portion of such interest will continue to be distributed at least as rapidly as under the method of distribution being used prior to the Participant's death.
(ii) Distribution Beginning After Death - If the Participant dies before distribution of his or her interest begins, distributions of the Participant's entire interest shall be completed by December 31 of the calendar year containing the fifth anniversary of the Participant's death, except to the extent that an election is made to receive distributions in accordance with (A) or (B) below:
(A) If any portion of the Participant's interest is payable to a Designated Beneficiary, distributions may be made over the life of, or over a period certain not greater than the life expectancy of, the Designated Beneficiary commencing on or before December 31 of the calendar year immediately following the calendar year in which the Participant died;
(B) If the Designated Beneficiary is the Participant's surviving Spouse, the date distributions are required to begin in accordance with subparagraph (A) above shall not be earlier than the later of (1) December 31 of the calendar year immediately following the calendar year in which the Participant died and (2) December 31 of the calendar year in which the Participant would have attained age 70-1/2.
If the Participant has not made an election pursuant to this subsection (d) by the time of his or her death, the Participant's Designated Beneficiary must elect the method of distribution no later than the earlier of (a) December 31 of the calendar year in which distribution would be required to begin under this subsection (d), or (b) December 31 of the calendar year which contains the fifth anniversary of the date of death of the Participant. If the Participant has no Designated Beneficiary, or if the Designated Beneficiary does not elect a method of distribution, distribution of the Participant's entire interest must be completed by December 31 of the calendar year containing the fifth anniversary of the Participant's death.
(iii) For purposes of paragraph (ii) above, if the
surviving Spouse dies after the Participant, but before
payments to such Spouse begin, the provisions of paragraph
(ii), with the exception of subparagraph (B) therein, shall be
applied as if the surviving Spouse were the Participant.
(iv) For purposes of this subsection, any amount paid to a child of the Participant will be treated as if it had been paid to the surviving Spouse if the amount becomes payable to the surviving Spouse when the child reaches the age of majority.
(v) For purposes of this subsection, distribution of a Participant's interest is considered to begin on the Participant's Required Beginning Date (or, if paragraph (iii) above is applicable, the date distribution is required to begin to the surviving Spouse pursuant to paragraph (ii) above). If distribution in the form of an annuity described in subsection (f)(i) below irrevocably commences to the Participant before the Required Beginning Date, the date distribution is considered to begin is the date distribution actually commences.
(e) Limits on Distribution Periods. As of the first Distribution Calendar Year, distributions, if not made in a single-sum, may only be made over one of the following periods (or a combination thereof):
(i) The life of the Participant;
(ii) The life of the Participant and a Designated Beneficiary;
(iii) A period certain not extending beyond the life expectancy of the Participant; or
(iv) A period certain not extending beyond the joint and last survivor expectancy of the Participant and a Designated Beneficiary;
(f) Determination of Amount to be Distributed Each Year.
(i) If the Participant's interest is to be paid in the form of annuity distributions under the Plan, payments under the annuity shall satisfy the following requirements:
(A) The distribution period must be over a life (or lives) or over a period certain not longer than a life expectancy (or joint life and last survivor expectancy) described in Code ss.ss. 401(a)(9)(A)(ii) or 401(a)(9)(B)(iii), whichever is applicable;
(B) The life expectancy (or joint life and last survivor expectancy) for purposes of determining the period certain shall be determined without recalculation of life expectancy;
(C) Once payments have begun over a period certain, the period certain may not be lengthened even if the period certain is shorter than the maximum permitted.
(D) Payments must either be nonincreasing or increase only as follows:
(1) With any percentage increase in a specified and generally recognized cost-of-living index;
(2) To the extent of the
reduction to the amount of the Participant's
payments to provide for a survivor benefit
upon death, but only if the beneficiary
whose life was being used to determine the
distribution period described in subsection
(e) above dies and the payments continue
otherwise in accordance with that section
over the life of the Participant;
(3) Because of an increase in benefits under the Plan.
(E) If the annuity is a life annuity (or a life annuity with a period certain not exceeding 20 years), the amount which must be distributed on or before the Participant's Required Beginning Date (or, in the case of distributions after the death of the Participant, the date distributions are required to begin pursuant to subsection (d) above) shall be the payment which is required for one payment interval. The second payment need not be made until the end of the next payment interval even if that payment interval ends in the next calendar year. Payment intervals are the periods for which payments are received, e.g., bimonthly, monthly, semi-annually, or annually.
(F) If the annuity is a period certain annuity without a life contingency (or is a life annuity with a period certain exceeding 20 years) period payments for each Distribution Calendar Year shall be combined and treated as an annual amount. The amount which must be distributed by the Participant's Required Beginning Date (or, in the case of distributions after the death of the Participant, the date distributions are required to begin pursuant to subsection (d) above) is the annual amount for the first Distribution Calendar Year. The annual amount for other Distribution Calendar Years, including the annual amount for the calendar
year in which the Participant's Required Beginning Date (or the date distributions are required to begin pursuant to subsection (d) above) occurs, must be distributed on or before December 31 of the calendar year for which the distribution is required.
(ii) Annuities purchased after December 31, 1988, are subject to the following additional conditions:
(A) Unless the Participant's Spouse is the Designated Beneficiary, if the Participant's interest is being distributed in the form of a period certain annuity without a life contingency, the period certain as of the beginning of the first distribution calendar year may not exceed the applicable period determined using the table set forth in Treas. Reg. ss. 1.401(a)(9)-2(Q&A-5).
(B) If the Participant's interest is being distributed in the form of a joint and survivor annuity for the joint lives of the Participant and a nonspouse Beneficiary, annuity payments to be made on or after the Participant's Required Beginning Date to the Designated Beneficiary after the Participant's death must not at any time exceed the applicable percentage of the annuity payment for such period that would have been payable to the Participant using the table set forth in Treas. Reg. ss.1.401(a)(9)-2(Q&A-6).
(iii) Transitional Rule. If payments under an annuity which complies with paragraph (i) above begin prior to January 1, 1989, the minimum distribution requirements in effect as of July 27, 1987, shall apply to distributions from this Plan, regardless of whether the annuity form of payment is irrevocable. This transitional rule also applies to deferred annuity contracts distributed to or owned by the Participant prior to January 1, 1989, unless additional contributions are made under the Plan by the Employer with respect to such contract.
(iv) If the form of distribution is an annuity made in accordance with this subsection (f), any additional benefits accruing to the Participant after his or her Required Beginning Date shall be distributed as a separate and identifiable component of the annuity beginning with the first payment interval ending in the calendar year immediately following the calendar year in which such amount accrues.
5.09 Code ss. 401(a)(31) Requirement.
(a) General Rule. If a Participant or Surviving Spouse (or alternate payee) of a Participant who is to receive a payment under this Article and Article IV which is an eligible rollover distribution (as defined below) elects (within the 90 day period ending on the Annuity Starting Date) to have such distribution (or a portion of such distribution) paid directly to an eligible retirement plan (as defined below) and specifies the eligible retirement plan to which such distribution is to be paid, such payment to be made to the
Participant or Surviving Spouse (or alternate payee) of a Participant shall be made in the form of a direct lump sum cash transfer from the Trustee to the trustee of the eligible retirement plan so specified in lieu of the payment otherwise required by this Article and Article IV. The preceding sentence shall only apply to the extent that the eligible rollover distribution would be includable in the Participant's or Surviving Spouse's (or alternate payee's) gross income if not so transferred (determined without regard to Code ss.ss. 402(c) and 403(a)(4)).
(b) Definitions. For purposes of this Section, the following terms shall have the meanings indicated:
(i) Eligible retirement plan shall mean:
(A) with respect to a Participant (or alternate payee), an individual retirement account described in Code ss. 408(a), an individual retirement annuity described in Code ss. 408(b) (other than an endowment contract), a qualified trust which is a defined contribution plan and the terms of which permit the acceptance of rollover distributions, or an annuity plan described in Code ss. 403(a); or
(B) with respect to a Surviving Spouse of a Participant, an individual retirement account described in Code ss. 408(a) or an individual retirement annuity described in Code ss. 408(b) (other than an endowment contract).
(ii) Eligible rollover distribution shall mean any distribution to a Participant or Surviving Spouse (or alternate payee) of a Participant of all or any portion of the balance to the credit of such individual in this Plan; provided, however, such term shall not include:
(A) any distribution which is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life (or life expectancy) of the Participant or his designated Beneficiary or the joint lives (or joint life expectancies) of the Participant and his designated Beneficiary, or for a specified period of 10 years or more;
(B) any distribution to the extent such distribution is required by Section 5.08;
(C) the portion of any distribution that is not includable in gross income; and
(D) any other distribution or portion of a distribution to the extent such distribution is not considered an eligible rollover distribution under Treasury regulations or other guidance issued by the Internal Revenue Service.
(c) Special Effective Date. The provisions of this
Section shall be effective for any distributions or payments made after
December 31, 1992.
(d) Satisfaction of Requirements. For purposes of this Section, the Participant or Surviving Spouse (or alternate payee) of a Participant electing the transfer must present sufficient evidence in a timely manner to the Plan Administrator that the transferee plan satisfies the definition of an eligible retirement plan set forth above. At a minimum, the Participant or Surviving Spouse (or alternate payee) must state the name of the transferee plan and represent that the transferee plan is an eligible retirement plan (as defined in paragraph (i) of subsection (b) above). The Participant or Surviving Spouse (or alternate payee) must also present such additional documentation as the Plan Administrator may require which shall be used to verify that the requirements of this Section have been met. The Trustee, the Committee, the Plan Administrator, or any Plan fiduciary shall have no duty to verify the authenticity of any such evidence or documentation, and shall be entitled to rely on any such evidence submitted by a Participant or Surviving Spouse (or alternate payee), without questioning the authenticity thereof, unless it is unreasonable so to rely. Furthermore, in the event that the Trustee, the Committee, the Plan Administrator or any Plan fiduciary shall have actual knowledge of an issue relating to the transferee plan's ability to satisfy the definition of an eligible retirement plan, such issue must be expressly resolved in favor of the satisfaction of such definition by the transferee plan by a ruling from the Internal Revenue Service or by an opinion of legal counsel (chosen by the Participant or Surviving Spouse (or alternate payee), but acceptable to the Committee) directed to the Trustee, the Plan, the Committee, the Plan Administrator and any fiduciary of the Plan, before the transfer can occur.
(e) Determination in the Committee's Discretion. The Committee shall have complete and absolute discretion to determine whether the proposed transferee plan selected by the distributee satisfies the requirements of this Section, and to determine whether the requirements of this Section have otherwise been satisfied by a proposed transfer.
(f) Interpretation. The provisions of this Section shall be interpreted in accordance with Code ss. 401(a)(31), as added by the Unemployment Compensation Amendments of 1992, and any regulations or other guidance promulgated by the Internal Revenue Service thereunder, and shall not be construed or interpreted in a manner other than strict compliance with such requirements.
(g) Application of Other Rules. For all purposes of this Plan, the election by a Participant or Surviving Spouse (or alternate payee) of a Participant of a transfer under this Section shall be considered a payment or distribution under this Article and Article IV as if the amount transferred were paid directly to the Participant or Beneficiary (or alternate payee).
ARTICLE VI.
CONTRIBUTIONS AND TRUST FUND
6.01 Required Participant Contributions. Participants under the Plan are not required nor permitted to contribute to the Trust Fund.
6.02 Contributions by the Employer. Annually, the Committee shall cause an actuarial valuation of the liabilities under the Plan to be made by an Enrolled Actuary on the basis of the service and mortality tables, rate of interest, and method of funding approved by the Committee.
The Enrolled Actuary shall report to the Committee as to:
(a) The amount of the minimum funding requirement under Code ss. 412, which would be sufficient to provide for currently accruing benefit liabilities; and
(b) The applicable limitations established by law as to the amount of the deposit in respect of both past and currently accruing benefit liabilities which could be deducted as a cost for tax purposes.
The contributions of the Employer will be paid at such times and in such amounts as the Company shall determine based on the Committee's information, in accordance with the requirement for quarterly contributions under Code ss. 412(m) and ERISA ss. 302(e).
6.03 Return of Contributions. Notwithstanding the foregoing, Contributions made by the Employer shall be returned to said Employer by the Trustee in the following instances:
(a) Mistake of Fact. If a Contribution is made by the Employer under a mistake of fact, the amount of the Contribution described in subsection (c) below shall be returned to the Employer within one year after the payment of said Contribution.
(b) Deductibility Condition. All Contributions made to the Plan are specifically made contingent upon their deductibility by the Employer. If a Contribution is nondeductible under Code ss. 404 for the Plan Year for which it was contributed, then the amount described in subsection (c) below shall be returned to the Employer within one year after the disallowance of the deduction. The provisions of this subsection (b) shall be construed in accordance with Rev. Proc. 89-35, Rev. Proc. 90-49, and any corresponding future guidance issued by the Internal Revenue Service.
(c) Amount Returned. For purposes of subsection (a) and
(b) above, the amount which will be returned to the Employer is the
excess of (i) the amount contributed, over, as relevant, (ii) (A) the
amount that would have been contributed had no mistake of fact
occurred, or (B) the amount that would have been contributed had the
contribution been limited to the amount that is deductible after any
disallowance of a deduction. Earnings attributable to the excess
Contribution will not be returned to the Employer, but losses
attributable thereto will reduce the amount so returned.
(d) Construction. The provisions of this Section shall be construed in a manner consistent with Rev. Rul. 91-4 or any future guidance issued by the Internal Revenue Service regarding Code ss. 401(a)(2) and ERISA ss. 403(c)(2).
ARTICLE VII.
ADMINISTRATION
7.01 Committee. Administration of the Plan, the exclusive power to interpret it, and the responsibility for carrying out its provisions are vested in an administrative Committee, which shall be comprised of one or more members. The Chief Executive Officer of the Company shall appoint the Committee member(s) and shall have the power of removal and substitution. Any Committee member may resign by notifying the Company in writing. The Committee shall establish rules for administration of the Plan and the transaction of its business. The Committee shall constitute the "administrator" (as defined in ERISA ss. 3(16)(A)) and the "plan administrator" (as defined in Code ss. 414(g)) of the Plan, and shall perform the duties and responsibilities associated therewith unless otherwise provided in this Plan.
7.02 Plan Administrator. One or more persons, who may or may not be members of the Committee, shall be appointed by the Committee to serve as the Plan Administrator. If no such appointment is made, the Committee shall be the Plan Administrator. The Plan Administrator shall perform those duties and responsibilities allocated to it under the terms and provisions of this Plan and any other duties and responsibilities delegated to it by the Committee.
7.03 Delegation of Duties. The Committee may obtain clerical, legal, accounting and actuarial assistance to carry out the provisions of the Plan.
7.04 Plan Records. The Committee shall maintain appropriate accounts and records of the Plan and shall keep in convenient form the data necessary for actuarial valuations.
7.05 Committee Liability. Committee members shall use ordinary care and diligence in performing their duties; however, to the extent permitted by ERISA or other applicable law, no member shall be personally liable by virtue of any contract, agreement, bond or other instrument made or executed by or for him as a Committee member, nor for any loss unless due to his own willful misconduct.
7.06 Committee Indemnification. The Employer shall indemnify each Committee member against costs, expenses and liabilities, including attorney's fees, incurred in connection with any action, suit or proceeding instituted against him because of any act of omission or commission performed by him as a Committee member while acting in good faith and exercising his judgment for the best interest of the Plan.
Promptly upon receipt by an indemnified party under this Section, of notice of the commencement of any such action, such indemnified party will, if a claim in respect thereof is to be made against an Employer or all of the Employers in the aggregate, notify the Company of the commencement thereof, but the omission to so notify the Company will not relieve it from the liability hereunder, nor from any other liability which it may have to such person. The Employer shall be entitled to participate at its own expense in the defense or to assume the defense of any action brought against any party indemnified hereunder.
In the event the Employer acting by and through the Company elects to assume the defense of any such suit, such defense shall be conducted by counsel chosen by the Company, and the indemnified party shall bear the fees and expenses of any additional counsel retained by him.
7.07 Committee Expenses. Subject to Section 9.01, any reasonable expenses incurred by the Committee, with the prior approval of the Company, in the performance of its duties shall be paid by the Plan. The members of the Committee shall serve without compensation for the performance of their duties hereunder, unless a member of the Committee is not a full-time Employee of an Employer.
7.08 Interpretation of the Plan and Findings of Facts. The Committee shall have sole and absolute discretion to interpret the provisions of the Plan (including, without limitation, by supplying omissions from, correcting deficiencies in, or resolving inconsistencies or ambiguities in, the language of the Plan), to make factual findings with respect to any issue arising under the Plan, to determine the rights and status under the Plan of Participants and other persons, to decide disputes arising under the Plan and to make any determinations and findings (including factual findings) with respect to the benefits payable thereunder and the persons entitled thereto as may be required for the purposes of the Plan. In furtherance of, but without limiting, the foregoing, the Committee is hereby granted the following specific authorities, which it shall discharge in its sole and absolute discretion in accordance with the terms of the Plan (as interpreted, to the extent necessary, by the Committee):
(a) To resolve all questions (including factual questions) arising under the provisions of the Plan as to any individual's entitlement to become a Participant; and
(b) To determine the amount of benefits, if any, payable to any person under the Plan (including, to the extent necessary, making any factual findings with respect thereto);
All decisions of the Committee as to the facts of the case, as to the interpretation of any provision of the Plan or its application to any case, and as to any other interpretative matter or other determination or question under the Plan shall be final and binding on all parties affected thereby, subject to the claims and review procedures under this Plan. The Committee shall direct the Trustee relative to benefits to be paid under the Plan and shall furnish the Trustee with any information reasonably required by it for the purpose of paying benefits under the Plan.
ARTICLE VIII.
THE TRUST FUND AND TRUSTEE
8.01 Existence of Trust. The Company has entered into a Master Trust Agreement with the Trustee to hold the funds necessary to provide the benefits set forth in this Plan.
8.02 Exclusive Benefit Rule. The Trust Fund shall be received, held in trust, and disbursed by the Trustee in accordance with the provisions of the Master Trust Agreement and this Plan. No part of the Trust Fund shall be used for or diverted to purposes other than for the exclusive benefit of Participants and their Beneficiaries and the payment of reasonable expenses attributable to the administration of the Plan in accordance with ERISA ss. 404(a)(1)(A)(ii). (See Section 9.01.) No person shall have any interest in, or right to, the Trust Fund or any part thereof, except as specifically provided for in this Plan or the Master Trust Agreement.
8.03 Removal of Trustee. The Company may remove the Trustee at any time upon the notice required by the terms of the Master Trust Agreement, and upon such removal or upon the resignation of a Trustee, the Company shall appoint a successor Trustee.
8.04 Powers of Trustee. The Trustee shall have the power to hold, invest, reinvest, or to control and disburse the Trust Funds in accordance with the provisions of the Master Trust Agreement and this Plan. Notwithstanding the foregoing, the Pension and Finance Committee of the Board may appoint one or more investment managers to direct the investment of the Trust Fund. Furthermore, the Pension and Finance Committee of the Board may manage all or a portion of the Trust Fund in accordance with applicable provisions of the Master Trust Agreement.
8.05 Integration of Trust. The Master Trust Agreement shall be deemed to be a part of this Plan, and all rights of Participants or others under this Plan shall be subject to the provisions of the Master Trust Agreement.
8.06 Liability for Payments. Each Participant, Beneficiary, Spouse, joint annuitant or other party that shall claim the right to any payment under the Plan shall be entitled to look only to the Trust Fund for such payment. No liability for the payment of benefits under the Plan shall be imposed upon the Committee or the Employer except as may be required by ERISA ss. 4062(b) pertaining to Employer liability imposed by the Pension Benefit Guaranty Corporation in the event the Plan terminates with assets which are insufficient to provide the Plan liabilities guaranteed by the Pension Benefit Guaranty Corporation; or ERISA ss. 302(f) pertaining to Employer liability to the Plan for failure to make a required contribution.
ARTICLE IX.
MISCELLANEOUS PROVISIONS
9.01 Exclusive Benefit Rule. The Trust Fund shall be received, held in trust, and disbursed by the Trustee in accordance with the provisions of the Trust Agreement and this Plan. No part of the Trust Fund shall be used for or diverted to purposes other than for the exclusive benefit of Participants and their Beneficiaries and the payment of reasonable expenses attributable to the administration of the Plan in accordance with ERISA ss. 404(a)(1)(A)(ii).
9.02 Merger or Consolidation of Company. If the Company is merged or consolidated with another organization, or another organization acquires all or substantially all of the Company's assets, such organization may assume the role of the Company hereunder by action of its Board of Directors and by action of the Board of the prior Company, if still existent. Such change in the Company shall not be deemed a termination of the Plan by either the predecessor or successor Company.
9.03 Nonalienation or Assignment.
(a) Spendthrift Clause. Except as provided in (b) below, none of the benefits under the Plan are subject to the claims of creditors of Participants or their Beneficiaries, and will not be subject to attachment, garnishment, or any other legal process whatsoever. Neither a Participant nor his Beneficiaries may assign, sell, borrow on, or otherwise encumber any of his beneficial interest in the Plan and Trust Fund, nor shall any such benefits be in any manner liable for or subject to the deeds, contracts, liabilities, engagements, or torts of any Participant or Beneficiary. Notwithstanding any provision of the Plan to the contrary, the Plan shall honor a judgment, order, decree or settlement providing for the offset of all or a part of a Participant's benefit under the Plan, to the extent permitted under Code ss. 401(a)(13)(C); provided that the requirements of Code ss. 401(a)(13)(C)(iii) relating to the protection of the Participant's spouse (if any) are satisfied.
(b) Qualified Domestic Relations Orders.
(i) General Rule. The provisions of subsection
(a) above shall not apply to a "qualified domestic relations
order," as defined in Code ss. 414(p), or any other domestic
relations order permitted to be treated as a "qualified
domestic relations order" by the Plan Administrator under the
provisions of the Retirement Equity Act of 1984. The Plan
Administrator shall establish a written procedure to
determine the qualified status of domestic relations orders
and to administer distributions under such qualified orders.
To the extent provided under a "qualified domestic relations
order," a former Spouse of a Participant shall be treated as
the Spouse or Surviving Spouse for all purposes under the
Plan.
(ii) QDRO Procedures.
(A) Procedure Upon Receipt. Upon receiving a domestic relations order, the Plan Administrator shall notify all affected Participants and any alternate payees (Spouse, former spouse, child or other dependent of the Participant, named in the order) that the order has been received. The Plan Administrator shall also notify the affected Participants and alternate payees of its procedure for determining whether the domestic relations order is qualified.
(B) Procedure During Determination. During the period the Plan Administrator is determining the qualified status of the order, the Plan Administrator shall separately account for the amounts (if any) that would be payable to an alternate payee under this order (if it were a qualified domestic relations order) during this period. If the Plan Administrator determines the order is a qualified domestic relations order during the 18-month period commencing on the date the first payment would be required under the qualified domestic relations order, then the alternate payee shall receive payment of the amounts determined in accordance with the preceding sentence. If the Plan Administrator cannot make a determination of the order's qualified status during this 18-month period (or determines the order is not a qualified domestic relations order), then the separate accounting required under the first sentence of this subparagraph (B) shall no longer be required.
(iii) QDRO Payouts. Notwithstanding any provision of this Plan to the contrary, effective as of the first day of the calendar month following the date which is 30 days from the date a favorable determination letter is received for this Plan with this provision included (the "QDRO Payout Effective Date"), then if at any time, either before or after the QDRO Payout Effective Date, this Plan receives a domestic relations order which is determined to be a "qualified domestic relations order" pursuant to subsection (b) above, and such order requires that a portion of a Participant's accrued Benefit become, in effect, an Accrued Benefit of an alternate payee, then, if the Actuarially Equivalent present value of the alternate payee's vested Accrued Benefit does not exceed $7,500, the alternate payee's vested Accrued Benefit shall be distributed to such alternate payee in the form of a single lump sum payment (or such other form as may be required by said qualified domestic relations order) as soon as possible after (1) such order is determined to be a qualified domestic relations order, if the order is received after the QDRO Payout Effective Date, or (2) the QDRO Payout Effective Date, if the order was received before the QDRO Payout Effective Date, or (3) any later date specified in said qualified domestic relations order. If the alternate payee should thereafter vest in additional Accrued Benefits, this payout rule shall be applied to such additional vested Accrued Benefit as if such order were received as of the date the additional vesting occurs. No consent of the alternate payee shall be required for a distribution under this paragraph (iii) pursuant to Treas. Reg .ss. 1.411(a)-11(c)(6).
(iv) Status of Alternate Payee. An alternate payee under a qualified domestic relations order shall be entitled to all rights of a Beneficiary hereunder except as otherwise specified herein.
9.04 Plan Continuance Voluntary. Although it is the intention of each Employer that this Plan shall be continued and that contributions shall be made regularly, this Plan is entirely voluntary on the part of each participating Employer, and the continuance of the Plan is not assumed as a contractual obligation of any Employer.
9.05 Plan not an Employment Contract. This Plan shall not be deemed to constitute a contract between any participating Employer and any Participant or to be consideration or an inducement for the employment of any Participant or Employee. Nothing contained in this Plan shall be deemed to give any Participant or Employee the right to be retained in the service of any Employer or to interfere with the right of any Employer to discharge any Participant or Employee at any time regardless of the effect which such discharge shall have upon such individual as a Participant in the Plan.
9.06 Payments to Minors and Others. In making any distribution to or for the benefit of any minor or incompetent Participant or Beneficiary, or any other Participant or Beneficiary who, in the opinion of the Committee, is incapable of properly using, expending, investing, or otherwise disposing of such distribution, the Committee, in its sole and complete discretion may, but need not, order the Trustee to make such distribution to a legal or natural guardian or other relative of such minor or court appointed committee of any incompetent, or to any adult with whom such person temporarily or permanently resides; and any such guardian, committee, relative, or other person shall have full authority and discretion to expend such distribution for the use and benefit of such person; and the receipt of such guardian, committee, relative, or other person shall be a complete discharge to the Trustee, the Committee and this Plan, without any responsibility on the part of the Committee or the Trustee to see to the application of amounts so distributed.
9.07 Governing Law. This Plan shall be administered in the United States of America, and its validity, construction, and all rights hereunder shall be governed by the laws of the United States under ERISA. To the extent that ERISA shall not be held to have preempted local law, the Plan shall be administered under the laws of the State of Georgia. If any provision of the Plan shall be held invalid or unenforceable, the remaining provisions hereof shall continue to be fully effective.
9.08 Indemnification. The Employers hereby agree to indemnify any current or former Employee or director to the full extent of any expenses, penalties, damages, or other pecuniary loss which such current or former Employee may suffer as a result of his responsibilities, obligations, or duties in connection with the Plan or Trust or fiduciary activities actually performed in connection with the Plan or Trust. Such indemnification shall be paid by the Employers to the current or former Employee to the extent that fiduciary liability insurance is not available for the payment of such items, but in no event shall such items be paid out of Plan assets. This indemnification agreement shall not apply to loss sustained as a result of willful wrongdoing, as determined by the Company. Notwithstanding the foregoing, this indemnification agreement shall not relieve any current or former Employee serving in a
fiduciary capacity of his fiduciary responsibilities under ERISA, nor shall this agreement violate any provision of ERISA as it may be interpreted from time to time by the United States Department of Labor and any courts of competent jurisdiction.
9.09 Gender and Number. Wherever applicable, the masculine pronoun shall include the feminine pronoun, and the singular shall include the plural.
9.10 Headings. The titles in this Plan are inserted for convenience of reference; they constitute no part of the Plan, and are not to be considered in the construction hereof.
9.11 Claims Procedure.
(a) Filing a Claim. All claims and requests for benefits under the Plan shall be directed to the attention of the Plan Administrator in writing. The writing must be reasonably calculated to bring the claim to the attention of the Plan Administrator.
(b) Notification of Denial. If the Plan Administrator determines that any individual who has claimed a right to receive benefits under the Plan (the "claimant") is not entitled to receive all or any part of the benefits claimed, the claimant shall be informed in writing of the specific reason or reasons for the denial, with specific reference to pertinent Plan provisions on which the denial is based, a description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why said material or information is necessary and a description of the review procedures set forth in subsection (d) below.
(c) Timing of Notification. The claimant shall be so notified of the Plan Administrator's decision within 90 days after the receipt of the claim, unless special circumstances require an extension of time for processing the claim. If such an extension of time for processing is required, the Plan Administrator shall furnish the claimant written notice of the extension prior to the termination of the initial 90-day period. In no event shall said extension exceed a period of 90 days from the end of said initial period. The extension notice shall indicate the special circumstances requiring an extension of time and the date by which the Plan Administrator expects to render a final decision. If for any reasons, the claimant is not notified within the period described above, the claim shall be deemed denied and the claimant may then request review of said denial, subject to the provisions of subsection (d) below.
(d) Review Procedures. The claimant or his duly authorized representative may, within 60 days after notice of the Plan Administrator's decision, request a review of said decision by the administrative Committee, review pertinent documents and submit to the Committee such further information as will, in the claimant's opinion, establish his rights to such benefits. If upon receipt of this further information, the Committee determines that the claimant is not entitled to the benefits claimed, it shall afford the claimant or his representative reasonable opportunity to submit issues and comments in writing and to review pertinent documents. If the claimant wishes, he may request in writing that the Committee hold a hearing. The Committee may, in its discretion, schedule an opportunity for a full and fair hearing on the issue as soon as is reasonably
possible under the circumstances. The Committee shall render its final decision with the specific reasons therefor in writing and in a manner calculated to be understood by the claimant.
(e) Timing of Final Decision. The Committee's final decision shall include specific references to the pertinent Plan provisions on which the decision is based, and shall be transmitted to the claimant by certified mail within 60 days of receipt of claimant's request for such review, unless special circumstances require a further extension of time for processing, in which case a decision shall be rendered as soon as possible, but not later than 120 days after receipt of a request for review. If such an extension of time for review is required because of special circumstances, written notice of the extension shall be furnished to the claimant prior to the commencement of the extension. If the Committee holds regularly scheduled meetings at least quarterly, in lieu of the time period described above, the Committee's decision on review shall be made by no later than the date of the meeting of the Committee which immediately follows its receipt of the request for review, unless said request is filed within 30 days preceding the date of said meeting in which case a decision shall be made no later than the date of the second meeting following its receipt of said request for review. If special circumstances require a further extension of time for processing, a decision shall be rendered not later than the third meeting of the Committee following its receipt of the request for review. If a decision on review is not furnished within the time period described above, the claim shall be deemed denied on review.
(f) Special Effective Date. The provisions of this
Section 9.11 shall be effective as of June 1, 1999. Prior to that
date, the provisions of Section 9.11 of the Plan, as it was amended
and restated effective as of January 1, 1987, shall govern the
handling of claims.
9.12 Misstatement in Application for Retirement Income. If a Participant in his application for retirement income, or in response to any request of his Employer, the Company or the Committee for information, makes any statement which is erroneous or omits any material fact or fails before receiving his first retirement income payment to correct any information that he previously incorrectly furnished to his Employer or the Committee for its records, the amount of his retirement income shall be adjusted on the basis of the correct facts, and the amount of any overpayment or underpayment thereto made to such Participant shall be deducted from or added to his next succeeding payments as the Committee shall direct.
9.13 Liability Limited. To the extent permitted by ERISA and other applicable law, neither the Committee, nor any member thereof, nor any Employer shall be liable for any acts of omission or commission in administering the Plan, except for his or its own individual, willful misconduct. The Company and each member of the Committee shall be entitled to rely conclusively on all tables, valuations, certificates, opinions and reports which shall be furnished by an actuary, accountant, trustee, insurance company, counsel or other expert who shall be employed or engaged by the Committee, Company or Board or any Employer.
9.14 Location of Participant or Beneficiary Unknown. In the event that all, or any portion, of the distribution payable to a Participant or his Beneficiary hereunder shall, at the
expiration of a reasonable time after it has become payable, remain unpaid solely by reason of the inability of the Committee, after sending a registered letter, return receipt requested, to the last known address, and after further diligent effort (including requests to the Internal Revenue Service under Policy Statement P-1-187), to ascertain the whereabouts of such Participant or his Beneficiary, the amount so distributable shall be forfeited and shall be used to reduce the contributions to the Plan. In the event a Participant or Beneficiary is located subsequent to his benefit being forfeited, such benefit shall be restored.
9.15 Forfeitures and Investment Income. Forfeitures, if any, and investment income shall be used to reduce the contributions of Employers and shall not be used hereunder to increase the benefit of any person.
9.16 Prohibited Discrimination. This Plan shall be operated and administered in a uniform and consistent manner with respect to all Participants and in a manner which does not discriminate in favor of Highly Compensated Employees.
9.17 Correction of Participants' Benefits. If an error or omission is discovered in the Accrued Benefit of a Participant, or in the amount distributed to a Participant, the Committee will make such equitable adjustments in the records of the Plan and, if applicable, in the payments made to a Participant, as may be necessary or appropriate to correct such error or omission as of the Plan Year in which such error or omission is discovered. Further, an Employer may, in its discretion, make a special contribution to the Plan for the purpose of correcting any such error or omission.
9.18 Action of Employer, Committee and Plan Administrator. Except as may be specifically provided, any action required or permitted to be taken by an Employer, Committee, or the Plan Administrator may be taken on behalf of such person by any entity or individual who has been delegated the proper authority.
9.19 Employer Records. Records of an Employer as to an Employee's or Participant's period of employment, severance from employment and the reason therefore, leaves of absence, reemployment, compensation, and elections or designations under this Plan will be conclusive on all persons, unless determined to be incorrect.
ARTICLE X.
AMENDMENT, TERMINATION AND ADOPTION
10.01 Permanency of Plan and Trust. It is contemplated by the Company and each Employer that the Plan and Trust shall be maintained permanently and that they shall constitute a qualified plan under Code ss. 401 and a tax-exempt trust under Code ss. 501, or any successor provisions. Nevertheless, the Company and each Employer must necessarily reserve and does hereby reserve the rights of amendment, termination and withdrawal as set forth in this Article.
10.02 Right to Amend Plan.
(a) Amendment by the Company. The Company reserves the right, at any time, to modify or amend, in whole or in part, any or all of the provisions of the Plan, including specifically the right to make such amendments effective retroactively, if necessary or desirable, to bring the Plan into conformity with the Code, ERISA, and any applicable regulations promulgated so that the Plan may continue to remain qualified and the Trust may continue to remain tax-exempt, or for any other purpose, subject to subsection (b) below.
(b) Restrictions on Amendments.
(i) Exclusive Benefit Rule. No modification or
amendment shall make it possible for Trust assets to be used
for, or diverted to, purposes other than the exclusive benefit
of Participants and their Beneficiaries in accordance with
Section 9.01 (Exclusive Benefit Rule) herein, except as
provided in Section 6.03 (Return of Contributions).
(ii) Code ss. 411(d)(6) Restrictions. No amendment to the Plan shall be permitted that would have the effect of decreasing the Accrued Benefit of any Participant. Furthermore, no amendment shall be permitted that would have the effect of eliminating or reducing an early retirement benefit or a retirement-type subsidy (as defined in Treasury regulations under Code ss. 411(d)(6)(B)(i)) or, except as permitted under Treasury regulations, eliminating an "optional form of benefit" as defined in Treas. Reg. ss. 1.411(d)-4(Q&A-1) with respect to a Participant's Accrued Benefit. Notwithstanding the preceding sentences, a Participant's Accrued Benefit may be reduced to the extent permitted under Code ss. 412(c)(8).
(iii) Code ss. 411(a)(10) Vesting Restrictions. Any amendment changing the vesting schedule of this Plan shall comply with the provisions of Section 3.02 (Changes in Vesting Schedule). For purposes of this paragraph (iii), an "amendment changing the vesting schedule" is any amendment which directly or indirectly affects the computation of the vested percentage of a Participant's Accrued Benefit as described in Treas. Reg. ss. 1.411(a)-8(c).
10.03 Right to Terminate Plan and Trust.
(a) Termination by the Company. The Company reserves the right, at any time, to wholly or partially terminate the Plan. If the Plan is terminated by the Company, all Accrued Benefits of "affected" Participants within the meaning of Code ss. 411(d)(3) as of the date of termination shall immediately become fully vested, to the extent funded. See Section 3.03 (Vesting Upon Termination). If the Plan is partially terminated by the Company or by an Employer, all Accrued Benefits of those "affected" Participants within the meaning of Code ss. 411(d)(3) shall, as of the date of partial termination, immediately become fully vested, to the extent funded.
(b) Distributions Upon Termination. If the Plan is terminated, the Accrued Benefits of affected Participants shall be either held in the Trust pursuant to the provisions of the Plan or distributed as soon as administratively feasible pursuant to Rev. Rul. 89-87, in the sole discretion of the Company.
10.04 Merger, Consolidation, or Transfer of Assets.
(a) Code ss. 401(a)(12) Restriction. The Plan shall not be merged or consolidated with any other plan, and its assets and liabilities may not be transferred to any other trust, unless each Participant, immediately after the merger, consolidation or transfer (if the Plan then is terminated), would receive a benefit which is equal to or greater than the benefit he would have been entitled to receive, and would be entitled to each benefit payment option which he would have been entitled to, immediately before the merger, consolidation or transfer (if the Plan is then terminated).
(b) Transfers of Assets and Liabilities to/from Plan. This Plan may be the recipient of a transfer of assets and liabilities from, or may transfer liabilities and assets to, another plan qualified under Code ss. 401(a), subject to the approval of the Company, but only if such transfer satisfies the provisions of Treas. Reg. ss. 1.411(d)-4(Q&A-3).
(c) Changes in Law. In the event that another qualified retirement plan is merged with this Plan and this Plan is the surviving plan following the merger, and if the date of the merger follows the effective date of a change in the qualification requirements of the Code but precedes the date by which the other plan is required to be amended to take into account those changes in the law, then the applicable provisions of this Plan (as amended) shall be deemed to relate back and to be included in the other plan as of the applicable effective date.
10.05 Distribution of Assets of Trust Fund.
(a) In the event that it becomes necessary to terminate the Plan, the assets in the Trust Fund held for the benefit of the affected Participants, Spouses, Beneficiaries, and joint annuitants shall be applied in the following order, all persons in each class being entitled to their respective proportionate shares based upon the present value of their benefits at the time of application.
Firstly:
(i) In the case of benefits which had been in pay status three years prior to the date of discontinuance, provision to all Participants, Spouses, Beneficiaries, and joint annuitants of the lowest benefit in pay status during such three-year period.
(ii) In the case of benefits which would have been in pay status for three years prior to the date of discontinuance had the Participant retired, provision to all Participants, Spouses, Beneficiaries, and joint annuitants of the lowest benefit which would have been in pay status during such three-year period but ignoring any increase in such benefits as a result of amendments to the Plan during the five-year period prior to the date of discontinuance.
Secondly: Provision to all Participants, Spouses, Beneficiaries, and joint annuitants of benefits insured by the Pension Benefit Guaranty Corporation not previously provided for herein.
Thirdly: Provision to all Participants, Spouses, Beneficiaries, and joint annuitants of any benefits to which they had a vested right just prior to the date of discontinuance not previously provided for herein. Any benefits which were vested as a result of the discontinuance shall be ignored for purposes of this paragraph.
Fourthly: Provisions to all Participants, Spouses, Beneficiaries, and joint annuitants of all remaining benefits which accrued prior to the date of the discontinuance but are not previously provided for herein.
If the assets available in the Trust Fund are insufficient to provide for all of the benefits included in one of the above priority categories, the benefits determined according to the Plan provisions in effect five years prior to the date of discontinuance shall be provided for first. If the assets are sufficient to provide for all of these benefits, then the assets shall be applied to the extent possible to provide for increased benefits due to Plan amendments during such five-year period with the amendments being considered in chronological order with the most recent amendment being considered last.
(b) Any surplus remaining in the Trust Fund, after the satisfaction of all rights or contingent rights accrued under the Plan with respect to such benefits, shall, subject to the pertinent provisions of federal or state law, be returned to the Employer.
10.06 Adoption of the Plan by Members of Controlled Group.
(a) Procedure for Adoption. This Plan may be adopted by the Board of Directors of any member of the Controlled Group by a formal resolution to adopt this Plan, indicating the effective date of said adoption, delivered to and accepted in writing by the Plan Administrator or approved by resolution of the Board of Directors of Flowers Industries, Inc. The resolution(s) referred to in the preceding sentence of this Section shall be attached hereto and made a part of the Plan. Such resolution(s) may, in addition to specifying the effective date of the adoption, specify other provisions including, but
not limited to, credit for service prior to the effective date for benefit accrual, eligibility and vesting purposes.
(b) Procedure for Withdrawal. Each member of the Controlled Group may voluntarily withdraw from participating in the Plan, provided that notice of such intent to discontinue participation is furnished to the Company at least 90 days prior to the effective date of the withdrawal, unless waived by the Company. The Company unilaterally may terminate an Employer's participation in the Plan for failure: (1) to timely provide requested information; (2) to timely make contributions; or (3) to cooperate with the Company in administering the Plan. The Company may also unilaterally terminate an Employer's participation in the Plan for any other reason that it deems appropriate.
(c) Transfer of Assets and Liabilities. Upon the voluntary withdrawal or involuntary termination of an Employer's participation in the Plan, the Company shall determine the amount of assets and liabilities of the Plan (if any) which shall be transferred to any successor plan established by the Employer. This determination shall be made based upon principles set forth in Code ss.ss. 401(a)(12) and 414(l) and the regulations promulgated thereunder.
(d) Apportionment of Costs. All Employers shall share in the cost of the Plan, including but not limited to, the contributions to the Plan, the costs of the Committee, the costs of the consultants (actuaries, accountants, attorneys, etc.) and various other direct and indirect costs of operating the Plan which may initially be borne by the Company or an Employer but which are determined by the Committee to be costs associated with the Plan. The Committee shall apportion these costs to each Employer as it deems to be equitable.
(e) Cooperation. Each Employer shall cooperate fully with the Company and the Committee with regard to all matters pertaining to the Plan. Any failure to cooperate will be grounds for the involuntary termination of that Employer's participation in the Plan.
10.07 Early Plan Termination Provision.
(a) General Limitation. In the event of termination of the Plan, the benefit of any active or former Highly Compensated Employee is limited to a benefit that is non-discriminatory under Code ss. 401(a)(4).
(b) Specific Limitation for Highly Compensated Employees. For Plan Years beginning on or after January 1, 1992, the benefits distributed to any of the 25 most highly compensated employees, whether active or former, are restricted such that the annual payments are no greater than an amount equal to the payment that would be made on behalf of the Employee under a single life annuity that is the Actuarial Equivalent of the sum of the Employee's Accrued Benefit and the Employee's other benefits under the Plan.
(c) Exceptions. The preceding subsection shall not apply if:
(i) After payment of the benefit to an Employee described in the preceding subsection, the value of plan assets equals or exceeds 110% of the value of current liabilities, as defined in Code ss. 412(l)(7),
(ii) The value of the benefits for an Employee described in the preceding subsection is less than 1% of the value of current liabilities, or
(iii) The value of the benefits for an Employee described in the preceding subsection must not exceed $5,000.
(d) Benefit Definition. For purposes of this Section, the term "benefit" includes loans in excess of the amount set forth in Code ss. 72(p)(2)(A), any periodic income, any withdrawal values payable to a living Employee, and any death benefits not provided for by insurance on the Employee's life.
10.08 Military Service. Notwithstanding any provisions of this Plan to the contrary, contributions, benefits and service credit with respect to qualified military service will be provided in accordance with Code ss. 414(u) of the Code. "Qualified military service" means any service in the uniformed services (as defined in chapter 43 of title 38 of the United States Code) by any individual if such individual is entitled to reemployment rights under such chapter with respect to such service.
10.09 Electronic Means of Communication. Whenever, under this Plan, a Participant or Beneficiary is required or permitted to make an election, provide a notice, give a consent, request a distribution, or otherwise communicate with the Employer, the Plan Administrator, the Trustee or a delegate of any of them, to the extent permitted by law, the election, notice, consent, distribution request, or other communication may be transmitted by means of telephonic or other electronic communication, if the administrative procedures under the Plan provide for such means of communication.
ARTICLE XI.
TOP HEAVY PROVISIONS
11.01 Applicability. If the Plan is or becomes a Top-Heavy Plan in any Plan Year, the provisions of this Article XI shall be controlling and shall supersede any conflicting provisions in the Plan. This Article XI shall be interpreted in accordance with Code ss. 416 and the regulations thereunder.
11.02 Definitions. For the purposes of this Article XI, the following terms shall have the following meanings:
(a) "Benefit Amount" shall mean (i) the present value
(determined by reference to the interest and mortality factors
specified in Exhibit A) of an individual's Accrued Benefit determined
on the Valuation Date, plus (ii) the aggregate amount of distributions
made with respect to such individual within the five (5) year period
ending on the Determination Date (except to the extent already included
on the Valuation Date). For this purpose, the Accrued Benefit of a
current Participant shall be determined as if the individual terminated
service as of such Valuation Date. For purposes of this Article XI, the
Accrued Benefit of a Non-key Employee shall be determined under the
method which is used for accrual purposes for all plans of the members
of the Controlled Group; or if there is no method described above, as
if such benefit accrued not more rapidly than the slowest accrual rate
permitted under Code ss. 411(b)(1)(C). With respect to a defined
contribution plan, "Benefit Amount" shall mean (i) the sum of the
amounts credited, as of the Determination Date, to an individual's
account plus (ii) the aggregate amount of distributions within the five
(5) year period ending on the Determination Date of such Plan.
(b) "Determination Date" shall mean the last day of the preceding Plan Year and, in the case of the first Plan Year, the last day of such first Plan Year.
(c) "Key Employee" shall mean any Employee or former Employee (and the beneficiaries of any such Employee) who at any time during the Plan Year containing the Determination Date or during the four preceding Plan Years was: (i) an officer of the Employer having an annual compensation greater than 50% of the dollar amount in effect under Code ss. 415(b)(1)(A), (ii) an owner (or considered an owner under Code ss. 318) of one of the 10 largest interests in the Employer if such individual's annual compensation from the Employer exceeds the dollar limitation in effect under Code ss. 415(c)(1)(A), (iii) a five-percent (5%) owner of the Employer or (iv) a one-percent (1%) owner of the Employer who has an annual compensation from the Employer of more than $150,000.
For purposes of (i) above, no more than 50 Employees shall be treated as officers, and Employees described in Code ss. 414(q)(8) shall be excluded. For purposes of (ii) above, if two Employees have the same interest in the Employer, the Employee having the greater annual compensation from the Employer shall be treated as having a larger interest. The determination of who is a Key Employee will be made in accordance with Code ss. 416(i) and the regulations thereunder. For purposes of this subsection (c), "annual
compensation" means "compensation" as defined in paragraph (i) of
subsection (h) of Section 4.08, but including amounts contributed by
any member of the Controlled Group pursuant to a salary reduction
agreement which are excludable from gross income under Code ss. 125,
402(a)(8), 402(h) or 403(b).
(d) "Non-Key Employee" shall mean any Employee who is not a Key Employee.
(e) "Permissive Aggregation Group" shall mean the Required Aggregation Group plus any other plan or plans of a member of the Controlled Group which, when considered as a group with the Required Aggregation Group, would continue to satisfy the requirements of Code ss.ss. 401(a)(4) and 410.
(f) "Required Aggregation Group" shall mean a group of plans maintained by the Controlled Group comprised of (i) each qualified plan of the Controlled Group in which at least one Key Employee participates and (ii) any other qualified plan of the Controlled Group which enables a plan described in (i) above to meet the requirements of Code ss.ss. 401(a)(4) or 410.
(g) "Super Top-Heavy Plan" shall mean a plan as to which any of the following conditions exists:
(i) The Top-Heavy Ratio for the Plan exceeds ninety percent (90%) and the Plan is not part of a Required Aggregation Group or Permissive Aggregation Group;
(ii) The Plan is part of a Required Aggregation Group but not part of a Permissive Aggregation Group and the Top-Heavy Ratio for the group of plans exceeds ninety percent (90%); or
(iii) The plan is part of a Required Aggregation Group and a Permissive Aggregation Group and the Top-Heavy Ratio for the Permissive Aggregation Group exceeds ninety percent (90%).
(h) "Top-Heavy Plan" shall mean a plan as to which any of the following conditions exists:
(i) The Top-Heavy Ratio for the Plan exceeds sixty percent (60%) and the plan is not part of a Required Aggregation Group or Permissive Aggregation Group;
(ii) The plan is part of a Required Aggregation Group but not part of a Permissive Aggregation Group and the Top-Heavy Ratio for the group of plans exceeds sixty percent (60%); or
(iii) The plan is part of a Required Aggregation Group and a Permissive Aggregation Group and the Top-Heavy Ratio for the Permissive Aggregation Group exceeds sixty percent (60%).
(i) "Top Heavy Ratio" shall mean the ratio, as of the Determination Date, of the sum of the Benefit Amounts of all Key Employees to the sum of the Benefit Amounts of all Participants. The calculation of this ratio, and the extent to which distributions, rollovers and transfers are taken into account will be made in accordance with Code ss. 416 and the regulations thereunder. When aggregating plans, the value of account balances and accrued benefits will be calculated with reference to the Determination Dates that fall within the same calendar year. For purposes of determining the Top-Heavy Ratio of a Required Aggregation Group, the Benefit Amount of any individual shall also include any distributions made within the five (5) year period ending on the Determination Date under a terminated plan which if it had not been terminated, would have been included in the Required Aggregation Group. The Benefit Amount of any individual who has not performed an Hour of Service for any Employer maintaining the Plan at any time during the five (5) year period ending on the Determination Date shall not be taken into account when computing this ratio.
(j) "Valuation Date" shall mean the December 31, which falls within the 12-month period ending on the Determination Date.
11.03 Minimum Accrued Benefit.
(a) Minimum Benefit Amount. For any Plan Year in which this Plan is a Top-Heavy Plan, each Participant who is a Non-Key Employee and has completed one Hour of Service will accrue a benefit (to be provided solely by contributions by the Employer and expressed as a life annuity commencing at Normal Retirement Age) of not less than two percent (2%) of his or her highest average Compensation for the five consecutive years for which the Participant had the highest Compensation.
(b) Coordination with Other Plan Provisions. The minimum accrued benefit shall be determined without regard to Social Security contributions. The minimum accrual applies even though under other Plan provisions the Participant would not otherwise be entitled to receive an accrual, or would have received a lesser accrual for the year because (i) the Non-Key Employee's Compensation is less than a stated amount, (ii) the Non-Key Employee is not employed on the last day of the accrual computation period, or (iii) the Plan is integrated with Social Security.
(c) Limitation on Minimum Benefits. No additional benefit accruals shall be provided pursuant to (a) above to the extent that the total accruals on behalf of the Participant attributable to Contributions of the Employer will provide a benefit expressed as a life annuity commencing at Normal Retirement Age that equals or exceeds twenty percent (20%) of the Participant's highest average Compensation for the five consecutive years for which the Participant had the highest Compensation.
(d) No Duplication of Benefits. The minimum accrued benefit required by this Section shall be reduced (but not below zero) by the Accrued Benefit to which the Participant is otherwise entitled under this Plan determined without regard to this Section.
(e) Accrual Required During Suspension. The minimum benefit required under this Section shall not be subject to forfeiture on account of the reemployment of an Employee and suspension of his benefits in accordance with Code ss. 411(a)(3)(B) and ERISA ss. 203(a)(3)(B). If benefits are suspended during a period of reemployment, the benefit payable upon subsequent resumption of payments must be automatically increased to reflect the nonpayment of benefits during such period of reemployment.
11.04 Minimum Vesting. The following vesting schedule shall apply to all Accrued Benefits attributable to contributions of the Employer:
Years of Vested
Vesting Service Percentage
--------------- ----------
2 20%
3 40%
4 60%
5 or more 100%
|
The above schedule applies to all accrued benefits within the meaning of Code ss. 411(a)(7) including benefits accrued before the effective date of Code ss. 416 and benefits accrued before the Plan became a Top-Heavy Plan. However,
this schedule does not apply to the Accrued Benefits of any Employee who does not complete an Hour of Service after the Plan has initially become Top-Heavy.
11.05 Impact on Code ss. 415 Limitations. Sections 4.08(h)(ii) and
4.08(h)(iii) of the Plan shall be read by substituting "100%" for "125%"
wherever it appears therein. This substitution shall not have the effect of
reducing any benefit accrued under this Plan prior to the first day of the Plan
Year in which this provision becomes applicable. However, "100%" shall not be
so substituted for "125%" if the Plan is not a Super Top-Heavy Plan and if
Section 11.03(a) is applied by substituting "three percent (3%)" for "two
percent (2%)" and Section 11.03(c) is applied by substituting "thirty percent
(30%)" for "twenty percent (20%)."
11.06 Compensation Limitation. For any Plan Year beginning before January 1, 1989, in which this Plan is a Top-Heavy Plan, the Compensation of any Employee in excess of $200,000 (as adjusted pursuant to Code ss. 416(d)) shall not be taken into account under this Plan, as required by Treas. Reg. ss. 1.416-1(T-41, 42). However, this Section shall not be construed to cause a reduction or elimination of any Participant's Code ss. 411(d)(6) protected benefits (as defined in Treas. Reg. ss. 1.411(d)-4).
11.07 No Duplication of Benefits. If the Company or other member of the Controlled Group also maintains a defined contribution plan and both plans become Top-Heavy Plans, the minimum allocation provisions in this Article will not be required to be made to both plans. Thus, if both plans are Top-Heavy Plans, the requirements of this Article will be satisfied by providing the minimum required benefit under this defined benefit plan.
ARTICLE XII.
SPECIAL PROVISIONS REGARDING THE MERGER
OF THE STORCK BAKING COMPANY
PENSION PLAN WITH AND INTO THE PLAN
12.01 General Provisions. Effective as of January 1, 1997 (the "Storck Merger Effective Date"), the Storck Baking Company Pension Plan (the "Storck Plan") is merged with and into the Plan. The Plan shall, as of the Storck Merger Effective Date, assume all obligations of the Storck Plan under the terms and provisions of the Storck Plan for (i) employees of Storck Baking Company participating in the Storck Plan immediately prior to the Storck Merger Effective Date and (ii) former employees of Storck Baking Company and beneficiaries with vested accrued benefits under the Storck Plan immediately prior to the Storck Merger Effective Date. Such Participants and Beneficiaries shall, as of the Storck Merger Effective Date, automatically become Participants in the Plan, with respect to such accrued benefits only, and shall be referred to as "Storck Participants" herein. The Plan shall provide for payment of such vested accrued benefits pursuant to the provisions of the Plan subsequent to the Storck Merger Effective Date.
12.02 Transfer of Plan Assets. Effective as of the Storck Merger Effective Date, the assets of the Storck Plan shall become assets of the Plan, and shall be held by the Trustee under the provisions of the Plan and its accompanying Trust for the exclusive benefit of Participants and beneficiaries under the Plan, as amended by this Article.
12.03 Conditions for Merger and Transfer. The merger of plans and transfer of assets as provided for in this Article is made on the condition (as required by Code ss.ss. 401(a)(12) and 414(1), as amended) that each Participant in the Plan will (if the Plan then terminated) be entitled to receive a benefit immediately after the merger and transfer which is equal to or greater than the benefit he would have been entitled to receive immediately before the merger and transfer (if either plan had then terminated), in accordance with Section 12.04. A Storck Participant's accrued benefit under the Storck Plan immediately prior to the Storck Merger Effective Date shall be the Participant's "Storck Accrued Benefit."
12.04 Additional Optional Form of Benefit. Any Participant with a
Storck Accrued Benefit shall be entitled to elect, in addition to the optional
forms of benefit available under Article V, to have his Storck Accrued Benefit
distributed in one lump sum at the time he is otherwise entitled to payment
hereunder, if the Participant and the Participant's spouse consent in writing
to such distribution in accordance with paragraphs (ii) through (v) of Section
5.02(b), subject to the provisions of Section 5.04 and subsection (a) of
Section 5.02. Such lump sum shall be an amount which is the Actuarial
Equivalent of said Storck Accrued Benefit determined as of the Participant's
Annuity Starting Date.
12.05 Actuarial Equivalent Amounts. In determining an amount which is the Actuarial Equivalent of a Storck Accrued Benefit, for purposes of computing the amount of a benefit in the form of a Period Certain and Life Annuity with a 10 year period certain, a Joint and Survivor Annuity with continuation payments equal to 50% or 100% of the initial monthly payments, a
Life Annuity, or a Level Income Annuity, the following mortality and interest factors shall apply: the 1983 Group Annuity Mortality Table for males set back one year and 5% interest.
12.06 Vesting. Notwithstanding other provisions of Section 3.01(a) to the contrary, the extent to which a Participant's Storck Accrued Benefit shall be vested shall be determined in accordance with the provisions of the Storck Plan in effect at the time of the Participant's termination of employment if the Participant terminated from Storck Baking Company on or before December 31, 1988, and failed to complete at least one Hour of Service (as defined in Section 1.33(a)) with Storck Baking Company, or an Employer on or after January 1, 1989.
12.07 Vested Cash Values.
(a) Benefits Derived From Vested Cash Values. With respect to each Storck Participant who has a Vested Cash Value, the following benefit shall be payable:
(i) Disability Benefit. If a Storck Participant
becomes "totally and permanently disabled" as defined in
Section 12.07(d) below, he shall receive a pension benefit in
the Standard Form commencing on what otherwise would have
been his Normal Retirement Date equal to (i) an amount which
can be provided by his Vested Cash Value, and (ii) his Storck
Accrued Benefit reduced by the Actuarial Equivalent of the
monthly annuity in the Standard Form which could have been
purchased by the amount of his Vested Cash Value; provided,
however, that in lieu of any pension benefit described in (i)
above, any Storck Participant may elect at any time prior to
his Normal Retirement Date a lump sum cash payment equal to
his Vested Cash Value, in which event his monthly pension
benefit in the Standard Form shall be equal to the amount
described in (ii) above.
(ii) Death Benefit. If a Storck Participant for whom Sections 4.07(a) or 4.07(b) do not apply dies while in active employment, prior to his Normal, Early or Delayed Retirement Date, there shall be paid to the beneficiary last designated by him an amount equal to his Vested Cash Value. Upon the death of a Storck Participant prior to what would otherwise have been his Normal Retirement Date hereunder who has terminated his employment but has not elected a cash payment as provided in Section 12.07(a)(iii) prior to his date of death, there shall be paid to the "beneficiary" (as defined in Section 12.07(c)) last designated by him an amount equal to his Vested Cash Value.
(iii) Termination Benefit. Any Storck Participant who has completed 5 Years of Vesting Service on his termination date shall be entitled to a pension benefit in the Standard Form commencing on his Normal Retirement Date equal to (i) an amount which can be provided by this Vested Cash Value, if any, and (ii) his Storck Accrued Benefit reduced by the Actuarial Equivalent of the monthly annuity in the Standard Form which could have been purchased by the amount of his Vested Cash Value; provided, however, that in lieu of any pension benefit described in (i) above, any Storck Participant may elect at any time prior to his Normal Retirement Date a lump sum cash payment equal to his Vested Cash
Value in which event his monthly pension benefit in the Normal Form shall be equal to the amount described in (ii) above.
(b) "Vested Cash Value." "Vested Cash Value" shall mean the vested portion of the net cash value of certain individual policies held by the Trustees of the Storck Plan prior to January 31, 1973, for the benefit of certain Storck Participants, which values were transferred to New England Mutual Life Insurance Company for deposit under a group annuity policy, as described in Section 18.1 of the Storck Plan, as that plan was amended and restated effective as of January 1, 1989.
(c) "Beneficiary." For purposes of this Article XII, "beneficiary" shall mean the person or persons determined in accordance with Section 1.07 of the Plan; provided, however, that if, at any time no Beneficiary has been designated by a Storck Participant, or the designated Beneficiary is no longer living or no longer exists, whichever is applicable, then the Storck Participant's "beneficiary" for purposes of this Article XII shall be deemed to be the person or persons described below, in the following order of priority:
(i) the Participant's Spouse;
(ii) the Participant's natural and adopted children and children of deceased children, per stirpes;
(iii) the Participant's parents in equal shares;
(iv) the Participant's brothers and sisters, and nephews and nieces who are children of deceased brothers and sisters, per stirpes; and
(v) the Participant's estate.
(d) "Totally and permanently disabled." For purposes of
Section 12.07(a), a Storck Participant shall be considered to be
"totally and permanently disabled" if he is unable to engage in any
occupation or employment for wages or profit for which he is
reasonably qualified by training, education or experience.
12.08 Special Rule on Termination. Notwithstanding any other provision of this Plan, if the Plan is terminated within the 5-year period beginning on the Storck Merger Effective Date, then those benefits that would have been provided under the Storck Plan on a termination basis on December 31, 1996 shall be payable in a priority category higher than the highest priority category described in Section 10.05(a) of the Plan, to the extent provided in Treasury Regulations ss.ss. 1.414(l)-1(f) and (h).
ARTICLE XIII.
SPECIAL PROVISIONS REGARDING THE MERGER OF
THE SHIPLEY BAKING COMPANY DEFINED BENEFIT
PENSION PLAN AND TRUST WITH AND INTO THE PLAN
13.01 General Provisions. Effective as of December 31, 1998 (the "Shipley Merger Effective Date"), the Shipley Baking Company Defined Benefit Pension Plan and Trust (the "Shipley Plan") is merged with and into the Plan. The Plan shall, as of the Shipley Merger Effective Date, assume all obligations of the Shipley Plan under the terms and provisions of the Shipley Plan for (i) employees of Shipley Baking Company participating in the Shipley Plan immediately prior to the Shipley Merger Effective Date and (ii) former employees of Shipley Baking Company and beneficiaries with vested accrued benefits under the Shipley Plan immediately prior to the Shipley Merger Effective Date. Such Participants and Beneficiaries shall, as of the Shipley Merger Effective Date, automatically become Participants in the Plan, with respect to such accrued benefits only, and shall be referred to as "Shipley Participants" herein. The Plan shall provide for payment of such vested accrued benefits pursuant to the provisions of the Plan subsequent to the Shipley Merger Effective Date.
13.02 Transfer of Plan Assets. Effective as of the Shipley Merger Effective Date, the assets of the Shipley Plan shall become assets of the Plan, and shall be held by the Trustee under the provisions of the Plan and its accompanying Trust for the exclusive benefit of Participants and beneficiaries under the Plan, as amended by this Article.
13.03 Conditions for Merger and Transfer. The merger of plans and transfer of assets as provided for in this Article is made on the condition (as required by Code ss.ss. 401(a)(12) and 414(1), as amended) that each Participant in the Plan will (if the Plan then terminated) be entitled to receive a benefit immediately after the merger and transfer which is equal to or greater than the benefit he would have been entitled to receive immediately before the merger and transfer (if either plan had then terminated), in accordance with Section 13.04. A Shipley Participant's accrued benefit under the Shipley Plan immediately prior to the Shipley Merger Effective Date shall be the Participant's "Shipley Accrued Benefit."
13.04 Additional Optional Form of Benefit. Any Participant with a
Shipley Accrued Benefit shall be entitled to elect, in addition to the optional
forms of benefit available under Article V, to have his Shipley Accrued Benefit
distributed in one lump sum at the time he is otherwise entitled to payment
hereunder, if the Participant and the Participant's spouse consent in writing
to such distribution in accordance with paragraphs (ii) through (v) of Section
5.02(b), subject to the provisions of Section 5.04 and subsection (a) of
Section 5.02. Such lump sum shall be an amount which is the Actuarial
Equivalent of said Shipley Accrued Benefit determined as of the Participant's
Annuity Starting Date.
13.05 Actuarial Equivalent Amounts. In determining an amount which is the Actuarial Equivalent of a Shipley Accrued Benefit, for purposes of computing the amount of a benefit in the form of a Joint and Survivor Annuity with continuation payments equal to 50%, 75% or 100% of the initial monthly payments, or a Life Annuity, the following mortality and interest factors shall apply:
(a) Mortality Table
(i) Pre-retirement: none.
(ii) Post-retirement: UP - 1984.
(b) Interest Rate: 8%.
In determining an amount which is the Actuarial Equivalent of a Shipley Accrued Benefit, for purposes of computing the amount of a benefit in the form of a lump sum distribution, the mortality and interest factors that shall apply are either the factors set forth above in this Section 13.05, or the factors described in the second sentence of Section 1.03 of the Plan, whichever factors produce the largest lump sum amount.
13.06 Vesting. Notwithstanding other provisions of Section 3.01(a) to the contrary, the extent to which a Participant's Shipley Accrued Benefit shall be vested shall be determined in accordance with the provisions of the Shipley Plan in effect at the time of the Participant's termination of employment if the Participant terminated from Shipley Baking Company on or before December 31, 1998, and failed to complete at least one Hour of Service (as defined in Section 1.33(a)) with Shipley Baking Company, or an Employer on or after January 1, 1999. In the case of a Shipley Participant who is credited with at least one Hour of Service (as defined in Section 1.33(a)) with Shipley Baking Company or an Employer on or after January 1, 1999, such a Participant shall be vested in a percentage of his or her Shipley Accrued Benefit determined in accordance with the following table:
Years of Vesting Service Vested Percentage ------------------------ ----------------- Less than 3 0% 3 20% 4 40% 5 or more 100% |
For purposes of this section, the "Years of Vesting Service" of a Shipley Participant as of December 31, 1998 shall be equal to the number of "Years of Service" as of that date, determined in accordance with the terms of the Shipley Plan.
13.07 Special Rule on Termination. Notwithstanding any other provision of this Plan, if the Plan is terminated within the 5-year period beginning on the Shipley Merger Effective Date, then those benefits that would have been provided under the Shipley Plan on a termination basis on December 31, 1998 shall be payable in a priority category higher than the highest priority category described in Section 10.05(a) of the Plan, to the extent provided in Treasury Regulations ss.ss. 1.414(l)-1(f) and (h).
13.08 Employee Contribution Accounts.
(a) Shipley Voluntary Contribution Accounts. Any Shipley Participant who had a "Voluntary Contribution Account" under the Shipley Plan as of the day prior to the Shipley Merger Effective Date shall have a Shipley Voluntary Contribution Account
under this Plan as of the Shipley Merger Effective Date. The Shipley Voluntary Contribution Account shall be credited with interest at a rate of interest equal to 120% of the federal mid-term rate, as in effect under Code ss. 1274 on the first month of a plan year. The balance in the Shipley Voluntary Contribution Account shall be fully (100%) vested at all times.
(b) Shipley Required Contribution Accounts. Any Shipley Participant who had a Required Contribution Account under the Shipley Plan as of the day prior to the Shipley Merger Effective Date shall have a Shipley Required Contribution Account under this Plan as of the Shipley Merger Effective Date. The Shipley Required Contribution Account shall be credited with interest at a rate of interest equal to 120% of the federal mid-term rate, as in effect under Code ss. 1274 on the first month of a plan year. The balance in the Shipley Required Contribution Account shall be fully (100%) vested at all times.
(c) Shipley Voluntary Contribution Account - Withdrawals. A Participant (or his or her beneficiary) may, on prior written notice to the Plan Administrator, on a form provided for that purpose by the Plan Administrator, withdraw all or any part of the balance of his or her Shipley Voluntary Contribution Account. Such a distribution shall be in one of the forms specified in Sections 5.02 and 5.03, and generally shall be subject to the provisions of Article V. Such withdrawal shall have no effect on a Participant's Shipley Accrued Benefit.
(d) Shipley Required Contribution Account - Withdrawals. A Participant (or his or her Beneficiary) may, on 30 days' prior written notice to the Plan Administrator, withdraw all or part of the balance of his Shipley Required Contribution Account in the Trust Fund at any time. Such withdrawal shall have no effect on a Participant's Shipley Accrued Benefit. Any such distribution shall be in one of the forms specified in Sections 5.02 and 5.03, and generally shall be subject to the provisions of Article V.
IN WITNESS WHEREOF, this Plan has been executed by the Company and its corporate seal attached hereto this ____ day of ________________________, 2001.
FLOWERS FOODS, INC.
APPENDIX B
ADDITIONAL RETIREMENT BENEFITS
Pursuant to this Appendix B, the following list of Participants, identified by Social Security Number, shall be entitled to receive the corresponding Additional Retirement Benefits, in accordance with the terms and conditions set forth in Section 1.37(g) of the Plan:
====================================== ====================================
Annual Additional Retirement
Social Security Number Benefit
-------------------------------------- ------------------------------------
000-00-0000 35,870
-------------------------------------- ------------------------------------
000-00-0000 12,498
-------------------------------------- ------------------------------------
000-00-0000 4,230
-------------------------------------- ------------------------------------
000-00-0000 3,282
-------------------------------------- ------------------------------------
000-00-0000 200
-------------------------------------- ------------------------------------
000-00-0000 570
-------------------------------------- ------------------------------------
000-00-0000 3,067
-------------------------------------- ------------------------------------
000-00-0000 12,878
-------------------------------------- ------------------------------------
000-00-0000 1,996
-------------------------------------- ------------------------------------
000-00-0000 177
-------------------------------------- ------------------------------------
000-00-0000 1,689
-------------------------------------- ------------------------------------
000-00-0000 38,817
-------------------------------------- ------------------------------------
000-00-0000 580
-------------------------------------- ------------------------------------
000-00-0000 3,282
-------------------------------------- ------------------------------------
000-00-0000 398
-------------------------------------- ------------------------------------
000-00-0000 1,624
-------------------------------------- ------------------------------------
000-00-0000 49
-------------------------------------- ------------------------------------
000-00-0000 20,511
-------------------------------------- ------------------------------------
000-00-0000 479
-------------------------------------- ------------------------------------
000-00-0000 313
-------------------------------------- ------------------------------------
000-00-0000 419
-------------------------------------- ------------------------------------
000-00-0000 423
-------------------------------------- ------------------------------------
000-00-0000 15
-------------------------------------- ------------------------------------
000-00-0000 2,172
-------------------------------------- ------------------------------------
|
====================================== ====================================
Annual Additional Retirement
Social Security Number Benefit
-------------------------------------- ------------------------------------
000-00-0000 540
-------------------------------------- ------------------------------------
000-00-0000 16,174
-------------------------------------- ------------------------------------
000-00-0000 98
-------------------------------------- ------------------------------------
000-00-0000 175
-------------------------------------- ------------------------------------
000-00-0000 21,810
-------------------------------------- ------------------------------------
000-00-0000 308
-------------------------------------- ------------------------------------
000-00-0000 188
-------------------------------------- ------------------------------------
000-00-0000 497
-------------------------------------- ------------------------------------
000-00-0000 392
-------------------------------------- ------------------------------------
000-00-0000 245
-------------------------------------- ------------------------------------
000-00-0000 3,067
====================================== ====================================
|
The criteria used to determine the group of Participants eligible for, and the
amount of, the Additional Retirement Benefits shall comply with all of the
provisions of the Code, including without limitation Code ss.ss. 401(a)(4),
410(b), and 415.
EXHIBIT 10.4
FLOWERS FOODS, INC.
2001 EQUITY AND
PERFORMANCE INCENTIVE PLAN
FLOWERS FOODS, INC.
2001 EQUITY AND PERFORMANCE INCENTIVE PLAN
TABLE OF CONTENTS
Page
----
1. Purpose..................................................... 1
2. Definitions................................................. 1
3. Stock Available Under the Plan.............................. 4
4. Eligibility................................................. 5
5. Option Rights............................................... 5
6. Restricted Stock............................................ 7
7. Deferred Stock.............................................. 8
8. Performance Stock and Performance Units..................... 9
9. Awards to Nonemployee Directors............................. 10
10. Transferability............................................. 11
11. Adjustments................................................. 11
12. Change in Control........................................... 12
13. Deferrals................................................... 13
14. Fractional Shares........................................... 13
15. Withholding Taxes........................................... 13
16. Foreign Employees........................................... 14
17. Administration of the Plan.................................. 14
18. Amendments, Etc............................................. 15
19. General Provisions.......................................... 15
20. Unfunded Plan............................................... 16
21. Effective Date.............................................. 16
22. Governing Law............................................... 16
23. Termination................................................. 16
24. Exclusion from Certain Restrictions......................... 16
|
FLOWERS FOODS, INC.
2001 EQUITY AND PERFORMANCE INCENTIVE PLAN
1. PURPOSE. The purpose of the 2001 Equity and Performance Incentive Plan is to attract and retain directors, officers and other key employees for Flowers Foods, Inc., a Georgia corporation and its Subsidiaries and to strengthen the mutuality of interests between such key persons and the Company's shareholders by offering performance and equity-based incentives and rewards for superior performance.
2. DEFINITIONS. As used in this Plan,
"BOARD" means the Board of Directors of the Company and, to the extent of any delegation by the Board to a committee (or subcommittee thereof) pursuant to Section 17 of this Plan, such committee (or subcommittee).
"CHANGE IN CONTROL" shall have the meaning provided in Section 12 of this Plan.
"CODE" means the Internal Revenue Code of 1986, as amended from time to time.
"COMMITTEE" means the Compensation Committee of the Board, which shall consist of a committee of two (2) or more Nonemployee Directors appointed by the Board to exercise one or more administrative functions under the Plan.
"COMMON STOCK" means the common stock, par value $.01 per share, of the Company or any security into which such Common Stock may be changed by reason of any transaction or event of the type referred to in Section 11 of this Plan.
"COMPANY" means Flowers Foods, Inc., a Georgia corporation.
"COVERED EMPLOYEE" means a Participant who is, or is determined by the Board to be likely to become, a "covered employee" within the meaning of Section 162(m) of the Code (or any successor provision).
"DATE OF GRANT" means the date specified by the Board on which a grant of Option Rights, Performance Stock or Performance Units or a grant or sale of Restricted Stock or Deferred Stock shall become effective which date shall not be earlier than the date on which the Board takes action with respect thereto.
"DEFERRAL PERIOD" means the period of time during which Deferred Stock is subject to deferral limitations under Section 7 of this Plan.
"DEFERRED STOCK" means an award made pursuant to Section 7 of this Plan of the right to receive Common Stock at the end of a specified Deferral Period.
"DIRECTOR" means a member of the Board of Directors of the Company.
"DISABILITY" means disability as determined under procedures established by the Committee for purposes of this Plan.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder, as such law, rules and regulations may be amended from time to time.
"FAIR MARKET VALUE" means (i) the average of the highest and the lowest quoted selling price of a share of Common Stock as reported on the composite tape for securities listed on the New York Stock Exchange, or such other national securities exchange as may be designated by the Committee, or, in the event that the Common Stock is not listed for trading on a national securities exchange but is quoted on an automated system, on such automated system, in any such case on the valuation date (or, if there were no sales on the valuation date, the average of the highest and the lowest quoted selling prices as reported on said composite tape or automated system for the most recent day during which a sale occurred), or (ii), if clause (i) does not apply, the fair market value of the Common Stock as determined by the Board. Notwithstanding the foregoing, for purposes of determining Fair Market Value for grants made during the period March 26 through April 5, 2001, the value determined according to (i) above shall be averaged for the first twenty (20) trading days commencing on the date of said grant.
"IMMEDIATE FAMILY" has the meaning ascribed thereto in Rule 16a-1(e) under the Exchange Act (or any successor rule to the same effect) as in effect from time to time.
"INCENTIVE STOCK OPTIONS" means Option Rights that are intended to qualify as "incentive stock options" under Section 422 of the Code or any successor provision.
"MANAGEMENT OBJECTIVES" means the measurable performance objective or objectives established pursuant to this Plan for Participants who have received grants of Performance Stock or Performance Units or, when so determined by the Board, Option Rights, Restricted Stock and dividend credits pursuant to this Plan. Management Objectives may be described in terms of Company-wide objectives or objectives that are related to the performance of the individual Participant or of the Subsidiary, division, department, region or function within the Company or Subsidiary in which the Participant is employed. The Management Objectives may be made relative to the performance of other corporations. The Management Objectives applicable to any award to a Covered Employee shall be based on specified levels of or growth in one or more of the following criteria:
1. cash flow; 2. earnings per share; 3. earnings before interest and taxes; 4. earnings per share growth; 5. net income; 6. return on assets; 7. return on assets employed; 8. return on equity; 9. return on invested capital; 10. return on total capital; 11. revenue growth; 12. stock price; |
13. total return to shareholders; 14. economic value added; and 15. operating profit growth; or |
any combination of the foregoing.
If the Committee determines that a change in the business,
operations, corporate structure or capital structure of the Company, or the
manner in which it conducts its business, or other events or circumstances
render the Management Objectives unsuitable, the Committee may in its discretion
modify such Management Objectives or the related minimum acceptable level of
achievement, in whole or in part, as the Committee deems appropriate and
equitable, except in the case of a Covered Employee where such action would
result in the loss of the otherwise available exemption of the award under
Section 162(m) of the Code. In such case, the Committee shall not make any
modification of the Management Objectives or minimum acceptable level of
achievement.
"NONEMPLOYEE DIRECTOR" means a Director who is not an employee of the Company or any Subsidiary.
"NONQUALIFIED OPTIONS" mean Option Rights that are not intended to qualify as Incentive Stock Options.
"OPTIONEE" means the optionee named in an agreement evidencing an outstanding Option Right.
"OPTION PRICE" means the purchase price payable on exercise of an Option Right.
"OPTION RIGHT" means the right to purchase Common Stock upon exercise of an option granted pursuant to Section 5 or Section 9 of this Plan.
"PARTICIPANT" means a person who is selected by the Board to receive benefits under this Plan and who is at the time an officer or other key employee of the Company or any one or more of its Subsidiaries, or who has agreed to commence serving in any of such capacities within thirty (30) days of the Date of Grant, and shall also include each Nonemployee Director who receives an award of Option Rights or Restricted Stock.
"PERFORMANCE PERIOD" means, in respect of Performance Stock or a Performance Unit, a period of time established pursuant to Section 8 of this Plan within which the Management Objectives relating to such Performance Stock or Performance Unit are to be achieved.
"PERFORMANCE STOCK" means a bookkeeping entry that records the equivalent of one Common Stock awarded pursuant to Section 8 of this Plan.
"PERFORMANCE UNIT" means a bookkeeping entry that records a unit equivalent to $1.00 awarded pursuant to Section 8 of this Plan.
"PLAN" means this Flowers Foods, Inc. 2001 Equity and Performance Incentive Plan.
"RESTRICTED STOCK" means shares of Common Stock granted or sold pursuant to Section 6 or Section 9 of this Plan as to which neither the substantial risk of forfeiture nor the prohibition on transfers referred to in such Section 6 has expired.
"RETIREMENT" means termination of employment on or after attainment of age 65.
"SPREAD" means the excess of the Fair Market Value per share on the date when Option Rights are surrendered in payment of the Option Price of other Option Rights, over the Option Price.
"SUBSIDIARY" means a corporation, company or other entity
(i) more than fifty percent (50%) of whose outstanding shares or securities (representing the right to vote for the election of directors or other managing authority) are, or
(ii) which does not have outstanding shares or securities (as may be the case in a partnership, joint venture or unincorporated association), but more than fifty percent (50%) of whose ownership interest representing the right generally to make decisions for such other entity is,
now or hereafter, owned or controlled, directly or indirectly, by the Company. Notwithstanding the foregoing, for purposes of determining whether any person may be a Participant for purposes of any grant of Incentive Stock Options, "Subsidiary" means any corporation in which, at the time, the Company owns or controls, directly or indirectly, more than fifty percent (50%) of the total combined voting power represented by all classes of stock issued by such corporation.
3. STOCK AVAILABLE UNDER THE PLAN.
(a) Subject to adjustment as provided in Section 3(b) and
Section 11 of this Plan, the number of shares of Common Stock that may be issued
or transferred (i) upon the exercise of Option Rights, (ii) as Restricted Stock
and released from substantial risks of forfeiture thereof, (iii) as Deferred
Stock, (iv) in payment of Performance Stock or Performance Units that have been
earned, (v) as awards to Nonemployee Directors or (vi) in payment of dividend
equivalents paid with respect to awards made under the Plan shall not exceed in
the aggregate 2,000,000 shares of Common Stock, plus any shares described in
Section 3(b). Such shares may be shares of original issuance or treasury shares
or a combination of the foregoing.
(b) The number of shares available in Section 3(a) above shall be adjusted to account for shares relating to awards that expire, are forfeited or are transferred, surrendered or relinquished upon the payment of any Option Price by the transfer to the Company of shares of Common Stock or upon satisfaction of any withholding amount. Upon payment in cash of the benefit provided by any award granted under this Plan, any shares that were covered by that award shall again be available for issue or transfer hereunder.
(c) Notwithstanding anything in this Section 3, or
elsewhere in this Plan, to the contrary and subject to adjustment as provided in
Section 11 of this Plan,
(i) the aggregate number of shares of Common Stock actually issued or transferred by the Company upon the exercise of Incentive Stock Options shall not exceed 2,000,000 shares of Common Stock;
(ii) no Participant shall be granted Option Rights, in the aggregate, for more than 1,000,000 shares of Common Stock during any period of three (3) consecutive years;
(iii) the number of shares issued as Restricted Stock, Deferred Stock or Performance Stock shall not in the aggregate exceed 1,000,000 shares of Common Stock;
(iv) during any period of three (3) consecutive fiscal years, the maximum number of shares of Common Stock covered by awards of Restricted Stock, Deferred Stock or Performance Stock granted to any one Participant shall not exceed 500,000 shares of Common Stock; and
(v) no Nonemployee Director shall be granted Option Rights and Restricted Stock, in the aggregate, for more than 50,000 shares of Common Stock during any fiscal year of the Company.
(d) Notwithstanding any other provision of this Plan to the contrary, in no event shall any Participant in any one (1) calendar year receive an award of Performance Stock and Performance Units having an aggregate maximum value as of their respective Dates of Grant in excess of $5,000,000.
4. ELIGIBILITY. The Board shall have full authority and the absolute discretion to determine which Participants are to receive an award of Option Rights, Restricted Stock, Deferred Stock, Performance Stock or Performance Units, the time or times when those grants are to be made, the number of shares of Common Stock to be covered by each such grant in the case of Option Rights, Restricted Stock, Deferred Stock and Performance Stock, the status of the granted option as either an Incentive Stock Option or a Nonqualified Option in the case of an Option Right, the time or times when each Option Right is to become exercisable, the maximum term for which the Option Right is to remain outstanding and the vesting schedule (if any) applicable to the awards granted under this Plan.
5. OPTION RIGHTS. The Board may, from time to time and upon such terms and conditions as it may determine, authorize the granting to Participants of options to purchase Common Stock. Each such grant may utilize any or all of the authorizations, and shall be subject to all of the requirements contained in the following provisions:
(a) Each grant shall specify the number of shares of
Common Stock to which it pertains subject to the limitations set forth in
Section 3 of this Plan.
(b) Each grant shall specify an Option Price per share, which may not be less than the Fair Market Value per share on the Date of Grant. To the extent required for "Incentive Stock Option" status under Section 422 of the Code, the aggregate Fair Market Value (determined as of the Date of Grant) of the Common Stock with respect to which Incentive Stock Options are exercisable for the first time by the Optionee during any calendar year under the Plan
and/or any other stock option plan of the Company (within the meaning of Section 422 of the Code) shall not exceed $100,000.
(c) Each grant shall specify whether the Option Price shall be payable (i) in cash, by check or other consideration acceptable to the Company, (ii) by the actual or constructive transfer to the Company of shares of Common Stock owned by the Optionee for at least six (6) months (or other consideration authorized pursuant to Section 5(d)) having a value at the time of exercise equal to the total Option Price, or (iii) by a combination of such methods of payment.
(d) The Board may determine, at or after the Date of Grant, that payment of the Option Price of any Option Right (other than an Incentive Stock Option) may also be made in whole or in part in the form of Restricted Stock or other Common Stock that are forfeitable or subject to restrictions on transfer, Deferred Stock, Performance Stock (based, in each case, on the Fair Market Value per share on the date of exercise), other Option Rights (based on the Spread on the date of exercise) or Performance Units. Unless otherwise determined by the Board at or after the Date of Grant, whenever any Option Price is paid in whole or in part by means of any of the forms of consideration specified in this Section 5(d), the shares of Common Stock received upon the exercise of the Option Rights shall be subject to such risks of forfeiture or restrictions on transfer as may correspond to any that apply to the consideration surrendered, but only to the extent, determined with respect to the consideration surrendered, of (i) the number of shares of Performance Stock, (ii) the Spread of any unexercisable portion of Option Rights, or (iii) the stated value of Performance Units.
(e) Any grant may provide for deferred payment of the Option Price from the proceeds of sale through a bank or broker on a date satisfactory to the Company of some or all of the shares to which such exercise relates.
(f) Any grant may provide for payment of the Option Price, at the election of the Optionee, in installments, with or without interest, upon terms determined by the Board.
(g) Successive grants may be made to the same Participant whether or not any Option Rights previously granted to such Participant remain unexercised.
(h) Each grant shall specify the period or periods of continuous service by the Optionee with the Company or any Subsidiary that is necessary before the Option Rights or installments thereof will become exercisable and may provide for the earlier exercise of such Option Rights in the event of a Change in Control or in the event of Retirement, Disability or death of the Participant.
(i) Any grant of Option Rights may specify Management Objectives that must be achieved as a condition to the exercise of such rights.
(j) Option Rights granted under this Plan may be (i) Incentive Stock Options, (ii) Nonqualified Options, or (iii) combinations of the foregoing.
(k) The Board may, at or after the Date of Grant of any Option Rights (other than Incentive Stock Options), provide for the payment of dividend equivalents to the Optionee
on either a current or deferred or contingent basis or may provide that such equivalents shall be credited against the Option Price.
(l) No Option Right shall be exercisable more than ten
(10) years from the Date of Grant.
(m) An Optionee may exercise an Option Right in whole or in part at any time and from time to time during the period within which an Option Right may be exercised and for such number of shares of Common Stock as shall be determined by the Board and set forth in the agreements evidencing the grant of such Option Right. To exercise an Option Right, an Optionee shall give written notice to the Company specifying the number of shares of Common Stock to be purchased and provide payment of the Option Price and any other documentation that may be required by the Company.
(n) Each grant of Option Rights shall be evidenced by an agreement executed on behalf of the Company by an officer and delivered to the Optionee and containing such terms and provisions, consistent with this Plan, as the Board may approve.
6. RESTRICTED STOCK. The Board may also authorize the grant or sale of Restricted Stock to Participants. Each grant or sale of Restricted Stock may utilize any or all of the authorizations, and shall be subject to all of the requirements, contained in the following provisions:
(a) Each such grant or sale shall constitute an immediate transfer of the ownership of shares of Common Stock to the Participant in consideration of the performance of services, entitling such Participant to voting, dividend and other ownership rights, but subject to the substantial risk of forfeiture and restrictions on transfer hereinafter referred to.
(b) Each such grant or sale may be made without additional consideration or in consideration of a payment by such Participant that is less than Fair Market Value per share at the Date of Grant.
(c) Each such grant or sale shall provide that the Restricted Stock covered by such grant or sale shall be subject to a "substantial risk of forfeiture" within the meaning of Section 83 of the Code for a period of not less than three (3) years to be determined by the Board at the Date of Grant and may provide for the earlier lapse of such substantial risk of forfeiture in the event of a Change in Control, or in the event of Retirement, Disability or death of the Participant. If the Board conditions the nonforfeitability of Restricted Stock upon service alone, such vesting may not occur before three (3) years from the Date of Grant of such Restricted Stock, and if the Board conditions the nonforfeitability of Restricted Stock on Management Objectives, such nonforfeitability may not occur before one (1) year from the Date of Grant of such Restricted Stock.
(d) Each such grant or sale shall provide that during the period for which such substantial risk of forfeiture is to continue, the transferability of the Restricted Stock shall be prohibited or restricted in the manner and to the extent prescribed by the Board at the Date of Grant (which restrictions may include, without limitation, rights of repurchase or first refusal in the Company or provisions subjecting the Restricted Stock to a continuing substantial risk of forfeiture in the hands of any transferee).
(e) Any grant of Restricted Stock may specify that termination or early termination of the restrictions applicable to such shares may occur (i) upon achievement of Management Objectives or (ii) upon the expiration of a stated period of time, with or without the payment of additional consideration by the participant at said time. Each grant may specify in respect of such Management Objectives a minimum acceptable level of achievement and may set forth a formula for determining the number of shares of Restricted Stock on which restrictions will terminate if performance is at or above the minimum level, but falls short of full achievement of the specified Management Objectives.
(f) Any such grant or sale of Restricted Stock may require that any or all dividends or other distributions paid thereon during the period of such restrictions be automatically deferred and reinvested in additional Restricted Stock, which may be subject to the same restrictions as the underlying award.
(g) Each grant or sale of Restricted Stock shall be evidenced by an agreement executed on behalf of the Company by any officer and delivered to and accepted by the Participant and shall contain such terms and provisions, consistent with this Plan, as the Board may approve. Unless otherwise directed by the Board, all certificates representing shares of Restricted Stock shall be held in custody by the Company until all restrictions thereon shall have lapsed, together with a stock power or powers executed by the Participant in whose name such certificates are registered, endorsed in blank and covering such Restricted Stock.
7. DEFERRED STOCK. The Board may also authorize the granting or sale of Deferred Stock to Participants. Each grant or sale of Deferred Stock may utilize any or all of the authorizations, and shall be subject to all of the requirements contained in the following provisions:
(a) Each such grant or sale shall constitute the agreement by the Company to deliver shares of Common Stock to the Participant in the future in consideration of the performance of services, but subject to the fulfillment of such conditions during the Deferral Period as the Board may specify.
(b) Each such grant or sale may be made without additional consideration or in consideration of a payment by such Participant that is less than the Fair Market Value per share at the Date of Grant.
(c) Each such grant or sale shall be subject to a Deferral Period of not less than one (1) year, as determined by the Board at the Date of Grant, and may provide for the earlier lapse or other modification of such Deferral Period in the event of a Change in Control, or in the event of Retirement, Disability or death of the Participant. If the Board conditions the nonforfeitability of shares of Deferred Stock upon service alone, such vesting may not occur before three (3) years from the Date of Grant of such shares of Deferred Stock, and if the Board conditions the nonforfeitability of shares of Deferred Stock on Management Objectives, such nonforfeitability may not occur before one (1) year from the Date of Grant of such shares of Deferred Stock.
(d) During the Deferral Period, the Participant shall have no right to transfer any rights under his or her award and shall have no rights of ownership in the Deferred Stock and shall have no right to vote them, but the Board may, at or after the Date of Grant, authorize the payment of dividend equivalents on such shares of Deferred Stock on either a current or deferred or contingent basis, either in cash or in additional Common Stock.
(e) Each grant or sale of Deferred Stock shall be evidenced by an agreement executed on behalf of the Company by any officer and delivered to and accepted by the Participant and shall contain such terms and provisions, consistent with this Plan, as the Board may approve.
8. PERFORMANCE STOCK AND PERFORMANCE UNITS. The Board may also authorize the granting of Performance Stock and Performance Units that will become payable to a Participant upon achievement of specified Management Objectives. Each such grant may utilize any or all of the authorizations, and shall be subject to all of the requirements, contained in the following provisions:
(a) Each grant shall specify the number of shares of Performance Stock or Performance Units to which it pertains, which number may be subject to adjustment to reflect changes in compensation or other factors; provided, however, that no such adjustment shall be made in the case of a Covered Employee where such action would result in the loss of the otherwise available exemption of the award under Section 162(m) of the Code.
(b) The Performance Period with respect to each Performance Share or Performance Unit shall be such period of time not less than one (1) year, commencing with the Date of Grant as shall be determined by the Board at the time of grant which may be subject to earlier lapse or other modification in the event of a Change in Control or in the event of Retirement, Disability or death of the Participant.
(c) Any grant of Performance Stock or Performance Units shall specify Management Objectives which, if achieved, will result in payment or early payment of the award, and each grant may specify in respect of such specified Management Objectives a minimum acceptable level of achievement and shall set forth a formula for determining the number of shares of Performance Stock or Performance Units that will be earned if performance is at or above the minimum level, but falls short of full achievement of the specified Management Objectives. The grant of Performance Stock or Performance Units shall specify that, before the Performance Stock or Performance Units shall be earned and paid, the Board must certify that the Management Objectives have been satisfied.
(d) Each grant shall specify the time and manner of payment of shares of Performance Stock or Performance Units that have been earned. Any grant may specify that the amount payable with respect thereto may be paid by the Company in cash, in shares of Common Stock or in any combination thereof and may either grant to the Participant or retain in the Board the right to elect among those alternatives.
(e) Any grant of Performance Stock may specify that the amount payable with respect thereto may not exceed a maximum specified by the Board at the Date of Grant. Any grant of Performance Units may specify that the amount payable or the number of shares of
Common Stock issued with respect thereto may not exceed maximums specified by the Board at the Date of Grant.
(f) The Board may, at or after the Date of Grant of Performance Stock, provide for the payment of dividend equivalents to the holder thereof on either a current or deferred or contingent basis, either in cash or in additional shares of Common Stock.
(g) Each grant of Performance Stock or Performance Units shall be evidenced by an agreement executed on behalf of the Company by any officer and delivered to and accepted by the Participant, which agreement shall state that such shares of Performance Stock or Performance Units are subject to all the terms and conditions of this Plan, and contain such other terms and provisions, consistent with this Plan, as the Board may approve.
9. AWARDS TO NONEMPLOYEE DIRECTORS. The Board may, from time to time and upon such terms and conditions as it may determine, authorize the granting to Nonemployee Directors of Option Rights and may also authorize the grant or sale of Restricted Stock to Nonemployee Directors.
(a) Each grant of Option Rights awarded pursuant to this
Section 9 shall be upon terms and conditions consistent with Section 5 of this
Plan and shall be evidenced by an agreement in such form as shall be approved by
the Board. Each grant shall specify an Option Price per share, which shall not
be less than the Fair Market Value per share on the Date of Grant. Each such
Option Right granted under the Plan shall expire not more than ten (10) years
from the Date of Grant and shall be subject to earlier termination as
hereinafter provided. Unless otherwise determined by the Board, such Option
Rights shall be subject to the following additional terms and conditions:
(i) Each grant shall specify the number of shares of Common Stock to which it pertains subject to the limitations set forth in Section 3 of this Plan.
(ii) Each such Option Right shall become exercisable six (6) months after the Date of Grant. Such grant may provide for the earlier exercise of such Option Rights in the event of a Change in Control or in the event of Retirement, Disability or death of the Nonemployee Director.
(iii) In the event of the termination of service
on the Board by the holder of any such Option Rights, other than by
reason of Retirement, Disability, or death, the then outstanding Option
Rights of such holder may be exercised to the extent that they would be
exercisable on the date of such termination until the date that is one
(1) year after the date of such termination, but in no event after the
expiration date of such Option Rights.
(iv) In the event of the Retirement, Disability, or death of the holder of any such Option Rights, each of the then outstanding Option Rights of such holder may be exercised at any time within one (1) year after such Retirement Disability, death, or, but in no event after the expiration date of the term of such Option Rights.
(v) If a Nonemployee Director subsequently becomes an employee of the Company or a Subsidiary while remaining a member of the Board, any Option Rights
held under the Plan by such individual at the time of such commencement of employment shall not be affected thereby.
(vi) Option Rights may be exercised by a Nonemployee Director only upon payment to the Company in full of the Option Price of the shares of Common Stock to be delivered. Such payment shall be made in cash or in shares of Common Stock then owned by the Optionee for at least six (6) months, or in a combination of cash and such shares of Common Stock.
(b) Each grant or sale of Restricted Stock pursuant to this Section 9 shall be upon terms and conditions consistent with Section 6 of this Plan.
10. TRANSFERABILITY(a). Except as otherwise determined by the Board, no Option Right or other derivative security granted under the Plan shall be transferable by a Participant other than by will or the laws of descent and distribution. Except as otherwise determined by the Board, Option Rights shall be exercisable during the Optionee's lifetime only by him or her or by his or her guardian or legal representative.
(b) The Board may specify at the Date of Grant that part
or all of the shares of Common Stock that are (i) to be issued or transferred by
the Company upon the exercise of Option Rights, upon the termination of the
Deferral Period applicable to Deferred Stock or upon payment under any grant of
Performance Stock or Performance Units or (ii) no longer subject to the
substantial risk of forfeiture and restrictions on transfer referred to in
Section 6 of this Plan, shall be subject to further restrictions on transfer.
(c) Notwithstanding the provisions of Section 10(a), Option Rights (other than Incentive Stock Options) shall be transferable by a Participant, without payment of consideration therefor by the transferee, to any one or more members of the Participant's Immediate Family (or to one or more trusts established solely for the benefit of one or more members of the Participant's Immediate Family or to one or more partnerships in which the only partners are members of the Participant's Immediate Family); provided, however, that (i) no such transfer shall be effective unless reasonable prior notice thereof is delivered to the Company and such transfer is thereafter effected in accordance with any terms and conditions that shall have been made applicable thereto by the Company or the Board and (ii) any such transferee shall be subject to the same terms and conditions hereunder as the Participant.
11. ADJUSTMENTS. The Board may make or provide for such adjustments in the numbers of shares of Common Stock covered by outstanding Option Rights, Deferred Stock, and Performance Stock granted hereunder, in the Option Price, and in the kind of shares covered thereby, as the Board, in its sole discretion, exercised in good faith, may determine is equitably required to prevent dilution or enlargement of the rights of Participants or Optionees that otherwise would result from (a) any stock dividend, stock split, combination of shares, recapitalization or other change in the capital structure of the Company, or (b) any merger, consolidation, spin-off, split-off, spin-out, split-up, reorganization, partial or complete liquidation or other distribution of assets, issuance of rights or warrants to purchase securities, or (c) any other corporate transaction or event having an effect similar to any of the foregoing. Moreover, in the event of any such transaction or event, the Board, in its discretion, may provide in substitution for any or all outstanding awards under this Plan such alternative consideration as it, in good faith, may determine to be equitable in the circumstances and may require in
connection therewith the surrender of all awards so replaced. The Board may also
make or provide for such adjustments in the numbers of shares specified in
Section 3 of this Plan as the Board in its sole discretion, exercised in good
faith, may determine is appropriate to reflect any transaction or event
described in this Section 11; provided, however, that any such adjustment to the
number specified in Section 3(c)(i) shall be made only if and to the extent that
such adjustment would not cause any Option Right intended to qualify as an
Incentive Stock Option to fail so to qualify.
12. CHANGE IN CONTROL. For purposes of this Plan, except as may be otherwise prescribed by the Board in an agreement evidencing a grant or award made under the Plan, a "CHANGE IN CONTROL" shall mean the occurrence during the term of any of the following events, subject to the provisions of Section 12(f) hereof:
(a) the Company merges into itself, or is merged or consolidated with, another entity and as a result of such merger or consolidation less than 51% of the voting power of the then-outstanding voting securities of the surviving or resulting entity immediately after such transaction are directly or indirectly beneficially owned in the aggregate by the former shareholders of the Company immediately prior to such transaction; or
(b) all or substantially all the assets accounted for on the consolidated balance sheet of the Company are sold or transferred to one or more entities or persons, and as a result of such sale or transfer less than 51% of the voting power of the then-outstanding voting securities of such entity or person immediately after such sale or transfer is directly or indirectly beneficially held in the aggregate by the former shareholders of the Company immediately prior to such transaction or series of transactions; or
(c) a person, within the meaning of Section 3(a)(9) or
13(d)(3) (as in effect on the Effective Date of this Plan) of the Exchange Act
becomes the beneficial owner (as defined in Rule 13d-3 of the Securities and
Exchange Commission pursuant to the Exchange Act) of (i) 15% or more but less
than 35% of the voting power of the then-outstanding voting securities of the
Company without prior approval of the Board, or (ii) 35% or more of the voting
power of the then-outstanding voting securities of the Company; provided,
however, that the foregoing does not apply to any such acquisition that is made
by (w) any Subsidiary; (x) any employee benefit plan of the Company or any
Subsidiary; or (y) any person or group of which employees of the Company or of
any Subsidiary control a greater than 25% interest unless the Board determines
that such person or group is making a "hostile acquisition;" or (z) any person
or group of which the Company is an affiliate; or
(d) a majority of the members of the Board are not Continuing Directors, where a "CONTINUING DIRECTOR" is any member of the Board who (x) was a member of the Board on the Effective Date of this Plan or (y) was nominated for election or elected to such Board with the affirmative vote of a majority of the Continuing Directors who were members of such Board at the time of such nomination or election; or
(e) The Board determines that (A) any particular actual or proposed merger, consolidation, reorganization, sale or transfer of assets, accumulation of shares of the Company or other transaction or event or series of transactions or events will, or is likely to, if carried out, result in a Change in Control falling within Subsections (a), (b), (c) or (d) and (B) it is in the best interests of the Company and its shareholders, and will serve the intended purposes of this
Section 12, if the provisions of awards which provide for earlier exercise or earlier lapse of restrictions or conditions upon a Change in Control shall thereupon become immediately operative.
(f) Notwithstanding the foregoing provisions of this
Section (12):
(i) If any such merger, consolidation,
reorganization, sale or transfer of assets, or tender offer or other
transaction or event or series of transactions or events mentioned in
Section (12)(e) shall be abandoned, or any such accumulations of shares
shall be dispersed or otherwise resolved, the Board may, by notice to
the Participant, nullify the effect thereof and reinstate the award as
previously in effect, but without prejudice to any action that may have
been taken prior to such nullification.
(ii) Unless otherwise determined in a specific case by the Board, a "Change in Control" shall not be deemed to have occurred for purposes of Section (12)(c) solely because (X) the Company, (Y) a Subsidiary, or (Z) any Company-sponsored employee stock ownership plan or any other employee benefit plan of the Company or any Subsidiary either files or becomes obligated to file a report or a proxy statement under or in response to Schedule 13D, Schedule 14D-1, Form 8-K or Schedule 14A (or any successor schedule, form or report or item therein) under the Exchange Act disclosing beneficial ownership by it of shares of the then-outstanding voting securities of the Company, whether in excess of 20% or otherwise, or because the Company reports that a change in control of the Company has occurred or will occur in the future by reason of such beneficial ownership.
13. DEFERRALS. In accordance with rules and procedures established by the Committee, the Committee (i) may permit a Participant at or after the time of grant to defer receipt of payment or settlement of some or all of an award to one or more dates elected by the Participant, subsequent to the date on which such award is payable or otherwise to be settled, or (ii) may require at or after the time of grant that the portion of an award in excess of an amount specified by the Committee be mandatorily deferred until one or more dates specified by the Committee under the Plan pursuant to such rules, procedures or programs as it may establish for purposes of this Plan. Amounts deferred in accordance with the preceding sentence shall be noted in a bookkeeping account maintained by the Company for this purpose and may periodically be credited with notional interest or earnings in accordance with procedures established by the Committee from time to time. Deferred amounts shall be paid in cash, shares of Common Stock or other property, as determined by the Committee at or after the time of deferral, on the date or dates elected by the Participant or, in the case of amounts which are mandatorily deferred, on the date or dates specified by the Committee. The Committee also may provide that deferred issuances and settlements include the payment or crediting of dividend equivalents or interest on the deferred amounts.
14. FRACTIONAL SHARES. The Company shall not be required to issue any fractional shares of Common Stock pursuant to this Plan. The Board may provide for the elimination of fractions or for the settlement of fractions in cash.
15. WITHHOLDING TAXES. To the extent that the Company is required to withhold federal, state, local or foreign taxes in connection with any payment made or benefit realized by a Participant or other person under this Plan, and the amounts available to the Company for such
withholding are insufficient, it shall be a condition to the receipt of such payment or the realization of such benefit that the Participant or such other person make arrangements satisfactory to the Company for payment of the balance of such taxes required to be withheld, which arrangements (in the discretion of the Board) may include relinquishment of a portion of such benefit. Shares of Common Stock or benefits shall not be withheld in excess of the minimum number required for such tax withholding. The Company and a Participant or such other person may also make arrangements with respect to the payment in cash of any taxes with respect to which withholding is not required.
16. FOREIGN EMPLOYEES. In order to facilitate the making of any grant or combination of grants under this Plan, the Board may provide for such special terms for awards to Participants who are foreign nationals or who are employed by the Company or any Subsidiary outside of the United States of America as the Board may consider necessary or appropriate to accommodate differences in local law, tax policy or custom. Moreover, the Board may approve such supplements to or amendments, restatements or alternative versions of this Plan as it may consider necessary or appropriate for such purposes, without thereby affecting the terms of this Plan as in effect for any other purpose, and the Secretary or other appropriate officer of the Company may certify any such document as having been approved and adopted in the same manner as this Plan. No such special terms, supplements, amendments or restatements, however, shall include any provisions that are inconsistent with the terms of this Plan as then in effect unless this Plan could have been amended to eliminate such inconsistency without further approval by the shareholders of the Company.
17. ADMINISTRATION OF THE PLAN.
(a) This Plan shall be administered by the Board, which may from time to time delegate all or any part of its authority under this Plan to the Committee (or subcommittee thereof). A majority of the Committee (or subcommittee) shall constitute a quorum, and the action of the members of the Committee (or subcommittee) present at any meeting at which a quorum is present, or acts unanimously approved in writing, shall be the acts of the Committee (or subcommittee). To the extent of any such delegation, references in this Plan to the Board shall be deemed to be references to the Committee or subcommittee.
(b) The Committee may delegate its responsibility with respect to the administration of the Plan to one or more officers of the Company, to one or more members of the Committee or to one or more members of the Board; provided, however, that the Committee may not delegate its responsibility (i) to make awards to individuals who are subject to Section 16 of the Exchange Act, (ii) to make awards under Section 8 which are intended to constitute "qualified performance-based compensation" under Section 162(m) of the Code or (iii) to amend or terminate the Plan in accordance with Section 18. The Committee may also appoint agents to assist in the day-to-day administration of the Plan and may delegate the authority to execute documents under the Plan to one or more members of the Committee or to one or more officers of any of the Companies.
(c) The interpretation and construction by the Board of any provision of this Plan or of any agreement, notification or document evidencing the grant of Option Rights, Restricted Stock, Deferred Stock, Performance Stock or Performance Units and any determination by the Board pursuant to any provision of this Plan or of any such agreement,
notification or document shall be final and conclusive. The Board shall be entitled to rely in good faith upon any report or other information furnished to it by any officer or employee of the Company or from the financial, accounting, legal or other advisers of the Company. Each member of the Board, each individual to whom the Board delegates authority hereunder, each individual designated by the Board to administer the Plan and each other person acting at the direction of or on behalf of the Board shall not be liable for any determination or anything done or omitted to be done by him or by any other member of the Board or the Committee or any other such individual in connection with the Plan, except for his own willful misconduct or as expressly provided by statute, and, to the extent permitted by law and the bylaws of the Company, shall be fully indemnified and protected by the Company with respect to such determination, act or omission.
18. AMENDMENTS, ETC.
(a) The Board may at any time and from time to time amend the Plan in whole or in part; provided, however, that any amendment which must be approved by the shareholders of the Company in order to comply with applicable law or the rules of the New York Stock Exchange or, if the Common Stock are not traded on the New York Stock Exchange, the principal national securities exchange upon which the Common Stock are traded or quoted, shall not be effective unless and until such approval has been obtained. Presentation of this Plan or any amendment hereof for shareholder approval shall not be construed to limit the Company's authority to offer similar or dissimilar benefits under other plans without shareholder approval.
(b) The Board shall not, without the further approval of the shareholders of the Company, authorize the amendment of any outstanding Option Right to reduce the Option Price. This Section 18(b) is intended to prohibit the repricing of "underwater" Option Rights and shall not be construed to prohibit the adjustments provided for in Section 11 of this Plan.
19. GENERAL PROVISIONS.
(a) The Board may condition the grant of any award or combination of awards authorized under this Plan on the surrender or deferral by the Participant of his or her right to receive a cash bonus or other compensation otherwise payable by the Company or a Subsidiary to the Participant.
(b) In case of termination of employment by reason of Retirement, Disability, or death, or in the case of hardship or other special circumstances, of a Participant who holds an Option Right not immediately exercisable in full, or any Restricted Stock as to which the substantial risk of forfeiture or the prohibition or restriction on transfer has not lapsed, or any Deferred Stock as to which the Deferral Period has not been completed, or any Performance Stock or Performance Units which have not been fully earned, or who holds shares of Common Stock subject to any transfer restriction imposed pursuant to Section 10(b) of this Plan, the Board may, in its sole discretion, accelerate the time at which such Option Right may be exercised or the time at which such substantial risk of forfeiture or prohibition or restriction on transfer will lapse or the time when such Deferral Period will end or the time at which such Performance Stock or Performance Units will be deemed to have been fully earned or the time when such transfer restriction will terminate or may waive any other limitation or requirement under any such award.
(c) This Plan shall not confer upon any Participant any right with respect to continuance of employment or other service with the Company or any Subsidiary, nor shall it interfere in any way with any right the Company or any Subsidiary would otherwise have to terminate such Participant's employment or other service at any time.
(d) To the extent that any provision of this Plan would prevent any Option Right that was intended to qualify as an Incentive Stock Option from qualifying as such, that provision shall be null and void with respect to such Option Right. Such provision, however, shall remain in effect for other Option Rights and there shall be no further effect on any provision of this Plan.
(e) Payments received by a Participant under any award made pursuant to the Plan shall not be included in, nor have any effect on, the determination of benefits under any other employee benefit plan or similar arrangement provided by the Company, unless otherwise specifically provided for under the terms of such plan or arrangement or by the Board.
20. UNFUNDED PLAN. The Plan is intended to constitute an "unfunded" plan for incentive and deferred compensation. With respect to any payments not yet made to a Participant by the Company, nothing contained herein shall give any such Participant any rights that are greater than those of a general creditor of the Company. In its sole discretion, the Board may authorize the creation of trust or other arrangements to meet the obligations created under the Plan to deliver stock or payments in lieu of or with respect to awards hereunder; provided, however, that, unless the Board otherwise determines with the consent of the affected Participant the existence of such trust or other arrangement must be consistent with the "unfunded" status of the Plan for federal income tax purposes and for purposes of the Employee Retirement Income Security Act of 1974.
21. EFFECTIVE DATE. This Plan shall be effective when adopted by the Board (the "EFFECTIVE DATE"); provided, however, that the effectiveness of this Plan, the exercisability of Option Rights under this Plan is conditioned on its approval by the shareholders of the Company at a meeting duly held in accordance with Georgia law within twelve (12) months after the date this Plan is adopted by the Board. All awards under this Plan shall be null and void if the Plan is not approved by the shareholders within such 12-month period. Subject to such limitation, the Board may grant Option Rights under the Plan at any time after the Effective Date of the Plan and before the date fixed herein for termination of the Plan.
22. GOVERNING LAW. The Plan and all grants and actions taken thereunder shall be governed by and construed in accordance with the laws of the State of Georgia, without reference to the principles of conflict of laws.
23. TERMINATION. No grant shall be made under this Plan more than ten (10) years after the date on which this Plan is first approved by the shareholders of the Company, but all grants made on or prior to such date shall continue in effect thereafter subject to the terms thereof and of this Plan.
24. EXCLUSION FROM CERTAIN RESTRICTIONS. Notwithstanding anything in this Plan to the contrary, not more than three percent (3%) of the shares of Common Stock in the aggregate available under this Plan may be subject to awards as follows:
(a) in the case of grants of Restricted Stock, which do not meet the requirements of the last sentence of Section 6(c) or to which the Board may accelerate or waive any restrictions imposed under Section 6(c);
(b) in the case of grants of Deferred Stock, which do not meet the requirements of the last sentence of Section 7(c); or
(c) in the case of Performance Stock and Performance Units, which do not meet the requirements of Section 8(b).
EXHIBIT 10.5
CREDIT AGREEMENT
AMONG
FLOWERS FOODS, INC.,
VARIOUS LENDERS,
SUNTRUST BANK,
AS SYNDICATION AGENT,
AND
BANKERS TRUST COMPANY,
AS ADMINISTRATIVE AGENT
DATED AS OF MARCH 26, 2001
$380,000,000
DEUTSCHE BANC ALEX. BROWN INC.,
AS LEAD ARRANGER
TABLE OF CONTENTS
Page
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SECTION 1. Amount and Terms of Credit............................................................................1
1.01 The Commitments....................................................................................1
1.02 Minimum Amount of Each Borrowing; Limitation on Number of Borrowings...............................4
1.03 Notice of Borrowing................................................................................4
1.04 Disbursement of Funds..............................................................................5
1.05 Notes..............................................................................................6
1.06 Conversions........................................................................................7
1.07 Pro Rata Borrowings................................................................................8
1.08 Interest...........................................................................................8
1.09 Interest Periods...................................................................................9
1.10 Increased Costs, Illegality, etc..................................................................10
1.11 Compensation......................................................................................12
1.12 Change of Lending Office..........................................................................13
1.13 Replacement of Lenders............................................................................13
SECTION 2. Letters of Credit....................................................................................14
2.01 Letters of Credit.................................................................................14
2.02 Letter of Credit Requests.........................................................................16
2.03 Letter of Credit Participations...................................................................16
2.04 Agreement to Repay Letter of Credit Drawings......................................................18
2.05 Increased Costs...................................................................................19
SECTION 3. Commitment Commission; Fees; Reductions of Commitment................................................20
3.01 Fees ...........................................................................................20
3.02 Voluntary Termination of Unutilized Commitments...................................................21
3.03 Mandatory Reduction of Commitments................................................................21
SECTION 4. Prepayments; Payments; Taxes.........................................................................22
4.01 Voluntary Prepayments.............................................................................22
4.02 Mandatory Repayments..............................................................................23
4.03 Method and Place of Payment.......................................................................29
4.04 Net Payments; Taxes...............................................................................29
SECTION 5. Conditions Precedent to Credit Events on Initial Borrowing Date......................................31
5.01 Execution of Agreement; Notes.....................................................................31
5.02 Officers' Certificate.............................................................................32
5.03 Opinions of Counsel...............................................................................32
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5.04 Corporate Documents; Proceedings; etc.............................................................32
5.05 Employee Benefit Plans; Debt Agreements; Tax Sharing Agreements...................................32
5.06 Consummation of the Spin-off and Merger; Equipment Purchase; etc..................................33
5.07 Existing Debentures Tender Offer..................................................................33
5.08 Refinancing; Indebtedness.........................................................................34
5.09 Subsidiaries Guaranty.............................................................................34
5.10 Pledge and Security Agreement.....................................................................34
5.11 Security Agreement................................................................................35
5.12 Lease Program.....................................................................................35
5.13 Material Adverse Change; Approvals, etc...........................................................35
5.14 Litigation........................................................................................36
5.15 Solvency Certificate; Environmental Analyses; Insurance...........................................36
5.16 Pro Forma Balance Sheet; Financial Statements; Projections........................................36
5.17 Payment of Fees...................................................................................37
5.18 Ratings Request...................................................................................37
SECTION 6. Conditions Precedent to All Credit Events............................................................37
6.01 No Default; Representations and Warranties........................................................37
6.02 Notice of Borrowing; Letter of Credit Request.....................................................37
SECTION 7. Representations, Warranties and Agreements...........................................................37
7.01 Corporate/Limited Liability Company/Partnership Status; etc.......................................38
7.02 Corporate Power and Authority.....................................................................38
7.03 No Violation......................................................................................38
7.04 Governmental Approvals............................................................................38
7.05 Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc..............39
7.06 Litigation........................................................................................40
7.07 True and Complete Disclosure......................................................................41
7.08 Use of Proceeds; Margin Regulations...............................................................41
7.09 Tax Returns and Payments..........................................................................42
7.10 Compliance with ERISA.............................................................................42
7.11 The Security Documents............................................................................43
7.12 Representations and Warranties in Documents.......................................................43
7.13 Properties........................................................................................43
7.14 Capitalization....................................................................................44
7.15 Subsidiaries......................................................................................44
7.16 Compliance with Statutes, etc.....................................................................44
7.17 Investment Company Act............................................................................44
7.18 Public Utility Holding Company Act................................................................44
7.19 Environmental Matters.............................................................................44
7.20 Labor Relations...................................................................................45
7.21 Patents, Licenses, Franchises and Formulas........................................................45
7.22 Indebtedness......................................................................................45
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7.23 Transaction.......................................................................................46
7.24 Insurance.........................................................................................46
SECTION 8. Affirmative Covenants................................................................................46
8.01 Information Covenants.............................................................................47
8.02 Books, Records and Inspections....................................................................50
8.03 Maintenance of Property; Insurance................................................................50
8.04 Rights; Franchises; etc...........................................................................51
8.05 Compliance with Statutes, etc.....................................................................51
8.06 Compliance with Environmental Laws................................................................51
8.07 ERISA.............................................................................................51
8.08 End of Fiscal Years; Fiscal Quarters..............................................................53
8.09 Performance of Obligations........................................................................53
8.10 Payment of Taxes..................................................................................53
8.11 Ownership of Subsidiaries.........................................................................53
8.12 Additional Security; Further Assurances...........................................................53
8.13 Use of Proceeds...................................................................................55
8.14 Margin Regulations................................................................................55
SECTION 9. Negative Covenants...................................................................................55
9.01 Liens.............................................................................................55
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc............................................58
9.03 Dividends.........................................................................................60
9.04 Indebtedness......................................................................................61
9.05 Investments.......................................................................................63
9.06 Transactions with Affiliates......................................................................66
9.07 Capital Expenditures..............................................................................67
9.08 Consolidated Interest Coverage Ratio..............................................................68
9.09 Consolidated Fixed Charge Coverage Ratio..........................................................68
9.10 Maximum Leverage Ratio............................................................................68
9.11 Limitation on Voluntary Payments and Modifications of Indebtedness; Modifications of
Certificate of Incorporation, By-Laws and Certain Other Agreements; etc....................69
9.12 Limitation on Certain Restrictions on Subsidiaries................................................70
9.13 Limitation on Issuance of Capital Stock...........................................................70
9.14 Limitation on Creation of Subsidiaries............................................................71
9.15 Business..........................................................................................71
SECTION 10. Events of Default...................................................................................71
10.01 Payments.........................................................................................71
10.02 Representations, etc.............................................................................71
10.03 Covenants........................................................................................71
10.04 Default Under Other Agreements...................................................................72
10.05 Bankruptcy, etc..................................................................................72
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10.06 ERISA............................................................................................72
10.07 Security Documents...............................................................................73
10.08 Subsidiaries Guaranty............................................................................73
10.09 Judgments........................................................................................74
10.10 Change of Control................................................................................74
SECTION 11. Definitions and Accounting Terms....................................................................74
11.01 Defined Terms....................................................................................74
SECTION 12. The Agents.........................................................................................104
12.01 Appointment.....................................................................................104
12.02 Nature of Duties................................................................................104
12.03 Lack of Reliance on the Agents..................................................................104
12.04 Certain Rights of the Agents....................................................................105
12.05 Reliance........................................................................................105
12.06 Indemnification.................................................................................105
12.07 Each Agent in its Individual Capacity...........................................................106
12.08 Holders.........................................................................................106
12.09 Resignation by the Agents.......................................................................106
SECTION 13. Miscellaneous......................................................................................107
13.01 Payment of Expenses, etc........................................................................107
13.02 Right of Setoff.................................................................................108
13.03 Notices.........................................................................................108
13.04 Benefit of Agreement............................................................................109
13.05 No Waiver; Remedies Cumulative..................................................................110
13.06 Payments Pro Rata...............................................................................111
13.07 Calculations; Computations......................................................................111
13.08 Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury Trial..........................112
13.09 Counterparts....................................................................................113
13.10 Effectiveness...................................................................................113
13.11 Headings Descriptive............................................................................113
13.12 Amendment or Waiver; etc........................................................................113
13.13 Survival........................................................................................115
13.14 Domicile of Loans...............................................................................115
13.15 Limitation on Additional Amounts, etc...........................................................115
13.16 Confidentiality.................................................................................116
13.17 Register........................................................................................116
13.18 Post-Closing Actions............................................................................117
13.19 Special Provisions Concerning Distributor Notes and Loans to Distributors.......................117
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SCHEDULE I - COMMITMENTS SCHEDULE II - LENDER ADDRESSES SCHEDULE III - EXISTING LIENS SCHEDULE IV - EXISTING INDEBTEDNESS SCHEDULE V - INSURANCE SCHEDULE VI - ERISA SCHEDULE VII - SUBSIDIARIES SCHEDULE VIII - TAX MATTERS SCHEDULE IX - POST-CLOSING ACTIONS EXHIBIT A-1 Notice of Borrowing EXHIBIT A-2 Notice of Conversion/Continuation EXHIBIT B-1 A Term Note EXHIBIT B-2 B Term Note EXHIBIT B-3 Revolving Note EXHIBIT B-4 Swingline Note EXHIBIT C Letter of Credit Request EXHIBIT D Section 4.04(b)(ii) Certificate EXHIBIT E-1 Opinion of Troutman Sanders EXHIBIT E-2 Opinion of Jones, Day, Reavis & Pogue EXHIBIT F Officers' Certificate EXHIBIT G Subsidiaries Guaranty EXHIBIT H Pledge Agreement EXHIBIT I Security Agreement EXHIBIT J Solvency Certificate EXHIBIT K Assignment and Assumption Agreement |
CREDIT AGREEMENT, dated as of March 26, 2001, among FLOWERS FOODS, INC., a Georgia corporation (the "Borrower"), the Lenders party hereto from time to time, SUNTRUST BANK, as Syndication Agent (in such capacity, the "Syndication Agent"), and BANKERS TRUST COMPANY, as Administrative Agent (in such capacity, the "Administrative Agent") (all capitalized terms used herein and defined in Section 11 are used herein as therein defined).
WITNESSETH:
WHEREAS, subject to and upon the terms and conditions herein set forth, the Lenders are willing to make available to the Borrower the respective credit facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
1.01 The Commitments. (a) Subject to and upon the terms and conditions set forth herein, each Lender with an A Term Loan Commitment severally agrees to make, on the Initial Borrowing Date, a term loan or term loans (each an "A Term Loan" and, collectively, the "A Term Loans") to the Borrower, which A Term Loans (i) shall, at the option of the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans or Eurodollar Loans, provided that (A) except as otherwise specifically provided in Section 1.10(b), all A Term Loans comprising the same Borrowing shall at all times be of the same Type and (B) until the Syndication Date has occurred (at which time this clause (B) shall no longer be applicable), A Term Loans may only be incurred and maintained as Base Rate Loans or, if Interest Periods of one week are available in accordance with the relevant provisions of Section 1.09, Eurodollar Loans with one-week Interest Periods, (ii) shall be incurred pursuant to a single drawing on the Initial Borrowing Date, (iii) shall be denominated in Dollars and (iv) shall not exceed (A) for any Lender, that amount which equals the A Term Loan Commitment of such Lender as in effect on the Initial Borrowing Date (after giving effect to any termination thereof pursuant to Section 3.03(a), but before giving effect to the termination thereof on such date pursuant to Section 3.03(b)) and (B) for all Lenders, the Total A Term Loan Commitment as in effect on the Initial Borrowing Date (after giving effect to any termination thereof pursuant to Section 3.03(a), but before giving effect to the termination thereof on such date pursuant to Section 3.03(b)). Once repaid, A Term Loans incurred hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions set
forth herein, each Lender with a B Term Loan Commitment severally agrees to
make, on the Initial Borrowing Date, a term loan or term loans (each a "B Term
Loan" and, collectively, the "B Term Loans") to the Borrower, which B Term Loans
(i) shall, at the option of the Borrower, be incurred and maintained as, and/or
converted into, Base Rate Loans or Eurodollar Loans, provided that (A) except as
otherwise specifically provided in Section 1.10(b), all B Term Loans comprising
the same Borrowing shall at all times be of the same Type and (B) until the
Syndication Date has occurred
(at which time this clause (B) shall no longer be applicable), B Term Loans may only be incurred and maintained as Base Rate Loans or, if Interest Periods of one week are available in accordance with the relevant provisions of Section 1.09, Eurodollar Loans with one-week Interest Periods, (ii) shall be incurred pursuant to a single drawing on the Initial Borrowing Date, (iii) shall be denominated in Dollars and (iv) shall not exceed (A) for any Lender, that amount which equals the B Term Loan Commitment of such Lender as in effect on the Initial Borrowing Date (after giving effect to any termination thereof pursuant to Section 3.03(a), but before giving effect to the termination thereof on such date pursuant to Section 3.03(c)) and (B) for all Lenders, the Total B Term Loan Commitment as in effect on the Initial Borrowing Date (after giving effect to any termination thereof pursuant to Section 3.03(a), but before giving effect to the termination thereof on such date pursuant to Section 3.03(c)). Once repaid, B Term Loans incurred hereunder may not be reborrowed.
(c) Subject to and upon the terms and conditions set forth herein, each Lender with a Revolving Loan Commitment severally agrees, at any time and from time to time on and after the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, to make a revolving loan or revolving loans (each, a "Revolving Loan" and, collectively, the "Revolving Loans") to the Borrower, which Revolving Loans (i) shall, at the option of the Borrower, be Base Rate Loans or Eurodollar Loans, provided that (A) except as otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type and (B) until the Syndication Date has occurred (at which time this clause (B) shall no longer be applicable), Revolving Loans may only be incurred and maintained as Base Rate Loans or, if Interest Periods of one week are available in accordance with the relevant provisions of Section 1.09, Eurodollar Loans with one-week Interest Periods, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall be denominated in Dollars and (iv) shall not exceed for any Lender at any time outstanding that aggregate principal amount which, when added to the sum of such Lender's Revolving Percentage of (x) all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (y) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such Lender at such time and (iv) shall not exceed for all Lenders at any time outstanding that aggregate principal amount which, when added to (x) the amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time, and (y) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Total Revolving Loan Commitment at such time. In addition, the Revolving Lenders shall be required to fund, as Revolving Loans, their respective shares of Mandatory Borrowings in accordance with the requirements of Section 1.01(e) hereof.
(d) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees to make at any time and from time to time after the Initial
Borrowing Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each, a "Swingline Loan" and, collectively, the "Swingline Loans") to the Borrower, which Swingline Loans (i) shall be made and maintained as Base Rate Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstanding, when added to (x) the aggregate principal amount of all Revolving Loans then outstanding, and (y) the Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Swingline Loans) at such time, an amount equal to the Total Revolving Loan Commitment at such time (after giving effect to any reductions to the Total Revolving Loan Commitment on such date), (iv) shall not exceed in the aggregate at any time outstanding the Maximum Swingline Amount and (v) shall not be extended if the Swingline Lender receives a written notice from the Administrative Agent or the Required Lenders (and such notice has not been rescinded) that there is a Default or an Event of Default in existence hereunder. Notwithstanding anything to the contrary contained above, the Swingline Lender shall not be required to make any Swingline Loans at any time when a Lender Default is in existence, unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender's risk with respect to the Defaulting Lender's (or Defaulting Lenders') share of Mandatory Borrowings which would be required to be made if said Swingline Loans were to be funded with one or more Borrowings of Revolving Loans pursuant to Section 1.01(e), including by cash collateralizing such Defaulting Lender's (or Defaulting Lenders') Revolving Percentage (or Revolving Percentages) of such Swingline Loan or Swingline Loans.
(e) On any Business Day, the Swingline Lender may, in its
sole discretion, give notice to the Revolving Lenders that its outstanding
Swingline Loans shall be funded with a Borrowing of Revolving Loans (provided
that such notice shall be deemed to have been automatically given upon the
occurrence of a Default or an Event of Default under Section 10.05 or upon the
exercise of any of the remedies provided in the last paragraph of Section 10),
in which case a Borrowing of Revolving Loans constituting Base Rate Loans (each
such Borrowing, a "Mandatory Borrowing") shall be made on the immediately
succeeding Business Day by all Revolving Lenders pro rata based on each such
Lender's Revolving Percentage (determined before giving effect to any
termination of the Revolving Loan Commitments pursuant to the last paragraph of
Section 10) and the proceeds thereof shall be paid directly to the Swingline
Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each
such Revolving Lender hereby irrevocably agrees to make Revolving Loans upon one
Business Day's notice pursuant to each Mandatory Borrowing in the amount and in
the manner specified in the preceding sentence and on the date specified in
writing by the Swingline Lender notwithstanding (i) that the amount of the
Mandatory Borrowing may not comply with the minimum amount for Borrowings
otherwise required hereunder, (ii) whether any conditions specified in Section 6
are then satisfied, (iii) whether a Default or an Event of Default then exists,
(iv) the date of such Mandatory Borrowing and (v) the amount of the Total
Revolving Loan Commitment or the Revolving Loan Commitment of any Lender at such
time. In the event that any Mandatory Borrowing cannot for any reason be made on
the date otherwise required above (including, without limitation, as a result of
the commencement of a proceeding under the Bankruptcy Code with respect to the
Borrower), then each Revolving Lender hereby agrees that it shall forthwith
purchase (as of the date the Mandatory Borrowing would otherwise have occurred,
but adjusted for any payments received from the Borrower on or after such date
and prior to such purchase) from the Swingline Lender such participations in the
outstanding Swingline Loans as shall be necessary to cause such Lenders to share
in such Swingline Loans ratably based upon their respective Revolving
Percentages (determined before giving effect to any termination of the Revolving
Loan Commitments pursuant to the last paragraph of Section 10), provided that
(x) all interest payable on the Swingline Loans shall be for the account of the
Swingline Lender until the date as of which the respective participation is
required to be purchased and, to the extent attributable to the purchased
participation, shall be payable to the participant from and after such date and
(y) at the time any purchase of participations pursuant to this sentence is
actually made, the purchasing Lender shall be required to pay the Swingline
Lender interest on the principal amount of participation purchased for each day
from and including the day upon which the Mandatory Borrowing would otherwise
have occurred to but excluding the date of payment for such participation, at
the overnight Federal Funds Rate for the first three days and at the rate
otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder
for each day thereafter.
1.02 Minimum Amount of Each Borrowing; Limitation on Number of Borrowings. (a) The aggregate principal amount of each Borrowing of Term Loans shall not be less than $5,000,000. The aggregate principal amount of each Borrowing of Revolving Loans shall not be less than (x) in the case of a Borrowing of Eurodollar Loans, $5,000,000 and (y) in the case of a Borrowing of Base Rate Loans, $1,000,000, provided that Mandatory Borrowings shall be made in the amounts required by Section 1.01(e). The aggregate principal amount of each Borrowing of Swingline Loans shall not be less than $100,000.
(b) More than one Borrowing may occur on the same date, but at no time shall there be outstanding more than sixteen Borrowings of Eurodollar Loans in the aggregate for all Tranches.
1.03 Notice of Borrowing. (a) Whenever the Borrower desires to make a Borrowing hereunder (excluding Borrowings of Swingline Loans and Mandatory Borrowings), it shall give the Administrative Agent at its Notice Office prior written notice (or telephonic notice promptly confirmed in writing) not later than 10:00 A.M. (New York time) on the date of each Base Rate Loan to be made hereunder, and not later than 11:00 A.M. (New York time) on the third Business Day prior to each Eurodollar Loan to be made hereunder. Each such written notice or written confirmation of telephonic notice (each a "Notice of Borrowing"), except as otherwise expressly provided in Section 1.10, shall be irrevocable and shall be given by the Borrower in the form of Exhibit A-1, appropriately completed to specify (i) the aggregate principal amount of the Loans to be made pursuant to such Borrowing, (ii) the date of such Borrowing (which shall be a Business Day), (iii) whether the Loans being made pursuant to such Borrowing shall constitute A Term Loans, B Term Loans or Revolving Loans and (iv) whether the Loans being made pursuant to such Borrowing are to be initially maintained as Base Rate Loans or Eurodollar Loans and, if Eurodollar Loans, the initial Interest Period to be applicable thereto. The Administrative Agent shall promptly give each Lender which is required to make Loans of the Tranche specified in the respective Notice of Borrowing, notice of such proposed Borrowing,
of such Lender's proportionate share thereof and of the other matters required by the immediately preceding sentence to be specified in the Notice of Borrowing.
(b) (i) Whenever the Borrower desires to make a Borrowing of Swingline Loans hereunder, it shall give the Swingline Lender not later than 12:00 Noon (New York time) on the date that a Swingline Loan is to be made, written notice (or telephonic notice promptly confirmed in writing) of each Swingline Loan to be made hereunder. Each such notice shall be irrevocable and specify in each case (A) the date of Borrowing (which shall be a Business Day) and (B) the aggregate principal amount of the Swingline Loans to be made pursuant to such Borrowing.
(ii) Mandatory Borrowings shall be made upon the notice specified in Section 1.01(e), with the Borrower irrevocably agreeing, by its incurrence of any Swingline Loan, to the making of the Mandatory Borrowings as set forth in Section 1.01(e).
(c) Without in any way limiting the obligation of the Borrower to confirm in writing any telephonic notice of any Borrowing of Loans, the Administrative Agent or the Swingline Lender, as the case may be, may act without liability upon the basis of telephonic notice of such Borrowing, believed by the Administrative Agent or the Swingline Lender, as the case may be, in good faith to be from the Chairman of the Board, the President, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, (or any other officer or employee of the Borrower designated in writing to the Administrative Agent and the Swingline Lender by the Chairman of the Board, the President, the Chief Financial Officer or the Treasurer as being authorized to give such notices under this Agreement) prior to receipt of written confirmation. In each such case, the Borrower hereby waives the right to dispute the Administrative Agent's and the Swingline Lender's record of the terms of such telephonic notice of such Borrowing of Loans.
1.04 Disbursement of Funds. Except as otherwise
specifically provided in the immediately succeeding sentence, no later than
12:00 Noon (New York time) on the date specified in each Notice of Borrowing (or
(w) in the case of Revolving Loans to be maintained as Base Rate Loans, not
later than 2:00 P.M. (New York time) on the date specified in the respective
Notice of Borrowing, (x) in the case of Swingline Loans, not later than 2:00
P.M. (New York time) on the date specified pursuant to Section 1.03(b)(i) or (y)
in the case of Mandatory Borrowings, not later than 12:00 Noon (New York time)
on the date specified in Section 1.01(e)), each Lender with a Commitment of the
respective Tranche will make available its pro rata portion of each such
Borrowing requested to be made on such date (or in the case of Swingline Loans,
the Swingline Lender shall make available the full amount thereof). All such
amounts shall be made available in Dollars and in immediately available funds at
the Payment Office of the Administrative Agent, and, except in the case of
Mandatory Borrowings, the Administrative Agent will make available to the
Borrower at the Payment Office the aggregate of the amounts so made available by
the Lenders ((x) for Loans other than Swingline Loans and Revolving Loans
maintained as Base Rate Loans, prior to 1:00 P.M. (New York time) on such day,
to the extent of funds actually received by the Administrative Agent prior to
12:00 Noon (New York time) on such day and (y) for Revolving Loans maintained as
Base Rate Loans, prior to 3:00 P.M. (New York time) on such day, to the extent
of funds actually received by the
Administrative Agent prior to 2:00 P.M. (New York time) on such day). Unless the Administrative Agent shall have been notified by any Lender prior to the date of Borrowing that such Lender does not intend to make available to the Administrative Agent such Lender's portion of any Borrowing to be made on such date, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on such date of Borrowing and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such corresponding amount is not in fact made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender. If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent shall promptly notify the Borrower and the Borrower shall immediately pay such corresponding amount to the Administrative Agent. The Administrative Agent shall also be entitled to recover on demand from such Lender or the Borrower, as the case may be, interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Administrative Agent to the Borrower until the date such corresponding amount is recovered by the Administrative Agent, at a rate per annum equal to (i) if recovered from such Lender, at the overnight Federal Funds Rate and (ii) if recovered from the Borrower, the rate of interest applicable to the respective Borrowing, as determined pursuant to Section 1.08. Nothing in this Section 1.04 shall be deemed to relieve any Lender from its obligation to make Loans hereunder or to prejudice any rights which the Borrower may have against any Lender as a result of any failure by such Lender to make Loans hereunder.
1.05 Notes. (a) The Borrower's obligation to pay the principal of, and interest on, the Loans made by each Lender shall, if requested by such Lender, be evidenced (i) if A Term Loans, by a promissory note duly executed and delivered by the Borrower substantially in the form of Exhibit B-1 with blanks appropriately completed in conformity herewith (each, an "A Term Note" and, collectively, the "A Term Notes"), (ii) if B Term Loans, by a promissory note substantially in the form of Exhibit B-2 with blanks appropriately completed in conformity herewith (each, a "B Term Note" and, collectively, the "B Term Notes"), (iii) if Revolving Loans, by a promissory note duly executed and delivered by the Borrower substantially in the form of Exhibit B-3, with blanks appropriately completed in conformity herewith (each, a "Revolving Note" and, collectively, the "Revolving Notes") and (iii) if Swingline Loans, by a promissory note duly executed and delivered by the Borrower substantially in the form of Exhibit B-4, with blanks appropriately completed in conformity herewith (the "Swingline Note").
(b) Each A Term Note shall (i) be executed by the
Borrower, (ii) be payable to the order of such Lender or its registered assigns
and be dated the Initial Borrowing Date (or, in the case of A Term Notes issued
after the Initial Borrowing Date, be dated the date of the issuance thereof),
(iii) be in a stated principal amount equal to the principal amount of A Term
Loans made by such Lender on the Initial Borrowing Date (or, in the case of A
Term Notes issued after the Initial Borrowing Date, be in a stated principal
amount equal to the outstanding principal amount of A Term Loans of such Lender
on the date of issuance thereof) and be payable in the principal amount of A
Term Loans evidenced thereby, (iv) mature on the A Term Loan Maturity Date, (v)
bear interest as provided in the appropriate clause of Section 1.08 in
respect of the Base Rate Loans and Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to voluntary prepayment and mandatory repayment as provided in Sections 4.01 and 4.02 and (vii) be entitled to the benefits of this Agreement and the other Credit Documents.
(c) Each B Term Note shall (i) be executed by the
Borrower, (ii) be payable to the order of such Lender or its registered assigns
and be dated the Initial Borrowing Date (or, in the case of B Term Notes issued
after the Initial Borrowing Date, be dated the date of issuance thereof), (iii)
be in a stated principal amount equal to the principal amount of B Term Loans
made by such Lender on the Initial Borrowing Date (or, in the case of B Term
Notes issued after the Initial Borrowing Date, be in a stated principal amount
equal to the outstanding principal amount of B Term Loans of such Lender on the
date of issuance thereof) and be payable in the outstanding principal amount of
B Term Loans evidenced thereby, (iv) mature on the B Term Loan Maturity Date,
(v) bear interest as provided in the appropriate clause of Section 1.08 in
respect of the Base Rate Loans and Eurodollar Loans, as the case may be,
evidenced thereby, (vi) be subject to voluntary repayment and mandatory
repayment as provided in Sections 4.01 and 4.02 and (vii) be entitled to the
benefits of this Agreement and the other Credit Documents.
(d) Each Revolving Note shall (i) be executed by the Borrower, (ii) be payable to the order of such Lender and be dated the Initial Borrowing Date (or, in the case of Revolving Notes issued after the Initial Borrowing Date, be dated the date of the issuance thereof), (iii) be in a stated principal amount equal to the Revolving Loan Commitment of such Lender and be payable in the principal amount of the Revolving Loans evidenced thereby, (iv) mature on the Revolving Loan Maturity Date, (v) bear interest as provided in the appropriate clause of Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to voluntary prepayment and mandatory repayment as provided in Sections 4.01 and 4.02 and (vii) be entitled to the benefits of this Agreement and the other Credit Documents.
(e) The Swingline Note shall (i) be executed by the
Borrower, (ii) be payable to the order of the Swingline Lender and be dated the
Initial Borrowing Date (or, in the case of any Swingline Note issued after the
Initial Borrowing Date, be dated the date of the issuance thereof), (iii) be in
a stated principal amount equal to the Maximum Swingline Amount and be payable
in the principal amount of the outstanding Swingline Loans evidenced thereby,
(iv) mature on the Swingline Expiry Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Base Rate Loans evidenced
thereby and (vi) be entitled to the benefits of this Agreement and the other
Credit Documents.
(f) Each Lender will note on its internal records the amount of each Loan made by it and each payment in respect thereof and will, prior to any transfer of any of its Notes, endorse on the reverse side thereof the outstanding principal amount of Loans evidenced thereby. Failure to make any such notation or any error in any such notation or endorsement shall not affect the Borrower's obligations in respect of such Loans.
1.06 Conversions. The Borrower shall have the option to convert, on any Business Day occurring on or after the Initial Borrowing Date, all or a portion of the outstanding
principal amount of Loans made pursuant to one or more Borrowings (so long as of the same Tranche) of one or more Types of Loans into a Borrowing (of the same Tranche) of another Type of Loan, provided that (i) except as otherwise provided in Section 1.10(b), no Eurodollar Loans may be converted into Base Rate Loans on a day which is not the last day of an Interest Period applicable to the Loans being converted, (ii) unless the Required Lenders otherwise specifically agree in writing, Base Rate Loans may only be converted into Eurodollar Loans if no Specified Default and no Event of Default is in existence on the date of the conversion, (iii) no conversion pursuant to this Section 1.06 shall result in a greater number of Borrowings of Eurodollar Loans than is permitted under Section 1.02(b), (iv) no conversion pursuant to this Section 1.06 shall result in any Borrowing of Eurodollar Loans in an amount which is less than the minimum amount for the respective Tranche specified in Section 1.02(a), (v) Swingline Loans may not be converted pursuant to this Section 1.06 and (vi) until the Syndication Date has occurred (at which time this clause (vi) shall no longer be applicable), Base Rate Loans may not be converted into Eurodollar Loans (except Eurodollar Loans with one week Interest Periods if same are available in accordance with the provisions of Section 1.09). Each such conversion shall be effected by the Borrower by giving the Administrative Agent at its Notice Office prior to 12:00 Noon (New York time) at least (x) in the case of a conversion to Eurodollar Loans, three Business Days' and (y) in the case of a conversion to Base Rate Loans, one Business Day's, prior written notice (or telephonic notice promptly confirmed in writing) (each a "Notice of Conversion/Continuation") in the form of Exhibit A-2, appropriately completed to specify the Loans to be so converted, the Borrowing(s) pursuant to which such Loans were made and, if to be converted into Eurodollar Loans, the Interest Period to be initially applicable thereto. The Administrative Agent shall give each Lender prompt notice of any such proposed conversion affecting any of its Loans.
1.07 Pro Rata Borrowings. All Borrowings of A Term Loans, B Term Loans and Revolving Loans under this Agreement shall be incurred from the Lenders pro rata on the basis of their A Term Loan Commitments, B Term Loan Commitments or Revolving Loan Commitments, as the case may be. It is understood that no Lender shall be responsible for any default by any other Lender of its obligation to make Loans hereunder and that each Lender shall be obligated to make the Loans provided to be made by it hereunder, regardless of the failure of any other Lender to make its Loans hereunder.
1.08 Interest. (a) The Borrower agrees to pay interest in respect of the unpaid principal amount of each Base Rate Loan from the date the proceeds thereof are made available to the Borrower until the earlier of (i) the maturity (whether by acceleration or otherwise) of such Base Rate Loan and (ii) the conversion of such Base Rate Loan to a Eurodollar Loan pursuant to Section 1.06, at a rate per annum which shall be equal to the sum of the respective Applicable Margin plus the Base Rate in effect from time to time.
(b) The Borrower agrees to pay interest in respect of the unpaid principal amount of each Eurodollar Loan from the date the proceeds thereof are made available to the Borrower until the earlier of (i) the maturity (whether by acceleration or otherwise) of such Eurodollar Loan and (ii) the conversion of such Eurodollar Loan to a Base Rate Loan pursuant to Section 1.06 or 1.09, as applicable, at a rate per annum which shall, during each Interest Period
applicable thereto, be equal to the sum of the respective Applicable Margin plus the Eurodollar Rate for such Interest Period.
(c) Overdue principal and, to the extent permitted by law, overdue interest in respect of each Loan and any other overdue amount payable hereunder shall, in each case, bear interest at a rate per annum equal to the greater of (x) 2% per annum in excess of the rate otherwise applicable to Base Rate Loans of the respective Tranche from time to time (or, if such overdue amount is not interest or principal in respect of a Loan, 2% per annum in excess of the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans from time to time) and (y) the rate which is 2% in excess of the rate then borne by such Loans, in each case with such interest to be payable on demand.
(d) Accrued and unpaid interest shall be payable (i) in respect of each Base Rate Loan, quarterly in arrears on each Quarterly Payment Date, (ii) in respect of each Eurodollar Loan, on the last day of each Interest Period applicable thereto and, in the case of an Interest Period in excess of three months, on each date occurring at three month intervals after the first day of such Interest Period and (iii) in respect of each Loan, on any repayment, prepayment or conversion (on the amount repaid, prepaid or converted), at maturity (whether by acceleration or otherwise) and, after such maturity, on demand; provided that for purposes of preceding clause (iii) voluntary repayments, prepayments and conversions of Revolving Loans maintained as Base Rate Loans shall not be required to be accompanied by a payment of accrued and unpaid interest unless the Total Revolving Loan Commitment is then being terminated (with said interest payments generally to be made on Quarterly Payment Dates, as specified in clause (i) above).
(e) Upon each Interest Determination Date, the Administrative Agent shall determine the Eurodollar Rate for each Interest Period applicable to Eurodollar Loans and shall promptly notify the Borrower and the respective Lenders thereof. Each such determination shall, absent manifest error, be final and conclusive and binding on all parties hereto.
1.09 Interest Periods. At the time it gives any Notice of Borrowing or Notice of Conversion/Continuation in respect of the making of, or conversion into, any Eurodollar Loan (in the case of the initial Interest Period applicable thereto) or on the third Business Day prior to the expiration of an Interest Period applicable to such Eurodollar Loan (in the case of any subsequent Interest Period), the Borrower shall have the right to elect, by giving the Administrative Agent notice thereof, the interest period (each an "Interest Period") applicable to such Eurodollar Loan, which Interest Period shall, at the option of the Borrower, be a one week or a one, two, three or six month period; provided that:
(i) all Eurodollar Loans comprising a Borrowing shall at all times have the same Interest Period;
(ii) the initial Interest Period for any Eurodollar Loan shall commence on the date of Borrowing of such Eurodollar Loan (including the date of any conversion thereto from a Loan of a different Type) and each Interest Period occurring thereafter in respect of such Eurodollar Loan shall commence on the day on which the immediately preceding Interest Period applicable thereto expires;
(iii) if any Interest Period relating to a Eurodollar Loan begins on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period, such Interest Period shall end on the last Business Day of such calendar month;
(iv) if any Interest Period would otherwise expire on a day which is not a Business Day, such Interest Period shall expire on the first succeeding Business Day; provided, however, that if any Interest Period for a Eurodollar Loan would otherwise expire on a day which is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Interest Period shall expire on the immediately preceding Business Day;
(v) unless otherwise agreed in writing by the Required Lenders, no Interest Period may be selected at any time when any Specified Default or any Event of Default is then in existence;
(vi) no Interest Period in respect of any Borrowing of any Tranche of Loans shall be selected which extends beyond the respective Maturity Date for such Tranche of Loans;
(vii) no Interest Period in respect of any Borrowing of A
Term Loans shall be selected which extends beyond any date upon which a
mandatory repayment of A Term Loans will be required to be made under
Section 4.02(b) if the aggregate principal amount of A Term Loans which
have Interest Periods which will expire after such date will be in
excess of the aggregate principal amount of A Term Loans then
outstanding less the aggregate amount of such required repayment;
(viii) no Interest Period in respect of any Borrowing of B
Term Loans shall be selected which extends beyond any date upon which a
mandatory repayment of B Term Loans will be required to be made under
Section 4.02(c) if the aggregate principal amount of such B Term Loans
which have Interest Periods which will expire after such date will be
in excess of the aggregate principal amount of such B Term Loans then
outstanding less the aggregate amount of such required repayment;
(ix) the selection of Interest Periods shall be subject to the provisions of Section 1.02(b);
(x) one week interest periods may only be selected prior to the occurrence of the Syndication Date and then only if the Administrative Agent determines that same is available, and satisfactory, to each Lender of the respective Tranche; and
(xi) Interest Periods of one, two, three and six months may only be selected after the Syndication Date has occurred.
If upon the expiration of any Interest Period applicable to a Borrowing of Eurodollar Loans, the Borrower has failed to elect, or is not permitted to elect, a new Interest Period to be applicable to such Eurodollar Loans as provided above, the Borrower shall be
deemed to have elected to convert such Eurodollar Loans into Base Rate Loans effective as of the expiration date of such current Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) at any time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan because of (x) any change since the date of this Agreement in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to: (A) a change in the basis of taxation of payment to any Lender of the principal of or interest on such Eurodollar Loan or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Lender, or any franchise tax based on the net income or profits of such Lender, in either case pursuant to the laws of the United States of America, the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein), but without duplication of any amounts payable in respect of Taxes pursuant to Section 4.04(a), or (B) a change in official reserve requirements but, in all events, excluding reserves required under Regulation D and/or (y) other circumstances since the date of this Agreement affecting such Lender or the interbank Eurodollar market or the position of such Lender in such market; or
(iii) at any time, that the making or continuance of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order, and/or (y) impossible by compliance by any Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement which materially and adversely affects the interbank Eurodollar market;
then, and in any such event, such Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the Borrower and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of
Conversion/Continuation given by the Borrower with respect to Eurodollar Loans
which have not yet been incurred (including by way of conversion) shall be
deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the
Borrower agrees, subject to the provisions of Section 13.15 (to the extent
applicable), to pay to such Lender, upon written demand therefor, such
additional amounts (in the form of an increased rate of, or a different method
of calculating, interest or otherwise as such Lender in its reasonable
discretion shall determine) as shall be required to compensate such Lender for
such increased costs or reductions in amounts received or receivable hereunder
(a written notice as to the additional amounts owed to such Lender, showing in
reasonable detail the basis for and the calculation thereof, submitted to the
Borrower by such Lender in good faith shall, absent manifest error, be final and
conclusive and binding on all the parties hereto) and (z) in the case of clause
(iii) above, the Borrower shall take one of the actions specified in Section
1.10(b) as promptly as possible and, in any event, within the time period
required by law. Each of the Administrative Agent and each Lender agrees that if
it gives notice to the Borrower of any of the events described in clause (i) or
(iii) above, it shall promptly notify the Borrower and, in the case of any such
Lender, the Administrative Agent, if such event ceases to exist. If any such
event described in clause (iii) above ceases to exist as to a Lender, the
obligations of such Lender to make Eurodollar Loans and to convert Base Rate
Loans into Eurodollar Loans on the terms and conditions contained herein shall
be reinstated.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and, in the case of a Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii), shall) either (x) if the affected Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least one Business Day's written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan at the end of the then current Interest Period or at such earlier date as may be required to eliminate such circumstance or to comply with applicable law, provided that, if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If at any time after the date of this Agreement any Lender determines that the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by any governmental authority, central bank or comparable agency, in each case introduced or changed after the date hereof, will have the effect of increasing the amount of capital required or requested to be maintained by such Lender or any corporation controlling such Lender based on the existence of such Lender's Commitments hereunder or its obligations hereunder, then the Borrower agrees, subject to the provisions of Section 13.15 (to the extent applicable), to pay to such Lender, upon its written demand therefor, such additional amounts as shall be required to compensate such Lender or such other corporation for the increased cost to such Lender or such other corporation or the reduction in the rate of return to such Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Lender will act reasonably and
in good faith and will use averaging and attribution methods which are reasonable, provided that such Lender's determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower, which notice shall show in reasonable detail the basis for and calculation of such additional amounts.
1.11 Compensation. The Borrower agrees, subject to the provisions of Section 13.15 (to the extent applicable), to compensate each Lender, upon its written request (which request shall set forth in reasonable detail the basis for requesting and the calculation of such compensation), for all reasonable losses, expenses and liabilities (including, without limitation, any loss, expense or liability incurred by reason of the liquidation or reemployment of deposits or other funds required by such Lender to fund its Eurodollar Loans but excluding any loss of anticipated profit) which such Lender may sustain: (i) if for any reason (other than a default by such Lender or the Administrative Agent) a Borrowing of, or conversion from or into, Eurodollar Loans does not occur on a date specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation (whether or not withdrawn by the Borrower or deemed withdrawn pursuant to Section 1.10(a)); (ii) if any repayment (including any repayment made pursuant to Section 1.13, 4.01, 4.02, 13.12(b) or a result of an acceleration of the Loans pursuant to Section 10) or conversion of any of its Eurodollar Loans occurs on a date which is not the last day of an Interest Period with respect thereto; (iii) if any prepayment of any of its Eurodollar Loans is not made on any date specified in a notice of prepayment given by the Borrower; or (iv) as a consequence of (x) any other default by the Borrower to repay Loans when required by the terms of this Agreement or any Note held by such Lender or (y) any election made pursuant to Section 1.10(b).
1.12 Change of Lending Office. Each Lender agrees that on the occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or (iii), Section 1.10(c), Section 2.05 or Section 4.04 with respect to such Lender, it will, if requested by the Borrower, use reasonable efforts (subject to overall policy considerations of such Lender) to designate another lending office for any Loans or Letters of Credit affected by such event, provided that such designation is made on such terms that such Lender and its lending office suffer no economic, legal or regulatory disadvantage, with the object of avoiding the consequence of the event giving rise to the operation of such Section. Nothing in this Section 1.12 shall affect or postpone any of the obligations of the Borrower or the right of any Lender provided in Sections 1.10, 2.05 and 4.04.
1.13 Replacement of Lenders. (x) If any Lender becomes a
Defaulting Lender or otherwise defaults in its obligations to make Loans or fund
Unpaid Drawings, (y) upon the occurrence of any event giving rise to the
operation of Section 1.10(a)(ii) or (iii), Section 1.10(c), Section 2.05 or
Section 4.04 with respect to any Lender which results in such Lender charging to
the Borrower increased costs in excess of those being generally charged by the
other Lenders, or (z) as provided in Section 13.12(b) in the case of certain
refusals by a Lender to consent to certain proposed changes, waivers, discharges
or terminations with respect to this Agreement which have been approved by the
Required Lenders, the Borrower shall have the right, if no Default or Event of
Default will exist immediately after giving effect to the respective
replacement, to either replace such Lender (the "Replaced Lender") with one or more other Eligible Transferee or Transferees, none of whom shall constitute a Defaulting Lender at the time of such replacement (collectively, the "Replacement Lender") reasonably acceptable to the Administrative Agent or, at the option of the Borrower, to replace only (a) the Revolving Loan Commitment (and outstandings pursuant thereto) of the Replaced Lender with an identical Revolving Loan Commitment provided by the Replacement Lender or (b) in the case of a replacement as provided in Section 13.12(b) where the consent of the respective Lender is required with respect to less than all Tranches of its Loans or Commitments, the Commitments and/or outstanding Term Loans of such Lender in respect of each Tranche where the consent of such Lender would otherwise be individually required, with identical Commitments and/or Loans of the respective Tranche provided by the Replacement Lender, provided that:
(i) at the time of any replacement pursuant to this
Section 1.13, the Replacement Lender shall enter into one or more
Assignment and Assumption Agreements pursuant to Section 13.04(b) (and
with all fees payable pursuant to said Section 13.04(b) to be paid by
the Replacement Lender) pursuant to which the Replacement Lender shall
acquire all of the Commitments and outstanding Loans (or, in the case
of the replacement of only (a) the Revolving Loan Commitment, the
Revolving Loan Commitment and outstanding Revolving Loans, (b) the
outstanding A Term Loans, the A Term Loans or (c) the outstanding B
Term Loans, the outstanding B Term Loans) of, and in each case (except
for the replacement of only outstanding Term Loans) participations in
Letters of Credit by, the Replaced Lender and, in connection therewith,
shall pay to (x) the Replaced Lender in respect thereof an amount equal
to the sum (without duplication) of (A) an amount equal to the
principal of, and all accrued interest on, all outstanding Loans (or,
in the case of the replacement of only (I) the Revolving Loan
Commitment, the outstanding Revolving Loans, (II) the A Term Loans, the
outstanding A Term Loans or (III) the B Term Loans, the outstanding B
Term Loans) of the Replaced Lender, (B) except in the case of the
replacement of only outstanding Term Loans of a Replaced Lender, an
amount equal to all Unpaid Drawings that have been funded by (and not
reimbursed to) such Replaced Lender, together with all then unpaid
interest with respect thereto at such time and (C) an amount equal to
all accrued, but unpaid, Fees owing to the Replaced Lender (but only
with respect to the relevant Tranche, in the case of the replacement of
less than all Tranches of Loans then held by the respective Replaced
Lender) pursuant to Section 3.01 and (y) except in the case of the
replacement of only outstanding Term Loans of a Replaced Lender, the
respective Issuing Lender an amount equal to such Replaced Lender's
Revolving Percentage of any Unpaid Drawing (which at such time remains
an Unpaid Drawing) to the extent such amount was not theretofore funded
by such Replaced Lender, and
(ii) all obligations of the Borrower owing to the Replaced Lender (other than those (a) specifically described in clause (i) above in respect of which the assignment purchase price has been, or is concurrently being, paid or (b) relating to any Tranche of Loans and/or Commitments of the respective Replaced Lender which will remain outstanding after giving effect to the respective replacement) shall be paid in full to such Replaced Lender concurrently with such replacement.
Upon the execution of the respective Assignment and Assumption Agreements, the payment of amounts referred to in clauses (i) and (ii) above and, if so requested by the Replacement Lender, delivery to the Replacement Lender of the appropriate Note or Notes executed by the Borrower, the Replacement Lender shall become a Lender hereunder and, unless the respective Replaced Lender continues to have outstanding Term Loans or a Revolving Loan Commitment hereunder, the Replaced Lender shall cease to constitute a Lender hereunder, except with respect to indemnification provisions under this Agreement (including, without limitation, Sections 1.10, 1.11, 2.05, 4.04, 13.01 and 13.06), which shall survive as to such Replaced Lender.
SECTION 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, the Borrower may request that any Issuing Lender issue, at any time and from time to time on and after the Initial Borrowing Date and prior to the date which is 30 days prior to the Revolving Loan Maturity Date, (x) for the account of the Borrower and for the benefit of any holder (or any trustee, agent or other similar representative for any such holders) of L/C Supportable Indebtedness, an irrevocable sight standby letter of credit, in a form customarily used by such Issuing Lender or in such other form as has been approved by such Issuing Lender (each such standby letter of credit, a "Standby Letter of Credit") in support of such L/C Supportable Indebtedness and (y) for the account of the Borrower and for the benefit of sellers of goods to the Borrower or any of its Subsidiaries in the ordinary course of business, irrevocable sight trade letters of credit in a form customarily used by such Issuing Lender or in such other form as has been approved by such Issuing Lender (each such trade letter of credit, a "Trade Letter of Credit," and each Standby Letter of Credit and each Trade Letter of Credit being a "Letter of Credit" and, collectively, the "Letters of Credit").
(b) Subject to the terms and conditions contained herein, the Administrative Agent hereby agrees that it will (and at the Borrower's request each other Issuing Lender may, at its option, agree that it will), at any time and from time to time on or after the Initial Borrowing Date and prior to the date which is 30 days prior to the Revolving Loan Maturity Date, following its receipt of the respective Letter of Credit Request, issue (or cause its respective Affiliate designated by it from time to time to act as Issuing Lender for the account of the Borrower one or more Letters of Credit in support of the respective obligations as described in Section 2.01(a)(x) or 2.01(a)(y), as the case may be, as are permitted to remain outstanding without giving rise to a Default or Event of Default hereunder, provided that the respective Issuing Lender shall be under no obligation to issue any Letter of Credit of the types described above if at the time of such issuance:
(i) any order, judgment or decree of any governmental authority or arbitrator shall purport by its terms to enjoin or restrain such Issuing Lender from issuing such Letter of Credit or any requirement of law applicable to such Issuing Lender or any request or directive (whether or not having the force of law) from any governmental authority with jurisdiction over such Issuing Lender shall prohibit, or request that such Issuing Lender refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such Issuing Lender with respect to such Letter
of Credit any restriction or reserve or capital requirement (for which such Issuing Lender is not otherwise compensated) not in effect on the date hereof, or any unreimbursed loss, cost or expense which was not applicable or in effect as of the date hereof and which such Issuing Lender in good faith deems material to it; or
(ii) such Issuing Lender shall have received notice from any Lender prior to the issuance of such Letter of Credit of the type described in the second sentence of Section 2.02(b); or
(iii) a Lender Default exists, unless the respective Letter of Credit Issuer has entered into arrangements satisfactory to it and the Borrower to eliminate the Letter of Credit Issuer's risk with respect to the participation in Letters of Credit of any Defaulting Lender(s), including by cash collateralizing any such Defaulting Lender's (or Defaulting Lenders') Revolving Percentage (or Revolving Percentages) of the Letter of Credit Outstandings.
(c) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and prior to the issuance of, the respective Letter of Credit) at such time would exceed either (x) $40,000,000 or (y) when added to the aggregate principal amount of all Revolving Loans then outstanding and the aggregate principal amount of all Swingline Loans then outstanding, an amount equal to the Total Revolving Loan Commitment at such time, (ii) each Letter of Credit shall be denominated in Dollars, (iii) (x) each Standby Letter of Credit shall by its terms terminate on or before the earlier of (A) the date which occurs 12 months after the date of the issuance thereof (although any such Letter of Credit may be automatically extendible for successive periods of up to 12 months, but not beyond the tenth Business Day prior to the Revolving Loan Maturity Date, on terms acceptable to the Issuing Lender thereof) and (B) the tenth Business Day prior to the Revolving Loan Maturity Date and (y) each Trade Letter of Credit shall by its terms terminate on or before the earlier of (A) the date which occurs 180 days after such Trade Letter of Credit's date of issuance and (B) the thirtieth day preceding the Revolving Loan Maturity Date and (iv) the Stated Amount of each Letter of Credit upon issuance shall be not less than $50,000 or such lesser amount as is acceptable to the respective Issuing Lender.
2.02 Letter of Credit Requests. (a) Whenever the Borrower desires that a Letter of Credit be issued for its account, the Borrower shall give the Administrative Agent and the respective Issuing Lender at least five Business Days' (or such shorter period as is acceptable to the respective Issuing Lender) written notice thereof. Each notice shall be in the form of Exhibit C (each a "Letter of Credit Request").
(b) The making of each Letter of Credit Request shall be deemed to be a representation and warranty by the Borrower that such Letter of Credit may be issued in accordance with, and will not violate the requirements of, Section 2.01(c). Unless the respective Issuing Lender has received notice from any Lender before it issues a Letter of Credit that one or more of the conditions specified in Section 5 or Section 6, as applicable, are not then satisfied, or that the
issuance of such Letter of Credit would violate Section 2.01(c), then such Issuing Lender shall issue the requested Letter of Credit for the account of the Borrower in accordance with such Issuing Lender's usual and customary practices. Upon the issuance of, or amendment to, any Standby Letter of Credit, the Issuing Lender shall promptly notify the Administrative Agent in writing of such issuance or amendment and such notice shall be accompanied by a copy of such issuance or amendment. Upon receipt of such notice, the Administrative Agent shall notify each Lender, in writing, of such issuance or amendment and if requested to by any Lender, the Administrative Agent shall provide to such Lender copies of any such issuance or amendment. With regards to Trade Letters of Credit, the Issuing Lender shall, on the first Business Day of each week, provide to the Administrative Agent, by facsimile, a written report of the aggregate daily outstanding Trade Letters of Credit for the previous week.
2.03 Letter of Credit Participations. (a)(i) Immediately upon the issuance by any Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to each Revolving Lender, and each such Revolving Lender shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Lender, without recourse or warranty, an undivided interest and participation, in a percentage equal to such Revolving Lender's Revolving Percentage, in such Letter of Credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto.
(ii) Upon any change in the Revolving Loan Commitments or Revolving Percentages of the Revolving Lenders pursuant to Section 1.13 or 13.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations therein pursuant to this Section 2.03 to reflect the new Revolving Percentages of the assignor and assignee Revolving Lender or of all Lenders with Revolving Loan Commitments, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the respective Issuing Lender shall have no obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Subject to the provisions of the immediately preceding sentence, any action taken or omitted to be taken by any Issuing Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, as determined by a court of competent jurisdiction in a final and non-appealable decision, shall not create for such Issuing Lender any resulting liability to any Credit Party or any Lender.
(c) In the event that any Issuing Lender makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 2.04(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Revolving Lender, of such failure, and each Revolving Lender shall promptly and unconditionally pay to such Issuing Lender the amount of such Revolving Lender's Revolving Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business
Day, any Revolving Lender required to fund a payment under a Letter of Credit, such Revolving Lender shall make available to such Issuing Lender in Dollars such Revolving Lender's Revolving Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Revolving Lender shall not have so made its Revolving Percentage of the amount of such payment available to such Issuing Lender, such Revolving Lender agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate. The failure of any Revolving Lender to make available to such Issuing Lender its Revolving Percentage of any payment under any Letter of Credit shall not relieve any other Revolving Lender of its obligation hereunder to make available to such Issuing Lender its Revolving Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Revolving Lender shall be responsible for the failure of any other Revolving Lender to make available to such Issuing Lender such other Revolving Lender's Revolving Percentage of any such payment.
(d) Whenever any Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender shall forward such payment to the Administrative Agent, which in turn shall distribute to each Revolving Lender which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal to such Revolving Lender's share (based upon the proportionate aggregate amount originally funded by such Revolving Lender to the aggregate amount funded by all Revolving Lenders in the respective Letter of Credit) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e) The obligations of the respective Revolving Lenders to make payments to each Issuing Lender with respect to Letters of Credit issued by it shall be irrevocable and not subject to any qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Issuing Lender, any Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
2.04 Agreement to Repay Letter of Credit Drawings. (a) The Borrower hereby agrees to reimburse the respective Issuing Lender, by making payment to the Administrative Agent in immediately available funds at the Payment Office, for any payment or disbursement made by it under any Letter of Credit issued hereunder (each such amount, so paid until reimbursed, an "Unpaid Drawing"), immediately after, and in any event on the date of such payment or disbursement, with interest on the amount so paid or disbursed by such Issuing Lender, to the extent not reimbursed prior to 12:00 Noon (New York time) on the date of such payment or disbursement, from and including the date paid or disbursed to but excluding the date such Issuing Lender was reimbursed by the Borrower therefor at a rate per annum which shall be the Base Rate in effect from time to time plus the Applicable Margin for Revolving Loans maintained as Base Rate Loans; provided, however, to the extent such amounts are not reimbursed prior to 12:00 Noon (New York time) on the third Business Day following receipt of notice of such payment or disbursement, interest shall thereafter accrue on the amounts so paid or disbursed by such Issuing Lender (and until reimbursed by the Borrower) at a rate per annum which shall be the Base Rate in effect from time to time plus the Applicable Margin for Loans maintained as Base Rate Loans plus 2%, with such interest, in each case, to be payable on demand. The respective Issuing Lender shall give the Borrower prompt notice of each Drawing under any Letter of Credit, provided that the failure to give any such notice shall in no way affect, impair or diminish the Borrower's obligations hereunder.
(b) The obligations of the Borrower under this Section 2.04 to reimburse the respective Issuing Lender with respect to drawings on Letters of Credit (each, a "Drawing") (including, in each case, interest thereon) shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment which the Borrower may have or has had against any Lender (including in its capacity as issuer of the Letter of Credit or as Participant), or any non-application or misapplication by the beneficiary of the proceeds of such Drawing, the respective Issuing Lender's only obligation to the Borrower being to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to comply on their face with the requirements of such Letter of Credit. Subject to the provisions of the immediately preceding sentence, any action taken or omitted to be taken by any Issuing Lender under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision), shall not create for such Issuing Lender any resulting liability to the Borrower or any other Credit Party.
2.05 Increased Costs. If at any time after the date of
this Agreement, the introduction of or any change in any applicable law, rule,
regulation, order, guideline or request or in the interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof, or compliance by any Issuing Lender or
any Revolving Lender with any request or directive by any such authority
(whether or not having the force of law), shall either (i) impose, modify or
make applicable any reserve, deposit, capital adequacy or similar requirement
against letters of credit issued by any Issuing Lender or participated in by any
Revolving Lender, or (ii) impose on any Issuing Lender or any Revolving Lender
any other conditions relating, directly or indirectly, to this Agreement or any
Letter of Credit; and the result of any of the foregoing is to increase the cost
to any Issuing Lender or any Revolving Lender of issuing, maintaining or
participating in any Letter of Credit, or reduce the amount of any sum received
or receivable by any Issuing Lender or any Revolving Lender hereunder or reduce
the rate of return on its capital with respect to Letters of Credit (except for
changes in the rate of tax on, or determined by reference to, the net income or
profits of such Issuing Lender or such Revolving Lender, or any franchise tax
based on the net income or profits of such Issuing Lender or Revolving Lender,
in either case pursuant to the laws of the United States of America, the
jurisdiction in which it is organized or in which its principal office or
applicable lending office is located or any subdivision thereof or therein), but
without duplication of any amounts payable in respect of Taxes pursuant to
Section 4.04(a), then, upon demand to the Borrower by such Issuing Lender or any
Revolving Lender (a copy of which demand shall be sent by such Issuing Lender or
such Revolving Lender to the Administrative Agent) and subject to the provisions
of Section 13.15 (to the extent applicable), the Borrower agrees to pay to such
Issuing Lender or such Revolving Lender such additional amount or amounts as
will compensate such Lender for such increased cost or reduction in the amount
receivable or reduction on the rate of return on its capital. Any Issuing Lender
or any Revolving Lender, upon determining that any additional amounts will be
payable pursuant to this Section 2.05, will give prompt written notice thereof
to the Borrower, which notice shall include a certificate submitted to the
Borrower by such Issuing Lender or such Revolving Lender (a copy of which
certificate shall be sent by such Issuing Lender or such Revolving Lender to the
Administrative Agent), setting forth in reasonable detail the basis for and the
calculation of such additional amount or amounts necessary to compensate such
Issuing Lender or such Revolving Lender. The certificate required to be
delivered pursuant to this Section 2.05 shall, if delivered in good faith and
absent manifest error, be final and conclusive and binding on the Borrower.
SECTION 3. Commitment Commission; Fees; Reductions of Commitment.
3.01 Fees. (a) The Borrower agrees to pay the Administrative Agent for distribution to each Non-Defaulting Lender with a Revolving Loan Commitment a commitment commission (the "Commitment Commission") for the period from the Effective Date to and including the Revolving Loan Maturity Date (or such earlier date as the Total Revolving Loan Commitment shall have been terminated), in each case computed at a rate for each day equal to the relevant Applicable Margin per annum on the daily average Unutilized Revolving Loan Commitment of such Non-Defaulting Lender. Accrued Commitment Commission shall be due and payable quarterly in arrears on each Quarterly Payment Date and on the Revolving Loan
Maturity Date or such earlier date upon which the Total Revolving Loan Commitment is terminated.
(b) The Borrower agrees to pay to the Administrative Agent for distribution to the Revolving Lenders (based on their respective Revolving Percentages) a fee in respect of each Letter of Credit issued hereunder (the "Letter of Credit Fee"), for the period from and including the date of issuance of such Letter of Credit to and including the termination of such Letter of Credit, computed at a rate per annum equal to the Applicable Margin then in effect for Revolving Loans maintained as Eurodollar Loans on the daily Stated Amount of such Letter of Credit. Accrued Letter of Credit Fees shall be due and payable quarterly in arrears on each Quarterly Payment Date and upon the first day on or after the termination of the Total Revolving Loan Commitment upon which no Letters of Credit remain outstanding.
(c) The Borrower agrees to pay to the respective Issuing Lender, for its own account, a facing fee in respect of each Letter of Credit issued hereunder (the "Facing Fee") in the case of each Letter of Credit, for the period from and including the date of issuance of such Letter of Credit to and including the termination of such Letter of Credit, computed at a rate equal to 1/8 of 1% per annum of the daily Stated Amount of such Letter of Credit; provided that, in no event shall the annual (or such shorter period as any Letter of Credit is outstanding) Facing Fee with respect to any Letter of Credit be less than $500. Accrued Facing Fees shall be due and payable quarterly in arrears on each Quarterly Payment Date and on the date upon which the Total Revolving Loan Commitment has been terminated and such Letter of Credit has been terminated in accordance with its terms.
(d) The Borrower agrees to pay, upon each payment under, issuance of, or amendment to, any Letter of Credit issued hereunder, such amount as shall at the time of such event be the administrative charge which the respective Issuing Lender is generally charging in connection with such occurrence with respect to letters of credit.
(e) The Borrower shall pay to the Administrative Agent, for the Administrative Agent's own account, such other fees as have been agreed to in writing by the Borrower and the Administrative Agent.
3.02 Voluntary Termination of Unutilized Commitments. (a) Upon at least three Business Day's prior notice to the Administrative Agent at its Notice Office (which notice the Administrative Agent shall promptly transmit to each of the Lenders), the Borrower shall have the right, at any time or from time to time, without premium or penalty, to terminate the Total Unutilized Revolving Loan Commitment, in whole or in part, in integral multiples of $1,000,000 in the case of partial reductions thereto, provided that each such reduction shall apply proportionately to permanently reduce the Revolving Loan Commitment of each Lender with a Revolving Loan Commitment.
(b) In the event of certain refusals by a Lender as provided in Section 13.12(b) to consent to certain proposed changes, waivers, discharges or terminations with respect to this Agreement which have been approved by the Required Lenders, the Borrower may, subject to the requirements of said Section 13.12(b) and upon five Business Days' written notice to the
Administrative Agent at its Notice Office (which notice the Administrative Agent shall promptly transmit to each of the Lenders), terminate all of the Revolving Loan Commitment of such Lender so long as all Loans, together with accrued and unpaid interest, fees and all other amounts, owing to such Lender (other than amounts owing in respect of outstanding Term Loans maintained by such Lender, if such Term Loans are not being repaid pursuant to Section 13.12(b)) are repaid concurrently with the effectiveness of such termination (at which time Schedule I shall be deemed modified to reflect such changed amounts), and at such time, unless the respective Lender continues to have outstanding Term Loans hereunder, such Lender shall no longer constitute a "Lender" for purposes of this Agreement, except with respect to indemnification provisions under this Agreement (including, without limitation, Sections 1.10, 1.11, 2.05, 4.04, 13.01 and 13.06), which shall survive as to such repaid Lender.
3.03 Mandatory Reduction of Commitments. (a) The Total Commitments (and the A Term Loan Commitment, the B Term Loan Commitment and the Revolving Loan Commitment of each Lender) shall terminate in their entirety on April 15, 2001 unless the Initial Borrowing Date shall have occurred on or prior to such date.
(b) In addition to any other mandatory commitment reductions pursuant to this Section 3.03, the Total A Term Loan Commitment (and the A Term Loan Commitment of each Lender) shall terminate in its entirety on the Initial Borrowing Date (after giving effect to the making of any A Term Loans on such date).
(c) In addition to any other mandatory commitment reductions pursuant to this Section 3.03, the Total B Term Loan Commitment (and the B Term Loan Commitment of each Lender) shall terminate in its entirety on the Initial Borrowing Date (after giving effect to the making of any B Term Loans on such date).
(d) In addition to any other mandatory commitment reductions pursuant to this Section 3.03, the Total Revolving Loan Commitment (and the Revolving Loan Commitment of each Lender) shall terminate in its entirety on the Revolving Loan Maturity Date.
(e) Each reduction to the Total A Term Loan Commitment, Total B Term Loan Commitment and the Total Revolving Loan Commitment pursuant to this Section 3.03 shall be applied proportionately to reduce the A Term Loan Commitment, B Term Loan Commitment or the Revolving Loan Commitment, as the case may be, of each Lender with such a Commitment.
(f) In addition to any other mandatory commitment reductions pursuant to this Section 3.03, on each date after the Initial Borrowing Date upon which a mandatory repayment pursuant to any of Sections 4.02(d) through (g), inclusive, is required (and exceeds in amount the aggregate principal amount of Term Loans then outstanding) or would be required if Term Loans were then outstanding, the Total Revolving Loan Commitment shall be permanently reduced by the amount, if any, by which the amount required to be applied pursuant to said Sections exceeds the aggregate principal amount of Term Loans then outstanding. Each reduction to the Total Revolving Loan Commitment pursuant to this Section 3.03(f) shall be applied to proportionately reduce the Revolving Loan Commitment of each Lender with a Revolving Loan Commitment.
SECTION 4. Prepayments; Payments; Taxes.
4.01 Voluntary Prepayments. The Borrower shall have the right to prepay the Loans, without premium or penalty, in whole or in part at any time and from time to time on the following terms and conditions: (i) the Borrower shall give the Administrative Agent prior to 12:00 Noon (New York time) at its Notice Office (x) at least one Business Day's prior written notice (or telephonic notice promptly confirmed in writing) of its intent to prepay Base Rate Loans and (y) at least three Business Days' prior written notice (or telephonic notice promptly confirmed in writing) of its intent to prepay Eurodollar Loans, whether Term Loans, Revolving Loans or Swingline Loans shall be prepaid, the amount of such prepayment and the Types of Loans to be prepaid and, in the case of Eurodollar Loans, the specific Borrowing or Borrowings pursuant to which made, which notice the Administrative Agent shall promptly transmit to each of the Lenders; (ii) each prepayment shall be in an aggregate principal amount of at least $1,000,000 (or $100,000 in the case of Swingline Loans) or such lesser amount of a Borrowing which is outstanding, provided that if any partial prepayment of Eurodollar Loans made pursuant to any Borrowing shall reduce the outstanding Eurodollar Loans made pursuant to such Borrowing to an amount less than $5,000,000 (or $1,000,000 in the case of Revolving Loans) then such Borrowing may not be continued as a Borrowing of Eurodollar Loans and any election of an Interest Period with respect thereto given by the Borrower shall have no force or effect; (iii) at the time of any prepayment of Eurodollar Loans pursuant to this Section 4.01 on any date other than the last day of the Interest Period applicable thereto, the Borrower shall pay the amounts required pursuant to Section 1.11; (iv) in the event of certain refusals by a Lender as provided in Section 13.12(b) to consent to certain proposed changes, waivers, discharges or terminations with respect to this Agreement which have been approved by the Required Lenders, the Borrower may, upon five Business Days' written notice to the Administrative Agent at its Notice Office (which notice the Administrative Agent shall promptly transmit to each of the Lenders) repay all Loans, together with accrued and unpaid interest, Fees, and other amounts owing to such Lender (or owing to such Lender with respect to each Tranche which gave rise to the need to obtain such Lender's individual consent) in accordance with said Section 13.12(b) so long as (A) in the case of the repayment of Revolving Loans of any Lender pursuant to this clause (iv) the Revolving Loan Commitment of such Lender is terminated concurrently with such repayment (at which time Schedule I shall be deemed modified to reflect the changed Revolving Loan Commitments), and (B) the consents required by Section 13.12(b) in connection with the repayment pursuant to this clause (iv) have been obtained and all other requirements of Section 13.12(b) are satisfied; (v) subject to the provisions of Section 4.02(k), each voluntary prepayment of Term Loans pursuant to this Section 4.01 shall be applied to the A Term Loans and the B Term Loans on a pro rata basis (based upon the then outstanding principal amount of A Term Loans and B Term Loans); and (vi) except as expressly provided in the preceding clause (iv), each prepayment in respect of any Loans made pursuant to a Borrowing shall be applied pro rata among the Loans comprising such Borrowing; provided that at the Borrower's election in connection with any prepayment of Revolving Loans pursuant to this Section 4.01, such prepayment shall not be applied to any Revolving Loan of a Defaulting Lender. Each prepayment of principal of any Tranche of Term Loans made pursuant to this Section 4.01 shall be applied to reduce the then remaining Scheduled Repayments of such Tranche of Term Loans
pro rata based upon the then remaining amounts of such Scheduled Repayments after giving effect to all prior reductions thereto.
4.02 Mandatory Repayments. (a) On any day on which the sum of the aggregate outstanding principal amount of Revolving Loans, Swingline Loans and the Letter of Credit Outstandings exceeds the Total Revolving Loan Commitment as then in effect, the Borrower shall prepay principal of Swingline Loans and, after the Swingline Loans have been repaid in full, Revolving Loans in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Swingline Loans and Revolving Loans, the aggregate amount of the Letter of Credit Outstandings exceeds the Total Revolving Loan Commitment as then in effect, the Borrower shall pay to the Administrative Agent at the Payment Office on such date an amount of cash or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to the Letter of Credit Outstandings at such time), such cash or Cash Equivalents to be held as security for all obligations of the Borrower hereunder in a cash collateral account to be established by the Administrative Agent.
(b) In addition to any other mandatory repayments pursuant to this Section 4.02, on each date set forth below (each an "A Scheduled Repayment Date"), the Borrower shall be required to repay that aggregate principal amount of A Term Loans, to the extent then outstanding, as is equal to the aggregate principal amount of A Term Loans set forth opposite such date (each such repayment, as the same may be reduced as provided in Sections 4.01 and 4.02(h), an "A Scheduled Repayment"):
A Scheduled Repayment Date Amount -------------------------- ------ September 30, 2001 $5,000,000 December 31, 2001 $5,000,000 March 31, 2002 $5,625,000 June 30, 2002 $5,625,000 September 30, 2002 $5,625,000 December 31, 2002 $5,625,000 March 31, 2003 $7,500,000 June 30, 2003 $7,500,000 September 30, 2003 $7,500,000 December 31, 2003 $7,500,000 March 31, 2004 $7,500,000 June 30, 2004 $7,500,000 September 30, 2004 $7,500,000 December 31, 2004 $7,500,000 A Term Loan Maturity Date $7,500,000 |
(c) In addition to any other mandatory repayments pursuant to this Section 4.02, on each date set forth below (each a "B Scheduled Repayment Date"), the Borrower shall be required to repay that aggregate principal amount of B Term Loans, to the extent then outstanding, as is equal to the aggregate principal amount of B Term Loans set forth opposite such date (each such repayment, as the same may be reduced as provided in Sections 4.01 and 4.02(h), a "B Scheduled Repayment"):
B Scheduled Repayment Date Amount -------------------------- ------ September 30, 2001 $ 375,000 December 31, 2001 $ 375,000 March 31, 2002 $ 375,000 June 30, 2002 $ 375,000 September 30, 2002 $ 375,000 December 31, 2002 $ 375,000 March 31, 2003 $ 375,000 June 30, 2003 $ 375,000 September 30, 2003 $ 375,000 December 31, 2003 $ 375,000 March 31, 2004 $ 375,000 June 30, 2004 $ 375,000 September 30, 2004 $ 375,000 December 31, 2004 $ 375,000 March 31, 2005 $13,750,000 June 30, 2005 $13,750,000 September 30, 2005 $13,750,000 December 31, 2005 $13,750,000 March 31, 2006 13,750,000 June 30, 2006 13,750,000 September 30, 2006 13,750,000 December 31, 2006 13,750,000 B Term Loan Maturity Date $34,750,000 |
(d) In addition to any other mandatory repayments pursuant to this Section 4.02, on each date after the Effective Date upon which the Borrower or any of its Subsidiaries receives any proceeds from any incurrence by the Borrower or any of its Subsidiaries of Indebtedness for borrowed money (other than Indebtedness for borrowed money permitted to be incurred pursuant to Section 9.04 as such Section is in effect on the Effective Date), an amount equal to 100% of the cash proceeds (net of underwriting discounts and commissions and other costs associated
therewith including, without limitation, legal fees and expenses) of the respective incurrence of Indebtedness shall be applied as a mandatory repayment in accordance with the requirements of Sections 4.02(h) and (i).
(e) In addition to any other mandatory repayments
pursuant to this Section 4.02, on each date after the Effective Date upon which
the Borrower or any of its Subsidiaries receives any Net Asset Sale Proceeds, an
amount equal to 100% of such Net Asset Sale Proceeds shall be applied as a
mandatory repayment in accordance with the requirements of Sections 4.02(h) and
(i); provided that, so long as no Default or Event of Default shall have
occurred and be continuing, Net Asset Sale Proceeds of Asset Sales effected
pursuant to Sections 9.02(i) and 9.02(x) (except, in the case of such Asset
Sales effected during the fiscal year of the Borrower ended closest to December
31, 2001, to the extent the Net Asset Sale Proceeds therefrom exceed $20,000,000
in the aggregate), shall not be required to be so applied to the extent that the
Borrower delivers to the Administrative Agent on or prior to such date an
officers' certificate setting forth (1) that portion of such Net Asset Sale
Proceeds (such portion being the "Proposed Asset Sale Reinvestment Proceeds")
that the Borrower or any of its Subsidiaries intends to reinvest in equipment or
other productive capital assets of the general type used in the business of the
Borrower and its Subsidiaries (such equipment and other assets being "Eligible
Assets") within one year of such date of receipt and (2) the proposed use of
such Proposed Asset Sale Reinvestment Proceeds, and the Borrower shall, or shall
cause one or more of its Subsidiaries to, promptly (and in any event within one
year) apply such Proposed Asset Sale Reinvestment Proceeds to such reinvestment
purposes. To the extent any Proposed Asset Sale Reinvestment Proceeds are not so
reinvested within such one year period, the Borrower shall, not later than one
year after receipt thereof, apply the full amount of all such Proposed Asset
Sale Reinvestment Proceeds that have not been reinvested in Eligible Assets as
mandatory repayments in accordance with the requirements of Sections 4.02(h) and
(i).
(f) In addition to any other mandatory repayments or commitment reductions pursuant to this Section 4.02, on each date after the Effective Date on which the Borrower or any of its Subsidiaries receives any Net Insurance/Condemnation Proceeds, an amount equal to 100% of such Net Insurance/Condemnation Proceeds shall be applied as a mandatory repayment in accordance with the requirements of Sections 4.02(h) and (i); provided that, so long as no Default or Event of Default shall have occurred and be continuing, Net Insurance/Condemnation Proceeds shall not be required to be so applied to the extent that (x) the Borrower delivers to the Administrative Agent an officers' certificate setting forth (1) that portion of such Net Insurance/ Condemnation Proceeds (the "Proposed Insurance Reinvestment Proceeds") that the Borrower or any of its Subsidiaries intends to use within one year of such date of receipt to pay or reimburse the costs of repairing, restoring or replacing the assets in respect of which such Net Insurance/Condemnation Proceeds were received or to reinvest in Eligible Assets and (2) the proposed use of the Proposed Insurance Reinvestment Proceeds, (y) the amount of all Proposed Insurance Reinvestment Proceeds received by the Borrower or any of its Subsidiaries not theretofore used to repair, restore or replace the assets in respect of which such Net Insurance/Condemnation Proceeds were received, reinvested in Eligible Assets or applied to make mandatory repayments in accordance with the requirements of Sections 4.02(h) and (i) which exceed in the aggregate $10,000,000, shall have been deposited with the Collateral Agent pursuant to a cash collateral
arrangement, for the benefit of the Secured Creditors and reasonably satisfactory to the Collateral Agent, whereby such proceeds shall be dispersed to the Borrower or its order from time to time as needed to pay actual costs incurred by the Borrower and/or its Subsidiaries in connection with the repair, restoration or replacement of the assets in respect of which such Net Insurance/ Condemnation Proceeds were received or to finance the acquisition of Eligible Assets; provided that if any Event of Default shall have occurred and be continuing, such proceeds may be applied by the Collateral Agent in accordance with the provisions of the Security Documents, and (z) the Borrower shall, or shall cause one or more of its Subsidiaries to, promptly apply such Proposed Insurance Reinvestment Proceeds to pay or reimburse the costs of repairing, restoring or replacing the assets in respect of which such Proposed Insurance Reinvestment Proceeds were received or to reinvest in Eligible Assets, provided further, that any such Proposed Insurance Reinvestment Proceeds not so applied within one year after the date of receipt thereof shall be applied, on the date which is one year after receipt thereof, to make mandatory repayments in accordance with the requirements of Sections 4.02(h) and (i).
(g) In addition to any other mandatory repayments or commitment reductions pursuant to this Section 4.02, on each Excess Cash Payment Date, an amount equal to 25% of the Excess Cash Flow for the relevant Excess Cash Flow Payment Period shall be applied as a mandatory repayment and/or commitment reduction in accordance with the requirements of Sections 4.02(h) and (i).
(h) The amount of each mandatory repayment made as required by Sections 4.02 (d), (e), (f) and (g) shall be applied (i) first, pro rata to each Tranche of Term Loans (subject to the provisions of Section 4.02(k) with respect to the B Term Loans) based upon the then outstanding principal amount of A Term Loans and B Term Loans until all outstanding Term Loans have been repaid in full and (ii) second, to the extent in excess of the amounts to be applied pursuant to preceding clause (i), the Total Revolving Loan Commitment shall be reduced in accordance with the provisions of Section 3.03(f) and any remaining proceeds to be applied pursuant to this clause (ii) shall be used to make any mandatory repayments owing as a result thereof pursuant to Section 4.02(a) and, to the extent in excess thereof, same shall be released to (or retained by) the Borrower (so long as no Default or Event of Default then exists). All amounts applied to the repayment of principal of Term Loans in accordance with the foregoing provisions of this Section 4.02(h) (as a result of payments required by Sections 4.02(d), (e), (f) and (g)), after giving effect to adjustments pursuant to Section 4.02(k), shall be applied to reduce the then remaining Scheduled Repayments of the respective Tranche of Term Loans pro rata based upon the then remaining principal amounts of the Scheduled Repayments of the respective Tranche of Term Loans after giving effect to all prior reductions thereto.
(i) With respect to each repayment of Loans required by this Section 4.02, the Borrower may designate the Types of Loans which are to be repaid and, in the case of Eurodollar Loans, the specific Borrowing or Borrowings pursuant to which made, provided that: (i) repayments of Eurodollar Loans pursuant to this Section 4.02 may only be made on the last day of an Interest Period applicable thereto unless all Eurodollar Loans of the respective Tranche with Interest Periods ending on such date of required repayment and all Base Rate Loans of the respective Tranche have been paid in full; (ii) if any repayment of Eurodollar Loans made pursuant to a single Borrowing shall reduce the outstanding Eurodollar Loans made pursuant
to such Borrowing to an amount less than $5,000,000, such Borrowing shall be
converted at the end of the then current Interest Period into a Borrowing of
Base Rate Loans; and (iii) each repayment of any Loans comprising a Borrowing
shall be applied pro rata among such Loans. In the absence of a designation by
the Borrower as described in the preceding sentence, the Administrative Agent
shall, subject to the above, make such designation in its sole discretion.
Notwithstanding the foregoing provisions of this Section 4.02, if at any time
the mandatory prepayment of Loans pursuant to this Section 4.02 would result,
after giving effect to the procedures set forth above, in the Borrower's
incurring breakage costs under Section 1.11 as a result of Eurodollar Loans
being prepaid other than on the last day of an Interest Period applicable
thereto (the "Affected Eurodollar Loans"), then, so long as no Event of Default
exists and is continuing, the Borrower may in its sole discretion initially
deposit a portion (up to 100%) of the amounts that otherwise would have been
paid in respect of the Affected Eurodollar Loans with the Administrative Agent
(which deposit must be equal in amount to the amount of the Affected Eurodollar
Loans not immediately prepaid) to be held as security for the obligations of the
Borrower hereunder pursuant to a cash collateral agreement to be entered into in
form and substance satisfactory to the Administrative Agent and shall provide
for investments satisfactory to the Administrative Agent and the Borrower, with
such cash collateral to be directly applied upon the first occurrence (or
occurrences) thereafter of the last day of an Interest Period applicable to the
relevant Loans that are Eurodollar Loans (or such earlier date or dates as shall
be requested by the Borrower), to repay an aggregate principal amount of such
Loans equal to the Affected Eurodollar Loan(s) not initially prepaid pursuant to
this sentence. Subject to the following sentence, and so long as no Event of
Default exists and is continuing, the Administrative Agent shall promptly
release to the Borrower any investment proceeds remaining on deposit with the
Administrative Agent pursuant to such cash collateral arrangement after giving
effect to all repayments of Affected Eurodollar Loans pursuant to the
immediately preceding sentence. Notwithstanding anything to the contrary
contained in the immediately preceding sentence, all amounts deposited as cash
collateral pursuant to the immediately preceding sentence shall be held for the
sole benefit of the Lenders whose Loans would otherwise have been immediately
prepaid with the amounts deposited and upon the taking of any action by the
Administrative Agent or the Lenders pursuant to the remedial provisions of
Section 10, any amounts held as cash collateral pursuant to this Section 4.02(i)
shall, subject to the requirements of applicable law, be immediately applied to
the Loans.
(j) Notwithstanding anything to the contrary contained elsewhere in this Agreement, (i) all then outstanding Swingline Loans shall be repaid in full on the Swingline Expiry Date and (ii) all other then outstanding Loans shall be repaid in full on the respective Maturity Date.
(k) Notwithstanding anything to the contrary contained in
Section 4.01 or above in this Section 4.02, with respect to any mandatory
repayments of B Term Loans (excluding B Scheduled Repayments and repayments
pursuant to Section 4.02(j)) otherwise required above pursuant to this Section
4.02, and with respect to that portion of any voluntary prepayment of Term Loans
pursuant to Section 4.01 which, in accordance with the provisions of clause (v)
thereof is required to be applied to B Term Loans (each a "Waivable Repayment"),
the Administrative Agent shall, unless the then outstanding A Term Loans shall
be repaid in full with the
share of the respective voluntary or mandatory repayment allocable thereto
(before giving effect to any additional reallocation thereto pursuant to this
clause (k)) in accordance with the relevant provisions of Section 4.01 or 4.02,
as the case may be, promptly notify each Lender with a B Term Loan of (x) such
receipt, (y) the amount of the repayment to be applied to such Lender's B Term
Loans and (z) the maximum aggregate amount of the respective Waivable Repayment
which can be waived by the holders of B Term Loans (the "Maximum Waivable
Amount"), which shall be equal to the lesser of (i) the aggregate amount of the
Waivable Repayment required, in the absence of this Section 4.02(k), to be
applied to the repayment of outstanding B Term Loans and (ii) the aggregate
principal amount of A Term Loans which will be outstanding after giving effect
to the application of the amounts then required to be applied to the repayment
of such A Term Loans pursuant to the provisions of Section 4.01 or 4.02, as the
case may be, before giving effect to the provisions of this clause (k). In the
event any such Lender with a B Term Loan desires to waive such Lender's right to
receive its share of any such Waivable Repayment, in whole or in part, such
Lender shall so advise the Administrative Agent no later than 5:00 P.M. (New
York time) three Business Days after the date of such notice from the
Administrative Agent which notice shall also include the amount the Lender
desires to receive. If the Lender does not reply to the Administrative Agent
within such three Business Day period, it will be deemed acceptance of the total
payment. If the Lender does not specify an amount it wishes to receive, it will
be deemed acceptance of 100% of the total payment. In the event that any such
Lender waives such Lender's right to any such Waivable Repayment, the
Administrative Agent shall apply 100% of the amounts so waived by such Lenders
to prepay remaining A Term Loans (i) in the case of a repayment pursuant to
Section 4.01, in accordance with Section 4.01 or (ii) in the case of a repayment
pursuant to Section 4.02, in accordance with Sections 4.02(h) and (i); provided
that if the amounts so waived by the Lenders as described above would exceed the
Maximum Waivable Amount, the amount waived by each Lender shall be reduced
proportionally (based on the amounts waived by each Lender) to the extent needed
so that the aggregate of the amounts so waived shall not exceed the Maximum
Waivable Amount. The amount of the respective Waivable Repayment shall be
deposited with the Administrative Agent on the date the voluntary prepayment is
otherwise made pursuant to Section 4.01 or the date the mandatory repayment
would otherwise be required pursuant to the relevant provisions of this Section
4.02, as the case may be (and held by the Administrative Agent as cash
collateral for the B Term Loans and, but only to the extent Lenders with B Term
Loans waive their right to receive their share of the Waivable Repayment, for
the benefit of the A Term Loans in a cash collateral account until the proceeds
are applied to the applicable Loans) and the respective repayment shall not be
required to be made until the fifth Business Day occurring after the date the
respective repayment would otherwise have been required to be made.
Notwithstanding anything to the contrary contained above, (i) if one or more
Lenders waives its right to receive all or any part of any Waivable Repayment,
but less than all the Lenders holding B Term Loans waive in full their right to
receive 100% of the total payment otherwise required with respect to the B Term
Loans, then of the amount actually applied to the repayment of B Term Loans of
Lenders which have waived in part, but not in full, their right to receive 100%
of such repayment, such amount shall be applied to each then outstanding
Borrowing of B Term Loans on a pro rata basis (so that each Lender holding B
Term Loans shall, after giving effect to the application of the respective
repayment, maintain the same percentage (as determined for such Lender, but not
the same percentage as the other Lenders hold and not the same percentage held
by such Lender prior to repayment) of each Borrowing of B Term Loans which remains outstanding after giving effect to such application), and (ii) the right of the Lenders holding B Term Loans to waive their right to receive any mandatory or voluntary repayments pursuant to this Section 4.02(k) shall only be applicable so long as any A Term Loans are outstanding at the time of such mandatory or voluntary repayment, and such right shall exist only to the extent of outstanding A Term Loans (after giving effect to any prior or concurrent repayment of A Term Loans).
4.03 Method and Place of Payment. Except as otherwise specifically provided herein, all payments under this Agreement or any Note shall be made to the Administrative Agent for the account of the Lender or Lenders entitled thereto not later than 12:00 Noon (New York time) on the date when due and shall be made in Dollars in immediately available funds at the Payment Office of the Administrative Agent. Whenever any payment to be made hereunder or under any Note shall be stated to be due on a day which is not a Business Day, the due date thereof shall be extended to the next succeeding Business Day and, with respect to payments of principal, interest shall be payable at the applicable rate during such extension.
4.04 Net Payments; Taxes. (a) All payments made by any Credit Party hereunder or under any Note will be made without setoff, counterclaim or other defense. Except as provided in Sections 4.04(b), 13.04, 13.14 or 13.15, all such payments will be made free and clear of, and without deduction or withholding for, any present or future Taxes now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding, except as provided in the second succeeding sentence, any tax imposed on or measured by the net income or net profits of a Lender pursuant to the laws of the jurisdiction in which it is organized or the jurisdiction in which the principal office or applicable lending office of such Lender is located or any subdivision thereof or therein) (all such non-excluded Taxes being referred to collectively as "Withholding Taxes"). If any Withholding Taxes are so levied or imposed, the Borrower agrees to pay the full amount of such Withholding Taxes, and such additional amounts as may be necessary so that every payment of all amounts due under this Agreement or any other Credit Document or under any Note, after withholding or deduction for or on account of any Withholding Taxes, will not be less than the amount provided for herein or in such Credit Document or in such Note. If any amounts are payable in respect of Withholding Taxes pursuant to the preceding sentence, the Borrower agrees to reimburse each Lender, upon the written request of such Lender, for taxes imposed on or measured by the net income or net profits of such Lender pursuant to the laws of the jurisdiction in which such Lender is organized or in which the principal office or applicable lending office of such Lender is located or under the laws of any political subdivision or taxing authority of any such jurisdiction in which such Lender is organized or in which the principal office or applicable lending office of such Lender is located and for any withholding of taxes as such Lender shall determine are payable by, or withheld from, such Lender, in respect of such amounts so paid to or on behalf of such Lender pursuant to the preceding sentence and in respect of any amounts paid to or on behalf of such Lender pursuant to this sentence. The Borrower will furnish to the Administrative Agent within 45 days after the date the payment of any Withholding Taxes is due pursuant to applicable law certified copies of tax receipts evidencing such payment by the Borrower. The Borrower agrees to indemnify and hold harmless each Lender, and reimburse
such Lender upon its written request, for the amount of any Withholding Taxes so levied or imposed and paid by such Lender.
(b) Each Lender that is not a United States person (as
such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal income
tax purposes agrees to deliver to the Borrower and the Administrative Agent on
or prior to the Effective Date, or in the case of a Lender that is an assignee
or transferee of an interest under this Agreement pursuant to Section 1.13 or
13.04 (unless the respective Lender was already a Lender hereunder immediately
prior to such assignment or transfer), on the date of such assignment or
transfer to such Lender, (i) two accurate and complete original signed copies of
Internal Revenue Service Form W-8ECI or W-8BEN (with respect to complete
exemption under an income tax treaty) (or successor forms) certifying to such
Lender's entitlement as of such date to a complete exemption from United States
withholding tax with respect to payments to be made under this Agreement and
under any Note, or (ii) if the Lender is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue
Service Form W-8ECI or W-8BEN (with respect to complete exemption under an
income tax treaty) pursuant to clause (i) above, (x) a certificate substantially
in the form of Exhibit D (any such certificate, a "Section 4.04(b)(ii)
Certificate") and (y) two accurate and complete original signed copies of
Internal Revenue Service Form W-8BEN (with respect to the portfolio interest
exemption (or successor form) certifying to such Lender's entitlement to a
complete exemption from United States withholding tax with respect to payments
of interest to be made under this Agreement and under any Note. In addition,
each Lender agrees that from time to time after the Effective Date, when a lapse
in time or change in circumstances renders the previous certification obsolete
or inaccurate in any material respect, it will deliver to the Borrower and the
Administrative Agent two new accurate and complete original signed copies of
Internal Revenue Service Form W-8ECI or Form W-8BEN (with respect to the
benefits of any income tax treaty), Form W8-BEN (with respect to the portfolio
interest exemption) and a Section 4.04(b)(ii) Certificate, as the case may be,
and such other forms as may be required in order to confirm or establish the
entitlement of such Lender to a continued exemption from or reduction in United
States withholding tax with respect to payments under this Agreement and any
Note, or it shall immediately notify the Borrower and the Administrative Agent
of its inability to deliver any such Form or Certificate, in which case such
Lender shall not be required to deliver any such Form or Certificate pursuant to
this Section 4.04(b). Notwithstanding anything to the contrary contained in
Section 4.04(a), but subject to Section 13.04(b) and the immediately succeeding
sentence, (x) the Borrower shall be entitled, to the extent it is required to do
so by law, to deduct or withhold income or similar taxes imposed by the United
States (or any political subdivision or taxing authority thereof or therein)
from interest, Fees or other amounts payable hereunder for the account of any
Lender which is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for U.S. Federal income tax purposes to the extent that
such Lender has not provided to the Borrower U.S. Internal Revenue Service Forms
that establish a complete exemption from such deduction or withholding and (y)
the Borrower shall not be obligated pursuant to Section 4.04(a) hereof to
gross-up payments to be made to a Lender in respect of income or similar taxes
imposed by the United States if (I) such Lender has not provided to the Borrower
the Internal Revenue Service Forms required to be provided to the Borrower
pursuant to this Section 4.04(b) or (II) in the case of a payment, other than
interest, to a Lender described in clause (ii) above, to the extent that
such Forms do not establish a complete exemption from withholding of such taxes. Notwithstanding anything to the contrary contained in the preceding sentence or elsewhere in this Section 4.04 and except as set forth in Section 13.04(b), the Borrower agrees to pay any additional amounts and to indemnify each Lender in the manner set forth in Section 4.04(a) (without regard to the identity of the jurisdiction requiring the deduction or withholding) in respect of any Taxes deducted or withheld by it as described in the immediately preceding sentence as a result of any changes that are effective after the Effective Date in any applicable law, treaty, governmental rule, regulation, guideline or order, or in the interpretation thereof, relating to the deducting or withholding of such Taxes.
(c) If the Borrower pays any additional amount under this
Section 4.04 to a Lender and such Lender determines in its sole discretion that
it has actually received or realized in connection therewith any refund or any
reduction of, or credit against, its Tax liabilities in or with respect to the
taxable year in which the additional amount is paid (a "Tax Benefit"), such
Lender shall pay to the Borrower an amount that the Lender shall, in its sole
discretion, determine is equal to the net benefit, after tax, which was obtained
by the Lender in such year as a consequence of such Tax Benefit; provided,
however, that (i) any Lender may determine, in its sole discretion consistent
with the policies of such Lender, whether to seek a Tax Benefit; (ii) any Taxes
that are imposed on a Lender as a result of a disallowance or reduction
(including through the expiration of any tax credit carryover or carryback of
such Lender that otherwise would not have expired) of any Tax Benefit with
respect to which such Lender has made a payment to the Borrower pursuant to this
Section 4.04(c) shall be treated as a Tax for which the Borrower is obligated to
indemnify such Lender pursuant to this Section 4.04 without any exclusions or
defenses; (iii) nothing in this Section 4.04(c) shall require the Lender to
disclose any confidential information to the Borrower; and (iv) no Lender shall
be required to pay any amounts pursuant to this Section 4.04(c) at any time
which a Default or Event of Default exists.
SECTION 5. Conditions Precedent to Credit Events on Initial Borrowing Date. The obligation of each Lender to make Loans, and the obligation of each Issuing Lender to issue Letters of Credit, on the Initial Borrowing Date, is subject at the time of the making of such Loans or the issuance of such Letters of Credit to the satisfaction of the following conditions:
5.01 Execution of Agreement; Notes. On or prior to the Initial Borrowing Date (i) the Effective Date shall have occurred and (ii) there shall have been delivered to the Administrative Agent, for the account of each of the Lenders which have requested the same, the appropriate A Term Note, B Term Note and/or Revolving Note executed by the Borrower, and to the Swingline Lender, the Swingline Note executed by the Borrower, in each case in the amount, maturity and as otherwise provided herein.
5.02 Officers' Certificate. On the Initial Borrowing Date, the Administrative Agent shall have received a certificate, dated the Initial Borrowing Date and signed on behalf of the Borrower by the Chairman of the Board, the President, any Vice-President, the Chief Financial Officer or the Treasurer, certifying on behalf of the Borrower that all of the conditions in Sections 5.06, 5.07, 5.08, 5.13, 5.14, 5.18 and 6.01 have been satisfied on such date.
5.03 Opinions of Counsel. On the Initial Borrowing Date, the Administrative Agent shall have received from (i) Troutman Sanders, special counsel to the Borrower and its Subsidiaries, an opinion addressed to the Agents and each of the Lenders and dated the Initial Borrowing Date, in the form attached as Exhibit E-1 and (ii) Jones, Day, Reavis & Pogue, counsel to the Borrower and its Subsidiaries, an opinion in form and substance satisfactory to the Administrative Agent and addressed to the Agents and each of the Lenders and dated the Initial Borrowing Date, covering the matters set forth in Exhibit E-2 and such other matters incident to the transactions contemplated herein as any Agent may reasonably request.
5.04 Corporate Documents; Proceedings; etc. (a) On the Initial Borrowing Date, the Administrative Agent shall have received a certificate, dated the Initial Borrowing Date, signed by the Chairman of the Board, the President, any Vice President, the Chief Financial Officer, the Treasurer or an Authorized Representative of each Credit Party, and attested to by the Secretary, any Assistant Secretary or another Authorized Representative of such Credit Party in the form of Exhibit F, with appropriate insertions, together with copies of the Certificate of Incorporation and By-Laws (or equivalent organizational documents) of such Credit Party and the resolutions of such Credit Party referred to in such certificate, and the foregoing shall be reasonably acceptable to the Agents.
(b) All corporate and legal proceedings and all material instruments and agreements in connection with the transactions contemplated by this Agreement and the other Documents shall be reasonably satisfactory in form and substance to the Agents and the Required Lenders, and the Administrative Agent shall have received all information and copies of all documents and papers, including records of corporate proceedings, governmental approvals, good standing certificates and bring-down telegrams or facsimiles, if any, which any Agent reasonably may have requested in connection therewith, such documents and papers where appropriate to be certified by proper corporate or governmental authorities.
5.05 Employee Benefit Plans; Debt Agreements; Tax Sharing Agreements. On the Initial Borrowing Date, there shall have been delivered to the Administrative Agent true and correct copies of the following documents:
(i) all Plans (and for each Plan that is required to file an annual report on Internal Revenue Service Form 5500-series, a copy of the most recent such report (including, to the extent required, the related financial and actuarial statements and opinions and other supporting statements, certifications, schedules and information), and for each Plan that is a "single-employer plan," as defined in Section 4001(a)(15) of ERISA, if any, the most recently prepared actuarial valuation therefor) and any other "employee benefit plans," as defined in Section 3(3) of ERISA (collectively, the "Employee Benefit Plans");
(ii) all agreements evidencing or relating to Indebtedness of the Borrower or any of its Subsidiaries which is to remain outstanding in an aggregate principal amount exceeding $2,000,000 after giving effect to the incurrence of Loans on the Initial Borrowing Date (collectively, the "Debt Agreements"); and
(iii) all tax sharing, tax allocation and other similar agreements entered into by the Borrower or any of its Subsidiaries (collectively, the "Tax Sharing Agreements"),
all of which Employee Benefit Plans, Debt Agreements and Tax Sharing Agreements shall be in form and substance reasonably satisfactory to the Agents and the Required Lenders and shall be in full force and effect on the Initial Borrowing Date.
5.06 Consummation of the Spin-off and Merger; Equipment Purchase; etc. (a) On or prior to the Initial Borrowing Date, there shall have been delivered to the Administrative Agent true and correct copies of the Merger Documents, all of which Merger Documents shall be in form and substance reasonably satisfactory to the Agents and the Required Lenders and in full force and effect. The Merger Documents shall not have been amended unless such amendment is approved by the Agents and the Required Lenders.
(b) On or prior to the Initial Borrowing Date (i) Flowers
Industries shall have consummated the Spin-off and, immediately following the
consummation of the Spin-off, Flowers Industries and a wholly-owned Subsidiary
of Kellogg shall have consummated the Flowers Industries Merger, (ii)
immediately following the consummation of the Spin-off and the Flowers
Industries Merger, the Borrower shall own, directly or indirectly, all of the
assets and Subsidiaries of Flowers Industries (before giving effect to the
Spin-off and the Flowers Industries Merger) other than Flowers Industries'
ownership interest in Keebler and its Subsidiaries, (iii) each of the Spin-off
and the Flowers Industries Merger shall have been consummated in all material
respects in accordance with the Merger Documents and all applicable laws and
(iv) all conditions precedent to the consummation of each of the Spin-off and
the Flowers Industries Merger contained in the Merger Documents shall have been
satisfied (and not waived without the consent of the Agents and the Required
Lenders) in all material respects.
(c) on or prior to the Initial Borrowing Date, Flowers Industries and/or its Subsidiaries (or, to the extent same is consummated on the Initial Borrowing Date concurrently with the Spin-Off, the Borrower and/or its Subsidiaries) shall have consummated the Equipment Purchase for aggregate cash consideration not to exceed $62,000,000. The Equipment Purchase Documents shall be in form and substance reasonably satisfactory to the Administrative Agent and the Required Lenders and the Equipment Purchase shall have been consummated in all material respects in accordance with the Equipment Purchase Documents.
5.07 Existing Debentures Tender Offer. On or prior to the Initial Borrowing Date, Flowers Industries shall have completed a tender offer with respect to the Existing Debentures (the "Existing Debentures Tender Offer") on terms and conditions, and pursuant to documentation, satisfactory to the Agents and the Required Lenders. In connection therewith, the Borrower shall have furnished to the Administrative Agent and the Lenders copies of the Existing Debentures Tender Offer Documents, all of which shall be in form and substance satisfactory to the Agents and the Required Lenders. The tender offer for Existing Debentures shall have expired in accordance with the terms of the Existing Debentures Tender Offer Documents on or before the Initial Borrowing Date and Flowers Industries shall have purchased
at least 60% of the theretofore outstanding Existing Debentures pursuant to the Existing Debentures Tender Offer.
5.08 Refinancing; Indebtedness. (a) On the Initial Borrowing Date, all Indebtedness to be Refinanced shall have been repaid in full and all commitments in respect thereof shall have been terminated and all Liens and guaranties given by the Borrower and its Subsidiaries in connection therewith shall have been terminated (and all appropriate releases, termination statements or other instruments of assignment with respect thereto shall have been obtained) to the reasonable satisfaction of the Agents. The Administrative Agent shall have received satisfactory evidence (including satisfactory pay-off letters and UCC-3 Termination Statements) that the matters set forth in the immediately preceding sentence have been satisfied as of the Initial Borrowing Date. Without limiting the foregoing, the facility (and financing) previously made available pursuant to the Existing Distributor Note Documents shall have been terminated pursuant to arrangements satisfactory to the Administrative Agent and the Required Lenders, and ownership of all Existing Distributor Notes outstanding pursuant thereto (and any related guarantees or collateral therefor) shall have been transferred to the Borrower, although SunTrust may continue to hold such Existing Distributor Notes (and related collateral) as a sub-collateral agent for the Collateral Agent pursuant to the Security Documents.
(b) After giving effect to the consummation of the Transaction,
the Borrower and its Subsidiaries shall have no outstanding Indebtedness except
(i) the Obligations and (ii) such other indebtedness, as is permitted to remain
outstanding pursuant to Section 9.04.
5.09 Subsidiaries Guaranty. On the Initial Borrowing Date, each Subsidiary Guarantor shall have duly authorized, executed and delivered a Subsidiaries Guaranty in the form of Exhibit G (as modified, supplemented, restated and/or amended from time to time, the "Subsidiaries Guaranty"), and the Subsidiaries Guaranty shall be in full force and effect.
5.10 Pledge and Security Agreement. On the Initial Borrowing Date, each Credit Party shall have duly authorized, executed and delivered the Pledge and Security Agreement in the form of Exhibit H (as modified, supplemented, restated and/or amended from time to time, the "Pledge Agreement") covering all of such Credit Party's present and future Pledge Agreement Collateral in each case together with:
(i) the delivery to the Collateral Agent, as pledgee, of all of the Pledged Securities referred to therein, endorsed in blank in the case of promissory notes constituting Pledged Securities or accompanied by executed and undated stock powers in the case of capital stock constituting Pledged Securities;
(ii) proper Financing Statements (Form UCC-1) fully executed for filing under the UCC or in other appropriate filing offices of each jurisdiction as may be necessary or, in the reasonable opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by the Pledge Agreement;
(iii) certified copies of Requests for Information or Copies (Form UCC-11), or equivalent reports, listing all effective financing statements that name any Credit Party as
debtor and that are filed in the jurisdictions referred to in Section 5.10(ii) above, together with copies of such other financing statements (none of which shall cover the Collateral except to the extent evidencing Permitted Liens or in respect of which the Collateral Agent shall have received Form UCC-3 Termination Statements (or such other termination statements as shall be required by local law) fully executed for filing); and
(iv) evidence that all other actions necessary or, in the reasonable opinion of the Collateral Agent, desirable to perfect and protect the security interests purported to be created by the Pledge Agreement have been taken.
5.11 Security Agreement. On the Initial Borrowing Date, each Credit Party shall have duly authorized, executed and delivered the Security Agreement in the form of Exhibit I (as modified, supplemented, restated and/or amended from time to time, the "Security Agreement") covering all of such Credit Party's present and future Security Agreement Collateral, in each case together with:
(i) proper Financing Statements (Form UCC-1) fully executed for filing under the UCC or in other appropriate filing offices of each jurisdiction as may be necessary or, in the reasonable opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by the Security Agreement;
(ii) certified copies of Requests for Information or Copies (Form UCC-11), or equivalent reports, listing all effective financing statements that name any Credit Party as debtor and that are filed in the jurisdictions referred to in Section 5.11(i) above, together with copies of such other financing statements (none of which shall cover the Collateral except to the extent evidencing Permitted Liens or in respect of which the Collateral Agent shall have received Form UCC-3 Termination Statements (or such other termination statements as shall be required by local law) fully executed for filing); and
(iii) evidence that all other actions necessary or, in the reasonable opinion of the Collateral Agent, desirable to perfect and protect the security interests purported to be created by the Security Agreement have been taken.
5.12 Lease Program. On or prior to the Initial Borrowing Date, the Lease Program Documents shall be in form and substance satisfactory to the Agents and the Required Lenders and in full force and effect without any defaults thereunder.
5.13 Material Adverse Change; Approvals, etc. (a) On the Initial Borrowing Date, nothing shall have occurred (and neither the Agents nor the Required Lenders shall have become aware of any facts or conditions not previously known) which could constitute a Material Adverse Change.
(b) On or prior to the Initial Borrowing Date, all necessary material governmental (domestic and foreign) and third party approvals and/or consents in connection with the Transaction, the transactions contemplated by the Documents and otherwise referred to herein or therein shall have been obtained and remain in effect, and all applicable waiting periods shall
have expired without any action being taken by any competent authority which restrains, prevents or imposes materially adverse conditions upon the consummation of the Transaction or the transactions contemplated by this Agreement or the other Documents. Additionally, there shall not exist any judgment, order, injunction or other restraint prohibiting or imposing materially adverse conditions upon the Transaction or the transactions contemplated by this Agreement.
5.14 Litigation. On the Initial Borrowing Date, no litigation by any entity (private or governmental) shall be pending or threatened with respect to the Transaction or this Agreement or any other Document, or which the Agents or the Required Lenders shall determine has caused, or could reasonably be expected to cause, a Material Adverse Change.
5.15 Solvency Certificate; Environmental Analyses; Insurance. On or before the Initial Borrowing Date, the Borrower shall cause to be delivered to the Administrative Agent (i) a solvency certificate from the chief financial officer of the Borrower, in the form of Exhibit J, which shall be addressed to the Agents and each of the Lenders and dated the Initial Borrowing Date, setting forth the conclusion that, (A) after giving effect to the Transaction and the incurrence of all the financings contemplated hereby, the Borrower, the Borrower and its Subsidiaries taken as a whole, Flowers Industries and Flowers Industries and its Subsidiaries taken as a whole, in each case are not insolvent and will not be rendered insolvent by the incurrence of such indebtedness, and will not be left with unreasonably small capital with which to engage in their respective businesses and will not have incurred debts beyond their ability to pay such debts as they mature, and (B) after giving effect to the Transaction, Flowers Industries and Flowers Industries and its Subsidiaries taken as a whole (immediately prior to the Spin-off and giving effect to the Spin-off and the Flowers Industries Merger), in each case are not insolvent and will not be rendered insolvent by reason of the Spin-off, and will not be left with unreasonably small capital with which to engage in their respective businesses and will not have incurred debts beyond their ability to pay such debts as they mature, (ii) environmental and hazardous substance analyses with respect to the properties owned or leased by the Borrower or any of its Subsidiaries to the extent requested by the Agents, in scope, form and substance satisfactory to the Administrative Agent and (iii) certificates of insurance complying with the requirements of Section 8.03 for the business and properties of the Borrower and its Subsidiaries, in scope, form and substance reasonably satisfactory to the Agents and the Required Lenders and naming the Collateral Agent as an additional insured and/or loss payee, and stating that such insurance shall not be canceled without 30 days prior written notice by the insurer to the Collateral Agent.
5.16 Pro Forma Balance Sheet; Financial Statements; Projections. On or prior to the Initial Borrowing Date, the Administrative Agent and the Lenders shall have received copies of the financial statements (including the pro forma financial statements) and Projections referred to in Sections 7.05(a), (b) and (e).
5.17 Payment of Fees. On the Initial Borrowing Date, all costs, fees and expenses, and all other compensation due to the Agents or the Lenders (including, without limitation, legal fees and expenses) shall have been paid to the extent due.
5.18 Ratings Request. On or prior to the Initial Borrowing Date, the Borrower shall have requested in writing from both S&P and Moody's, a long-term senior secured debt rating/ratings of the Indebtedness pursuant to this Agreement.
SECTION 6. Conditions Precedent to All Credit Events. The obligation of each Lender to make Loans (including Loans made on the Initial Borrowing Date but excluding Mandatory Borrowings made thereafter, which shall be made as provided in Section 1.01(e)), and the obligation of any Issuing Lender to issue any Letter of Credit, is subject to the satisfaction of the following conditions:
6.01 No Default; Representations and Warranties. At the time of each such Credit Event and also after giving effect thereto (i) there shall exist no Default or Event of Default and (ii) all representations and warranties contained herein or in any other Credit Document shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on the date of such Credit Event (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date).
6.02 Notice of Borrowing; Letter of Credit Request. (a) Prior to the making of each Loan (excluding Swingline Loans), the Administrative Agent shall have received the notice required by Section 1.03(a). Prior to the making of any Swingline Loan, the Swingline Lender shall have received the notice required by Section 1.03(b)(i).
(b) Prior to the issuance of each Letter of Credit, the Administrative Agent and the respective Issuing Lender shall have received a Letter of Credit Request meeting the requirements of Section 2.02.
The acceptance of the proceeds of each Credit Event shall constitute a
representation and warranty by the Borrower to the Administrative Agent and each
of the Lenders that all the conditions specified in Section 5 and in this
Section 6 and applicable to such Credit Event have been satisfied as of that
time. All of the Notes, certificates, legal opinions and other documents and
papers referred to in Section 5 and in this Section 6, unless otherwise
specified, shall be delivered to the Administrative Agent at the Notice Office
for the account of each of the Lenders and, except for the Notes, in sufficient
counterparts for each of the Lenders and shall be in form and substance
reasonably satisfactory to the Administrative Agent.
SECTION 7. Representations, Warranties and Agreements. In order to induce the Lenders to enter into this Agreement and to make the Loans, and issue (or participate in) the Letters of Credit as provided herein, the Borrower makes the following representations, warranties and agreements, in each case after giving effect to the Transaction as consummated on the Initial Borrowing Date, all of which shall survive the execution and delivery of this Agreement and the Notes and the making of the Loans and issuance of the Letters of Credit, with the occurrence of each Credit Event on or after the Initial Borrowing Date being deemed to constitute a representation and warranty that the matters specified in this Section 7 are true and correct in all material respects on and as of the Initial Borrowing Date and on the date of each
such Credit Event (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date):
7.01 Corporate/Limited Liability Company/Partnership Status; etc. The Borrower and each of its Subsidiaries (i) is a duly organized and validly existing corporation, limited liability company or partnership, as the case may be, in good standing under the laws of the jurisdiction of its incorporation or formation, (ii) has the corporate or other applicable power and authority to own its property and assets and to transact the business in which it is engaged and presently proposes to engage and (iii) is duly qualified and is authorized to do business and is in good standing in each jurisdiction where the conduct of its business requires such qualifications, except for failures to be so qualified that, individually or in the aggregate, have not had, and would not reasonably be expected to have, a Material Adverse Effect.
7.02 Corporate Power and Authority. Each Credit Party has the corporate or other applicable power and authority to execute, deliver and perform the terms and provisions of each of the Documents to which it is party and has taken all necessary corporate or other applicable action to authorize the execution, delivery and performance by it of each of such Documents. Each Credit Party has duly executed and delivered each of the Documents to which it is party, and each of such Documents constitutes the legal, valid and binding obligation of such Credit Party enforceable against each such Credit Party in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy or other similar laws generally affecting creditors' rights and by equitable principles (regardless of whether enforcement is sought in equity or at law).
7.03 No Violation. Neither the execution, delivery or performance by any Credit Party of the Documents to which it is a party, nor compliance by it with the terms and provisions thereof, (i) will contravene any material provision of any applicable law, statute, rule or regulation or any applicable order, writ, injunction or decree of any court or governmental instrumentality, (ii) will conflict with or result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien (except pursuant to the Security Documents and Permitted Liens) upon any of the material properties or assets of the Borrower or any of its Subsidiaries pursuant to the terms of any indenture (including, without limitation, the Existing Debentures Indenture), mortgage, deed of trust, credit agreement or loan agreement, or any other material agreement, contract or instrument, to which the Borrower or any of its Subsidiaries is a party or by which it or any of its material property or assets is bound or to which it may be subject or (iii) will violate any provision of the Certificate of Incorporation or By-Laws (or equivalent organizational documents) of the Borrower or any of its Subsidiaries.
7.04 Governmental Approvals. No order, consent, approval, license, authorization or validation of, or filing, recording or registration with (except as have been obtained or made or, in the case of any filings or recordings in respect of the Security Documents executed on the Initial Borrowing Date, will be made within 10 days thereof), or exemption by, any governmental or public body or authority, or any subdivision thereof, is required to authorize, or
is required in connection with, (i) the execution, delivery and performance of any Document or (ii) the legality, validity, binding effect or enforceability of any Document.
7.05 Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (a) The (i) audited consolidated balance sheets of Flowers Industries and its Subsidiaries (x) for the fiscal years ended on January 2, 1999, January 1, 2000 and December 30, 2000 and (y) unaudited consolidated balance sheets of Flowers Industries and its Subsidiaries for the periods described in the preceding clause (x) and accounting for Keebler on an equity basis, and (ii) the related consolidated statements of income, cash flows and shareholders' equity of Flowers Industries and its Subsidiaries (accounting for Keebler on an equity basis in the case of the statements correlating to the balance sheets described in preceding clause (i)(y)) for the fiscal year or quarter, as the case may be, ended on such dates, copies of which have been furnished to the Lenders prior to the Effective Date, present fairly in all material respects the consolidated financial position of Flowers Industries and its Subsidiaries, respectively, at the dates of such balance sheets and the consolidated results of the operations of Flowers Industries and its Subsidiaries, respectively, for the periods covered thereby. All of the foregoing historical financial statements have been prepared in accordance with generally accepted accounting principles consistently applied, except, in the case of the financial statements listed in clauses (i)(y) and (ii), as a result of the accounting for Keebler on an equity basis of accounting.
(b) The pro forma consolidated balance sheet of the Borrower and its Subsidiaries as of December 30, 2000, after giving effect to the Transaction and the financing in connection therewith, and the pro forma consolidated statements of income, cash flows and shareholders' equity of the Borrower and its Subsidiaries for the twelve month period ended December 30, 2000, giving effect to the Transaction and the financing in connection therewith as if same had been consummated on the first day of such twelve month period, copies of which have been furnished to the Lenders prior to the Effective Date, present fairly in all material respects the pro forma consolidated financial position of the Borrower and its Subsidiaries as of December 30, 2000 and the pro forma consolidated results of operations of the Borrower and its Subsidiaries for the twelve month period covered thereby.
(c)(i) On and as of the Initial Borrowing Date, on a pro forma basis after giving effect to the Transaction and all other transactions contemplated by the Documents and to all Indebtedness (including the Loans) being incurred or assumed, and Liens created by each Credit Party in connection therewith, with respect to each of the Borrower, the Borrower and its Subsidiaries taken as a whole, Flowers Industries and Flowers Industries and its Subsidiaries taken as a whole, (x) the sum of its assets (including goodwill), at a fair valuation, will exceed its debts; (y) it has not incurred and does not intend to incur, nor believes that it will incur, debts beyond its ability to pay such debts as such debts mature; and (z) it will have sufficient capital with which to conduct its business. For purposes of this Section 7.05(c), "debt" means any liability on a claim and "claim" means (i) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured or (ii) right to an equitable remedy for breach of performance if such breach gives rise to a payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured.
(d) Except as disclosed in the financial statements (including the pro forma financial statements) delivered pursuant to Section 7.05(a) and (b), there were, as of the Initial Borrowing Date, no liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which would, under generally accepted accounting principles, be required to be disclosed on consolidated financial statements (or footnotes thereto) of the Borrower if same had been prepared as of the Initial Borrowing Date. In addition, as of the Initial Borrowing Date, there are no liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) not required to be disclosed in such financial statements in accordance with generally accepted accounting principles that, individually or in the aggregate, have had, or would reasonably be expected to have, a Material Adverse Effect. Without limiting the foregoing, except as disclosed in the pro forma financial statements delivered pursuant to preceding Section 7.05(b), the Borrower believes that, following the consummation of the Transaction, it and its Subsidiaries shall have no material liabilities (contingent or otherwise) to Kellogg or any of its Subsidiaries pursuant to the Merger Documents (whether as a result of the retained Spinco Group Liabilities (as defined in the Distribution Agreement) or otherwise).
(e) On and as of the Initial Borrowing Date, the
Projections which have been delivered to the Agents and the Lenders on or prior
to the Effective Date have been prepared on a basis consistent with the
financial statements of Flowers Industries and its Subsidiaries referred to in
Section 7.05(a) and the pro forma financial statements referred to in Section
7.05(b), and are based on good faith estimates and assumptions believed by
management of the Borrower to be reasonable as of the date of such Projections
(including, without limitation, with respect to any liabilities retained by the
Borrower and its Subsidiaries pursuant to the Merger Documents), and there are
no statements or conclusions in any of the Projections which are based upon or
include information known to the Borrower or any of its Subsidiaries to be
misleading in any material respect or which omit material information regarding
the matters reported therein. On the Initial Borrowing Date, the Borrower
believes that the Projections are reasonable and attainable, it being understood
that the Projections include assumptions as to future events and that actual
results may differ from those set forth in the Projections.
(f) Since December 30, 2000 (but for this purpose determined as if the Transaction had occurred prior to such date, and as if the Borrower and its Subsidiaries had no liabilities to Kellogg and its Subsidiaries pursuant to the Merger Documents except as specifically disclosed pursuant to preceding Section 7.05(d)), nothing has occurred that has had or would reasonably be expected to have a Material Adverse Effect.
7.06 Litigation. There are no actions, suits or proceedings pending or, to the best knowledge of the Borrower, threatened (i) with respect to the Transaction or (ii) that has had or would reasonably be expected to have a Material Adverse Effect.
7.07 True and Complete Disclosure. (a) As of the Effective Date, and on each other date as the Administrative Agent shall designate as a date upon which any Lender or Lenders shall become a party to this Agreement pursuant to the primary syndication of the Loans
and Commitments hereunder, all factual information (taken as a whole) furnished by or on behalf of the Borrower and/or its Subsidiaries in writing to the Administrative Agent or any Lender (including, without limitation, all information contained in the Documents and the Proxy Materials) for purposes of or in connection with this Agreement, the other Credit Documents, the Transaction or any transaction contemplated herein or therein is, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of the Borrower in writing to any Agent or the Lead Arranger or any Lender will be, true and accurate in all material respects and not incomplete by omitting to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at the time such information was provided.
(b) Flowers Industries' annual report on Form 10-K for the fiscal year ended at January 1, 2000 and Flowers Industries' quarterly report on Form 10-Q for the fiscal quarter ended on October 7, 2000, copies of which have been furnished by the Borrower to the Administrative Agent and the Lenders, did not, as of the respective dates such Form 10-K and Form 10-Q were filed with the Securities and Exchange Commission, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and from the date of filing of the Flowers Industries' proxy statement with the Securities and Exchange Commission on February 22, 2001 through the date hereof, the Borrower has not filed a current report on Form 8-K with the Securities and Exchange Commission, and, as of the Effective Date, no event or condition exists which would require such filing by the Borrower pursuant to the Exchange Act, except for any such event or condition which has heretofore been disclosed in writing to the Lenders by delivery to the Lenders of a Form 8-K prior to the filing thereof.
7.08 Use of Proceeds; Margin Regulations. (a) All proceeds of the Term Loans shall be used on the Initial Borrowing Date to (i) repurchase and/or redeem Existing Debentures tendered pursuant to the Existing Debentures Tender Offer, (ii) purchase all Existing Distributor Notes and refinance any other indebtedness outstanding under the Existing Distributor Note Documents and, (iii) to the extent any proceeds of the Term Loans remain after giving effect thereto, such proceeds shall be used to consummate the Refinancing.
(b) All proceeds of Revolving Loans and Swingline Loans shall be used for the Borrower's general corporate, capital expenditures and working capital purposes, provided that up to, but not more than, $32,000,000 of such proceeds may be utilized to finance the Transaction.
(c) Neither the making of any Loan nor the use of the proceeds thereof nor the occurrence of any other Credit Event will violate or be inconsistent with the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System.
(d) The fair market value of all Margin Stock owned by the Borrower and its Subsidiaries does not exceed $1,000,000. At the time of each Credit Event occurring on or after Initial Borrowing Date, not more than 25% of the value of the assets of the Borrower and its Subsidiaries taken as a whole will constitute Margin Stock.
7.09 Tax Returns and Payments. Each of the Borrower and its Subsidiaries has filed with the appropriate taxing authority all return statements, forms and reports for Taxes (the "Returns") required to be filed by or with respect to the income, properties or operations of the Borrower and/or any of its Subsidiaries. The Returns accurately reflect in all material respect all liability for Taxes of each of the Borrower and its Subsidiaries for the periods covered thereby. Each of the Borrower and its Subsidiaries have paid all Taxes payable by them other than those contested in good faith and adequately disclosed and for which adequate reserves have been established in accordance with GAAP. There is no action, suit, proceeding, investigation, audit, or claim now pending or threatened by any authority regarding any taxes relating to the Borrower or any of its Subsidiaries which has had or would be reasonably expected to have a Material Adverse Effect. Except as set forth on Schedule VIII hereto, neither the Borrower nor any of its Subsidiaries has entered into an agreement or waiver or been requested to enter into an agreement or waiver extending any statute of limitations relating to the payment or collection of taxes of the Borrower or any of its Subsidiaries, or is aware of any circumstances that would cause the taxable years or other taxable periods of the Borrower or any of its Subsidiaries not to be subject to the normally applicable statute of limitations. None of the Borrower nor any of its Subsidiaries has incurred, or will incur, any material tax liability in connection with the Transaction or any other transaction contemplated hereby (it being understood that the representation contained in this sentence does not cover any future liabilities of the Borrower or any of its Subsidiaries arising as a result of the operation of their respective businesses in the ordinary course of business).
7.10 Compliance with ERISA. (i) Schedule VI sets forth each Plan; each Plan (and each related trust, insurance contract or fund) is in substantial compliance with its terms and with all applicable laws, including without limitation ERISA and the Code; each Plan (and each related trust, if any) which is intended to be qualified under Section 401(a) of the Code has received a determination letter from the Internal Revenue Service to the effect that it meets the requirements of Sections 401(a) and 501(a) of the Code and will be submitted for a subsequent determination letter relating to the transfer of the sponsorship to the Borrower; no Reportable Event has occurred (excluding a Reportable Event which has been cured without material cost to the Borrower); no Plan which is a multiemployer plan (as defined in Section 4001(a)(3) of ERISA) is insolvent or in reorganization; no Plan has an Unfunded Current Liability; no Plan which is subject to Section 412 of the Code or Section 302 of ERISA has an accumulated funding deficiency, within the meaning of such sections of the Code or ERISA, or has applied for or received a waiver of an accumulated funding deficiency or an extension of any amortization period, within the meaning of Section 412 of the Code or Section 303 or 304 of ERISA; all contributions required to be made with respect to a Plan have been or will be timely made (except as disclosed on Schedule VI); neither the Borrower nor any of its Subsidiaries nor any ERISA Affiliate has incurred any material liability (including any indirect, contingent or secondary liability) to or on account of a Plan pursuant to Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code or expects to incur any such liability under any of the foregoing sections with respect to any Plan; no condition exists which presents a material risk to the Borrower or any of its Subsidiaries or any ERISA Affiliate of incurring a liability to or on account of a Plan pursuant to the foregoing provisions of ERISA and the Code; no proceedings have been instituted to
terminate or appoint a trustee to administer any Plan which is subject to Title IV of ERISA; no action, suit, proceeding, hearing, audit or investigation with respect to the administration, operation or the investment of assets of any Plan (other than routine claims for benefits) is pending, expected or threatened; using actuarial assumptions and computation methods consistent with Part 1 of subtitle E of Title IV of ERISA, the Borrower and its Subsidiaries and ERISA Affiliates would have no liabilities to any Plans which are multiemployer plans (as defined in Section 4001(a)(3) of ERISA) in the event of a complete withdrawal therefrom; each group health plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) which covers or has covered employees or former employees of the Borrower, any of its Subsidiaries, or any ERISA Affiliate has at all times been operated in compliance with the provisions of Part 6 of subtitle B of Title I of ERISA and Section 4980B of the Code; no lien imposed under the Code or ERISA on the assets of the Borrower or any of its Subsidiaries or any ERISA Affiliate exists or is likely to arise on account of any Plan; and the Borrower and its Subsidiaries may cease contributions to or terminate any Employee Benefit Plan maintained by any of them without incurring any material liability.
(ii) Each Foreign Pension Plan has been maintained in substantial compliance with its terms and with the requirements of any and all applicable laws, statutes, rules, regulations and orders and has been maintained, where required, in good standing with applicable regulatory authorities. All contributions required to be made with respect to a Foreign Pension Plan have been or will be timely made. Neither the Borrower nor any of its Subsidiaries has incurred any obligation in connection with the termination of or withdrawal from any Foreign Pension Plan. The present value of the accrued benefit liabilities (whether or not vested) under each Foreign Pension Plan, determined as of the end of the Borrower's most recently ended fiscal year on the basis of actuarial assumptions, each of which is reasonable, did not exceed the current value of the assets of such Foreign Pension Plan allocable to such benefit liabilities.
7.11 The Security Documents. The provisions of the Security Documents are effective to create in favor of the Collateral Agent for the benefit of the Secured Creditors a legal, valid and enforceable security interest in all right, title and interest of the Credit Parties in the Collateral described therein, and the Security Documents, upon the filing of Form UCC-1 financing statements or the appropriate equivalent (which filings, if this representation is being made more than 10 days after the Initial Borrowing Date, have been made), create a fully perfected first priority lien on, and security interest in, all right, title and interest in all of the Collateral described therein, subject to no other Liens other than Permitted Liens.
7.12 Representations and Warranties in Documents. On the Initial Borrowing Date, all representations and warranties made by the Borrower, Flowers Industries and any of their respective Subsidiaries in the other Documents were true and correct in all material respects at the time as of which such representations and warranties were made (or deemed made).
7.13 Properties. The Borrower and its Subsidiaries have
good and valid title to all properties owned by them, including all property
reflected in the most recent pro forma balance sheet referred to in Section
7.05(b) (except as sold or otherwise disposed of since the
date of such balance sheet in the ordinary course of business), free and clear of all Liens, other than Permitted Liens permitted by Section 9.01.
7.14 Capitalization. On the Initial Borrowing Date and
after giving effect to the Transaction, (i) the authorized capital stock of the
Borrower shall consist of (x) 100,000,000 shares of common stock, $.01 par value
per share, of which approximately 20,000,000 shares are issued and outstanding,
(y) 900,000 shares of preferred stock, $.01 par value per share, none of which
shares are issued and outstanding and (z) 100,000 shares of Junior Participating
Series A Preferred Stock, $100 par value per share, none of which shares are
issued and outstanding, (ii) all outstanding shares of capital stock of the
Borrower have been duly and validly issued, are fully paid and nonassessable and
(iii) except for options or warrants to purchase shares of common stock of the
Borrower held by officers, directors and employees of the Borrower or any of its
Subsidiaries, the Borrower does not have outstanding any securities convertible
into or exchangeable for its capital stock or any rights to subscribe for or to
purchase, or any options for the purchase of, or any agreement providing for the
issuance (contingent or otherwise) of, or any calls, commitments or claims of
any character relating to, its capital stock.
7.15 Subsidiaries. After giving effect to the Transaction,
the Borrower will have no Subsidiaries other than (i) those Subsidiaries listed
on Schedule VII (which Schedule identifies the correct legal name, direct owner,
percentage ownership and jurisdiction of organization of each such Subsidiary on
the Initial Borrowing Date) and (ii) new Subsidiaries created in compliance with
Section 9.14.
7.16 Compliance with Statutes, etc. The Borrower and each of its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all governmental bodies, domestic or foreign, in respect of the conduct of its business and the ownership of its property (including applicable statutes, regulations, orders and restrictions relating to environmental standards and controls), except such noncompliances as have not had and would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
7.17 Investment Company Act. Neither the Borrower, nor any of its Subsidiaries, is an "investment company" or a company "controlled" by an "investment company," within the meaning of the Investment Company Act of 1940, as amended.
7.18 Public Utility Holding Company Act. Neither the Borrower, nor any of its Subsidiaries, is a "holding company," or a "subsidiary company" of a "holding company," or an "affiliate" of a "holding company" or of a "subsidiary company" of a "holding company" within the meaning of the Public Utility Holding Company Act of 1935, as amended.
7.19 Environmental Matters. (a) The Borrower and each of its Subsidiaries has complied with, and on the date of each Credit Event will be in compliance with, all applicable Environmental Laws and the requirements of any permits issued under such Environmental Laws. There are no pending or, to the best knowledge of the Borrower after due inquiry, past or threatened Environmental Claims against the Borrower or any of its Subsidiaries or any Real Property owned or operated by the Borrower or any of its Subsidiaries. There are no facts,
circumstances, conditions or occurrences in respect of the business or operations of, or any Real Property at any time owned or operated or occupied by, the Borrower or any of its Subsidiaries that, to the best knowledge of the Borrower after due inquiry, could reasonably be expected (i) to form the basis of an Environmental Claim against the Borrower or any of its Subsidiaries or any such currently owned Real Property, or (ii) to cause any such currently owned Real Property to be subject to any restrictions on the ownership, occupancy, use or transferability of such Real Property by the Borrower or any of its Subsidiaries under any applicable Environmental Law.
(b) Hazardous Materials have not at any time been generated, used, treated or stored on, or transported to or from, any Real Property owned or operated by the Borrower or any of its Subsidiaries where such generation, use, treatment or storage has violated or could reasonably be expected to violate any Environmental Law. Hazardous Materials, to the best knowledge of the Borrower, have not been Released on or from any Real Property owned or operated by the Borrower or any of its Subsidiaries where such Release has violated or could reasonably be expected to violate any applicable Environmental Law.
(c) Notwithstanding anything to the contrary in this
Section 7.19, the representations made in this Section 7.19 shall only be untrue
if the aggregate effect of all failures, restrictions and noncompliances of the
types described above has had, or would reasonably be expected to have, a
Material Adverse Effect.
7.20 Labor Relations. Neither the Borrower nor any of its Subsidiaries is engaged in any unfair labor practice that could reasonably be expected to have a material adverse effect on the Borrower and/or any of its Subsidiaries taken as a whole and there is (i) no unfair labor practice complaint pending against the Borrower or any of its Subsidiaries or, to the best knowledge of the Borrower, threatened against any of them, before the National Labor Relations Board, and no material grievance or arbitration proceeding arising out of or under any collective bargaining agreement is so pending against the Borrower or any of its Subsidiaries or, to the best knowledge of the Borrower, threatened against any of them, (ii) no strike, labor dispute, slowdown or stoppage pending against the Borrower or any of its Subsidiaries or, to the best knowledge of the Borrower, threatened against the Borrower or any of its Subsidiaries and (iii) to the best knowledge of the Borrower, no union representation proceeding is pending with respect to the employees of the Borrower or any of its Subsidiaries, except (with respect to the matters specified in clause (i), (ii) or (iii) above) as have not had, and would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
7.21 Patents, Licenses, Franchises and Formulas. Each of the Borrower and its Subsidiaries owns or has valid licenses to use all material patents, trademarks, permits, service marks, trade names, copyrights, licenses, franchises and formulas, or rights with respect to the foregoing, and has obtained assignments of all leases and other rights of whatever nature, necessary for the present conduct of its business, without any known conflict with the rights of others, except for such failures and conflicts which have not had and would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
7.22 Indebtedness. (a) Section A of Schedule IV sets forth a true and complete list of all Indebtedness (excluding the Loans and Letters of Credit) of the Borrower and its Subsidiaries as of the Initial Borrowing Date, which has an outstanding principal balance of $2,000,000 or more and which is to remain outstanding after giving effect to the Transaction (excluding the Obligations, the Lease Program, the Existing Debentures and the Smuckers Note, the "Existing Indebtedness"), in each case showing the aggregate principal amount thereof and the name of the respective borrower and any other entity which directly or indirectly guaranteed such debt.
(b) Section B of Schedule IV sets forth a true and complete list of all Indebtedness of Flowers Industries and its Subsidiaries (other than Keebler and its Subsidiaries) to be refinanced pursuant to the Refinancing (the "Indebtedness to be Refinanced"), in each case showing the aggregate principal amount thereof, the name of the respective borrower and any other entity which directly or indirectly guaranteed such Indebtedness and the outstanding amount thereof on the Initial Borrowing Date (before giving effect to the Transaction). Except for (x) Indebtedness which remains outstanding pursuant to the Lease Program, the Smuckers Note and any Existing Indebtedness and (y) Indebtedness of Keebler and its Subsidiaries with respect to which the Borrower and its Subsidiaries have no liabilities, all Indebtedness of Flowers Industries and its Subsidiaries (including the Borrower and its Subsidiaries) which was outstanding immediately prior to the Initial Borrowing Date (and before giving effect to the Transaction) (including, for this purpose, all Loans and Notes (each as defined in the Existing Distributor Note Documents) outstanding under the Existing Distributor Note Documents) shall constitute Indebtedness to be Refinanced, which shall be repaid in full (or, in the case of such Loans and Notes outstanding under the Existing Distributor Note Documents, purchased by the Borrower) pursuant to the Refinancing.
7.23 Transaction. At the time of the consummation thereof, the Transaction has been consummated in all material respects in accordance with the terms of the respective Documents and all applicable laws. At the time of consummation of the Transaction, all necessary material consents and approvals of, and filings and registrations with, and all other actions in respect of, all governmental agencies, authorities or instrumentalities required in order to make or consummate the Transaction will have been obtained, given, filed or taken and are or will be in full force and effect (or effective judicial relief with respect thereto has been obtained). All applicable waiting periods with respect thereto have or, prior to the time when required, will have, expired without, in all such cases, any action being taken by any competent authority which restrains, prevents, or imposes material adverse conditions upon the Transaction. Additionally, there does not exist any judgment, order or injunction prohibiting or imposing material adverse conditions upon the Transaction, or the occurrence of any Credit Event or the performance by the Borrower or any other Credit Party of their respective obligations under the respective Credit Documents. All actions taken by the Borrower pursuant to or in furtherance of the Transaction have been taken in all material respects in compliance with the respective Documents and all applicable laws.
7.24 Insurance. Schedule V sets forth a true and complete description of all insurance maintained by the Borrower and its Subsidiaries as of the Initial Borrowing Date (after
giving effect to the Transaction), with the amounts insured (and any deductibles) set forth therein.
SECTION 8. Affirmative Covenants. The Borrower hereby covenants and agrees that on and after the Effective Date and until the Total Commitments and all Letters of Credit have terminated and the Loans, Notes and Unpaid Drawings, together with interest, Fees and all other obligations incurred hereunder and thereunder, are paid in full:
8.01 Information Covenants. The Borrower will furnish to the Administrative Agent and each Lender:
(a) Period Reports. Within 30 days after the end of each fiscal Period of the Borrower, the consolidated and Consolidating balance sheets of the Borrower and its Subsidiaries as at the end of such fiscal Period and the related consolidated and Consolidating statements of income and retained earnings and consolidated statements of cash flows for such fiscal Period and for the elapsed portion of the fiscal year ended with the last day of such fiscal Period, in each case setting forth comparative figures for the corresponding fiscal Period in the prior fiscal year, all of which shall be certified by the chief financial officer or Treasurer of the Borrower that they fairly present in all material respects in accordance with generally accepted accounting principles the financial condition of the Borrower and its Subsidiaries as of the dates indicated and the results of their operations for the periods indicated, subject to normal year-end audit adjustments and the absence of footnotes; provided that the Period reports otherwise required by this clause (a) shall not be required to be furnished at any time when the Indebtedness pursuant to this Agreement (or any long-term unsecured debt of the Borrower) is rated at least BB by S&P and at least Ba2 by Moody's.
(b) Quarterly Financial Statements. Within 45 days after the close of the first three fiscal quarters in each fiscal year of the Borrower, (i) the consolidated and Consolidating balance sheets of the Borrower and its Subsidiaries as at the end of such quarterly accounting period and the related consolidated and Consolidating statements of income and retained earnings and consolidated statements of cash flows, in each case for such quarterly accounting period and for the elapsed portion of the fiscal year ended with the last day of such quarterly accounting period, and in each case, setting forth comparative figures for the related periods in the prior fiscal year and the budgeted figures for such quarterly periods as set forth in the respective budget delivered pursuant to Section 8.01(e), all of which shall be certified by the chief financial officer of the Borrower, subject to normal year-end audit adjustments and (ii) management's discussion and analysis of the important operational and financial developments during the fiscal quarter and year-to-date periods.
(c) Annual Financial Statements. Within 90 days after the close of each fiscal year of the Borrower, (i) the consolidated and Consolidating balance sheets of the Borrower and its Subsidiaries as at the end of such fiscal year and the related consolidated and Consolidating statements of income and changes in stockholders' equity
and consolidated statements of cash flows, in each case for such fiscal year and setting forth comparative figures for the preceding fiscal year and budgeted figures for such fiscal year as set forth in the respective budget delivered pursuant to Section 8.01(e), and certified (x) in the case of such consolidated financial statements, by PricewaterhouseCoopers LLP, or such other independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, and (y) in the case of such Consolidating financial statements, by the chief financial officer of the Borrower, and (ii) management's discussion and analysis of the important operational and financial developments during such fiscal year.
(d) Management Letters. Promptly after the receipt thereof by the Borrower or any of its Subsidiaries, a copy of any "management letter" issued to any such Person by its certified public accountants and management's responses thereto.
(e) Budgets. Within 45 days of the commencement
of each fiscal year of the Borrower, a budget of the Borrower
and its Subsidiaries in form satisfactory to the
Administrative Agent prepared by the Borrower for (x) each of
the four quarters of such fiscal year in detailed format and
(y) each of the three years immediately following such fiscal
year in summary format, in each case accompanied by the
statement of the chief financial officer of the Borrower to
the effect that, to the best of his or her knowledge, the
budget is a reasonable estimate for the periods covered
thereby.
(f) Officer's Certificates. At the time of the
delivery of the financial statements provided for in Section
8.01(b) and (c), (1) a certificate of the chief financial
officer of the Borrower to the effect that, to the best of
such officer's knowledge, no Default or Event of Default has
occurred and is continuing or, if any Default or Event of
Default has occurred and is continuing, specifying the nature
and extent thereof, which certificate shall set forth the
calculations required to establish whether the Borrower was in
compliance with the provisions of Sections 3.03(f), 4.02(d),
(e), (f) and (g) and 9.07 through 9.10, inclusive, at the end
of such fiscal quarter or year, as the case may be and (2) a
certificate of the general counsel, Chief Financial Officer or
Treasurer of the Borrower certifying that (i) there have been
no changes since the Initial Borrowing Date or, if later,
since the date of the most recent certificate delivered
pursuant to this Section 8.01(f)(2), to Schedule VII to this
Agreement or, if there have been any such changes, a list in
reasonable detail of such changes and a certification that the
Borrower and its Subsidiaries have taken all action required
by Sections 8.12 and 9.14 with respect to any new
Subsidiaries, and (ii) there have been no changes to Annexes A
through G of the Security Agreement and Annexes A through H of
the Pledge Agreement, in each case since the Initial Borrowing
Date or, if later, since the date of the most recent
certificate delivered pursuant to this Section 8.01(f)(2) or,
if there have been any such changes, a list in reasonable
detail of such changes and a certification that the Borrower
and its Subsidiaries have taken all action required by the
relevant Security Documents as a result of such changes so
that all security interests purported to be created pursuant
to such Security Documents continue to be fully perfected (to
the extent required by the Security Documents).
(g) Notice of Default or Litigation. Promptly, and in any event within three Business Days (or five Business Days in the case of following clause (ii)) after the Borrower obtains knowledge thereof, notice of (i) the occurrence of any event which constitutes a Default or Event of Default and (ii) any litigation or governmental investigation or proceeding pending or threatened (x) against the Borrower or any of its Subsidiaries which, if adversely determined, would reasonably be expected to have a Material Adverse Effect or (y) with respect to the Transaction or any Document.
(h) Other Reports and Filings. Promptly, copies of all financial information, proxy materials and other information and reports, if any, which the Borrower or any of its Subsidiaries shall file with the Securities and Exchange Commission (or any successor thereto).
(i) Environmental Matters. Promptly upon, and in any event within ten Business Days after, the Borrower obtains knowledge thereof, notice of any of the following environmental matters occurring after the Initial Borrowing Date, except to the extent that such environmental matters have not had and would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect:
(i) any Environmental Claim pending or threatened in writing against the Borrower or any of its Subsidiaries or any Real Property owned or operated or occupied by the Borrower or any of its Subsidiaries;
(ii) any condition or occurrence on or arising from any Real Property owned or operated or occupied by the Borrower or any of its Subsidiaries that (a) results in noncompliance by the Borrower or such Subsidiary with any applicable Environmental Law or (b) could reasonably be expected to form the basis of an Environmental Claim against the Borrower or any of its Subsidiaries or any such Real Property;
(iii) any condition or occurrence on any Borrower or any of its Subsidiaries that could reasonably be expected to cause such Real Property to be subject to any restrictions on the ownership, occupancy, use or transferability by the Borrower or such Subsidiary of such Real Property under any Environmental Law; and
(iv) the taking of any removal or remedial action in response to the actual or alleged presence of any Hazardous Material on any Real Property owned or operated or occupied by the Borrower or any of its Subsidiaries as required by any Environmental Law or any governmental or other administrative agency.
All such notices shall describe in reasonable detail the nature of the claim, investigation, condition, occurrence or removal or remedial action and the Borrower's or such Subsidiary's response thereto. In addition, the Borrower will provide the Lenders with copies of all material communications with any government or governmental agency and all material communications with any Person relating to any Environmental Claim of which
notice is required to be given pursuant to this Section 8.01(i), and such detailed reports of any such Environmental Claim as may reasonably be requested by the Lenders; provided that, in any event, the Borrower shall deliver to the Administrative Agent all material notices received by the Borrower or any of its Subsidiaries from any government or governmental agency under, or pursuant to, CERCLA.
(j) Annual Meetings with Lenders. At the request of the Administrative Agent, the Borrower shall, within 120 days after the close of each fiscal year of the Borrower, hold a meeting, at a reasonable time and place selected by the Borrower and acceptable to the Administrative Agent, with all of the Lenders at which meeting shall be reviewed the financial results of the previous fiscal year and the financial condition of the Borrower and its Subsidiaries and the budgets presented for the current fiscal year of the Borrower and its Subsidiaries.
(k) Other Information. From time to time, such other information or documents (financial or otherwise) with respect to the Borrower or its Subsidiaries as the Administrative Agent or the Required Lenders may reasonably request in writing.
8.02 Books, Records and Inspections. The Borrower will, and will cause each of its Subsidiaries to, keep proper books of record and account in which full, true and correct entries in conformity with generally accepted accounting principles and all requirements of law shall be made of all dealings and transactions in relation to its business and activities. The Borrower will, and will cause each of its Subsidiaries to, permit officers and designated representatives of any of the Administrative Agent or any Lender to visit and inspect, upon reasonable notice and during regular business hours and under guidance of officers of the Borrower or any of its Subsidiaries, any of the properties of the Borrower or its Subsidiaries, and to examine the books of account of the Borrower or such Subsidiaries and discuss the affairs, finances and accounts of the Borrower or such Subsidiaries with, and be advised as to the same by, its and their officers and independent accountants, all upon reasonable advance notice and at such reasonable times and intervals and to such reasonable extent as the Administrative Agent or such Lender may request.
8.03 Maintenance of Property; Insurance. (a) The Borrower will, and will cause each of its Subsidiaries to, (i) keep all property necessary to the business of the Borrower and its Subsidiaries in good working order and condition, ordinary wear and tear excepted, (ii) maintain with financially sound and reputable insurance companies insurance on all such property and against such risks as is consistent and in accordance with industry practice for companies similarly situated owning similar properties and engaged in similar businesses as the Borrower or any of its Subsidiaries operates, and (iii) furnish to the Administrative Agent from time to time upon its request, full information as to the insurance carried.
(b) The Borrower will, and will cause each of its Subsidiaries to, at all times keep its property insured in favor of the Collateral Agent, and all policies or certificates (or certified copies thereof) with respect to such insurance (and any other insurance maintained by the Borrower and/or such Subsidiaries) (i) shall be endorsed to the Collateral Agent's satisfaction for the benefit of the Collateral Agent (including, without limitation, by naming the Collateral Agent
as loss payee and/or additional insured) and (ii) shall state that such insurance policies shall not be canceled without at least 30 days' prior written notice thereof by the respective insurer to the Collateral Agent, and shall provide that the respective insurers irrevocably waive any and all rights of subrogation with respect to the Collateral Agent and the other Secured Creditors.
(c) If the Borrower or any of its Subsidiaries shall fail to maintain insurance in accordance with this Section 8.03, or if the Borrower or any of its Subsidiaries shall fail to so endorse and deposit all policies or certificates with respect thereto, the Administrative Agent shall have the right (but shall be under no obligation) to procure such insurance and the Borrower agrees to reimburse the Administrative Agent for all reasonable costs and expenses of procuring such insurance.
8.04 Rights; Franchises; etc. The Borrower will, and will cause each of its Subsidiaries, to do or cause to be done, all things necessary to preserve and keep in full force and effect its existence and its material rights, franchises, licenses and patents used in its business; provided, however, that nothing in this Section 8.04 shall prevent (i) sales of assets, consolidations or mergers by or involving the Borrower or any of its Subsidiaries which are permitted in accordance with Section 9.02, (ii) the withdrawal by the Borrower or any of its Subsidiaries of their qualification as a foreign corporation in any jurisdiction where such withdrawal has not had, and would not reasonably be expected to have, a Material Adverse Effect or (iii) the abandonment by the Borrower or any of its Subsidiaries of any rights, franchises, licenses and patents that the Borrower reasonably determine are not useful to or needed in its or their business, as the case may be.
8.05 Compliance with Statutes, etc. The Borrower will, and will cause each of its Subsidiaries to, comply with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all governmental bodies, domestic or foreign, in respect of the conduct of its business and the ownership of its property, except such non-compliances as have not had and would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
8.06 Compliance with Environmental Laws. The Borrower will, and
will cause each of its Subsidiaries to, comply with all Environmental Laws
applicable to the Borrower and its Subsidiaries (and the respective businesses
conducted by them) and the ownership or use of any Real Property now or
hereafter owned or operated by the Borrower or any of its Subsidiaries, and will
within a reasonable time period pay or cause to be paid all costs and expenses
incurred in connection with such compliance (except to the extent being
contested in good faith). Furthermore, neither the Borrower nor any of its
Subsidiaries will generate, use, treat, store, release or dispose of, or permit
the generation, use, treatment, storage, release or disposal of, Hazardous
Materials on any Real Property now or hereafter owned or operated or occupied by
the Borrower or any of its Subsidiaries, or transport or permit the
transportation of Hazardous Materials to or from any such Real Property.
Notwithstanding anything to the contrary contained above, the covenant contained
above in this Section 8.06 shall only be violated if the aggregate effect of all
failures and noncompliances with respect to the matters described above in this
Section 8.06 has had, or would reasonably be expected to have, a Material
Adverse Effect.
8.07 ERISA. As soon as possible and, in any event, within ten (10)
days after the Borrower or any of its Subsidiaries or any ERISA Affiliate knows
or has reason to know of the occurrence of any of the following, the Borrower
will deliver to each of the Lenders a certificate of the senior financial
officer of the Borrower setting forth the full details as to such occurrence and
the action, if any, that the Borrower, such Subsidiary or such ERISA Affiliate
is required or proposes to take, together with any notices required or proposed
to be given to or filed with or by the Borrower, the Subsidiary, the ERISA
Affiliate, the PBGC (or any other governmental agency), a Plan participant or
the Plan administrator and any notices received by the Borrower, such Subsidiary
or such ERISA Affiliate from the PBGC (or any other governmental agency), or a
Plan participant with respect thereto: that a Reportable Event has occurred
(except to the extent that the Borrower has previously delivered to the Lenders
a certificate and notices (if any) concerning such event pursuant to the next
clause hereof); that a contributing sponsor (as defined in Section 4001(a)(13)
of ERISA) of a Plan subject to Title IV of ERISA is subject to the advance
reporting requirement of PBGC Regulation Section 4043.61 (without regard to
subparagraph (b)(1) thereof), and an event described in subsection .62, .63,
.64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 is reasonably expected
to occur with respect to such Plan within the following 30 days; that an
accumulated funding deficiency, within the meaning of Section 412 of the Code or
Section 302 of ERISA, has been incurred or an application may be or has been
made for a waiver or modification of the minimum funding standard (including any
required installment payments) or an extension of any amortization period under
Section 412 of the Code or Section 303 or 304 of ERISA with respect to a Plan;
that any contribution required to be made with respect to a Plan or Foreign
Pension Plan has not been timely made; that a Plan has been or may be
terminated, reorganized, partitioned or declared insolvent under Title IV of
ERISA; that a Plan has an Unfunded Current Liability; that proceedings may be or
have been instituted to terminate or appoint a trustee to administer a Plan
which is subject to Title IV of ERISA; that a proceeding has been instituted
pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan;
that the Borrower, any of its Subsidiaries or any ERISA Affiliate will or may
incur any liability (including any indirect, contingent, or secondary liability)
to or on account of the termination of or withdrawal from a Plan under Section
4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with respect to a Plan
under Section 401(a)(29), 4971, 4975 or 4980 of the Code or Section 409 or
502(i) or 502(l) of ERISA or with respect to a group health plan (as defined in
Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) under Section 4980B
of the Code; or that the Borrower, or any of its Subsidiaries may incur any
material liability pursuant to any employee welfare benefit plan (as defined in
Section 3(1) of ERISA) that provides benefits to retired employees or other
former employees (other than as required by Section 601 of ERISA) or any Plan or
any Foreign Pension Plan. The Borrower will deliver to any of the Lenders (i) a
complete copy of the annual report (on Internal Revenue Service Form
5500-series) of each Plan (including, to the extent required, the related
financial and actuarial statements and opinions and other supporting statements,
certifications, schedules and information) required to be filed with the
Internal Revenue Service and (ii) copies of any records, documents or other
information that must be furnished to the PBGC with respect to any Plan pursuant
to Section 4010 of ERISA. In addition to any certificates or notices delivered
to the Lenders pursuant to the first sentence hereof, copies of annual reports
and any records, documents or other information required to be furnished to the
PBGC (or any other governmental agency), and any material notices received by
the Borrower, any of its Subsidiaries or any
ERISA Affiliate with respect to any Plan or Foreign Pension Plan shall be delivered to the Lenders no later than ten (10) days after the date such annual report has been filed with the Internal Revenue Service or such records, documents and/or information has been furnished to the PBGC (or any other governmental agency) or such notice has been received by the Borrower, such Subsidiary or such ERISA Affiliate, as applicable. The Borrower and each of its applicable Subsidiaries shall ensure that all Foreign Pension Plans administered by it or into which it makes payments obtains or retains (as applicable) registered status under and as required by applicable law and is administered in a timely manner in all respects in compliance with all applicable laws, except where the failure to do any of the foregoing has not had, and would not be reasonably likely to result in a Material Adverse Effect.
8.08 End of Fiscal Years; Fiscal Quarters. The Borrower shall cause
(i) each of its, and each of its Subsidiaries', fiscal years to end on the
Saturday closest to December 31 of each year and (ii) each of its, and each of
its Subsidiaries', fiscal quarters to end on the date which is sixteen weeks
after the last day of the previous fiscal year, twenty-eight weeks after the
last day of the previous fiscal year, forty weeks after the last day of the
previous fiscal year, or fifty-two weeks after the last day of the previous
fiscal year.
8.09 Performance of Obligations. The Borrower will, and will cause each of its Subsidiaries to, perform in all material respects all of its obligations under the terms of each mortgage, indenture, security agreement and other debt instrument by which it is bound.
8.10 Payment of Taxes. The Borrower will pay and discharge, and will cause each of its Subsidiaries to pay and discharge, all Taxes imposed upon it or upon its income or profits, or upon any properties belonging to it, in each case on a timely basis and all lawful claims which, if unpaid, might become a Lien or charge upon any properties of the Borrower or any of its Subsidiaries not otherwise permitted under Section 9.01(i), provided that neither the Borrower nor any of its Subsidiaries shall be required to pay any such tax, assessment, charge, levy or claim which is being contested in good faith and by proper proceedings if it has maintained adequate reserves with respect thereto in accordance with GAAP.
8.11 Ownership of Subsidiaries. Except as otherwise reflected on Schedule VII and for Non-Wholly Owned Entities permitted to be acquired pursuant to Section 9.05(v), the Borrower shall, directly or indirectly own 100% of the capital stock or other equity interests of each of its Subsidiaries.
8.12 Additional Security; Further Assurances. (a) The Borrower will, and will cause each of its Domestic Wholly-Owned Subsidiaries to, at the expense of the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from time to time such vouchers, invoices, schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of attorney, certificates, reports and other assurances or instruments and take such further steps relating to the Collateral covered by any of the Security Documents as the Collateral Agent may reasonably require pursuant to this Section 8.12. Additionally, upon the request of the Collateral Agent or the Required Lenders, the Borrower shall take, or cause to be taken, such action as may be requested in order to perfect (or maintain the
perfection of) the security interests (or take any analogous actions under the applicable provisions of local law in order to protect such security interests) in any Collateral owned by the Borrower or any Subsidiary Guarantor and located outside the U.S., in each case to the extent such actions are permitted to be taken under the laws of the applicable jurisdictions; provided that the Borrower and its Subsidiaries shall not be required to take any action otherwise required by this Section 8.12(a) in respect of the Excluded Mexico Assets. Furthermore, the Borrower shall cause to be delivered to the Collateral Agent such opinions of counsel and other related documents as may be reasonably requested by the Collateral Agent to assure itself that this Section 8.12 has been complied with.
(b) The Borrower agrees to cause each Domestic Wholly-Owned Subsidiary established or created in accordance with Section 9.14 to execute and deliver a counterpart (and if requested by the Administrative Agent or Collateral Agent, an assumption agreement in the form contemplated by the respective Credit Document) to the Subsidiaries Guaranty, the Pledge Agreement and the Security Agreement.
(c) The Borrower agrees to pledge and (to the extent certificated) deliver, or cause to be pledged and (to the extent certificated) delivered, all of the capital stock (accompanied, if certificated, by executed and undated stock powers) of each new Subsidiary (excluding that portion of the voting stock of any Foreign Subsidiary which would be in excess of 65% of the total outstanding voting stock of such Foreign Subsidiary) established created or acquired after the Initial Borrowing Date, to the extent owned by the Borrower or any Domestic Wholly-Owned Subsidiary, to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Pledge Agreement.
(d) The Borrower will cause each Domestic Wholly-Owned Subsidiary established or created in accordance with Section 9.14 to grant to the Collateral Agent a first priority Lien (subject only to Permitted Liens) on the personal property (tangible and intangible) of such Subsidiary to the extent and upon terms and with exceptions similar to those set forth in the Security Documents, as appropriate, and satisfactory in form and substance to the Collateral Agent and the Required Lenders. The Borrower shall cause each such Domestic Wholly-Owned Subsidiary, at its own expense, to execute, acknowledge and deliver, or cause the execution, acknowledgment and delivery of, and thereafter register, file or record in any appropriate governmental office, any document or instrument reasonably deemed by the Collateral Agent to be necessary or desirable for the creation and perfection of the foregoing Liens. The Borrower will cause each of such Domestic Wholly-Owned Subsidiaries to take all actions reasonably requested by the Administrative Agent (including, without limitation, the filing of UCC-1's) in connection with the granting of such security interests.
(e) The security interests required to be granted pursuant to this
Section 8.12 shall be granted pursuant to security documentation (which shall be
substantially similar to the Security Documents executed and delivered by the
Borrower and its Subsidiaries, as applicable, on the Effective Date) reasonably
satisfactory in form and substance to the Collateral Agent and shall constitute
valid and enforceable perfected security interests subject to no other Liens
except such Liens as are permitted by Section 9.01. The Additional Security
Documents and other
instruments related thereto shall be duly recorded or filed in such manner and in such places and at such times as are required by law to establish, perfect, preserve and protect the Liens, in favor of the Collateral Agent for the benefit of the respective Secured Creditors, required to be granted pursuant to the Additional Security Documents and all taxes, fees and other charges payable in connection therewith shall be paid in full by the Borrower. At the time of the execution and delivery of the Additional Security Documents, the Borrower shall cause to be delivered to the Collateral Agent such opinions of counsel and other related documents as may be reasonably requested by the Administrative Agent or the Required Lenders to assure themselves that this Section 8.12 has been complied with.
(f) The Borrower agrees that each action required above by Section
8.12(b) shall be completed as soon as possible, but in no event later than 30
days after such action is requested to be taken by the Administrative Agent or
the Required Lenders. The Borrower further agrees that each action required by
Section 8.12(b), (c), (d) and (e) with respect to the creation or acquisition of
a new Subsidiary shall be completed contemporaneously with (or, in the case of
any documents or instruments to be registered, filed or recorded, within 10 days
of) the creation or acquisition of such new Subsidiary.
8.13 Use of Proceeds. The Borrower will use the proceeds of the Loans only as provided in Section 7.08.
8.14 Margin Regulations. The Borrower shall take all actions so that at all times the fair market value of all Margin Stock owned by the Borrower and its Subsidiaries shall not exceed $1,000,000. So long as the covenant contained in the immediately preceding sentence is complied with, all Margin Stock at any time owned by the Borrower and its Subsidiaries shall not constitute Collateral and no security interest shall be granted therein pursuant to any Credit Document. Without excusing any violation of the first sentence of this Section 8.14, if at any time the fair market value of all Margin Stock owned by the Borrower and its Subsidiaries exceeds $1,000,000, then (x) all Margin Stock owned by the Credit Parties shall be pledged, and delivered for pledge, pursuant to the Pledge Agreement and (y) the Borrower shall execute and deliver to the Lenders appropriate completed forms (including, without limitation, Forms G-3 and U-1, as appropriate) establishing compliance with the Margin Regulations. If at any time any Margin Stock is required to be pledged as a result of the provisions of the immediately preceding sentence, repayments of outstanding Obligations shall be required, and subsequent Credit Events shall be permitted, only in compliance with the applicable provisions of the Margin Regulations.
SECTION 9. Negative Covenants. The Borrower hereby covenants and agrees that on and after the Effective Date and until the Total Commitments and all Letters of Credit have terminated and the Loans, Notes and Unpaid Drawings, together with interest, Fees and all other Obligations incurred hereunder and thereunder, are paid in full:
9.01 Liens. The Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with respect to any property or assets (real or personal, tangible or intangible) of the Borrower or any of its Subsidiaries, whether now
owned or hereafter acquired, or sell any such property or assets subject to an understanding or agreement, contingent or otherwise, to repurchase such property or assets (including sales of accounts receivable with recourse to the Borrower or any of its Subsidiaries), or assign any right to receive income or permit the filing of any financing statement under the UCC or any other similar notice of Lien under any similar recording or notice statute; provided that the provisions of this Section 9.01 shall not prevent the creation, incurrence, assumption or existence of the following (Liens described below are herein referred to as "Permitted Liens"):
(i) inchoate Liens for taxes, assessments or governmental charges or levies not yet delinquent or Liens for taxes, assessments or governmental charges or levies being contested in good faith and by appropriate proceedings for which adequate reserves have been established in accordance with generally accepted accounting principles in the United States (or the equivalent thereof in any country in which a Foreign Subsidiary is doing business, as applicable);
(ii) Liens in respect of property or assets of the Borrower or any of its Subsidiaries imposed by law, which were incurred in the ordinary course of business and do not secure Indebtedness for borrowed money, such as carriers', warehousemen's, materialmen's and mechanics' liens and other similar Liens arising in the ordinary course of business, and (x) which do not in the aggregate materially detract from the value of the property or assets of the Borrower or such Subsidiary and do not materially impair the use thereof in the operation of the business of the Borrower or such Subsidiary or (y) which are being contested in good faith by appropriate proceedings, which proceedings (or orders entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the property or assets subject to any such Lien;
(iii) Liens in existence on the Effective Date which are listed, and the property subject thereto described, in Schedule III, without giving effect to any renewals, replacements or extensions of such Liens;
(iv) Liens on property or assets acquired pursuant to a Permitted Acquisition, or on property or assets of a Subsidiary of the Borrower in existence at the time such Subsidiary is acquired pursuant to a Permitted Acquisition, provided that (x) any Indebtedness that is secured by such Liens is permitted to exist under Section 9.04, and (y) such Liens are not incurred in connection with, or in contemplation or anticipation of, such Permitted Acquisition and do not attach to any other asset of the Borrower or any of its Subsidiaries;
(v) Liens created pursuant to the Security Documents;
(vi) licenses, leases or subleases granted to other Persons in the ordinary course of business not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries;
(vii) Liens placed upon assets used in the ordinary course of business of the Borrower or
any of its Subsidiaries at the time of acquisition thereof by the Borrower or any such Subsidiary or within 90 days thereafter to secure Indebtedness incurred to pay all or a portion of the purchase price thereof, provided that (x) the aggregate outstanding principal amount of all Indebtedness secured by Liens permitted by this clause (vii) shall not at any time exceed the amount of such Indebtedness permitted by Section 9.04(iv) and (y) the Lien encumbering the assets so acquired does not encumber any other asset (other than proceeds thereof) of the Borrower or such Subsidiary;
(viii) Liens upon assets of the Borrower or any of its Subsidiaries subject to Capitalized Lease Obligations to the extent such Capitalized Lease Obligations are permitted by Section 9.04(iv), provided that (x) such Liens only serve to secure the payment of Indebtedness arising under such Capitalized Lease Obligation and (y) the Lien encumbering the asset giving rise to the Capitalized Lease Obligation does not encumber any other asset of the Borrower or any Subsidiary of the Borrower;
(ix) easements, rights-of-way, zoning restrictions and other similar charges or encumbrances, and minor title deficiencies, in each case whether now or hereafter in existence, not securing Indebtedness and not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries;
(x) Liens arising from the rights of lessors under operating leases entered into by the Borrower or any of its Subsidiaries in the ordinary course of business;
(xi) Liens arising out of judgments, awards, decrees or attachments with respect to which the Borrower or any of its Subsidiaries shall in good faith be prosecuting an appeal or proceedings for review, provided that (x) the aggregate amount of all such judgments, awards, decrees or attachments shall not constitute an Event of Default under Section 10.09 and (y) no cash or other property shall be pledged by the Borrower or any of its Subsidiaries as security therefor;
(xii) statutory and common law landlords' liens (or contractual landlords' liens which are limited solely to the leased premises which are the subject of such contract and fixtures thereon) under leases or subleases to which the Borrower or any of its Subsidiaries is a party;
(xiii) Liens (other than any Lien imposed by ERISA) incurred
or deposits made in the ordinary course of business in connection with
(x) workers' compensation, unemployment insurance and other types of
social security and (y) the performance of tenders, statutory
obligations (other than excise taxes), surety, stay, customs and appeal
bonds, statutory bonds, bids, leases, government contracts, trade
contracts, performance and return of money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed
money) and securing liability for premiums to insurance carriers,
provided that the aggregate value of all cash and property at any time
encumbered pursuant to clause (y) of this clause (xiii) shall not
exceed $5,000,000;
(xiv) any interest or title of a lessor, sublessor, franchisor, licensee, licensor or similar party under any operating lease, franchise agreement, license agreement or similar agreement;
(xv) Liens created pursuant to the Lease Program Documents (or any Permitted Lease Refinancing) on Equipment (as defined in the Lease Program Documents) leased thereunder and related assets to the extent described in Section 13(b) of Master Lease as such section is in effect on the Effective Date (but not any other assets of the Borrower and its Subsidiaries), provided that (x) the aggregate outstanding principal amount of all Indebtedness secured by Liens permitted by this clause (xv) shall not at any time exceed the amount of such Indebtedness permitted by Section 9.04(vi) and (y) the equipment and other assets subject to Liens permitted pursuant to this clause (xv) shall in no event be located in more than four separate facilities of the Borrower and its Subsidiaries;
(xvi) Liens securing Indebtedness pursuant to industrial revenue bonds permitted pursuant to Section 9.04(x), provided that such Liens shall not attach to any assets of the Borrower or any of its Subsidiaries other than the respective Real Property which is the subject of such industrial revenue bond issuance; and
(xvii) Liens not otherwise permitted pursuant to this
Section 9.01 which secure obligations permitted under this Agreement
not exceeding $7,000,000 in the aggregate at any time outstanding and
which apply to property and/or assets (but not to any Pledge Agreement
Collateral) with an aggregate fair market value (as determined by the
Borrower in good faith) not to exceed at any time the amount referenced
above in this clause.
In connection with the granting of Liens described above in this Section 9.01 by the Borrower of any of its Subsidiaries, the Administrative Agent and the Collateral Agent shall be authorized to take any actions deemed appropriate by it in connection therewith (including, without limitation, by executing appropriate lien releases or lien subordination agreements in favor of the holder or holders of such Liens, in respect of the item or items of equipment or other assets subject to such Liens).
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do any of the foregoing at any future time) all or any part of its property or assets, or enter into any sale-leaseback transactions, except that:
(i) the Borrower and each of its Subsidiaries may (x) in the ordinary course of business, sell, lease or otherwise dispose of any assets which, in the reasonable judgment of such Person, are obsolete, worn out or otherwise no longer useful in the conduct of such Person's business, provided that the aggregate fair market value (as determined in good faith by the Borrower) of all assets subject to sales, leases or other dispositions effected in any fiscal year of the Borrower pursuant to this clause (x) shall not exceed $5,000,000, (y) sell or otherwise dispose of other assets (other than the Equity Interests of any Subsidiary of the Borrower unless such sale constitutes a sale of 100% of the Equity
Interests of such Subsidiary owned by the Borrower and its Subsidiaries), provided that (1) the Borrower or the respective Subsidiary selling or disposing of assets pursuant to this clause (y) receives consideration therefor which, in the good faith judgment of the Borrower, is at least equal to the fair market value of the assets being sold or disposed of and which consideration consists at least 75% of cash (determined by taking the amount of cash and the fair market value, as reasonably determined by the Borrower in good faith, of all non-cash collateral) and (2) the aggregate fair market value (as determined in good faith by the Borrower) of all assets subject to sales, leases or other dispositions effected in any fiscal year of the Borrower pursuant to this clause (y) shall not exceed $15,000,000 (or $35,000,000 in the case of the fiscal year of the Borrower ended closest to December 31, 2001) and (z) sell, in the ordinary course of business, homes acquired in accordance with Section 9.05(iii); provided further, that the Net Asset Sale Proceeds of all asset sales effected pursuant to this Section 9.02(i) shall be required to be applied and/or reinvested as (and to the extent) required by Section 4.02(e);
(ii) the Borrower and each of its Subsidiaries may lease (as lessee) real or personal property in the ordinary course of business (so long as any such lease does not create a Capitalized Lease Obligation not permitted by Section 9.04);
(iii) the Borrower and each of its Subsidiaries may make sales or transfers of inventory in the ordinary course of business;
(iv) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, overdue accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale);
(v) licenses or sublicenses by the Borrower and its Subsidiaries of software, trademarks and other intellectual property in the ordinary course of business and which do not materially interfere with the business of the Borrower or any of its Subsidiaries shall be permitted;
(vi) the Transaction shall be permitted;
(vii) the Borrower or any Domestic Wholly-Owned Subsidiary of the Borrower may transfer assets to or lease to or acquire or lease assets from the Borrower or any other Domestic Wholly-Owned Subsidiary of the Borrower, or any Domestic Wholly-Owned Subsidiary of the Borrower may be merged into the Borrower (so long as the Borrower is the surviving entity of such merger) or any other Domestic Wholly-Owned Subsidiary of the Borrower, or any Foreign Subsidiary of the Borrower may transfer assets to the Borrower or any Domestic Wholly-Owned Subsidiary of the Borrower, or any Foreign Subsidiary of the Borrower which is a Wholly-Owned Subsidiary may merge with any other Foreign Subsidiary of the Borrower which is a Wholly-Owned Subsidiary;
(viii) the Borrower and its Subsidiaries may sell distribution rights to distributors of the
Borrower and its Subsidiaries (whether or not such distributor was a distributor of the Borrower and/or its Subsidiaries prior to giving effect of such sale) in the ordinary course of business;
(ix) the Borrower and its Subsidiaries may enter into
sale-leaseback transactions in accordance with the Lease Program
Documents so long as the Borrower and/or its respective Subsidiaries
receive cash in an amount equal to at least 90% of the fair market
value (as determined in good faith by the Borrower) of all assets
subject thereto (it being understood that, in accordance with the terms
of the Lease Program Documents, one or more substitutions of Equipment
(as defined in the Lease Program Documents) may be made for Equipment
theretofore subject to the Lease Program Documents, although any sales
of assets by the Borrower and its Subsidiaries which were theretofore
subject to the Lease Program Documents shall be required to be
justified pursuant to the provisions of Section 9.02(i) and (to the
extent applicable) applied in accordance with the requirements of
Section 4.02(e));
(x) the Borrower and its Subsidiaries may effect one or more Permitted Bakery Swaps; and
(xi) the Borrower and its Subsidiaries may enter into agreements to effect transactions which are permitted pursuant to the provisions of the preceding clauses (i) through (x), and may also enter into agreements to effect transactions which are not permitted pursuant to the provisions of preceding clauses (i) through (x); provided that in the case of any such agreements with respect to transactions which are not permitted pursuant to the provisions of preceding clauses (i) through (x) the respective agreement shall expressly provide that it is terminable by the Borrower or its respective Subsidiary which entered into such agreement (without payment of break-up, termination or any similar fees or damages payable by the Borrower or any of its Subsidiaries (calculated according to the maximum amount thereof payable in accordance with the terms of such agreement) in excess of $10,000,000) in the event that the Required Lenders do not approve in writing the respective transaction (or the Borrower is unable to refinance all Indebtedness pursuant to this Agreement if such consent is not obtained).
To the extent the Required Lenders waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02, such Collateral (unless sold to the Borrower or a Subsidiary of the Borrower) shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and Collateral Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
9.03 Dividends. The Borrower shall not, and shall not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with respect to the Borrower or any of its Subsidiaries, except that:
(i) any Subsidiary of the Borrower (x) may pay Dividends to the Borrower or any Subsidiary Guarantor which is a Wholly-Owned Subsidiary and (y) if the respective Subsidiary is not a Wholly-Owned Subsidiary of the Borrower, such Subsidiary may pay cash dividends to its shareholders generally so long as the Borrower and/or its respective
Subsidiaries which own Equity Interests in the Subsidiary paying such Dividends receive at least their proportionate share thereof (based upon their relative holdings of the Equity Interests in the Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the various classes of Equity Interests of such Subsidiary);
(ii) so long as there shall exist no Default or Event of Default (both before and after giving effect to the payment thereof), the Borrower may repurchase its outstanding Equity Interests (or options to purchase such Equity Interests) theretofore held by the respective employees, officers or directors following the death, disability, retirement or termination of employment of employees, officers or directors of the Borrower or any of its Subsidiaries, provided that the aggregate amount expended to so repurchase Equity Interests (or options therefor) of the Borrower shall not exceed $2,000,000 in any fiscal year of the Borrower;
(iii) so long as there shall exist no Default or Event of Default (both before and after giving effect to the payment thereof), commencing with the Borrower's fiscal year ending closest to December 31, 2002, the Borrower may pay cash dividends to its shareholders in an aggregate amount not to exceed $5,000,000 in any fiscal year of the Borrower;
(iv) the Transaction shall be permitted; and
(v) so long as there shall exist no Default or Event of Default (both before and after giving effect to the payment thereof), the Borrower may pay additional cash Dividends (whether as dividends to shareholders or through repurchases of its Equity Interests) with amounts which, at the time of the payment of such Dividends, do not exceed the Cumulative Retained Excess Cash Flow Amount as then in effect, so long as, immediately after giving effect to the payment of any such Dividend, (x) the Total Unutilized Revolving Loan Commitment shall equal or exceed $50,000,000 and (y) the Leverage Ratio shall be less than or equal to 2.5:1.0.
9.04 Indebtedness. The Borrower will not, and will not permit any of its Subsidiaries to, contract, create, incur, assume or suffer to exist any Indebtedness, except:
(i) Indebtedness incurred pursuant to this Agreement and the other Credit Documents;
(ii) Existing Indebtedness shall be permitted to the extent actually outstanding on the Initial Borrowing Date and as the same is listed on Section A of Schedule IV, without giving effect to any refinancings or renewals thereof;
(iii) Indebtedness under (x) Interest Rate Protection Agreements which are non-speculative in nature and are entered into to protect the Borrower and/or its Subsidiaries against fluctuations in interest rates in respect of floating rate Indebtedness outstanding at the time the respective Interest Rate Protection Agreements are entered into, which floating rate Indebtedness is otherwise permitted to remain outstanding or be incurred, as the
case may be, pursuant to this Section 9.04 and (y) Indebtedness evidenced by Other Hedging Agreements entered into pursuant to Section 9.05(iv);
(iv)(x) purchase money Indebtedness subject to Liens permitted under Section 9.01(vii) and (y) Indebtedness of the Borrower and its Subsidiaries evidenced by Capitalized Lease Obligations (other than Capitalized Lease Obligations in respect of the Lease Program), so long as the aggregate outstanding amount of such Indebtedness pursuant to this clause (iv) does not exceed $15,000,000 at any time outstanding;
(v) intercompany Indebtedness of the Borrower and its Subsidiaries to the extent permitted by Section 9.05(vi);
(vi) (x) Indebtedness of the Borrower and its Subsidiaries evidenced by Capitalized Lease Obligations incurred pursuant to the Lease Program or any Permitted Lease Refinancing, whether outstanding on the Initial Borrowing Date pursuant to the Lease Program or incurred from time to time thereafter pursuant to the Lease Program or any Permitted Lease Refinancing (so long as any Capital Expenditures made in connection therewith after the Initial Borrowing Date are permitted pursuant to Section 9.07); provided that in no event shall the aggregate principal amount of Capitalized Lease Obligations permitted by this clause (vi) exceed $80,000,000 at any time outstanding;
(vii) Indebtedness assumed by the Borrower or any of its
Subsidiaries in connection with a Permitted Acquisition, provided that
(x) such Indebtedness was not incurred in connection with or in
contemplation of such Permitted Acquisition and (y) the aggregate
principal amount of such Indebtedness incurred or assumed in any fiscal
year of the Borrower does not exceed $12,000,000;
(viii) Indebtedness of the Borrower in respect of the Smuckers Note in an aggregate principal amount not to exceed $9,300,000; less the aggregate amount of all repayments of principal thereof made after the Effective Date;
(ix) Indebtedness of Subsidiaries of the Borrower (x)
pursuant to guarantees in existence on the Effective Date which were
given prior thereto to NationsBanc Leasing & Capital, LLC in respect of
truck leases entered into by distributors of such Subsidiary (so long
as the aggregate principal amount so guaranteed does not exceed
$11,000,000 and such guarantees are not replaced, increased or extended
after the Effective Date except as otherwise permitted pursuant to this
Section 9.04 (excluding this subclause (x)) or (y) pursuant to
guarantees given from time to time after the Effective Date in respect
of truck leases entered into by distributors of such Subsidiary, so
long as the aggregate principal amount at any time guaranteed pursuant
to this clause (y) does not exceed $5,000,000;
(x) Indebtedness of the Borrower or any of its Subsidiaries in respect of industrial revenue bonds (or similarly designated financing) in an aggregate principal amount not to exceed $21,000,000 at any time outstanding, provided that (x) such Indebtedness shall only be incurred to finance (or refinance within 180 days after completion of construction
or acquisition) the construction or acquisition of a new plant constructed or acquired after the Effective Date and (y) such Indebtedness may not be incurred with respect to more than three such plants;
(xi) the Borrower and its Wholly-Owned Subsidiaries may guarantee operating leases of Wholly-Owned Subsidiaries of the Borrower which are Subsidiary Guarantors; and
(xii) so long as no Default or Event of Default then exists or would result therefrom, additional Indebtedness of the Borrower and its Subsidiaries (other than Indebtedness for borrowed money) not to exceed $5,000,000 in aggregate principal amount at any time outstanding, which Indebtedness shall be unsecured unless otherwise permitted by Section 9.01(xvii).
To the extent this Section 9.04 is at any time amended in accordance with the provisions of this Agreement to permit any additional Indebtedness for borrowed money of the Borrower and its Subsidiaries, the proceeds thereof shall be required to be applied as a mandatory repayment of Loans pursuant to Section 4.02(d), except to the extent such requirement is waived pursuant to any such amendment in accordance with the provisions of this Agreement.
9.05 Investments. The Borrower will not, and will not permit any of its Subsidiaries to, directly or indirectly, make any Investments, except that the following shall be permitted:
(i) the Borrower and its Subsidiaries may make travel and other expense advances to employees in the ordinary course of business;
(ii) the Borrower and its Subsidiaries may acquire and hold cash and Cash Equivalents;
(iii) so long as no Default or Event of Default exists or would result therefrom, the Borrower and its Subsidiaries may (x) make loans and advances in the ordinary course of business to their respective employees so long as the aggregate principal amount thereof at any time outstanding (determined without regard to any write-downs or write-offs of such loans and advances) shall not exceed $2,000,000 and (y) in connection with the relocation of employees of the Borrower and its Subsidiaries, purchase, and thereafter divest, in each case in the ordinary course of business, homes previously owned by such employees;
(iv) (x) the Borrower may enter into Interest Rate Protection Agreements to the extent permitted by Section 9.04(iii) and (y) the Borrower and its Subsidiaries may enter into and perform their obligations under Other Hedging Agreements entered into in the ordinary course of business so long as each such Other Hedging Agreement is non-speculative in nature;
(v) the Borrower may acquire 100% of the capital stock (or other limited liability company or partnership equity interests) of any entity or all or substantially all of the assets of any entity (or all or substantially all of the assets of a product line or division of any such entity) so long as (in each case except to the extent the Required Lenders otherwise specifically agree in writing in the case of a specific Permitted Acquisition):
(a) the Borrower shall have given the Administrative Agent and the Lenders a copy of each letter of intent within three Business Days of signing each such letter of intent and in any event shall have given the Administrative Agent and the Lenders at least ten Business Days' prior written notice of any such proposed acquisition;
(b) such entity or acquired business shall be engaged in a similar or related business as the Borrower and its Subsidiaries and the principal place of business of, and at least 80% of the consolidated assets of, each such entity or acquired business shall be located in the United States;
(c) in the case of the acquisition of 100% of
the capital stock or other equity interests of any Person,
such Person (the "Acquired Person") shall own no capital stock
or other equity interests of any other Person unless either
(x) the Acquired Person owns 100% of the capital stock or
other equity interests of such other Person or (y) if the
Acquired Person owns capital stock or equity interests in any
other Person which is not a Wholly-Owned Subsidiary of the
Acquired Person (a "Non-Wholly Owned Entity"), (i) the
Acquired Person shall not have been created or established in
contemplation of, or for purposes of, the respective
acquisition, (ii) any Non-Wholly Owned Entity of the Acquired
Person shall have been non-wholly-owned prior to the date of
the respective acquisition and not created or established in
contemplation thereof, and (iii) such Acquired Person and/or
its Wholly-Owned Subsidiaries own at least 80% of the
consolidated assets of the Acquired Person and its
Subsidiaries and Non-Wholly Owned Entities;
(d) no Default or Event of Default shall be in existence at the time of the consummation of the proposed acquisition or immediately after giving effect thereto;
(e) (i) The Borrower would have been in compliance with the financial covenants set forth in Sections 9.08 through 9.10, inclusive, for the Calculation Period most recently ended prior to the date of such acquisition, on a Pro Forma Basis as if the respective acquisition (as well as all other acquisitions previously consummated after the first day of such Calculation Period) had occurred on the first day of such Calculation Period, and such recalculations shall show that such financial covenants would have been complied with if such acquisition had occurred on the first day of such Calculation Period and (ii) based on good faith projections prepared by the Borrower for the period from the date of the consummation of the proposed acquisition to the date which is one year thereafter, the
level of financial performance measured by the covenants set forth in Sections 9.08 through 9.10, inclusive, shall be better than or equal to such level as would be required to avoid any Default or Event of Default under Sections 9.08 through 9.10, inclusive, throughout such period;
(f) all of the representations and warranties contained in Section 7 and in the other Credit Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date;
(g) the Borrower shall have provided to the Administrative Agent and the Lenders as soon as available but not later than three Business Days after the execution thereof, a copy of any executed purchase agreement or similar agreement with respect to such acquisition along with all related agreements and instruments and all opinions, certificates, lien search results and other documents reasonably requested by the Administrative Agent;
(h) the total consideration (including, without limitation, cash, Qualified Preferred Stock, any other stock and assumed and/or refinanced Indebtedness) for all such acquisitions consummated in any fiscal year of the Borrower shall not exceed the Applicable Permitted Acquisition Amount for such fiscal year; provided that at any time when the Cumulative Retained Excess Cash Flow Amount is greater than $0, additional consideration (not to exceed the Cumulative Retained Excess Cash Flow Amount immediately before the respective Permitted Acquisition is consummated) may be used to effect Permitted Acquisitions which otherwise meet the requirements of this Section 9.05(v);
(i) after giving effect to such acquisition and the payment of all amounts (including fees and expenses) owing in connection therewith, the Total Unutilized Revolving Loan Commitment shall equal or exceed the sum of (x) $40,000,000 and (y) an amount equal to the aggregate amount as determined by the Borrower in good faith as the amount reasonably likely to be payable in respect of all post-closing purchase price adjustments required or which will be required in connection with such acquisition (and all other acquisitions for which such purchase price adjustments may be required to be made) and the amount of all Capital Expenditures reasonably anticipated by the Borrower to be made in the business acquired pursuant to such acquisition within the 180-day period (such period for any acquisition, a "Post-Closing Period") following such acquisition (and in the businesses acquired pursuant to all other acquisitions with Post-Closing Periods ended during the Post-Closing Period of such acquisition); and
(j) the Borrower shall have delivered to the
Administrative Agent and the Lenders a minimum of five
Business Days before the consummation of any such acquisition
a certificate from their senior financial officer setting
forth the conclusion that all of the conditions required above
in this Section 9.05(v) have been satisfied, that in
management's good faith belief, the consummation of the
proposed acquisition will not result in a material increase in
tax, ERISA, litigation, environmental or other contingent
liabilities with respect to the Borrower or any of its
Subsidiaries, and setting forth the calculations necessary to
determine compliance with clauses (e) and (i) of this Section
9.05(v). Such certificate shall also include copies of the
following documents attached as exhibits thereto (to the
extent not previously provided): (i) any environmental reports
received (or reasonably requested by the Administrative Agent)
by the Borrower or any of its Subsidiaries in connection with
all properties of the entity or entities being acquired and
(ii) any opinions of counsel and indemnities expected to be
obtained in connection with such acquisition (any such
acquisition meeting the criteria set forth above in clauses
(a) through (j) of this Section 9.05(v) being herein referred
to as a "Permitted Acquisition").
Upon the consummation of any Permitted Acquisition, the Borrower shall comply with all of the applicable requirements of Section 8.12; and
(vi) the Borrower and the Subsidiary Guarantors may make intercompany loans and advances between or among one another (collectively, "Intercompany Loans"), so long as any note evidencing such Intercompany Loan is pledged to the Collateral Agent to the extent required pursuant to the Pledge Agreement;
(vii) the Borrower and its Subsidiaries may consummate the Transaction;
(viii) the Borrower and its Subsidiaries may establish Subsidiaries to the extent permitted by Section 9.14 and may make capital contributions (including, without limitation, by way of contributing assets) to Domestic Wholly-Owned Subsidiaries of the Borrower which are Subsidiary Guarantors;
(ix) the Borrower and its Subsidiaries may make loans to
Distributors of the Borrower and its Subsidiaries in the ordinary
course of business to finance the acquisition by such distributors of
distribution rights from the Borrower or such Subsidiary, provided that
(I) all proceeds of such loans are retained by the Borrower or such
Subsidiary as payment in respect of such distribution rights, and (II)
such loans are evidenced by Distributor Notes which (together with any
related collateral therefor held by the Borrower or any of its
Subsidiaries) shall have been pledged, and delivered for pledge,
pursuant to the applicable provisions of the Security Documents and
held by the Collateral Agent as security for the Secured Creditors in
accordance with the provisions of the Security Documents;
(x) Investments consisting of non-cash consideration received in connection with sales of assets permitted pursuant to Sections 9.02(i) and (x); and
(xi) the Borrower and its Subsidiaries may make Investments not otherwise permitted by this Section 9.05 in an aggregate amount not to exceed $5,000,000 (determined without regard to any write-downs or write-offs thereof), net of cash payments of principal in the case of loans and cash equity returns (whether as a dividend or redemption) in the case of equity investments.
9.06 Transactions with Affiliates. The Borrower will not, and will not permit any of its Subsidiaries to, enter into any transaction or series of related transactions, whether or not in the ordinary course of business, with any Affiliate of the Borrower or any of its Subsidiaries, other than in the ordinary course of business and on terms and conditions substantially as favorable to the Borrower or such Subsidiary as would reasonably be obtained by the Borrower or such Subsidiary at that time in a comparable arm's-length transaction with a Person other than an Affiliate, except that:
(i) Dividends may be paid to the extent provided in
Section 9.03;
(ii) loans may be made and other transactions may be entered into between the Borrower and its Subsidiaries to the extent expressly permitted by Sections 9.02, 9.04 and 9.05;
(iii) the Merger Documents may be entered into, the Transaction shall be permitted and the Borrower and its Subsidiaries may perform their obligations pursuant to the Merger Documents;
(iv) the Borrower and its Subsidiaries may pay officer and director compensation;
(v) the Borrower may pay Dividends on its Qualified Preferred Stock solely through the issuance of additional shares of Qualified Preferred Stock and not in cash; and
(vi) in addition to transactions permitted pursuant to clauses (i) through (v) of this Section 9.06, the Borrower and its Subsidiaries may enter into other transactions with Affiliates not otherwise permitted pursuant to this Section 9.06, so long as the aggregate consideration paid by the Borrower and its Subsidiaries (including, without limitation, all non-cash consideration) shall not exceed $1,000,000 in any fiscal year of the Borrower, provided that this clause (vi) shall not be deemed to permit any cash Dividends not otherwise permitted hereunder.
9.07 Capital Expenditures. (a) The Borrower will not, and will not permit any of its Subsidiaries to, make any Capital Expenditures, except that the Borrower and its Subsidiaries may make Capital Expenditures in any fiscal year of the Borrower to the extent such Capital Expenditures do not exceed in the aggregate that amount which is set forth opposite such fiscal year below:
Fiscal Year Ended Closest To Amount
---------------------------- -----------
December 31, 2001 $50,000,000
December 31, 2002 $50,000,000
December 31, 2003 $52,500,000
December 31, 2004 $52,500,000
December 31, 2005 $57,500,000
December 31, 2006 $57,500,000
December 31, 2007 $57,500,000
|
Notwithstanding the foregoing, amounts set forth above not expended in any fiscal year may be carried forward to subsequent fiscal years; provided that in no event may more than 125% of the amount otherwise permitted to be expended on Capital Expenditures in any fiscal year pursuant to this Section 9.07(a) (without giving effect to this sentence) be permitted to be expended on Capital Expenditures during any fiscal year pursuant to this Section 9.07(a). The amount set forth above in this clause (a) in respect of the Borrower's fiscal year ended closest to December 31, 2001 shall include all Capital Expenditures made by the Borrower and its Subsidiaries during such fiscal year prior to the Effective Date.
(b) In addition to the Capital Expenditures permitted
pursuant to preceding clause (a), the Borrower and its Subsidiaries may make
additional Capital Expenditures consisting of (x) Permitted Acquisitions, (y)
Permitted Bakery Swaps (excluding the portion of any consideration paid by the
Borrower and its Subsidiaries in connection therewith which must, in accordance
with the definition of Permitted Bakery Swap contained herein, be justified
pursuant to this Section 9.07) and (z) the reinvestment of proceeds of Recovery
Events and Asset Sales not required to be applied to prepay Loans pursuant to
Section 4.02(e) or (f).
(c) In addition to Capital Expenditures permitted pursuant to preceding clauses (a) and (b), the Borrower and its Subsidiaries may make additional Capital Expenditures at any time in an amount not to exceed the Cumulative Retained Excess Cash Flow Amount at such time.
9.08 Consolidated Interest Coverage Ratio. The Borrower will not permit the Consolidated Interest Coverage Ratio for any Test Period, in each case taken as one accounting period, ending on the last day of any fiscal quarter of the Borrower set forth below to be less than the ratio set forth opposite such fiscal quarter below:
Fiscal Quarter
Ending Closest to Ratio
----------------- ---------
June 30, 2001 3.50:1.00
September 30, 2001 3.50:1.00
December 31, 2001 3.50:1.00
March 31, 2002 3.50:1.00
June 30, 2002 3.75:1.00
September 30, 2002
and the last day of each fiscal quarter of the
Borrower ending thereafter 4.00:1.00
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For purposes of making determinations pursuant to Section 9.05(v) only, determinations pursuant to this Section 9.08 shall be made on a Pro Forma Basis.
9.09 Consolidated Fixed Charge Coverage Ratio. The Borrower will not permit the Consolidated Fixed Charge Coverage Ratio for any Test Period, in each case taken as one accounting period, ending on the last day of any fiscal quarter of the Borrower to be less than 1.00:1.00. For purposes of making determinations pursuant to Section 9.05(v) only, determinations pursuant to this Section 9.09 shall be made on a Pro Forma Basis.
9.10 Maximum Leverage Ratio. The Borrower will not permit the Leverage Ratio at any time during a period set forth below to be greater than the ratio set forth opposite such period below:
Period Ratio ------ ----- The first day of the Borrower's fiscal quarter ending closest to June 30, 2001 to and including the day before the last day of the Borrower's fiscal quarter ending closest to December 31, 2001 4.00:1.00 The last day of the Borrower's fiscal quarter ending closest to December 31, 2001 to and including the day before the last day of the Borrower's fiscal quarter ending closest to March 31, 2002 3.50:1.00 The last day of the Borrower's fiscal quarter ending closest to March 31, 2002 to and including the day before the last day of the Borrower's fiscal quarter ending closest to December 31, 2002 3.25:1.00 The last day of the Borrower's fiscal quarter ending closest to December 31, 2002 to and including the day before the last day of the Borrower's fiscal quarter ending closest to March 31, 2003 2.75:1.00 The last day of the Borrower's fiscal quarter ending closest to March 31, 2003 to and including the day before the last day of the Borrower's fiscal quarter ending closest to December 31, 2003 2.60:1.00 The last day of the Borrower's fiscal quarter ending closest to December 31, 2003 to and including the day before the last day of the Borrower's fiscal quarter ending closest to March 31, 2004 2.25:1.00 Thereafter 2.00:1.00 |
Notwithstanding anything to the contrary contained in this Agreement, all determinations of the Leverage Ratio for purposes this Section 9.10 shall include Consolidated EBITDA as calculated on a Pro Forma Basis to give effect to all Permitted Acquisitions, if any, effected during the respective Test Period for which Consolidated EBITDA is being determined, as provided in the first sentence of the definition of Leverage Ratio contained herein (with the second sentence of the definition of Leverage Ratio being inapplicable to determinations pursuant to this Section 9.10).
9.11 Limitation on Voluntary Payments and Modifications of Indebtedness; Modifications of Certificate of Incorporation, By-Laws and Certain Other Agreements; etc. The Borrower will not, and will not permit any of its Subsidiaries to, (i) make (or give any notice in respect of) any voluntary or optional payment or prepayment on, or redemption or acquisition for value of, or make any prepayment or redemption as a result of any asset sale, change of control or similar event of (including, in each case, without limitation, by way of depositing with the trustee with respect thereto or any other Person, money or securities before due for the purpose of paying when due) any Existing Indebtedness, the Smuckers Note or any Lease Program Obligations (except in connection with a permitted sale or disposition of the respective property financed thereunder, so long as the repayment is limited to the Lease Program Obligations relating to the property so disposed of), provided that, to the extent the Total Unutilized Revolving Loan Commitment after giving effect to any voluntary prepayment of any Indebtedness not otherwise permitted pursuant to this clause (i) would exceed $50,000,000 and the Borrower's Leverage Ratio on the last day of the two most recently ended fiscal quarters of the Borrower was less than or equal to 2.50:1.00, the Borrower and its Subsidiaries may make voluntary prepayments of Indebtedness (and give notices in respect thereof) not otherwise permitted pursuant to this clause (i), or (ii) amend or modify, or permit the amendment or modification of, any provision of any documentation (including any agreement (including, without limitation, any purchase agreement, indenture, loan agreement or security agreement) or instrument relating thereto), relating to the Lease Program Documents, in each case excluding non-material modifications thereof which could not be adverse to the interests of the Lenders in any respect.
9.12 Limitation on Certain Restrictions on Subsidiaries. The Borrower will not, and will not permit any of its Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or restriction on the ability of any such Subsidiary to (a) pay dividends or make any other distributions on its capital stock or any other interest or participation in its profits owned by the Borrower or any Subsidiary of the Borrower, or pay any Indebtedness owed to the Borrower or a Subsidiary of the Borrower, (b) make loans or advances to the Borrower or any of the Borrower's Subsidiaries or (c) transfer any of its
properties or assets to the Borrower or any of the Borrower's Subsidiaries, except, in each case, for such encumbrances or restrictions existing under or by reason of (i) applicable law, (ii) this Agreement and the other Credit Documents, (iii) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of the Borrower or a Subsidiary of the Borrower, (iv) customary provisions restricting assignment of any agreement entered into by the Borrower or a Subsidiary of the Borrower in the ordinary course of business, (v) any holder of a Permitted Lien may restrict the transfer of the asset or assets subject thereto, (vi) restrictions contained in Indebtedness permitted to be acquired pursuant to Section 9.04(vii) which relate solely to the Subsidiary or Subsidiaries, if any, acquired pursuant to such Permitted Acquisition and so long as such restrictions were not imposed (or made more restrictive) in contemplation of such acquisition and (vii) restrictions which are not more restrictive than those contained in this Agreement contained in any documents governing any Indebtedness incurred after the Effective Date in accordance with the provisions of this Agreement.
9.13 Limitation on Issuance of Capital Stock. (a) The Borrower will not issue any preferred stock (or equivalent Equity Interests) other than Qualified Preferred Stock or any redeemable (except at the sole option of the Borrower) common stock or membership interests (or equivalent Equity Interests).
(b) The Borrower will not permit any of the Borrower's Subsidiaries to issue any capital stock (including by way of sales of treasury stock) or any options or warrants to purchase, or securities convertible into, capital stock, except (i) for transfers and replacements of then outstanding shares of capital stock, (ii) for stock splits, stock dividends and additional issuances which do not decrease the percentage ownership of the Borrower or any of its Subsidiaries in any class of the capital stock of such Subsidiary, (iii) in the case of Foreign Subsidiaries of the Borrower, to qualify directors to the extent required by applicable law, and (iv) Subsidiaries of the Borrower formed after the Effective Date pursuant to Section 9.14 may issue capital stock to the Borrower or the respective Subsidiary of the Borrower which is to own such stock in accordance with the requirements of Section 8.11. All capital stock issued in accordance with this Section 9.13(b) shall, to the extent required by the Pledge Agreement, be delivered to the Collateral Agent pursuant to the Pledge Agreement.
9.14 Limitation on Creation of Subsidiaries. The Borrower will not, and will not permit any of its Subsidiaries to, establish, create or acquire any additional Subsidiaries without the prior written consent of the Required Lenders; provided that the Borrower may acquire, pursuant to a Permitted Acquisition, establish or create one or more Domestic Wholly-Owned Subsidiaries without such consent so long as (i) 100% of the Equity Interests of any such new Subsidiary is upon the creation or establishment or acquisition of any such new Subsidiary pledged and, if certificated, delivered to the Collateral Agent for the benefit of the Secured Creditors under the Pledge and Security Agreement and (ii) upon the creation, establishment or acquisition of any such new Domestic Wholly-Owned Subsidiary, such Domestic Wholly-Owned Subsidiary executes the Additional Security Documents and guaranty required to be executed by it in accordance with Section 8.12; provided that notwithstanding the provisions of clauses (i) and (ii) of this Section 9.14, (x) in connection with one or more Permitted Acquisitions, Non-Wholly Owned Entities may be acquired in accordance with the provisions of
Section 9.05(v), (y) non-Wholly-Owned Subsidiaries may be established or created so long as all Investments therein are justified pursuant to Section 9.05(xi) and (z) the Borrower may establish transitory special purpose Subsidiaries for the purpose of effecting Permitted Acquisitions accomplished by way of reverse merger (which Subsidiaries shall own no material assets (other than any contract rights pursuant to the acquisition agreement relating to any such Permitted Acquisition) prior to giving effect to any such Permitted Acquisition) without having to comply with clauses (i) and (ii) of this Section 9.14, provided further, that such clauses (i) and (ii) above shall be complied with by the resulting Subsidiary after giving effect to such Permitted Acquisition.
9.15 Business. The Borrower will not, and will not permit any of its Subsidiaries to, engage in any businesses other than the baked, fresh or frozen food businesses and other related businesses to the extent reasonably incidental to the conduct of any of the foregoing businesses.
SECTION 10. Events of Default. Upon the occurrence of any of the following specified events (each an "Event of Default"):
10.01 Payments. The Borrower shall (i) default in the payment when due of any principal of any Loan or any Note or (ii) default, and such default shall continue unremedied for three or more Business Days, in the payment when due of any Unpaid Drawings or interest on any Loan or Note, or any Fees or any other amounts owing hereunder or thereunder; or
10.02 Representations, etc. Any representation, warranty or statement made by any Credit Party herein or in any other Credit Document or in any certificate delivered pursuant hereto or thereto shall prove to be untrue in any material respect on the date as of which made or deemed made; or
10.03 Covenants. The Borrower shall (i) default in the due
performance or observance by it of any term, covenant or agreement contained in
Section 8.01(g)(i), 8.08, 8.11 or Section 9 or (ii) default in the due
performance or observance by it of any other term, covenant or agreement
contained in this Agreement and, in the case of this clause (ii), such default
shall continue unremedied for a period of 30 days after written notice to the
Borrower by the Administrative Agent or any of the Lenders; or
10.04 Default Under Other Agreements. The Borrower or any of its Subsidiaries shall (i) default in any payment of any Indebtedness (other than the Obligations) in a principal amount in excess of $10,000,000 beyond the period of grace and/or cure, if any, provided in the instrument or agreement under which such Indebtedness was created or (ii) default in the observance or performance of any agreement or condition relating to any Indebtedness (other than the Obligations) in a principal amount in excess of $10,000,000 or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause (determined without regard to whether any notice is required), any such Indebtedness to become due prior to its stated maturity or (iii) any Indebtedness (other than the Obligations) in a principal
amount in excess of $10,000,000 of the Borrower or any of their respective Subsidiaries shall be declared to be due and payable, or required to be prepaid other than by a regularly scheduled required prepayment, prior to the stated maturity thereof; or
10.05 Bankruptcy, etc. The Borrower or any of its Subsidiaries shall commence a voluntary case concerning itself under Title 11 of the United States Code entitled "Bankruptcy," as now or hereafter in effect, or any successor thereto (the "Bankruptcy Code"); or an involuntary case is commenced against the Borrower or any of its Subsidiaries and the petition is not controverted within 10 days after service of summons, or is not dismissed within 60 days, after commencement of the case; or a custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge of, all or substantially all of the property of the Borrower or any of its Subsidiaries or the Borrower or any of its Subsidiaries commences any other proceeding under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction whether now or hereafter in effect relating to the Borrower or any of its Subsidiaries or there is commenced against the Borrower or any of its Subsidiaries any such proceeding which remains undismissed for a period of 60 days, or the Borrower or any of its Subsidiaries is adjudicated insolvent or bankrupt; or any order of relief or other order approving any such case or proceeding is entered; or the Borrower or any of its Subsidiaries suffers any appointment of any custodian or the like for it or any substantial part of its property to continue undischarged or unstayed for a period of 60 days; or the Borrower or any of its Subsidiaries makes a general assignment for the benefit of creditors; or any corporate or similar action is taken by the Borrower or any of its Subsidiaries for the purpose of effecting any of the foregoing; or
10.06 ERISA. (a) Any Plan shall fail to satisfy the minimum
funding standard required for any plan year or part thereof under Section 412 of
the Code or Section 302 of ERISA or a waiver of such standard or extension of
any amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, a Reportable Event shall have occurred, a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA shall be subject to the advance reporting
requirement of PBGC Regulation Section 4043.61 (without regard to subparagraph
(b)(1) thereof) and an event described in subsection .62, .63, .64, .65, .66,
.67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected to occur
with respect to such Plan within the following 30 days, any Plan which is
subject to Title IV of ERISA shall have had or is reasonably likely to have a
trustee appointed to administer such Plan, any Plan which is subject to Title IV
of ERISA is, shall have been or is reasonably likely to be terminated or to be
the subject of termination proceedings under ERISA, any Plan shall have an
Unfunded Current Liability, a contribution required to be made with respect to a
Plan or a Foreign Pension Plan is not timely made, the Borrower or any of its
Subsidiaries or any ERISA Affiliate has incurred or is likely to incur any
liability to or on account of a Plan under Section 409, 502(i), 502(l), 515,
4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971
or 4975 of the Code or on account of a group health plan (as defined in Section
607(1) of ERISA or Section 4980B(g)(2) of the Code) under Section 4980B of the
Code, or the Borrower, or any of its Subsidiaries, has incurred or is likely to
incur liabilities pursuant to one or more employee welfare benefit plans (as
defined in Section 3(1) of ERISA) that provide benefits to retired employees or
other former employees (other than as
required by Section 601 of ERISA) or Plans or Foreign Pension Plans, a "default," within the meaning of Section 4219(c)(5) of ERISA, shall occur with respect to any Plan; any applicable law, rule or regulation is adopted, changed or interpreted, or the interpretation or administration thereof is changed, in each case after the date hereof, by any governmental authority or agency or by any court (a "Change in Law"), or, as a result of a Change in Law, an event occurs following a Change in Law, with respect to or otherwise affecting any Plan; (b) there shall result from any such event or events the imposition of a lien, the granting of a security interest, or a liability or a material risk of incurring a liability; and (c) such lien, security interest or liability, individually, and/or in the aggregate, in the opinion of the Required Lenders, has had, or would reasonably be expected to have, a Material Adverse Effect; or
10.07 Security Documents. At any time after the execution and delivery thereof, any of the Security Documents shall cease to be in full force and effect, or shall cease in any material respect to give the Collateral Agent for the benefit of the Secured Creditors the Liens, rights, powers and privileges purported to be created thereby (including, without limitation, a perfected security interest in, and Lien on, all of the Collateral), in favor of the Collateral Agent, subject to no other Liens (except Permitted Liens), or any Credit Party shall default in the due performance or observance of any term, covenant or agreement on its part to be performed or observed pursuant to any of the Security Documents and such default shall continue beyond any grace period (if any) specifically applicable thereto pursuant to the terms of such Security Document; or
10.08 Subsidiaries Guaranty. The Subsidiaries Guaranty, or any provision thereof, shall cease to be in full force or effect as to the relevant Subsidiary Guarantor (unless such Subsidiary Guarantor is no longer a Subsidiary by virtue of a liquidation, sale, merger or consolidation permitted by Section 9.02) or any Subsidiary Guarantor (or Person acting by or on behalf of such Subsidiary Guarantor) shall deny or disaffirm such Subsidiary Guarantor's obligations under the Subsidiaries Guaranty or any Subsidiary Guarantor shall default in the due performance or observance of any term, covenant or agreement on its part to be performed or observed pursuant to the Subsidiaries Guaranty beyond any grace period (if any) provided therefor; or
10.09 Judgments. One or more judgments or decrees shall be entered against the Borrower or any of its Subsidiaries involving in the aggregate for the Borrower and its Subsidiaries a liability (not paid or fully covered by a reputable and solvent insurance company) and such judgments and decrees either shall be final and non-appealable or shall not be vacated, discharged or stayed or bonded pending appeal for any period of 60 consecutive days, and the aggregate amount of all such judgments, to the extent not covered by insurance, exceeds $10,000,000; or
10.10 Change of Control. A Change of Control shall occur;
then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing, the Administrative Agent, upon the written request of the Required Lenders, shall by written notice to the Borrower, take any or all of the following actions, without prejudice to the rights of
the Administrative Agent, any Lender or the holder of any Note to enforce its claims against any Credit Party (provided that, if an Event of Default specified in Section 10.05 shall occur with respect to the Borrower, the result which would occur upon the giving of written notice by the Administrative Agent to the Borrower as specified in clauses (i) and (ii) below shall occur automatically without the giving of any such notice): (i) declare the Total Commitments terminated, whereupon all Commitments of each Lender shall forthwith terminate immediately and any Commitment Commission shall forthwith become due and payable without any other notice of any kind; (ii) declare the principal of and any accrued interest in respect of all Loans and the Notes and all Obligations owing hereunder and thereunder to be, whereupon the same shall become, forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Credit Party; (iii) terminate any Letter of Credit that may be terminated in accordance with its terms; (iv) direct the Borrower to pay (and the Borrower agrees that upon receipt of such notice, or upon the occurrence of an Event of Default specified in Section 10.05, it will pay) to the Collateral Agent at the Payment Office such additional amount of cash, to be held as security by the Collateral Agent, as is equal to the aggregate Stated Amount of all Letters of Credit issued for the account of the Borrower and then outstanding; and (v) enforce, as Collateral Agent, all of the Liens and security interests created pursuant to the Security Documents.
SECTION 11. Definitions and Accounting Terms.
11.01 Defined Terms. As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
"A Scheduled Repayment" shall have the meaning provided in
Section 4.02(b).
"A Scheduled Repayment Date" shall have the meaning provided in Section 4.02(b).
"A Term Loan" shall have the meaning provided in Section 1.01(a).
"A Term Loan Commitment" shall mean, for each Lender, the amount set forth opposite such Lender's name on Schedule I hereto directly below the column entitled "A Term Loan Commitment", as same may be reduced or terminated from time to time pursuant to Sections 3.03 and/or 10.
"A Term Loan Maturity Date" shall mean March 26, 2005.
"A Term Note" shall have the meaning provided in Section 1.05(a).
"Acquired Person" shall have the meaning provided in Section 9.05(v).
"Additional Collateral" shall mean all property in which security interests are granted (or have been purported to be granted) pursuant to Section 8.12.
"Additional Security Documents" shall mean all pledge agreements, security agreements and other security documents entered into pursuant to Section 8.12 with respect to Additional Collateral.
"Adjusted Consolidated Net Income" shall mean, for any period, Consolidated Net Income for such period plus, without duplication and to the extent deducted in arriving at Consolidated Net Income, the sum of the amount of all non-cash charges (including, without limitation, to the extent deducted in arriving at Consolidated Net Income, depreciation, amortization, deferred income tax expense and non-cash interest expense) and non-cash losses which were included in arriving at Consolidated Net Income for such period, less (without duplication of items reflected in Adjusted Consolidated Working Capital) the amount of all non-cash gains and gains from the sale of assets (other than sales of inventory in the ordinary course of business) which were included in arriving at Consolidated Net Income for such period.
"Adjusted Consolidated Working Capital" shall mean, at any time, Consolidated Current Assets (but excluding therefrom all cash, Cash Equivalents and deferred income taxes to the extent otherwise included therein) less Consolidated Current Liabilities.
"Administrative Agent" shall have the meaning provided in the first paragraph of this Agreement, and shall include any successor thereto.
"Affected Eurodollar Loan" shall have the meaning provided in
Section 4.02(i).
"Affiliate" shall mean, with respect to any Person, any other Person (including, for purposes of Section 9.06 only, all directors, officers and partners of such Person) directly or indirectly controlling, controlled by, or under direct or indirect common control with, such Person; provided, however, that for purposes of Section 9.06, an Affiliate of the Borrowers shall include any Person that directly or indirectly owns more than 5% of any class of the capital stock of the Borrower and any officer or director of the Borrower or any of its Subsidiaries. A Person shall be deemed to control another Person if such Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such other Person, whether through the ownership of voting securities, by contract or otherwise. Notwithstanding anything to the contrary contained above, for purposes of Section 9.06, no Agent or Lender shall be deemed to constitute an Affiliate of the Borrower or its Subsidiaries in connection with the Credit Documents or its dealings or arrangements relating thereto.
"Agents" shall mean, collectively, the Administrative Agent and the Syndication Agent.
"Agreement" shall mean this Credit Agreement, as modified, supplemented, amended, restated, extended, renewed or replaced from time to time.
"Applicable Margin" initially shall mean a percentage per annum equal to, in the case of (i) A Term Loans and Revolving Loans (x) maintained as Base Rate Loans, 1.50% and (y) maintained as Eurodollar Loans, 2.50%, (ii) B Term Loans (x) maintained as Base Rate Loans, 2.00% and (y) maintained as Eurodollar Loans, 3.00% and (iii) the Commitment
Commission, 0.50%. From and after each day of delivery of any certificate in accordance with the first sentence of the following paragraph for any fiscal quarter of the Borrower ending on or about October 1, 2001 or thereafter, indicating a different margin than that described in the immediately preceding sentence (each, a "Start Date"), to and including the applicable End Date described below, the Applicable Margin, shall (subject to any adjustment pursuant to the immediately succeeding paragraph) be that set forth below opposite the Leverage Ratio indicated to have been achieved in any certificate delivered in accordance with the following sentence:
A Term Loans A Term Loans
and Revolving and Revolving B Term B Term
Loans Loans Loans Loans
maintained as maintained as maintained maintained
Eurodollar Base Rate as as Commitment
Leverage Ratio Loans Loans Eurodollar Base Rate Commission
-------------- -------------- ------------- Loans Loans ----------
---------- ----------
Equal to or greater 2.50% 1.50% 3.00% 2.00% 0.500%
than 3.0 to 1.0
Equal to or greater 2.25% 1.25% 3.00% 2.00% 0.500%
than 2.5 to 1.0 but
less than 3.0 to 1.0
Equal to or greater 1.75% 0.75% 3.00% 2.00% 0.375%
than 2.0 to 1.0 but
less than 2.5 to 1.0
Less than 2.0 to 1.0 1.50% 0.50% 2.75% 1.75% 0.375%
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The Leverage Ratio shall be determined based on the delivery of a certificate of the Borrower by the chief financial officer of the Borrower to the Administrative Agent and the Lenders, within 45 days (or 90 days in the case of the last fiscal quarter of any fiscal year) of the last day of any fiscal quarter of the Borrower, which certificate shall set forth the calculation of the Leverage Ratio as at the last day of the Test Period ended immediately prior to the relevant Start Date (but determined on a Pro Forma Basis to give effect to any Permitted Acquisition effected on or prior to the date of the delivery of such certificate) and the Applicable Margins which, in each case, shall be thereafter applicable (until same are changed or cease to apply in accordance with the following sentences). The Applicable Margins so determined shall apply, except as set forth in the succeeding sentence, from the relevant Start Date to the earlier of (x) the date on which the next certificate is delivered to the Administrative Agent and (y) the date which is 45 days following the last day of the Test Period in which the previous Start Date occurred (such earliest date, the "End Date"), at which time, if no certificate has been delivered to the Administrative Agent (and thus commencing a new Start Date), the Applicable Margins shall be
those set forth in the table above determined as if the Leverage Ratio were equal to or greater than 3.00:1.00 (such Applicable Margins as so determined, the "Highest Applicable Margins"). Notwithstanding anything to the contrary contained above in this definition, (i) the Applicable Margins shall be the Highest Applicable Margins (subject to further adjustment to the extent provided in Section 1.08(c)) at all times during which there shall exist any Default or Event of Default, (ii) prior to the date of delivery of the financial statements pursuant to Section 8.01(b) for the fiscal quarter ended closest to September 30, 2001, in no event shall the Applicable Margins be less than those described in the first sentence of this definition and (iii) the Applicable Margin in respect of the Commitment Commission shall be 0.50% for each day when the ratio of the Total Unutilized Revolving Loan Commitment to the Total Revolving Loan Commitment is greater than 0.50:1.00.
"Applicable Permitted Acquisition Amount" shall mean, (i) with respect to the Borrower's fiscal year ending closest to December 31, 2001, $20 million, (ii) with respect to the Borrower's fiscal year ending closest to December 31, 2002, $30 million and (iii) with respect to each subsequent fiscal year of the Borrower, $35 million.
"Asset Sale" shall mean the sale, lease, transfer or other
disposition by the Borrower or any of its Subsidiaries to any Person other than
the Borrower or any of its Wholly-Owned Subsidiaries of (i) any of the stock or
other Equity Interests of any of the Borrower's Subsidiaries, (ii) substantially
all of the assets of any division or line of business of the Borrower or any of
its Subsidiaries, or (iii) any other assets (whether tangible or intangible) of
the Borrower or any of its Subsidiaries; provided, however, that Asset Sales
shall not include, (u) sales of inventory in the ordinary course of business,
(v) sales of distribution rights in the ordinary course of business, (w) any
sale or discount, in each case without recourse, of accounts receivable arising
in the ordinary course of business, but only in connection with the compromise
or collection thereof, (x) any sale or exchange of specific items of equipment,
so long as the purpose of each such sale or exchange is to acquire (and results
within 90 days of such sale or exchange in the acquisition of) replacement items
of equipment which are the functional equivalent of the item of equipment so
sold or exchanged, (y) the leasing (pursuant to leases in the ordinary course of
business) or licensing of real or personal property, including intellectual
property, or (z) disposals of obsolete, uneconomical, negligible, worn out or
surplus property in the ordinary course of business, so long as, in each case,
the aggregate fair market value (as determined in good faith by the Borrower) of
all such property sold or disposed of pursuant to any single disposition (or
series of related disposition) does not exceed $250,000.
"Assignment and Assumption Agreement" shall mean the Assignment and Assumption Agreement substantially in the form of Exhibit K (appropriately completed).
"Authorized Representative" shall mean, with respect to each Credit Party other than the Borrower, any officer of the Borrower authorized by the Board of Directors (or analogous governing body) of such Credit Party to execute and deliver the Credit Documents on behalf of such Credit Party, to the extent the authorization of such person is reasonably acceptable to the Administrative Agent.
"Bankruptcy Code" shall have the meaning provided in Section 10.05.
"Base Rate" shall mean for any day, a rate of interest per annum equal to the higher of (i) the Prime Lending Rate for such day and (ii) the sum of the Federal Funds Rate for such day plus 1/2 of 1% per annum.
"Base Rate Loan" shall mean (i) each Swingline Loan and (ii) each other Loan designated or deemed designated as such by the Borrower at the time of the incurrence thereof or conversion thereto.
"Borrower" shall have the meaning set forth in the first paragraph of this Agreement.
"Borrowing" shall mean the borrowing of one Type of Loan of a single Tranche from all the Lenders (other than any Lender which has not funded its share of a Borrowing in accordance with this Agreement) having Commitments of the respective Tranche (or from the Swingline Lender in the case of Swingline Loans) on a given date (or resulting from a conversion or conversions on such date) having in the case of Eurodollar Loans the same Interest Period, provided that Base Rate Loans incurred pursuant to Section 1.10(b) shall be considered part of the related Borrowing of Eurodollar Loans. It is understood that there may be more than one Borrowing outstanding pursuant to a given Tranche.
"B Scheduled Repayment" shall have the meaning provided in
Section 4.02(c).
"B Scheduled Repayment Date" shall have the meaning provided in Section 4.02(c).
"B Term Loan" shall have the meaning provided in Section 1.01(b).
"B Term Loan Commitment" shall mean, for each Lender, the amount set forth opposite such Lender's name in Schedule I hereto directly below the column entitled "B Term Loan Commitment," as the same may be reduced or terminated pursuant to Sections 3.03 and/or Section 10.
"B Term Loan Maturity Date" shall mean March 26, 2007.
"B Term Note" shall have the meaning provided in Section 1.05(a).
"Business Day" shall mean (i) for all purposes other than as covered by clause (ii) below, any day except Saturday, Sunday and any day which shall be in New York City a legal holiday or a day on which banking institutions are authorized or required by law or other government action to close and (ii) with respect to all notices and determinations in connection with, and payments of principal and interest on, Eurodollar Loans, any day which is a Business Day described in clause (i) above and which is also a day for trading by and between Lenders in the interbank Eurodollar market.
"Calculation Date" shall mean the date of the respective Permitted Acquisition or other event, as the case may be, which gives rise to the requirement to calculate compliance with the financial covenants under this Agreement on a Pro Forma Basis.
"Calculation Period" shall mean the Test Period (taken as one accounting period) most recently ended prior to a given Calculation Date.
"Capital Expenditures" shall mean, with respect to any Person, all expenditures by such Person which should be capitalized in accordance with generally accepted accounting principles, including all such expenditures with respect to fixed or capital assets (including, without limitation, expenditures for maintenance and repairs which should be capitalized in accordance with generally accepted accounting principles) and the amount of Capitalized Lease Obligations incurred by such Person.
"Capitalized Lease Obligations" of any Person shall mean all rental and lease obligations which, under generally accepted accounting principles, are or will be required to be capitalized on the books of such Person, in each case taken at the amount thereof accounted for as indebtedness in accordance with such principles.
"Cash Equivalents" shall mean, as to any Person, (i) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than one year from the date of acquisition, (ii) time deposits and certificates of deposit of, and overnight investments of similar credit quality with, any commercial bank having capital, surplus and undivided profits aggregating in excess of $500,000,000, with maturities of not more than one year from the date of acquisition by such Person, (iii) repurchase obligations with a term of not more than 90 days for underlying securities of the types described in clause (i) above entered into with any bank meeting the qualifications specified in clause (ii) above, (iv) commercial paper issued by any Person incorporated in the United States rated at least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moody's and in each case maturing not more than one year after the date of acquisition by such Person, and (v) investments in money market funds substantially all of whose assets are comprised of securities of the types described in clauses (i) through (iv) above.
"CERCLA" shall mean the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as the same may be amended from time to time, 42 U.S.C. ss. 9601 et seq.
"Change in Law" shall have the meaning provided in Section 10.06.
"Change of Control" shall mean (i) any "Person" or "Group" (within the meaning of Sections 13(d) and 14(d) under the Exchange Act, as in effect on the Initial Borrowing Date) (other than the Permitted Holders) is or shall (A) be the "beneficial owner" (as so defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act) of 30% or more on a fully diluted basis of the voting and/or economic interest in the Borrower's capital stock or other Equity Interests or (B) have obtained the power (whether or not exercised) to elect a majority of the Borrower's
directors or (ii) the Board of Directors of the Borrower shall cease to consist of a majority of Continuing Directors.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder. Section references to the Code are to the Code, as in effect at the date of this Agreement and any subsequent provisions of the Code, amendatory thereof, supplemental thereto or substituted therefor.
"Collateral" shall mean all property with respect to which any security interests have been granted (or purported to be granted) pursuant to any Security Document, including, without limitation, all Pledge Agreement Collateral, all Security Agreement Collateral, all cash and Cash Equivalents delivered as collateral pursuant to Section 4.02 or 10 hereof and all Additional Collateral, if any.
"Collateral Agent" shall mean the Administrative Agent acting as collateral agent for the Secured Creditors pursuant to the Security Documents.
"Commitment" shall mean any of the commitments of any Lender, including its A Term Loan Commitment (if any), B Term Loan Commitment (if any) and Revolving Loan Commitment (if any).
"Commitment Commission" shall have the meaning provided in
Section 3.01(a).
"Company Disclosure Schedule" shall mean the "Company Disclosure Schedule" dated as of October 26, 2000, referred to in the Flowers Industries Merger Agreement.
"Consolidated Current Assets" shall mean, at any time, the current assets of the Borrower and its Subsidiaries at such time determined on a consolidated basis in accordance with GAAP.
"Consolidated Current Liabilities" shall mean, at any time, the current liabilities of the Borrower and its Subsidiaries determined on a consolidated basis in accordance with GAAP, but excluding deferred income taxes, and the current portion of and accrued but unpaid interest on any Indebtedness under this Agreement and any other long-term Indebtedness which would otherwise be included therein.
"Consolidated EBIT" shall mean, for any period, the Consolidated Net Income for such period, before interest expense and provision for taxes based on income and without giving effect to any extraordinary gains or losses or gains or losses from Asset Sales.
"Consolidated EBITDA" shall mean, for any period, Consolidated EBIT, adjusted by adding thereto (x) the amount of all amortization of intangibles and depreciation (to the extent same reduced Consolidated EBIT for such period), (y) in respect of calculations of Consolidated EBITDA which require the use of amounts specified in the financial statements referred to in clause (iii) of the definition of Test Period, rental expense for periods preceding the Initial Borrowing Date (to the extent same reduced Consolidated EBIT for such period) in respect of
equipment purchased by Flowers Industries and/or its Subsidiaries and/or the Borrower and/or its Subsidiaries on or prior to the Initial Borrowing Date pursuant to the Equipment Purchase and (z) all cash insurance proceeds received by the Borrower and its Subsidiaries during any Test Period in respect of nonrecurring expenses for which a charge was taken by the Borrower against its Consolidated Net Income in (and which reduced Consolidated EBIT for) such Test Period. Notwithstanding anything to the contrary contained above, to the extent Consolidated EBITDA is to be determined for any Test Period which ends prior to the last day of the fiscal quarter of the Borrower ending closest to March 31, 2002, Consolidated EBITDA shall be calculated in accordance with the definition of Test Period contained herein.
"Consolidated Fixed Charge Coverage Ratio" for any period shall mean the ratio of (i) Consolidated EBITDA for such period to (ii) Consolidated Fixed Charges for such period.
"Consolidated Fixed Charges" for any period shall mean the
sum, without duplication, of (i) Consolidated Interest Expense for such period,
(ii) the amount of all taxes paid by the Borrower and its Subsidiaries
determined on a consolidated basis for such period, (iii) the amount of all
Capital Expenditures for such period (other than Capital Expenditures permitted
pursuant to Section 9.07(b)), (iv) the amount of all cash Dividends paid by the
Borrower and its Subsidiaries determined on a consolidated basis for such period
and (v) the aggregate amount of all Scheduled Repayments and scheduled
repayments of Indebtedness other than that outstanding pursuant to this
Agreement (in each case calculated as of the first day of such period) required
to be made during such period.
"Consolidated Indebtedness" shall mean, as at any date of determination and without duplication, the aggregate stated balance sheet amount of all Indebtedness (but including in any event the then outstanding principal amount of all Loans, all Capitalized Lease Obligations and all Letter of Credit Outstandings and excluding, to the extent duplicative, any letter of credit issued in connection with the Lease Program) of the Borrower and its Subsidiaries on a consolidated basis as determined in accordance with GAAP; provided that Indebtedness outstanding pursuant to trade payables and accrued expenses incurred in the ordinary course of business shall be excluded in determining Consolidated Indebtedness.
"Consolidated Interest Coverage Ratio" shall mean, for any period, the ratio of (i) Consolidated EBITDA for such period to (ii) Consolidated Interest Expense for such period.
"Consolidated Interest Expense" shall mean, for any period, the total consolidated interest expense of the Borrower and its Subsidiaries for such period (calculated without regard to any limitations on the payment thereof) plus, without duplication, that portion of Capitalized Lease Obligations of the Borrower and its Subsidiaries representing the interest factor for such period, but excluding the amortization of any deferred financing costs.
"Consolidated Net Income" shall mean, for any period, the consolidated net after tax income (or loss) of the Borrower and its Subsidiaries determined in accordance with GAAP, provided that in determining Consolidated Net Income of the Borrower and its Subsidiaries (i) the net income of any Person which is not a Subsidiary of the Borrower or is accounted for by the Borrower by the equity method of accounting shall be included only to the extent of the
payment of dividends or disbursements by such Person to the Borrower or a Wholly-Owned Subsidiary of the Borrower during such period, (ii) except for determinations expressly required to be made on a Pro Forma Basis, the net income (or loss) of any Person acquired prior to the date it becomes a Subsidiary or all or substantially all of the property or assets of such Person are acquired by a Subsidiary shall be excluded from such determination and (iii) the net income of any Subsidiary to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of such net income is not at the time permitted by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to such Subsidiary shall be excluded from such determination.
"Consolidating" shall mean, in respect of any financial statements required to be delivered by the Borrower, the preparation of such financial statements on a consolidating basis by reportable segment of the business of the Borrower and its Subsidiaries, which reportable segments on the Effective Date consist of Mrs. Smith's, Flowers Bakeries and Flowers Corporate.
"Contingent Obligation" shall mean, as to any Person, any
obligation of such Person guaranteeing or intended to guarantee any
Indebtedness, leases, dividends or other obligations ("primary obligations") of
any other Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to advance or
supply funds (x) for the purchase or payment of any such primary obligation or
(y) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (iv) otherwise to assure or hold
harmless the holder of such primary obligation against loss in respect thereof;
provided, however, that the term Contingent Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business and any products warranties extended in the ordinary course of
business. The amount of any Contingent Obligation shall be deemed to be an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Contingent Obligation is made (or, if less, the maximum
amount of such primary obligation for which such Person may be liable pursuant
to the terms of the instrument evidencing such Contingent Obligation) or, if not
stated or determinable, the maximum reasonably anticipated liability in respect
thereof (assuming such Person is required to perform thereunder) as determined
by such Person in good faith.
"Continuing Directors" shall mean the directors of the Borrower on the Initial Borrowing Date and each other director, if such other director's nomination for election to the Board of Directors of the Borrower is recommended by a majority of the then Continuing Directors or is recommended by a committee of the Board of Directors a majority of which is composed of the then Continuing Directors.
"Credit Documents" shall mean this Agreement, each Note, each Security Document, the Subsidiaries Guaranty and, after the execution and delivery thereof, each additional guaranty or security document executed pursuant to Section 8.12.
"Credit Event" shall mean the making of any Loan or the issuance of any Letter of Credit.
"Credit Party" shall mean the Borrower, each Subsidiary Guarantor and any other Subsidiary which at any time executes and delivers any Credit Document as required by this Agreement.
"Cumulative Retained Excess Cash Flow Amount" shall initially
mean $0; provided that (A) on each Excess Cash Payment Date, the Cumulative
Retained Excess Cash Flow Amount shall be increased by an amount equal to 75% of
the Excess Cash Flow for the relevant Excess Cash Payment Period (or, if Excess
Cash Flow for such period is a negative amount, the Cumulative Retained Excess
Cash Flow Amount shall be reduced by an amount equal to 100% of the Excess Cash
Flow (for this purpose expressed as a positive amount) for the relevant Excess
Cash Flow Payment Period) and (B) the Cumulative Retained Excess Cash Flow
Amount shall be reduced (x) on the date each Dividend is paid pursuant to
Section 9.03(v), by the aggregate amount of the Dividends so paid on such date,
(y) on each date upon which any consideration paid for one or more Permitted
Acquisitions is justified pursuant to the proviso to Section 9.05(v)(h), by the
total amount of consideration so justified and (z) on each date upon which any
Capital Expenditures are made pursuant to Section 9.07(c), by the aggregate
amount thereof.
"Debt Agreements" shall have the meaning provided in Section 5.05.
"Default" shall mean any event, act or condition which with notice or lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender with respect to which a Lender Default is in effect.
"Distribution Agreement" shall mean the Distribution Agreement between Flowers Industries and the Borrower, dated as of October 26, 2000, together with all schedules and exhibits thereto, as same may be amended, modified or supplemented from time to time in accordance with the requirements of this Agreement.
"Distributor" shall mean any Person which is a distributor of products of the Borrower or one or more of its Subsidiaries.
"Distributor Notes" shall mean promissory notes of Distributors evidencing (i) loans previously outstanding pursuant to the Existing Distributor Note Documents and acquired by the Borrower and its Subsidiaries pursuant to the Refinancing, and (ii) any other loans made by the Borrower and its Subsidiaries pursuant to Section 9.05(ix), in each case substantially in the form set forth in the Existing Distributor Note Documents.
"Dividend" with respect to any Person shall mean that such Person has declared or paid a dividend or returned any equity capital to its stockholders or members or other holders of its Equity Interests or authorized or made any other distribution, payment or delivery of property (other than common stock of such Person) or cash to its stockholders or members or other holders of its Equity Interests as such, or redeemed, retired, purchased or otherwise acquired, directly or indirectly, for a consideration any shares of any class of its capital stock or membership interests or other Equity Interests outstanding on or after the Effective Date (or any options or warrants issued by such Person with respect to its Equity Interests), or set aside any funds for any of the foregoing purposes, or shall have permitted any of its Subsidiaries to purchase or otherwise acquire for a consideration any shares of any class of the capital stock of, or Equity Interests in, such Person outstanding on or after the Effective Date (or any options or warrants issued by such Person with respect to its capital stock or other Equity Interests). "Dividends" with respect to any Person shall not include (x) the cashless exercise of options, warrants or other rights to purchase stock or (y) payments made or required to be made by such Person with respect to any stock appreciation rights, plans, equity incentive or achievement plans or any similar plans or setting aside of any funds for the foregoing purposes, in each case to the extent the respective payments reduce the Consolidated Net Income of such Person for the period in which such payments were made or accrued. Notwithstanding anything to the contrary contained above, "Dividends" with respect to any Person shall include any payments of the types described in preceding clause (y) if the respective payments did not reduce Consolidated Net Income of such Person for the period in which such payments were made or accrued.
"Documents" shall mean the (i) Credit Documents, (ii) the Merger Documents, (iii) the Lease Program Documents and (iv) the Existing Debentures Tender Offer Documents.
"Dollars" and the sign "$" shall each mean lawful money of the United States.
"Domestic Subsidiary" shall mean each Subsidiary of the Borrower that is incorporated or organized in the United States of America, any State thereof, the United States Virgin Islands or Puerto Rico.
"Domestic Wholly-Owned Subsidiary" shall mean each Domestic Subsidiary which is a Wholly-Owned Subsidiary of the Borrower.
"Drawing" shall have the meaning provided in Section 2.04(b).
"Effective Date" shall have the meaning provided in Section 13.10.
"Elf Disclosure Schedules" shall mean the Elf Disclosure Schedules as defined in, and delivered pursuant to, the Keebler Merger Agreement.
"Eligible Assets" shall have the meaning provided in Section 4.02(e).
"Eligible Transferee" shall mean and include a commercial bank, insurance company, financial institution, fund or other Person which regularly purchases interests in loans or extensions of credit of the types made pursuant to this Agreement, any other Person which would
constitute a "qualified institutional buyer" within the meaning of Rule 144A under the Securities Act as in effect on the Effective Date or other "accredited investor" (as defined in Regulation D of the Securities Act).
"Employee Benefit Plans" shall have the meaning provided in
Section 5.05.
"End Date" shall have the meaning assigned that term in the definition of "Applicable Margin" contained herein.
"Environmental Claims" shall mean any and all administrative, regulatory or judicial actions, suits, demands, demand letters, directives, claims, liens, notices of noncompliance or violation, investigations or proceedings relating in any way to any Environmental Law or any permit issued, or any approval given, under any such Environmental Law (hereafter, "Claims"), including, without limitation, (a) any and all Claims by governmental or regulatory authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable Environmental Law, and (b) any and all Claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief in connection with alleged injury or threat of injury to health, safety or the environment due to the presence of Hazardous Materials.
"Environmental Law" shall mean any applicable Federal, state, foreign or local statute, law, rule, regulation, ordinance, code, binding and enforceable guideline, binding and enforceable written policy and rule of common law now or hereafter in effect and in each case as amended, and any judicial or administrative interpretation thereof, including any judicial or administrative order, consent decree or judgment, to the extent binding on the Borrower or any of its Subsidiaries, relating to the environment, employee health and safety or Hazardous Materials, including, without limitation, CERCLA; RCRA; the Federal Water Pollution Control Act, 33 U.S.C. ss. 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. ss. 2601 et seq.; the Clean Air Act, 42 U.S.C. ss. 7401 et seq.; the Safe Drinking Water Act, 42 U.S.C. ss. 3803 et seq.; the Oil Pollution Act of 1990, 33 U.S.C. ss. 2701 et seq.; the Emergency Planning and the Community Right-to-Know Act of 1986, 42 U.S.C. ss. 11001 et seq.; the Hazardous Material Transportation Act, 49 U.S.C. ss. 1801 et seq.; the Occupational Safety and Health Act, 29 U.S.C. ss. 651 et seq. (to the extent it regulates occupational exposure to Hazardous Materials); and any state and local or foreign counterparts or equivalents, in each case as amended from time to time.
"Equipment Purchase" shall mean the purchase by Flowers Industries and/or its Subsidiaries or the Borrower and/or its Subsidiaries, as applicable, of the equipment previously subject to (i) the Master Lease Agreement, dated as of October 20, 1995, between Wachovia Leasing Corporation and Flowers Industries, as amended, modified and/or supplemented prior to the Effective Date and (ii) the Master Equipment Lease between SunTrust Leasing Corporation (formerly SunTrust Bank, Atlanta) and Flowers Industries, as amended prior to the Effective Date.
"Equipment Purchase Documents" shall mean all of the agreements governing or relating to the Equipment Purchase.
"Equity Interest" of any Person shall mean any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interest in (however designated) equity of such Person, including, without limitation, any common stock, preferred stock, any limited or general partnership interest and any limited liability company membership interest.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder. Section references to ERISA are to ERISA, as in effect at the date of this Agreement and any subsequent provisions of ERISA, amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in
Section 3(9) of ERISA) which together with the Borrower or a Subsidiary of the
Borrower would be deemed to be a "single employer" (i) within the meaning of
Section 414(b), (c), (m) or (o) of the Code or (ii) as a result of the Borrower
or any Subsidiary of the Borrower being or having been a general partner of such
person.
"Eurodollar Loan" shall mean each Loan (excluding Swingline Loans) designated as such by the Borrower at the time of the incurrence thereof or conversion thereto.
"Eurodollar Rate" shall mean (a) the offered quotation to the Administrative Agent in the New York interbank Eurodollar market (rounded upward to the nearest 1/16 of 1%) for Dollar deposits of amounts in immediately available funds comparable to the outstanding principal amount of the Eurodollar Loan of the Administrative Agent (or another Lender selected by the Administrative Agent if the Administrative Agent is not making a Eurodollar Loan at such time) with maturities comparable to the Interest Period applicable to such Eurodollar Loan commencing two Business Days thereafter as of 11:00 A.M. (New York time) on the date which is two Business Days prior to the commencement of such Interest Period, divided (and rounded upward to the nearest 1/16 of 1%) by (b) a percentage equal to 100% minus the then stated maximum rate of all reserve requirements (including, without limitation, any marginal, emergency, supplemental, special or other reserves required by applicable law) applicable to any member bank of the Federal Reserve System in respect of Eurocurrency funding or liabilities as defined in Regulation D (or any successor category of liabilities under Regulation D).
"Event of Default" shall have the meaning provided in Section 10.
"Excess Cash Flow" shall mean, for any period, the remainder of (i) the sum of (a) Adjusted Consolidated Net Income for such period, (b) the decrease, if any, in Adjusted Consolidated Working Capital from the first day to the last day of such period and (c) all repayments of principal received by the Borrower and its Subsidiaries during such period (including without limitation, repayments of principal received with respect to loans or Indebtedness owning to the Borrower and Subsidiaries by one or more Distributors), minus (ii) the sum of (a) the amount of all Capital Expenditures made by the Borrower and its Subsidiaries pursuant to Sections 9.07(a) during such period, (b) the aggregate amount of consideration (including all post-closing and other adjustments to any purchase price) in connection with Permitted Acquisitions during such period (but excluding any consideration in the form of
assumption of Indebtedness pursuant to Section 9.04(vii) and any consideration
justified pursuant to the proviso to Section 9.05(v)(h)), (c) the aggregate
principal amount of permanent principal payments of Indebtedness for borrowed
money of the Borrower and its Subsidiaries (other than payments made pursuant to
the Refinancing and any repayments of Loans, provided that repayments of Loans
shall be included in the deduction set forth in clause (ii)(c) above in
determining Excess Cash Flow if such repayments were (x) required as a result of
a Scheduled Repayment or (y) made as a voluntary prepayment with internally
generated funds (but in the case of a voluntary prepayment of Revolving Loans or
Swingline Loans, only to the extent accompanied by a voluntary reduction to the
Total Revolving Loan Commitment in an equal amount)) during such period, (d) the
amount of all Dividends paid during such period pursuant to Section 9.03(ii) and
(iii), (e) the aggregate principal amount of loans made to Distributors during
such period pursuant to Section 9.05(ix), (f) the amount of all net Investments
made during such period pursuant to Section 9.05(x) and (g) the increase, if
any, in Adjusted Consolidated Working Capital from the first day to the last day
of such period.
"Excess Cash Flow Payment Period" shall mean, with respect to each Excess Cash Payment Date, the immediately preceding fiscal year of the Borrower (or, in the case of the first Excess Cash Flow Payment Period, the period from the first day of the second fiscal quarter of such fiscal year to the last day of such fiscal year).
"Excess Cash Payment Date" shall mean each date occurring 90 days after the last day of a fiscal year of the Borrower (beginning with its fiscal year ending closest to December 31, 2001).
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Excluded Mexico Assets" shall mean assets of the Borrower and its Subsidiaries located in Mexico, so long as the Borrower and such Subsidiaries intend to sell such assets or relocate such assets (and are in good faith progressing towards such sale or relocation) and the aggregate fair market value of such assets does not at any time exceed $500,000.
"Existing Debentures" shall mean the 7.15% Debentures due 2028 issued pursuant to the Existing Debentures Indenture.
"Existing Debentures Indenture" shall mean the Indenture, dated as of April 27, 1998, between Flowers Industries and SunTrust, as trustee, as amended, restated, modified and/or supplemented on or prior to the Initial Borrowing Date.
"Existing Debentures Tender Offer" shall have the meaning provided in Section 5.07.
"Existing Debentures Tender Offer Documents" shall mean the documentation delivered to holders of Existing Debentures in connection with the Existing Debentures Tender Offer.
"Existing Debentures Trustee" shall mean SunTrust, as trustee pursuant to the Existing Debentures Indenture and any successor as trustee thereunder.
"Existing Distributor Notes" shall mean all promissory notes executed by one or more Distributors, pursuant to the Existing Distributor Note Documents.
"Existing Distributor Note Documents" shall mean (i) the Loan Facility Agreement, dated as of November 5, 1999, by and among, Flowers Industries, SunTrust and each of the participants party thereto and (ii) any other document or agreement executed in connection therewith, in each case as amended, restated, modified and/or supplemented prior to the Initial Borrowing Date.
"Existing Indebtedness" shall have the meaning provided in
Section 7.22(a).
"Facing Fee" shall have the meaning provided in Section 3.01(c).
"Federal Funds Rate" shall mean, for any day, an interest rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published for such day (or, if such day is not a Business Day, for the immediately preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations at approximately 11 a.m. (New York time) on such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by the Administrative Agent in its sole discretion.
"Fees" shall mean all amounts payable pursuant to or referred to in Section 3.01.
"Flowers Industries" shall mean Flowers Industries, Inc., a Georgia corporation.
"Flowers Industries Merger" shall mean the merger, immediately following the Spin-off, of Flowers Industries (whose only material asset, following the consummation of the Spin-off, shall be its Equity Interests in Keebler) with and into a wholly-owned subsidiary of Kellogg.
"Flowers Industries Merger Agreement" shall mean the Agreement and Plan of Restructuring and Merger dated as of October 26, 2000 among Flowers Industries, Kellogg and Kansas Merger Subsidiary, Inc., together with all schedules and exhibits thereto (including the Company Disclosure Schedule), as same may be amended, modified or supplemented from time to time in accordance with the requirements of this Agreement.
"Foreign Pension Plan" shall mean any plan, fund (including, without limitation, any superannuation fund) or other similar program established or maintained outside the United States of America by the Borrower or any one or more of its Subsidiaries primarily for the benefit of employees of the Borrower or such Subsidiaries residing outside the United States of America, which plan, fund or other similar program provides, or results in, retirement income, a
deferral of income in contemplation of retirement or payments to be made upon termination of employment, and which plan is not subject to ERISA or the Code.
"Foreign Subsidiary" shall mean each Subsidiary of the Borrower that is incorporated or organized under the laws of any jurisdiction other than the United States of America, any State thereof, the United States Virgin Islands or Puerto Rico.
"GAAP" shall have the meaning provided in Section 13.07(a).
"Hazardous Materials" shall mean (a) any petroleum or petroleum products, radioactive materials, asbestos in any form that is or could become friable, ureaformaldehyde foam insulation, transformers or other equipment that contain dielectric fluid containing levels of polychlorinated biphenyls, and radon gas; (b) any chemicals, materials or substances defined as or included in the definition of "hazardous substances," "hazardous waste," "hazardous materials," "extremely hazardous substances," "restricted hazardous waste," "toxic substances," "toxic pollutants," "contaminants," or "pollutants," or words of similar import, under any applicable Environmental Law; and (c) any other chemical, material or substance, exposure to which is prohibited, limited or regulated by any governmental authority under Environmental Laws.
"Highest Applicable Margins" shall have the meaning assigned that term in the definition of or "Applicable Margin" contained herein.
"Indebtedness" shall mean, as to any Person, without duplication, (i) all indebtedness (including principal, interest, fees and charges) of such Person for borrowed money or for the deferred purchase price of property or services, other than trade payables arising in the ordinary course of business, (ii) the maximum amount available to be drawn under all letters of credit issued for the account of such Person and all unpaid drawings in respect of such letters of credit, (iii) all Indebtedness of the types described in clause (i), (ii), (iv), (v), (vi) or (vii) of this definition secured by any Lien on any property owned by such Person, whether or not such Indebtedness has been assumed by such Person (to the extent of the value of the respective property), (iv) the aggregate amount required to be capitalized under leases under which such Person is the lessee, (v) all obligations of such Person to pay a specified purchase price for goods or services, whether or not delivered or accepted, i.e., take-or-pay and similar obligations, (vi) all Contingent Obligations of such Person and (vii) all obligations of such Person under or with respect to any Interest Rate Protection Agreement or Other Hedging Agreement or under any similar type of agreement.
"Indebtedness to be Refinanced" shall have the meaning provided in Section 7.22(b).
"Initial Borrowing Date" shall mean the date occurring on or after the Effective Date on which the initial Credit Event hereunder occurs.
"Intercompany Loans" shall have the meaning provided in
Section 9.05.
"Interest Determination Date" shall mean, with respect to any Eurodollar Loan, the second Business Day prior to the commencement of any Interest Period relating to such Eurodollar Loan.
"Interest Period" shall have the meaning provided in Section 1.09.
"Interest Rate Protection Agreement" shall mean any interest rate swap agreement, interest rate cap agreement, interest collar agreement, interest rate hedging agreement, interest rate floor agreement or other similar agreement or arrangement.
"Investments" shall mean, for any Person: (i) the acquisition
(whether for cash, property, services, securities or otherwise) of Equity
Interests, bonds, notes, debentures or other securities of any other Person;
(ii) the making by such Person of any deposit with, or advance, loan or other
extension of credit to or on behalf of, any other Person (including the purchase
of property from another Person subject to an understanding or agreement,
contingent or otherwise, to resell such property to such other Person) or any
commitment to make any such advance, loan or extension of credit (but excluding
accounts receivable arising in the ordinary course of business), (iii) the
making of any capital contribution by such Person to another Person, (iv) any
acquisition of all or substantially all of the assets of any other Person (or
all or substantially all of the assets of a product line or division of any such
other Person) or (v) the purchase or ownership of, or liability with respect to,
a futures contract for the purchase or sale of currency or other commodities at
a future date in the nature of a futures contract, or the entering into of any
other Interest Rate Protection Agreement or any Other Hedging Agreement or (vi)
the ownership of any cash or Cash Equivalents.
"Issuing Lender" shall mean the Administrative Agent (and/or one or more Affiliates of the Administrative Agent (including, without limitation, Deutsche Bank AG, New York Branch) designated by it from time to time to act as an Issuing Lender hereunder) and any Lender or Affiliate thereof which at the request of the Borrower and with the consent of the Administrative Agent (which shall not be unreasonably withheld) agrees, in such Lender's (and, if relevant, the respective Affiliate's) sole discretion, to become an Issuing Lender for the purpose of issuing Letters of Credit pursuant to Section 2.
"Keebler" shall mean Keebler Foods Company, a Delaware corporation.
"Kellogg" shall mean Kellogg Company, a Delaware corporation.
"L/C Supportable Indebtedness" shall mean (i) obligations of the Borrower or any of its Subsidiaries incurred in the ordinary course of business with respect to insurance obligations and workers' compensation, surety bonds and other similar statutory obligations and (ii) such other obligations of the Borrower or any of its Subsidiaries as are permitted to exist pursuant to the terms of this Agreement.
"Lead Arranger" shall mean Deutsche Banc Alex. Brown Inc.
"Lease Program" shall mean the lease program of the Borrower and/or its subsidiaries existing pursuant to the Lease Program Documents.
"Lease Program Documents" shall mean (i) the Master Lease Financing Agreement, dated as of March 26, 2001, between General Electric Capital Corporation, as lessor and the Borrower, as lessee (the "Master Lease"), and (ii) any other document executed in connection therewith, in each case as amended, restated, modified and/or supplemented prior to the Initial Borrowing Date or from time to time thereafter in accordance with the requirements of this Agreement.
"Lease Program Obligations" shall mean all Indebtedness of the Borrower and/or its Subsidiaries pursuant to the Lease Program or any Permitted Lease Refinancing.
"Leaseholds" of any Person means all the right, title and interest of such Person as lessee or licensee in, to and under leases or licenses of land, improvements and/or fixtures.
"Lender" shall mean each financial institution listed on Schedule I, as well as any Person which becomes a "Lender" hereunder pursuant to 13.04(b).
"Lender Default" shall mean (i) the refusal (which has not been retracted) of a Lender to make available its portion of any Borrowing (including any Mandatory Borrowing) required to be made in accordance with the terms of this Agreement as then in effect or to fund its portion of any unreimbursed payment under Section 2.03(c) or (ii) a Lender having notified in writing the Borrower and/or the Administrative Agent that it does not intend to comply with its obligations under Section 1.01 or Section 2.
"Letter of Credit" shall have the meaning provided in Section 2.01(a).
"Letter of Credit Fee" shall have the meaning provided in
Section 3.01(b).
"Letter of Credit Outstandings" shall mean, at any time, the
sum of (i) the aggregate Stated Amount of all outstanding Letters of Credit and
(ii) the amount of all Unpaid Drawings.
"Letter of Credit Request" shall have the meaning provided in
Section 2.02(a).
"Leverage Ratio" shall mean, at any date of determination, the ratio of Consolidated Indebtedness on such date to Consolidated EBITDA for the Test Period last ended on or prior to such date; provided that Consolidated EBITDA shall be determined on a Pro Forma Basis to give effect to the Transaction (if same occurred after the first date of the respective Test Period) and all Permitted Acquisition (if any) actually made during the Test Period referenced above. Furthermore, to the extent provided in the definition of "Applicable Margin", certain determinations of the Leverage Ratio pursuant thereto shall be further determined on a Pro Forma Basis to give effect to Permitted Acquisitions consummated after the last day of the respective Test Period and on or prior to the date of the delivery of the certificate referenced therein, as well as to any Indebtedness incurred or assumed in connection therewith.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), preference, priority or other security agreement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement, any financing or similar statement or notice filed under the UCC or any other similar recording or notice statute, and any lease having substantially the same effect as any of the foregoing).
"Loan" shall mean, collectively, each A Term Loan, each B Term Loan, each Revolving Loan and each Swingline Loan.
"Majority Lenders" of any Tranche shall mean those Non-Defaulting Lenders which would constitute the Required Lenders under, and as defined in, this Agreement if all outstanding Obligations of the other Tranches under this Agreement were repaid in full and all Commitments with respect thereto were terminated.
"Mandatory Borrowing" shall have the meaning provided in
Section 1.01(e).
"Margin Regulations" shall mean Regulation T, Regulation U and Regulation X.
"Margin Stock" shall have the meaning provided in Regulation U.
"Master Lease" shall have the meaning provided in the definition of Lease Program Documents.
"Material Adverse Change" shall mean (x) a material adverse change in the rights or remedies of the Lenders or the Administrative Agent or Collateral Agent pursuant to the Credit Documents, (y) a material adverse change in the ability of the Borrower and its Subsidiaries to perform their obligations pursuant to the Credit Documents or (z) any material adverse change in the business, operations, property, assets, liabilities, condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole (after giving effect to the Transaction, but for this purpose assuming that the Borrower and its Subsidiaries have no ongoing liabilities to Kellogg and its Subsidiaries pursuant to the Merger Documents except as specifically disclosed pursuant to Section 7.05(d)).
"Material Adverse Effect" shall mean (x) a material adverse effect on the rights or remedies of the Lenders or the Administrative Agent or Collateral Agent pursuant to the Credit Documents, (y) a material adverse effect on the ability of the Borrower and its Subsidiaries to perform their obligations pursuant to the Credit Documents or (z) a material adverse effect on the business, operations, property, assets, liabilities, condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole (after giving effect to the Transaction, but for this purpose assuming that the Borrower and its Subsidiaries have no ongoing liabilities to Kellogg and its Subsidiaries pursuant to the Merger Documents except as specifically disclosed pursuant to Section 7.05(d)).
"Maturity Date" shall mean, with respect to any Tranche of Loans, the A Term Loan Maturity Date, the B Term Loan Maturity Date, the Revolving Loan Maturity Date or the Swingline Expiry Date, as the case may be.
"Maximum Swingline Amount" shall mean $20,000,000.
"Maximum Waivable Amount" shall have the meaning provided in
Section 4.02(k).
"Merger Documents" shall mean and include (i) the Distribution Agreement, (ii) the Flowers Industries Merger Agreement, (iii) the Voting Agreement, (iv) the Proxy Materials and (v) any other document or agreement executed or delivered in connection therewith, in each case as in effect and in form and substance last distributed to the Administrative Agent prior to the Initial Borrowing Date, and as same may be amended, modified or supplemented thereafter in accordance with the requirements of this Agreement.
"Moody's" shall mean Moody's Investors Service, Inc., or any successor thereto.
"Net Asset Sale Proceeds" shall mean, with respect to any Asset Sale, all cash (and Cash Equivalents) payments (including any cash and Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) received by the Borrower or any of its Subsidiaries from such Asset Sale, net of any bona fide costs incurred in connection with such Asset Sale, including (i) income taxes reasonably estimated to be actually payable within 15 months of the date of such Asset Sale as a result of any gain recognized in connection with such Asset Sale and (ii) payment of the outstanding principal amount of, premium or penalty, if any, and interest on any Indebtedness (other than the Loans and Indebtedness owed to the Borrower or any of its Subsidiaries) that is secured by a Lien on the assets in question and that is repaid (and required to be repaid) as a result of such Asset Sale.
"Net Insurance/Condemnation Proceeds" shall mean any cash (and Cash Equivalents) payments or proceeds received by the Borrower or any of its Subsidiaries (i) under any casualty insurance policy in respect of a covered loss thereunder or (ii) as a result of the taking of any assets of the Borrower or any of its Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a sale of any such assets to a purchaser with such power under threat of such a taking, in each case net of any actual and documented costs incurred by the Borrower or any of its Subsidiaries in connection with the adjustment or settlement of any claims of the Borrower or such Subsidiary in respect thereof, including (x) income taxes reasonably estimated to be actually payable within two years of the date of receipt of such payments or proceeds as a result of any gain recognized in connection with the receipt of such payment or proceeds and (y) payment of the outstanding amount of premium or penalty, if any, and interest of any Indebtedness (other than the Loans and Indebtedness owed to the Borrower or any of its Subsidiaries) that is secured by a Lien on the stock or assets in question and that is repaid as a result of receipt of such payments or proceeds.
"Non-Defaulting Lender" shall mean and include each Lender other than a Defaulting Lender.
"Non-Wholly Owned Entity" shall have the meaning provided in Section 9.05(v).
"Note" shall mean, collectively, each A Term Note, each B Term Note, each Revolving Note and the Swingline Note.
"Notes" shall mean, collectively, each A Term Note, each B Term Note, each Revolving Note and the Swingline Note.
"Notice of Borrowing" shall have the meaning provided in Section 1.03(a).
"Notice of Conversion/Continuation" shall have the meaning provided in
Section 1.06.
"Notice Office" shall mean the office of the Administrative Agent located at 130 Liberty Street, New York, New York 10006, or such other office as the Administrative Agent may hereafter designate in writing as such to the other parties hereto.
"Obligations" shall mean all amounts owing to the Administrative Agent, the Collateral Agent or any Lender pursuant to the terms of this Agreement or any other Credit Document.
"Other Hedging Agreement" shall mean any foreign exchange contracts, currency swap agreements, commodity agreements or other similar agreements or arrangements designed to protect against the fluctuations in currency or commodity values.
"Participant" shall mean with respect to each Letter of Credit and all Letter of Credit Outstandings relating thereto, each Revolving Lender in accordance with the provisions of Section 2.03(a).
"Participation" shall mean with respect to each Letter of Credit and
all Letter of Credit Outstandings relating thereto, the participation of each
Revolving Lender therein as determined in accordance with the provisions of
Section 2.03(a).
"Payment Office" shall mean the office of the Administrative Agent located at 130 Liberty Street, New York, New York 10006, or such other office as the Administrative Agent may hereafter designate in writing as such to the other parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established pursuant to Section 4002 of ERISA, or any successor thereto.
"Period" shall mean each of the thirteen four consecutive week periods constituting a fiscal year of the Borrower, with the first of such Periods in each fiscal year to begin on the Sunday immediately following the Borrower's fiscal year end and end on the Saturday occurring four weeks thereafter, and with each subsequent Period to begin on the
Sunday immediately following the previous Period and end on the Saturday occurring four weeks thereafter.
"Permitted Acquisition" shall have the meaning provided in Section 9.05(v).
"Permitted Bakery Swap" shall mean the swap by the Borrower or any of its Subsidiaries of a bakery with a book value of less than $20,000,000 for another bakery (theretofore owned by a Person other than the Borrower and its Subsidiaries), which newly acquired bakery must have a fair market value which, in the good faith judgment of the Borrower, is at least equal to 75% of the fair market value of the bakery being swapped by the Borrower or its respective Subsidiary and if the respective bakery being received pursuant to the Permitted Bakery Swap has a fair market value which is less than the bakery being swapped, the Borrower or its respective Subsidiary shall receive cash in an amount at least equal to the differential in the fair market values (as determined by the Borrower in good faith) and, if the bakery being received in the Permitted Bakery Swap has a fair market value (as determined by the Borrower in good faith) in excess of the value of the bakery being disposed of pursuant to the Permitted Bakery Swap, any additional consideration being paid by the Borrower or its respective Subsidiary in connection therewith shall be justified pursuant to Section 9.07.
"Permitted Holders" shall mean the descendants of William H. Flowers, Sr. and members of their immediate families.
"Permitted Lease Refinancing" shall mean any Capitalized Lease
Obligations of the Borrower or any of its Subsidiaries incurred to extend,
refinance, renew or replace the Lease Program, provided that (i) such Permitted
Lease Refinancing shall relate to the same Equipment (as defined in the Lease
Program Documents) as is otherwise permitted hereunder to be subject to the
Lease Program, (ii) the advance rate in respect of such Permitted Lease
Refinancing shall be no lower than that in effect pursuant to the Lease Program
Documents, (iii) the representations and warranties, covenants and events of
default, in each case taken as a whole, contained in such Permitted Lease
Refinancing shall not be less favorable than those contained in the Lease
Program Documents, either from the perspective of the Borrower and its
Subsidiaries or the Lenders, (iv) the assets securing the Indebtedness pursuant
to such Permitted Lease Refinancing shall be substantially the same as the
assets securing the Lease Program Obligations pursuant to the Lease Program and
(v) the final maturity of, and the average life of the commitments with respect
to, such Permitted Lease Refinancing shall be no shorter than that in effect
pursuant to the Lease Program at the time of the consummation of such Permitted
Lease Refinancing.
"Permitted Liens" shall have the meaning provided in Section 9.01.
"Person" shall mean any individual, partnership, joint venture, firm, corporation, association, trust or other enterprise or any government or political subdivision or any agency, department or instrumentality thereof.
"Plan" shall mean any pension plan as defined in Section 3(2) of ERISA, which is maintained or contributed to by (or to which there is an obligation to contribute of) the Borrower or a Subsidiary of the Borrower or any ERISA Affiliate, and each such plan for the five year
period immediately following the latest date on which the Borrower, or a Subsidiary of the Borrower or any ERISA Affiliate maintained, contributed to or had an obligation to contribute to such plan.
"Pledge Agreement" shall have the meaning provided in Section 5.10.
"Pledge Agreement Collateral" shall mean all "Collateral" as defined in the Pledge Agreement.
"Pledged Securities" shall mean "Pledged Securities" as defined in the Pledge Security Agreement.
"Post-Closing Period" shall have the meaning provided in Section 9.05(v).
"Prime Lending Rate" shall mean the rate which the Administrative Agent announces from time to time as its prime lending rate, the Prime Lending Rate to change when and as such prime lending rate changes. The Prime Lending Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. The Administrative Agent may make commercial loans or other loans at rates of interest at, above or below the Prime Lending Rate.
"Pro Forma Basis" shall mean, in connection with any calculation of compliance with any financial covenant or financial term, the calculation thereof after giving effect on a pro forma basis to (x) if the first day of the relevant Calculation Period occurs before the Initial Borrowing Date, the consummation of the Transaction as if same had been consummated on the first day of the respective Calculation Period, (y) the Permitted Acquisition then being consummated as well as any other Permitted Acquisition consummated after the first day of the relevant Test Period or Calculation Period, as the case may be, and on or prior to the date of the respective Permitted Acquisition then being effected and (z) the incurrence of any Indebtedness that is incurred in connection with, or to finance, one or more Permitted Acquisitions; provided that, for purposes of calculations pursuant to Section 9.05(v), such calculations shall also give effect on a pro forma basis to (a) the incurrence of any Indebtedness (other than revolving Indebtedness, except to the extent same is incurred to refinance other outstanding Indebtedness or to finance one or more Permitted Acquisitions) after the first day of the relevant Calculation Period as if such Indebtedness had been incurred (and the proceeds thereof applied) on the first day of the relevant Calculation Period and (b) the permanent repayment of any Indebtedness (other than revolving Indebtedness) after the first day of the relevant Calculation Period as if such Indebtedness had been retired or redeemed on the first day of the relevant Calculation Period, with the following rules to apply in connection therewith:
(i) for all determinations made on a Pro Forma Basis for periods ended prior to the first anniversary of the Initial Borrowing Date, the Transaction (including, without limitation, the Refinancing and the incurrence of Indebtedness pursuant to this Agreement) shall be deemed to have been consummated on the first day of the relevant Test Period or Calculation Period, as the case may be, with the rates of interest applicable to any Indebtedness assumed to be outstanding to be the respective rate or rates which
would have been applicable to such Indebtedness had it been outstanding for such period (for this purpose, assuming that all Existing Debentures which have actually been purchased, redeemed or retired before the respective determination shall be deemed to have been repurchased, redeemed or retired on the first day of the Calculation Period or Test Period, as the case may be, and to have been refinanced with Indebtedness incurred hereunder);
(ii) for purposes of Section 9.05(v) only, all Indebtedness
(x) (other than revolving Indebtedness, except to the extent same is
incurred to refinance other outstanding Indebtedness or to finance the
Transaction or one or more Permitted Acquisitions) incurred or issued
after the first day of the relevant Calculation Period (whether
incurred to finance the Transaction or a Permitted Acquisition, to
refinance Indebtedness or otherwise) shall be deemed to have been
incurred or issued (and the proceeds thereof applied) on the first day
of the respective Calculation Period and remain outstanding through the
date of determination (and thereafter in the case of projections
pursuant to Section 9.05(v) and (y) (other than revolving Indebtedness)
permanently retired or redeemed after the first day of the relevant
Calculation Period shall be deemed to have been retired or redeemed on
the first day of the respective Calculation Period and remain retired
through the date of determination (and thereafter in the case of
projections pursuant to Section 9.05(v));
(iii) for purposes of Section 9.05(v) only, all Indebtedness assumed to be outstanding pursuant to preceding clause (i) shall be deemed to have borne interest at (x) the rate applicable thereto, in the case of fixed rate indebtedness or (y) the rates which would have been applicable thereto during the respective period when same was deemed outstanding, in the case of floating rate Indebtedness (although interest expense with respect to any Indebtedness for periods while same was actually outstanding during the respective period shall be calculated using the actual rates applicable thereto while same was actually outstanding); provided that all Indebtedness (whether actually outstanding or deemed outstanding) bearing interest at a floating rate of interest shall be tested on the basis of the rates applicable at the time the determination is made pursuant to said provisions;
(iv) for purposes of determinations of the Leverage Ratio (other than for purposes of Section 9.05(v)), Consolidated Indebtedness shall be the actual amount thereof as of the last day of the respective Calculation Period or Test Period, as the case may be; provided that, for purposes of determining the Leverage Ratio as it relates to the definition of Applicable Margin, to the extent any Permitted Acquisition is consummated after the last day of the respective Calculation Period or Test Period and on or prior to the date of delivery of the certificate referenced in the definition of Applicable Margin, all Indebtedness incurred or assumed in connection with one or more Permitted Acquisitions consummated after the last day of the respective Test Period shall be added to Consolidated Indebtedness and shall be deemed to have been outstanding on the last day of the respective Calculation Period or Test Period, as the case may be; and
(v) in making any determination of Consolidated EBITDA on a
Pro Forma Basis, pro forma effect shall be given to the Transaction (if
consummated during the respective Calculation Period or Test Period)
and to any Permitted Acquisition effected during the respective
Calculation Period or Test Period (and thereafter to the extent
provided in the definition of Applicable Margin or for purposes of
Section 9.05(v)) as if same had occurred on the first day of the
respective Calculation Period or Test Period, as the case may be,
taking into account, in the case of any Permitted Acquisition,
factually supportable and identifiable cost savings and expenses which
would otherwise be accounted for as an adjustment pursuant to Article
11 of Regulation S-X under the Securities Act, as if such cost savings
or expenses were realized on the first day of the respective period.
"Projections" shall mean the pro forma financial projections of the Borrower and its Subsidiaries, in form satisfactory to the Administrative Agent, meeting the requirements of Section 7.05(e) and covering (x) each of the first three fiscal quarters of the Borrower ending after the Effective Date and (y) each of the next three fiscal years of the Borrower thereafter.
"Proposed Asset Sale Reinvestment Proceeds" shall have the meaning provided in Section 4.02(e).
"Proposed Insurance Reinvestment Proceeds" shall have the meaning provided in Section 4.02(f).
"Proxy Materials" shall mean all proxy materials distributed to shareholders of Flowers Industries in connection with the transactions contemplated by the Merger Documents.
"Qualified Preferred Stock" shall mean any preferred stock of the Borrower so long as the terms of any such preferred stock (i) do not contain any mandatory put, redemption, repayment, sinking fund or other similar provision prior to two years after the B Term Loan Maturity Date and (ii) do not require the cash payment of dividends at a time when such payment would be prohibited or not permitted under this Agreement.
"Quarterly Payment Date" shall mean the last Business Day of each March, June, September and December occurring after the Initial Borrowing Date.
"RCRA" shall mean the Resource Conservation and Recovery Act, as the same may be amended from time to time, 42 U.S.C. ss. 6901 et seq.
"Real Property" of any Person shall mean all the right, title and interest of such Person in and to land, improvements and fixtures, including Leaseholds.
"Recovery Event" shall mean the receipt by the Borrower or any of its Subsidiaries of any cash insurance proceeds or condemnation award payable (i) by reason of theft, loss, physical destruction or damage, condemnation action or conveyance in lieu thereof or any other similar event with respect to any property or assets of the Borrower or any of its Subsidiaries, (ii) under any policy of insurance required to be maintained under Section 8.03 or
(iii) by any condemning authority (or any authority receiving a conveyance in lieu of condemning the subject property).
"Refinancing" shall mean the repayment in full of, and the termination of all commitments in respect of, the Indebtedness to be Refinanced.
"Register" shall have the meaning provided in Section 13.17.
"Regulation D" shall mean Regulation D of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof establishing reserve requirements.
"Regulation T" shall mean Regulation T of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof.
"Regulation U" shall mean Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof.
"Release" shall mean any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing or migration into the environment.
"Replaced Lender" shall have the meaning provided in Section 1.13.
"Replacement Lender" shall have the meaning provided in Section 1.13.
"Reportable Event" shall mean an event described in Section 4043(c) of ERISA with respect to a Plan that is subject to Title IV of ERISA other than those events as to which the 30-day notice period is waived under subsection .22, .23, .25, .27 or .28 of PBGC Regulation Section 4043.
"Required Lenders" shall mean Non-Defaulting Lenders, the sum of whose outstanding principal of Term Loans (or prior to the making thereof, outstanding Term Loan Commitments) and Revolving Loan Commitments (or after the termination thereof, outstanding principal of Revolving Loans and Revolving Percentage of outstanding principal of Swingline Loans and Letter of Credit Outstandings) represent an amount greater than 50% of the sum of the total outstanding principal of Term Loans (or prior to the making thereof, the Total Term Loan Commitment) and the Total Revolving Loan Commitment (or after the termination thereof, the sum of the then total outstanding principal of Revolving Loans and Swingline Loans and the Letter of Credit Outstandings at such time).
"Return" shall have the meaning provided in Section 7.09.
"Revolving Lender" shall mean any Lender which at any time has, or had on the date of issuance of any Letter of Credit, a Revolving Loan Commitment or has outstanding prin-
cipal of Revolving Loans or Swingline Loans or a Participation in any Letter of Credit hereunder (including any Lender who subsequently acquires any of the foregoing by way of assignment in accordance with the requirements of this Agreement).
"Revolving Loan" shall have the meaning provided in Section 1.01(c).
"Revolving Loan Commitment" shall mean, for each Lender, the amount set forth opposite such Lender's name in Schedule I hereto directly below the column entitled "Revolving Loan Commitment," as same may be (x) reduced from time to time pursuant to Sections 3.02, 3.03, 4.02 and/or 10 or (y) adjusted from time to time as a result of assignments to or from such Lender pursuant to Section 1.13 or 13.04(b).
"Revolving Loan Maturity Date" shall mean March 26, 2005.
"Revolving Note" shall have the meaning provided in Section 1.05(a).
"Revolving Percentage" of any Revolving Lender at any time shall mean a fraction (expressed as a percentage) the numerator of which is the Revolving Loan Commitment of such Lender at such time and the denominator of which is the Total Revolving Loan Commitment at such time, provided that if the Revolving Percentage of any Revolving Lender is to be determined after the Total Revolving Loan Commitment has terminated, then the Revolving Percentages of the Revolving Lenders shall be determined immediately prior (and without giving effect) to such termination.
"S&P" shall mean Standard & Poor's Rating Services, a division of the McGraw-Hill Companies, Inc., or any successor thereto.
"Scheduled Repayment Date" shall mean any A Scheduled Repayment Date and/or B Scheduled Repayment Date, as applicable.
"Scheduled Repayments" shall mean any A Scheduled Repayment and/or any B Scheduled Repayment, as applicable.
"Section 4.04(b)(ii) Certificate" shall have the meaning provided in
Section 4.04(b)(ii).
"Secured Creditors" shall have the meaning assigned that term in the Security Documents.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Security Agreement" shall have the meaning provided in Section 5.11.
"Security Agreement Collateral" shall mean all "Collateral" as defined in the Security Agreement.
"Security Documents" shall mean the Pledge Agreement, the Security Agreement and, after the execution and delivery thereof, each Additional Security Document.
"Smuckers Note" shall mean the Promissory Note, dated May 31, 1996,
issued by Mrs. Smith's Bakeries, Inc. (and assumed by Mrs. Smith's Bakeries,
LLC) to J.M. Smuckers Company in the original principal amount of $15,000,000.
"Specified Default" shall mean any Default under Section 10.01 or 10.05.
"Spin-off" shall mean the transfer by Flowers Industries of 100% of its Equity Interests in the Contributed Subsidiaries (as defined in the Distribution Agreement, but in any event including Flowers Bakeries Brands, Inc., Mrs. Smith's Bakeries, Inc., and Flowers Investments, Inc.) to the Borrower, together with the contemporaneous spin-off of the Borrower to the existing shareholders of Flowers Industries, in each case in accordance with the Distribution Agreement and the description thereof contained in the Proxy Materials.
"Standby Letter of Credit" shall have the meaning provided in Section 2.01(a).
"Start Date" shall have the meaning assigned that term in the definition of "Applicable Margin" contained herein.
"Stated Amount" of each Letter of Credit shall, at any time, mean the maximum amount available to be drawn thereunder (in each case determined without regard to whether any conditions to drawing could then be met).
"Subsidiaries Guaranty" shall have the meaning provided in Section 5.09 and, after the execution and delivery thereof, shall include, without limitation, any other guarantee executed and delivered pursuant to Section 8.12 and/or 9.14 of this Agreement.
"Subsidiary" shall mean, as to any Person, (i) any corporation more than 50% of whose stock of any class or classes having by the terms thereof ordinary voting power to elect a majority of the directors of such corporation (irrespective of whether or not at the time stock of any class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time owned by such Person and/or one or more Subsidiaries of such Person and (ii) any partnership, limited liability company, association, joint venture or other entity in which such Person and/or one or more Subsidiaries of such Person has more than a 50% equity interest at the time. Unless otherwise indicated herein, or the context otherwise requires, all references herein to any Subsidiary or Subsidiaries shall mean and be deemed to be references a Subsidiary or Subsidiaries, as the case may be, of the Borrower.
"Subsidiary Guarantor" shall mean each Domestic Subsidiary of the Borrower on the Initial Borrowing Date after giving effect to the Transaction (each of which is listed on Schedule VII hereto) or which executes a counterpart of, or otherwise becomes a party to, the Subsidiaries Guaranty after the Initial Borrowing Date pursuant to Section 8.12 and/or 9.14.
"SunTrust" shall mean SunTrust Bank, a Georgia banking corporation (formerly known as SunTrust Bank, Atlanta).
"Swingline Expiry Date" shall mean the date which is five Business Days prior to the Revolving Loan Maturity Date.
"Swingline Lender" shall mean Bankers Trust Company.
"Swingline Loan" shall have the meaning provided in Section 1.01(d).
"Swingline Note" shall have the meaning provided in Section 1.05(a).
"Syndication Agent" shall have the meaning provided in the first paragraph of this Agreement, and shall include any successor thereto.
"Syndication Date" shall mean the earlier of (i) that date upon which
the Administrative Agent determines in its sole discretion acting in good faith
(and notifies the Borrower) that the primary syndication (and resultant addition
of institutions as Lenders pursuant to Section 13.04) has been completed and
(ii) that date which is 90 days after the Initial Borrowing Date.
"Tax Benefit" shall have the meaning provided in Section 4.04(c).
"Tax Sharing Agreement" shall have the meaning provided in Section 5.05.
"Taxes" shall mean all taxes, assessments, charges, duties, fees, levies or other governmental charges, including, without limitation, all Federal, state, local, foreign and other income, franchise, profits, capital gains, capital stock, transfer, sales, use, occupation, property, excise, severance, windfall profits, stamp, license, payroll, withholding and other taxes, assessments, charges, duties, fees, levies or other governmental charges of any kind whatsoever (whether payable directly or by withholding and whether or not requiring the filing of a Return), all estimated taxes, deficiency assessments, additions to tax, penalties and interest and shall include any liability for such amounts as a result either of being a member of a combined, consolidated, unitary or affiliated group or of a contractual obligation to indemnify any person or other entity.
Term Loan Commitments" shall mean, collectively, each A Term Loan Commitment and each B Term Loan Commitment.
"Term Loans" shall mean, collectively, each A Term Loan and each B Term Loan.
"Test Period" shall mean each period of four consecutive fiscal quarters then last ended, in each case taken as one accounting period; provided that (except for purposes of Section 9.10 and the calculation of Applicable Margins) at all times prior to the last day of the Borrower's fiscal quarter ending on or about April 1, 2002, "Test Period" shall mean the period from the first day of the Borrower's fiscal quarter ending closest to March 31, 2001 to and including the last day of the fiscal quarter of the Borrower then last ended. Notwithstanding the
immediately preceding proviso, or anything to the contrary required by GAAP, in the case of any Test Period ending prior to the last day of the Borrower's fiscal quarter ending on or about April 1, 2002, Consolidated EBITDA for purposes of determining the Leverage Ratio (including for purposes of Section 9.10 and the definition of Applicable Margin) shall be made for the respective Test Period without giving effect to the proviso to the immediately preceding sentence in accordance with the following: (i) Consolidated EBITDA for the fiscal quarter of the Borrower ended closest to September 30, 2000 shall be deemed to be $24,270,000, (ii) Consolidated EBITDA for the fiscal quarter of the Borrower ended closest to December 31, 2000 shall be deemed to be $22,926,000 and (iii) Consolidated EBITDA for the fiscal quarter of the Borrower ended closest to March 31, 2001 shall be deemed to be $24,600,000 until delivery of the financial statements of the Borrower for such fiscal quarter whereupon such amount shall be as reported in such financial statements.
"Total A Term Loan Commitment" shall mean, at any time, the sum of the A Term Loan Commitments of each of the Lenders.
"Total B Term Loan Commitment" shall mean the sum of the B Term Loan Commitments of each of the Lenders.
"Total Commitments" shall mean, at any time, the sum of the Commitments of each of the Lenders.
"Total Revolving Loan Commitment" shall mean, at any time, the sum of the Revolving Loan Commitments of each of the Lenders.
"Total Unutilized Revolving Loan Commitment" shall mean, at any time, an amount equal to the remainder of (x) the then Total Revolving Loan Commitment, less (y) the sum of the aggregate principal amount of Revolving Loans and Swingline Loans then outstanding plus the then aggregate amount of Letter of Credit Outstandings.
"Trade Letter of Credit" shall have the meaning set forth in Section 2.01(a).
"Tranche" shall mean the respective facility and commitments utilized in making Loans hereunder, with there being three separate Tranches, i.e., A Term Loans, B Term Loans, Revolving Loans and Swingline Loans.
"Transaction" shall mean, collectively, (i) the Spin-off, (ii) the Flowers Industries Merger, (iii) the Existing Debentures Tender Offer and any purchases of Existing Debentures actually made pursuant thereto, (iv) the occurrence of the Credit Events which occur on the Initial Borrowing Date, (v) the Refinancing, (vi) the occurrence of all other transactions which are effected in accordance with the provisions of the Merger Documents, (vii) the consummation of the Equipment Purchase and (viii) the payment of fees and expenses owing in connection with the foregoing.
"Type" shall mean the type of Loan determined with regard to the interest option applicable thereto, i.e., whether a Base Rate Loan or a Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code as from time to time in effect in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan shall mean the amount, if any, by which the value of the accumulated plan benefits under the Plan determined on a plan termination basis in accordance with actuarial assumptions at such time consistent with those prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds the fair market value of all plan assets allocable to such liabilities under Title IV of ERISA (excluding any accrued but unpaid contributions).
"United States" and "U.S." shall each mean the United States of America.
"Unpaid Drawing" shall have the meaning provided for in Section 2.04(a).
"Unutilized Revolving Loan Commitment" with respect to any Lender, at any time, shall mean such Lender's Revolving Loan Commitment at such time less the sum of (i) the aggregate outstanding principal amount of Revolving Loans made by such Lender and (ii) such Lender's Revolving Percentage of the Letter of Credit Outstandings in respect of Letters of Credit issued under this Agreement.
"Voting Agreement" shall mean the Voting Agreement dated as of October 26, 2000 between Flowers Industries and Kellogg, as same may be amended, modified or supplemented from time to time in accordance with the terms of this Agreement.
"Waivable Repayment" shall have the meaning provided in Section 4.02(k).
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any corporation 100% of whose capital stock (other than director's qualifying shares) is at the time owned by such Person and/or one or more Wholly-Owned Subsidiaries of such Person and (ii) any partnership, limited liability company, association, joint venture or other entity in which such Person and/or one or more Wholly-Owned Subsidiaries of such Person has a 100% equity interest at such time. Unless otherwise indicated herein, or the context otherwise requires, all references herein to any Wholly-Owned Subsidiary or Wholly-Owned Subsidiaries shall mean and be deemed to be references a Wholly-Owned Subsidiary or Wholly-Owned Subsidiaries, as the case may be, of the Borrower.
SECTION 12. The Agents.
12.01 Appointment. The Lenders hereby designate Bankers Trust Company as Administrative Agent (for purposes of this Section 12 and Section 13.01, the term "Administrative Agent" and "Agent" shall include Bankers Trust Company (and/or any of its affiliates) in its capacity as Collateral Agent pursuant to the Security Documents and in the respective affiliate's capacity as Lead Arranger) to act as specified herein and in the other Credit Documents and SunTrust Bank as Syndication Agent (for purposes of this Section 12, the term "Syndication Agent" and "Agent" shall include SunTrust Bank (and/or any of its affiliates) in its capacity as sub-collateral agent pursuant to Section 13.19 and the Security Documents) to act as
specified herein and in the other Credit Documents. Each Lender hereby irrevocably authorizes, and each holder of any Note by the acceptance of such Note shall be deemed irrevocably to authorize, each Agent to take such action on its behalf under the provisions of this Agreement, the other Credit Documents and any other instruments and agreements referred to herein or therein and to exercise such powers and to perform such duties hereunder and thereunder as are specifically delegated to or required of such Agent by the terms hereof and thereof and such other powers as are reasonably incidental thereto. Each Agent may perform any of its duties hereunder by or through its respective officers, directors, agents, employees or affiliates.
12.02 Nature of Duties. No Agent shall have any duties or responsibilities except those expressly set forth in this Agreement and in the other Credit Documents. No Agent nor any of its officers, directors, agents, employees or affiliates shall be liable for any action taken or omitted by it or them hereunder or under any other Credit Document or in connection herewith or therewith, unless caused by such Person's gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision). The duties of each Agent shall be mechanical and administrative in nature; no Agent shall have by reason of this Agreement or any other Credit Document a fiduciary relationship in respect of any Lender or the holder of any Note; and nothing in this Agreement or any other Credit Document, expressed or implied, is intended to or shall be so construed as to impose upon any Agent any obligations in respect of this Agreement or any other Credit Document except as expressly set forth herein or therein.
12.03 Lack of Reliance on the Agents. Independently and without reliance upon any Agent, each Lender and the holder of each Note, to the extent it deems appropriate, has made and shall continue to make (i) its own independent investigation of the financial condition and affairs of the Borrower and its Subsidiaries in connection with the making and the continuance of the Loans and the taking or not taking of any action in connection herewith and (ii) its own appraisal of the creditworthiness of the Borrower and its Subsidiaries and, except as expressly provided in this Agreement, no Agent shall have any duty or responsibility, either initially or on a continuing basis, to provide any Lender or the holder of any Note with any credit or other information with respect thereto, whether coming into its possession before the making of the Loans or at any time or times thereafter. No Agent shall be responsible to any Lender or the holder of any Note for any recitals, statements, information, representations or warranties herein or in any document, certificate or other writing delivered in connection herewith or for the execution, effectiveness, genuineness, validity, enforceability, perfection, collectability, priority or sufficiency of this Agreement or any other Credit Document or the financial condition of the Borrower and its Subsidiaries or be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement or any other Credit Document, or the financial condition of the Borrower and its Subsidiaries or the existence or possible existence of any Default or Event of Default.
12.04 Certain Rights of the Agents. If any Agent shall request instructions from the Required Lenders with respect to any act or action (including failure to act) in connection with this Agreement or any other Credit Document, such Agent shall be entitled to refrain from such act or taking such action unless and until the Administrative Agent shall have received
instructions from the Required Lenders; and such Agent shall not incur liability to any Person by reason of so refraining. Without limiting the foregoing, no Lender or the holder of any Note shall have any right of action whatsoever against any Agent as a result of such Agent acting or refraining from acting hereunder or under any other Credit Document in accordance with the instructions of the Required Lenders.
12.05 Reliance. Each Agent shall be entitled to rely, and shall be fully protected in relying, upon any note, writing, resolution, notice, statement, certificate, telex, teletype or telecopier message, cablegram, radiogram, order or other document or telephone message signed, sent or made by any Person that such Agent believed to be the proper Person, and, with respect to all legal matters pertaining to this Agreement and any other Credit Document and its duties hereunder and thereunder, upon advice of counsel selected by such Agent.
12.06 Indemnification. To the extent any Agent or any affiliate thereof is not reimbursed and indemnified by the Borrower, the Lenders will reimburse and indemnify such Agent, in proportion to their respective "percentages" as used in determining the Required Lenders (without regard to the existence of any Defaulting Lenders), for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by such Agent (or any affiliate thereof) in performing its respective duties hereunder or under any other Credit Document, in any way relating to or arising out of this Agreement or any other Credit Document; provided that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Agent's (or such affiliate's) gross negligence or willful misconduct (and determined by a court of competent jurisdiction in a final and non-appealable decision).
12.07 Each Agent in its Individual Capacity. With respect to its obligation to make Loans under this Agreement, each Agent shall have the rights and powers specified herein for a "Lender" and may exercise the same rights and powers as though it were not performing the duties specified herein; and the term "Lenders," "Required Lenders," "holders of Notes" or any similar terms shall, unless the context clearly otherwise indicates, include such Agent in its individual capacity. Each Agent and its affiliates may accept deposits from, lend money to, and generally engage in any kind of banking, investment banking, trust or other business with, or provide debt financing, equity capital or other services (including financial advisory services) to any Credit Party or any Affiliate of any Credit Party (or any Person engaged in a similar business with any Credit Party or any Affiliate thereof) as if they were not performing the duties specified herein, and may accept fees and other consideration from the Borrowers or any other Credit Party for services in connection with this Agreement and otherwise without having to account for the same to the Lenders.
12.08 Holders. The Administrative Agent may deem and treat the payee of any Note as the owner thereof for all purposes hereof unless and until a written notice of the assignment, transfer or endorsement thereof, as the case may be, shall have been filed with the Administrative Agent. Any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is the holder of any Note shall be conclusive
and binding on any subsequent holder, transferee, assignee or endorsee, as the case may be, of such Note or of any Note or Notes issued in exchange therefor.
12.09 Resignation by the Agents. (a) The Administrative Agent may resign from the performance of all its functions and duties hereunder and/or under the other Credit Documents at any time by giving 15 Business Days' prior written notice to the Lenders. Such resignation shall take effect upon the appointment of a successor Administrative Agent pursuant to clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation by the Administrative Agent, the Required Lenders shall appoint a successor Administrative Agent hereunder or thereunder who shall be a commercial bank or trust company reasonably acceptable to the Borrower which acceptance shall not be unreasonably withheld or delayed (provided that the Borrower's approval shall not be required if a Default or an Event of Default then exists).
(c) If a successor Administrative Agent shall not have been so appointed within such 15 Business Day period, the Administrative Agent, with the consent of the Borrower (which shall not be unreasonably withheld or delayed provided that the Borrower's consent shall not be required if a Default or an Event of Default then exists), shall then appoint a successor Administrative Agent who shall serve as Administrative Agent hereunder or thereunder until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed pursuant to clause (b) or (c) above by the 20th Business Day after the date such notice of resignation was given by the Administrative Agent, the Administrative Agent's resignation shall become effective and the Required Lenders shall thereafter perform all the duties of the Administrative Agent hereunder and/or under any other Credit Document until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided above.
(e) The Syndication Agent may, upon five Business Days' notice to the Borrower, the Administrative Agent and the Lenders, resign at any time (effective upon the fifth Business Day after the giving of such notice).
(f) Upon a resignation of any Agent pursuant to this Section 12.09, such Agent shall remain indemnified to the extent provided in this Agreement and the other Credit Documents and the provisions of this Section 12 shall continue in effect for the benefit of such Agent for all of its actions and in actions while serving as such Agent.
SECTION 13. Miscellaneous.
13.01 Payment of Expenses, etc. The Borrower agrees that it shall: (i) whether or not the transactions herein contemplated are consummated, pay all reasonable out-of-pocket costs and expenses of the Administrative Agent (as defined in Section 12.01) (including, without limitation, the reasonable fees and disbursements of White & Case LLP, local counsel and the Administrative Agent's other counsel and consultants) in connection with the preparation, execu-
tion and delivery of this Agreement and the other Credit Documents and the documents and instruments referred to herein and therein and any amendment, waiver or consent relating hereto or thereto, of the Administrative Agent in connection with its syndication efforts with respect to this Agreement and of each Agent and each of the Lenders in connection with the enforcement of this Agreement and the other Credit Documents and the documents and instruments referred to herein and therein (including, without limitation, the reasonable fees and disbursements of counsel (including in-house counsel) and consultants for the Agents and the Lenders); (ii) pay and hold each Agent and each of the Lenders harmless from and against any and all present and future stamp, excise and other similar taxes with respect to the foregoing matters and save each of the Lenders harmless from and against any and all liabilities with respect to or resulting from any delay or omission (other than to the extent attributable to such Lender) to pay such taxes; and (iii) indemnify each Agent, the Collateral Agent, the Lead Arranger, each Lender, and each of their respective affiliates, and each respective officer, director, trustee, employee, representative and agent of any of the foregoing, from and hold each of them harmless against any and all liabilities, obligations (including removal or remedial actions), losses, damages, penalties, claims, actions, judgments, suits, costs, expenses and disbursements (including reasonable attorneys' and consultants' fees and disbursements) incurred by, imposed on or assessed against any of them as a result of, or arising out of, or in any way related to, or by reason of, (a) any investigation, litigation or other proceeding (whether or not any Agent or any Lender is a party thereto) related to the entering into and/or performance of this Agreement or any other Credit Document or the use of any Letter of Credit or the proceeds of any Loans hereunder or the consummation of any transactions contemplated herein (including, without limitation, the Transaction), or in any other Credit Document or the exercise of any of their rights or remedies provided herein or in the other Credit Documents, or (b) the actual or alleged presence of Hazardous Materials in the air, surface water or groundwater or on the surface or subsurface of any Real Property at any time owned or operated by the Borrower or any of its Subsidiaries, the generation, storage, transportation, handling or disposal of Hazardous Materials at any location, whether or not owned or operated by the Borrower or any of its Subsidiaries, the non-compliance of any Real Property with foreign, federal, state and local laws, regulations, and ordinances (including applicable permits thereunder) applicable to any Real Property, or any Environmental Claim asserted against the Borrower, any of its Subsidiaries or any Real Property at any time owned or operated by the Borrower or any of its Subsidiaries, including, in each case, without limitation, the reasonable fees and disbursements of counsel and other consultants incurred in connection with any such investigation, litigation or other proceeding (but excluding any losses, liabilities, claims, damages or expenses to the extent incurred by reason of the gross negligence or willful misconduct of the Person to be indemnified (as determined by a court of competent jurisdiction in a final and non-applicable decision)). To the extent that the undertaking to indemnify, pay or hold harmless any Agent or any Lender set forth in the preceding sentence may be unenforceable because it violates any law or public policy, the Borrower shall make the maximum contribution to the payment and satisfaction of each of the indemnified liabilities which is permissible under applicable law.
13.02 Right of Setoff. (a) In addition to any rights now or hereafter granted under applicable law or otherwise, and not by way of limitation of any such rights, upon the occurrence of an Event of Default, each Agent and each Lender is hereby authorized at any time
or from time to time, without presentment, demand, protest or other notice of any kind to any Subsidiary Guarantor or the Borrower or to any other Person, any such notice being hereby expressly waived, to set off and to appropriate and apply any and all deposits (general or special) and any other Indebtedness at any time held or owing by such Agent and such Lender (including, without limitation, by branches and agencies of such Agent and such Lender wherever located) to or for the credit or the account of the Borrower or any Subsidiary Guarantor but in any event excluding assets held in trust for any such Person against and on account of the Obligations and liabilities of the Borrower or such Subsidiary Guarantor, as applicable, to such Lender under this Agreement or under any of the other Credit Documents, including, without limitation, all interests in Obligations purchased by such Lender pursuant to Section 13.06(b), and all other claims of any nature or description arising out of or connected with this Agreement or any other Credit Document, irrespective of whether or not such Lender shall have made any demand hereunder and although said Obligations, liabilities or claims, or any of them, shall be contingent or unmatured.
13.03 Notices. Except as otherwise expressly provided herein, all notices and other communications provided for hereunder shall be in writing (including telexed, telegraphic, telecopier communication) and mailed, telecopied or delivered: if to the Borrower, at the Borrower's address specified under its signature below; if to any Lender, at its address specified opposite its name on Schedule II below; and if to the Administrative Agent, at its Notice Office; or, as to any Credit Party, at such other address as shall be designated by such party in a written notice to the other parties hereto and, as to each Lender, at such other address as shall be designated by such Lender in a written notice to the Borrowers and the Administrative Agent. All such notices and communications shall, (i) when mailed, be effective three Business Days after being deposited in the mails, prepaid and properly addressed for delivery, (ii) when sent by overnight courier, be effective one Business Day after delivery to the overnight courier prepaid and properly addressed for delivery on such next Business Day, or (iii) when sent by telex or telecopier, be effective when sent by telex or telecopier, except that notices and communications to the Administrative Agent shall not be effective until received by the Administrative Agent.
13.04 Benefit of Agreement. (a) This Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto; provided, however, that (i) no Credit Party may assign or transfer any of its rights, obligations or interest hereunder or under any other Credit Document without the prior written consent of the Lenders, (ii) although any Lender may transfer, assign or grant participations in its rights hereunder, such Lender shall remain a "Lender" for all purposes hereunder (and may not transfer or assign all or any portion of its Commitments or Participations in Letters of Credit hereunder except as provided in Section 13.04(b)) and the transferee, assignee or participant, as the case may be, shall not constitute a "Lender" hereunder and (iii) no Lender shall transfer or grant any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (x) extend the final scheduled maturity of any Loan, Note or Letter of Credit (unless such Letter of Credit is not extended beyond the Revolving Loan Maturity Date) in which such participant is participating, or reduce the rate or extend the time of payment of interest or Fees thereon (except (A) in connection with a waiver of applicability of any post-
default increase in interest rates and (B) that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (x)) or reduce the principal amount thereof, or increase the amount of the participant's participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitments shall not constitute a change in the terms of such participation, and that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant's participation is not increased as a result thereof), (y) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (z) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Credit Documents) securing the Loans hereunder in which such participant is participating. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation.
(b) Notwithstanding the foregoing, any Lender (or any Lender together with one or more other Lenders) may (x) assign all or a portion of its Revolving Loan Commitment (and related outstanding Obligations hereunder) A Term Loan Commitment (and/or related outstanding A Term Loans) and/or B Term Loan Commitment (and/or related outstanding B Term Loans) to (i) its parent company and/or any affiliate of such Lender which is at least 50% owned by such Lender or its parent company or (ii) in the case of any Lender that is a fund that invests in bank loans, any other fund that invests in bank loans and is managed or advised by the same investment advisor of such Lender or by an Affiliate of such investment advisor or (iii) one or more Lenders or (y) assign all, or if less than all, a portion equal to at least (A) in the case of assignments of B Term Loan Commitments (or, after the termination thereof, the related outstanding B Term Loans), $1,000,000 and (B) in the case of assignments of Revolving Loan Commitments and/or A Term Loan Commitments (or, after the termination thereof, the related outstanding A Term Loans), $5,000,000 (or such lesser amount as the Borrower may in its discretion permit in respect of any such assignment pursuant to this clause (B)) in the aggregate for the assigning Lender or assigning Lenders, to one or more Eligible Transferees (treating any fund that invests in bank loans and any other fund that invests in bank loans and is managed or advised by the same investment advisor of such fund or by an Affiliate of such investment advisor as a single Eligible Transferee), each of which assignees shall become a party to this Agreement as a Lender by execution of an Assignment and Assumption Agreement, provided that, (i) at such time Schedule I shall be deemed modified to reflect the Revolving Loan Commitments, A Term Loan Commitments and B Term Loan Commitments (or, to the extent such Commitments have terminated, the related outstanding Obligations) of such new Lender and of the existing Lenders, (ii) new Notes will be issued, at the Borrower's expense, to such new Lender and to the assigning Lender upon the request of such new Lender or assigning Lender, such new Notes to be in conformity with the requirements of Section 1.05 (with appropriate modifications) to the extent needed to reflect the revised Commitments of the respective Tranches (and/or outstanding Loans under such Tranches, as the case may be), (iii) the consent of the Administrative Agent and, so long as no Specified Default is then in existence, the Borrower,
shall be required in connection with any assignment pursuant to preceding clause
(y) (which consent shall not be unreasonably withheld or delayed), (iv) in the
case of assignments of any portion of the Total Revolving Loan Commitment, the
consent of the Swingline Lender and each Issuing Lender shall be required in
connection with any assignment pursuant to this Section 13.04(b) (which consents
shall not be unreasonably withheld or delayed) and (v) the Administrative Agent
shall receive at the time of each such assignment, from the assigning or
assignee Lender, the payment of a non-refundable assignment fee of $3,500. To
the extent of any assignment pursuant to this Section 13.04(b), the assigning
Lender shall be relieved of its obligations hereunder with respect to its
assigned Commitments (it being understood that the indemnification provisions
under this Agreement (including, without limitation, Sections 1.10, 1.11, 2.05,
4.04, 13.01 and 13.06) shall survive as to such assigning Lender). At the time
of each assignment pursuant to this Section 13.04(b) to a Person which is not
already a Lender hereunder and which is not a United States person (as such term
is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes,
the respective assignee Lender shall provide to the Borrower and the
Administrative Agent the appropriate Internal Revenue Service Forms (and, if
applicable, a Section 4.04(b)(ii) Certificate) described in Section 4.04(b). To
the extent that an assignment of all or any portion of a Lender's Commitments
and related outstanding Obligations pursuant to Section 1.13 or this Section
13.04(b) would, at the time of such assignment, result in increased costs under
Section 1.10, 1.11 or 4.04 from those being charged by the respective assigning
Lender prior to such assignment, then the Borrower shall not be obligated to pay
such increased costs (although the Borrower shall be obligated to pay any other
increased costs of the type described above resulting from changes after the
date of the respective assignment).
(c) Nothing in this Agreement shall prevent or prohibit any Lender from pledging its Loans and Notes hereunder to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank and, with the consent of the Administrative Agent, any Lender which is a fund may pledge all or any portion of its Notes or Loans to a trustee for the benefit of investors and in support of its obligation to such investors.
13.05 No Waiver; Remedies Cumulative. No failure or delay on the part of the any Agent, the Collateral Agent, any Issuing Lender or any Lender or any holder of any Note in exercising any right, power or privilege hereunder or under any other Credit Document and no course of dealing between the Borrower or any other Credit Party and any Agent, the collateral Agent, any Issuing Lender or any Lender or the holder of any Note shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege hereunder or under any other Credit Document preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder or thereunder. The rights, powers and remedies herein or in any other Credit Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which any Agent, the Collateral Agent, any Issuing Lender or any Lender or the holder of any Note would otherwise have. No notice to or demand on any Credit Party in any case shall entitle any Credit Party to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of any Agent, the Collateral Agent, any Issuing Lender or any Lender or the holder of any Note to any other or further action in any circumstances without notice or demand.
13.06 Payments Pro Rata. (a) Except as otherwise provided in this Agreement, the Administrative Agent agrees that promptly after its receipt of each payment from or on behalf of the Borrower in respect of any Obligations hereunder, it shall distribute such payment to the Lenders (other than any Lender that has consented in writing to waive its pro rata share of any such payment) pro rata based upon their respective shares, if any, of the Obligations with respect to which such payment was received.
(b) Each of the Lenders agrees that, if it should receive any amount hereunder (whether by voluntary payment, by realization upon security, by the exercise of the right of setoff or banker's lien, by counterclaim or cross action, by the enforcement of any right under the Credit Documents, or otherwise), which is applicable to the payment of the principal of, or interest on, the Loans, Unpaid Drawings, Commitment Commission or Letter of Credit Fees, of a sum which with respect to the related sum or sums received by other Lenders is in a greater proportion than the total of such Obligation then owed and due to such Lender bears to the total of such Obligation then owed and due to all of the Lenders immediately prior to such receipt, then such Lender receiving such excess payment shall purchase for cash without recourse or warranty from the other Lenders an interest in the Obligations of the respective Credit Party to such Lenders in such amount as shall result in a proportional participation by all the Lenders in such amount; provided that if all or any portion of such excess amount is thereafter recovered from such Lender, such purchase shall be rescinded and the purchase price restored to the extent of such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein, the provisions of the preceding Sections 13.06(a) and (b) shall be subject to the express provisions of this Agreement which require, or permit, differing payments to be made to Non-Defaulting Lenders as opposed to Defaulting Lenders.
13.07 Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with generally accepted accounting principles in the United States consistently applied throughout the periods involved (except as set forth in the notes thereto or as otherwise disclosed in writing by the Borrower to the Lenders); provided that (x) except as otherwise specifically provided herein, all computations determining Applicable Margins and compliance with Section 9 shall utilize accounting principles, policies and practices in conformity with, and consistent with, those used to prepare the historical financial statements of Flowers Industries and the pro forma historical financial statements of the Borrower and its Subsidiaries delivered to the Lenders pursuant to Sections 7.05(a) and (b) prior to the Initial Borrowing Date (with the foregoing generally accepted accounting principles herein called "GAAP") and (ii) only to the extent expressly provided herein, certain calculations for purposes of determining Applicable Margins and compliance with Section 9 shall be made on a Pro Forma Basis.
(b) All computations of interest on Eurodollar Loans, Commitment Commission and Fees hereunder shall be made on the basis of a year of 360 days for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest, Commitment Commission or Fees are payable. All computations of interest on Base
Rate Loans shall be made on the basis of a year of 365 or 366 days, as the case may be, for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest is payable.
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL. (A) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE BORROWER AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT UNDER THIS AGREEMENT, ANY LENDER OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY CREDIT PARTY IN ANY OTHER JURISDICTION.
(B) THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (A) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(C) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
13.09 Counterparts. This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. A set of counterparts executed by all the parties hereto shall be lodged with the Borrower and the Administrative Agent.
13.10 Effectiveness. This Agreement shall become effective on the date (the "Effective Date") on which the Borrower, the Administrative Agent and each of the Lenders who are initially parties hereto shall have signed a counterpart hereof (whether the same or different counterparts) and shall have delivered the same to the Administrative Agent or, in the case of the Lenders, shall have given to the Administrative Agent telephonic (confirmed in writing), written or telex notice (actually received) at such office that the same has been signed and mailed to it. The Administrative Agent will give the Borrower and each Lender prompt written notice of the occurrence of the Effective Date.
13.11 Headings Descriptive. The headings of the several sections and subsections of this Agreement are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Agreement.
13.12 Amendment or Waiver; etc. (a) Neither this Agreement nor any
other Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the respective Credit Parties party thereto and the
Required Lenders, provided that no such change, waiver, discharge or termination
shall, without the consent of each Lender (other than a Defaulting Lender) (with
Obligations being directly altered in the case of following clause (i)), (i)
extend the final scheduled maturity of any Loan or Note, extend the stated
maturity of any Letter of Credit beyond the Revolving Loan Maturity Date, or
reduce the rate or extend the time of payment of interest or Fees on any Loan,
Note or Letter of Credit (except (x) in connection with the waiver of
applicability of any post-default increase in interest rates and (y) any
amendment or modification to the financial definitions in this Agreement shall
not constitute a reduction in the rate of interest for purposes of this clause
(i)), or reduce the principal amount thereof (except to the extent repaid in
cash), (ii) release all or substantially all of the Collateral (except as
expressly provided in the Credit Documents) under all the Security Documents,
(iii) amend, modify or waive any provision of this Section 13.12, (iv) reduce
the percentage specified in the definition of Required Lenders (it being
understood that, with the consent of the Required Lenders, additional extensions
of credit pursuant to this Agreement may be included in the determination of the
Required Lenders on substantially the same basis as the extensions of Loans and
Commitments are included on the Effective Date) or (v) consent to the assignment
or transfer by the Borrower of any of its rights and obligations under this
Agreement; provided further, that no such change, waiver, discharge or
termination shall (t) increase the Commitments of any Lender over the amount
thereof then in effect without the consent of such Lender (it being understood
that waivers or modifications of conditions precedent, covenants, Defaults or
Events of Default or of a mandatory reduction in the Total Commitments shall not
constitute an increase of the Commitment of any Lender, and that an increase in
the available portion of any Commitment of any Lender shall not constitute an
increase in the Commitment of such Lender), (u) without the
consent of the Swingline Lender or, in the case of Letters of Credit, the respective Issuing Lender, amend, modify or waive any provision of Section 2 or alter its rights or obligations with respect to Letters of Credit or Swingline Loans, (v) without the consent of the respective Agent, amend, modify or waive any provision of Section 12 as same applies to such Agent or any other provision as same relates to the rights or obligations of the respective Agent, (w) without the consent of the Collateral Agent, amend, modify or waive any provision relating to the rights or obligations of the Collateral Agent, (x) except as provided in Section 13.19(b), without the consent of the Majority Lenders of each Tranche which is being allocated a lesser prepayment, repayment or commitment reduction as a result of the actions described below, alter the required application of any prepayments or repayments (or commitment reductions), as between the various Tranches, pursuant to Section 4.01 or 4.02 (excluding Sections 4.02(b) and 4.02(c)) (although (x) the Required Lenders may waive, in whole or in part, any such prepayment, repayment or commitment reduction (other than a Scheduled Repayment), so long as the application, as amongst the various Tranches, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered and (y) if additional tranches of term loans are extended after the Initial Borrowing Date with the consent of the Required Lenders as required above, such Tranches may be included on a pro rata basis with the Term Loans in the various prepayments or repayments required pursuant to Sections 4.01 and 4.02 (excluding Sections 4.02(b) and 4.02(c) and any section providing scheduled repayments for any new Tranche of Term Loans), (y) without the consent of the Majority Lenders of the respective Tranche of Term Loans, decrease the amount of any Scheduled Repayment of such Tranche or extend the date thereof, or (z) without the consent of the Majority Lenders of each Tranche, amend the definition of Majority Lenders (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Majority Lenders on substantially the same basis as the extensions of Term Loans and Commitments are included on the Effective Date).
(b) If, in connection with any proposed change, waiver, discharge or
termination to any of the provisions of this Agreement as contemplated by
clauses (i) through (v), inclusive, of the first proviso to Section 13.12(a),
the consent of the Required Lenders is obtained but the consent of one or more
of such other Lenders whose consent is required is not obtained, then the
Borrower shall have the right, so long as all non-consenting Lenders whose
individual consent is required are treated as described in either clauses (A) or
(B) below, to either (A) replace each such non-consenting Lender or Lenders (or,
at the option of the Borrower if the respective Lender's consent is required
with respect to less than all Tranches of Loans (or related Commitments), to
replace only the respective Tranche or Tranches of Commitments and/or Loans of
the respective non-consenting Lender which gave rise to the need to obtain such
Lender's individual consent) with one or more Replacement Lenders pursuant to
Section 1.13 so long as at the time of such replacement, each such Replacement
Lender consents to the proposed change, waiver, discharge or termination or (B)
terminate such non-consenting Lender's Revolving Loan Commitment (if such
Lender's consent is required as a result of its Revolving Loan Commitment),
terminate such non-consenting Lender's A Term Loan Commitment (if any) and/or B
Term Loan Commitment (if any) and repay any outstanding A Term Loans and/or B
Term Loans of such Lender which gave rise to the need to obtain such Lender's
consent, in accordance with Sections 3.02(b) and/or 4.01(iv), provided that,
unless the Commitments are
terminated, and Loans repaid, pursuant to preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders (providing the respective replacement Commitments and Loans) or the increase of the respective Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B) the Required Lenders (determined before giving effect to the proposed action) shall specifically consent thereto, provided further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Commitment(s) or repay its Loans solely as a result of the exercise of such Lender's rights (and the withholding of any required consent by such Lender) pursuant to the second proviso to Section 13.12(a).
13.13 Survival. All indemnities set forth herein including, without limitation, in Sections 1.10, 1.11, 2.05, 4.04, 13.01 and 13.06 shall, subject to Section 13.15 (to the extent applicable), survive the execution, delivery and termination of this Agreement and the Notes and the making and repayment of the Loans.
13.14 Domicile of Loans. Each Lender may transfer and carry its Loans at, to or for the account of any office, Subsidiary or Affiliate of such Lender. Notwithstanding anything to the contrary contained herein, to the extent that a transfer of Loans pursuant to this Section 13.14 would, at the time of such transfer, result in increased costs under Section 1.10, 1.11, 2.05 or 4.04 from those being charged by the respective Lender prior to such transfer, then the Borrowers shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective transfer).
13.15 Limitation on Additional Amounts, etc. Notwithstanding anything
to the contrary contained in Sections 1.10, 1.11, 2.05 or 4.04 of this
Agreement, unless a Lender gives notice to the Borrower that they are obligated
to pay an amount under any such Section within 180 days after the later of (x)
the date the Lender incurs the respective increased costs, Taxes, loss, expense
or liability, reduction in amounts received or receivable or reduction in return
on capital or (y) the date such Lender has actual knowledge of its incurrence of
the respective increased costs, Taxes, loss, expense or liability, reductions in
amounts received or receivable or reduction in return on capital, then such
Lender shall only be entitled to be compensated for such amount by the Borrower
pursuant to said Section 1.10, 1.11, 2.05 or 4.04, as the case may be, to the
extent the costs, Taxes, loss, expense or liability, reduction in amounts
received or receivable or reduction in return on capital are incurred or
suffered on or after the date which occurs 180 days prior to such Lender giving
notice to the Borrowers that it is obligated to pay the respective amounts
pursuant to said Section 1.10, 1.11, 2.05 or 4.04, as the case may be. This
Section 13.15 shall have no applicability to any Section of this Agreement other
than said Sections 1.10, 1.11, 2.05 and 4.04.
13.16 Confidentiality. (a) Subject to the provisions of clause (b) of this Section 13.16, each Lender agrees that it will use its best efforts not to disclose without the prior consent of the Borrower (other than to its employees, auditors, advisors or counsel or to another Lender if the Lender or such Lender's holding or parent company or board of trustees in its sole discretion determines that any such party should have access to such information, provided such Persons
shall be subject to the provisions of this Section 13.16 to the same extent as such Lender) any information with respect to the Borrower or any of its Subsidiaries which is now or in the future furnished pursuant to this Agreement or any other Credit Document, provided that any Lender may disclose any such information (a) as has become generally available to the public other than by virtue of a breach of this Section 13.16(a) by the respective Lender, (b) as may be required in any report, statement or testimony submitted to any municipal, state or Federal regulatory body having or claiming to have jurisdiction over such Lender or to the Federal Reserve Board or the Federal Deposit Insurance Corporation or similar organizations (whether in the United States or elsewhere) or their successors, (c) as may be required in respect to any summons or subpoena or in connection with any litigation, (d) in order to comply with any law, order, regulation or ruling applicable to such Lender, (e) to the Administrative Agent or the Collateral Agent and (f) to any prospective or actual transferee or participant in connection with any contemplated transfer or participation of any of the Notes or Commitments or any interest therein by such Lender, provided that such prospective transferee is informed that it shall be bound by the confidentiality provisions contained in this Section 13.16.
(b) The Borrower hereby acknowledges and agrees that each Lender may share with any of their affiliates any information related to the Borrower or any of its Subsidiaries (including, without limitation, any nonpublic customer information regarding the creditworthiness of the Borrower or its Subsidiaries, provided such Persons shall be subject to the provisions of this Section 13.16 to the same extent as such Lender).
13.17 Register. The Borrower hereby designates the Administrative Agent
to serve as the Borrower's agent, solely for purposes of this Section 13.17, to
maintain a register (the "Register") on which it will record the Commitments
from time to time of each of the Lenders, the Loans made by each of the Lenders
and each repayment in respect of the principal amount of the Loans of each
Lender. Failure to make any such recordation, or any error in such recordation,
shall not affect the Borrower's obligations in respect of such Loans. With
respect to any Lender, the transfer of the Commitments of such Lender and the
rights to the principal of, and interest on, any Loan made pursuant to such
Commitments shall not be effective until such transfer is recorded on the
Register maintained by the Administrative Agent with respect to ownership of
such Commitments and Loans and prior to such recordation all amounts owing to
the transferor with respect to such Commitments and Loans shall remain owing to
the transferor. The registration of assignment or transfer of all or part of any
Commitments and Loans shall be recorded by the Administrative Agent on the
Register only upon the acceptance by the Administrative Agent of a properly
executed and delivered Assignment and Assumption Agreement pursuant to Section
13.04(b). Coincident with the delivery of such an Assignment and Assumption
Agreement to the Administrative Agent for acceptance and registration of
assignment or transfer of all or part of a Loan, or as soon thereafter as
practicable, the assigning or transferor Lender shall surrender the Note
evidencing such Loan, and thereupon one or more new Notes in the same aggregate
principal amount shall be issued to the assigning or transferor Lender and/or
the new Lender. The Borrower agrees to indemnify the Administrative Agent from
and against any and all losses, claims, damages and liabilities of whatsoever
nature which may be imposed on, asserted against or incurred by the
Administrative Agent in performing its duties under this Section 13.17.
13.18 Post-Closing Actions. Notwithstanding anything to the contrary contained in this Agreement or the other Credit Documents, the parties hereto acknowledge and agree that actions described on Schedule IX shall be completed in accordance with Schedule IX. All provisions of this Credit Agreement and the other Credit Documents (including, without limitation, all conditions precedent, representations, warranties, covenants, Events of Default and other terms hereof and thereof) shall be deemed modified to the extent necessary to effect the foregoing (and to permit the taking of the actions described above within the time periods specified on Schedule IX, rather than as otherwise provided in the Credit Documents); provided that to the extent any representation and warranty would not be true because the foregoing actions were not taken on the Initial Borrowing Date, the respective representation and warranty shall be required to be true and correct in all material respects at the time the respective action is taken (or was required to be taken) in accordance with the foregoing provisions of this Section 13.18. The acceptance of the benefits of the Loans shall constitute a covenant and agreement by the Borrower to each of the Lenders that the actions required pursuant to this Section 13.18 will be, or have been, taken within the relevant time periods referred to in this Section 13.18 and on Schedule IX and that, at such time, all representations and warranties contained in the Credit Documents shall then be true and correct without any modification pursuant to this Section 13.18. The parties hereto acknowledge and agree that the failure to take any of the actions required above, within the relevant time periods required above, shall give rise to an immediate Event of Default pursuant to this Agreement.
13.19 Special Provisions Concerning Distributor Notes and Loans to Distributors. (a) Notwithstanding anything to the contrary in this Agreement (including, without limitation, Section 12.01 hereof) neither Bankers Trust Company nor any of its Affiliates shall, or shall have any responsibility to, hold as collateral agent or trustee or otherwise obtain control over, any of the Distributor Notes and related assets, regardless of whether such Distributor Notes and related assets constitute Collateral pursuant to the Security Documents; provided that Bankers Trust Company in its capacity as Collateral Agent, may (but shall be under no obligation to) appoint a sub-collateral agent to hold such Distributor Notes from time to time for the benefit of the Secured Creditors, and the Borrower and each of the Lenders hereby agree that any such sub-collateral agent appointed in accordance with this Section 13.19(a) shall, except as otherwise expressly agreed among such sub-collateral agent and the Collateral Agent, hold such Distributor Notes and related Collateral in accordance with the applicable provisions of Section 12 and the relevant Security Documents and shall be entitled to the benefits of the provisions set forth in Section 12 and in such Security Documents. As of the Initial Borrowing Date, the Collateral Agent has designated SunTrust to act as sub-collateral agent pursuant to this Section 13.19 and Section 4 of the Pledge Agreement, provided that, in such capacity, SunTrust shall hold such Collateral in accordance with this Section 13.19 and Section 4 of the Pledge Agreement until the earliest of (i) the resignation of SunTrust as sub-collateral agent in accordance with the provisions of Section 12.09, whereupon SunTrust shall forthwith deliver all Distributor Notes and related Collateral in its possession in accordance with the directions of the Collateral Agent (including, without limitation, by delivering such Collateral to any other sub-collateral agent appointed by the Collateral Agent pursuant to this Section 13.19 and Section 4 of the Pledge Agreement or to the applicable Pledgor to be held in accordance with the provisions of Section 3.2(a)(v) of the Pledge Agreement), (ii) receipt by SunTrust of written notice from the Collateral
Agent requesting that any such Collateral be delivered to the Collateral Agent or its designee (including, without limitation, any other sub-collateral agent appointed by the Collateral Agent pursuant to this Section 13.19 and Section 4 of the Pledge Agreement) and (iii) the exercise, following the occurrence of an Event of Default, of any remedies specified in the final paragraph of Section 10, whereupon SunTrust shall, unless otherwise agreed with the Collateral Agent at such time, forthwith deliver all Distributor Notes and related Collateral in its possession to the Collateral Agent, to be held as security for the Secured Creditors in accordance with the terms of the Pledge Agreement. It is hereby agreed that nothing set forth in this Section 13.19(a) shall in any way affect the Borrower's or any of its Subsidiaries' respective obligations to take any future action in respect of the Distributor Notes requested to be taken by the Collateral Agent or the Required Lenders pursuant to Section 8.12, nor shall anything set forth herein affect the validity and enforceability of the security interest granted to the Collateral Agent (or any sub-collateral agent in any Distributor Notes and related Collateral) pursuant to the relevant Security Documents, except with respect to any lack of perfection of such security interest to the extent a sub-collateral agent has not been appointed to hold such Distributor Notes. The Borrower hereby further agrees that it shall timely pay to any sub-collateral agent appointed by the Collateral Agent in accordance with this Section 13.19(a) the customary and reasonable fees and expenses charged by such sub-collateral agent for acting in such capacity as the Borrower and such sub-collateral agent shall agree.
(b) SunTrust hereby agrees for the benefit of the Secured Creditors that (x) all Distributor Notes and related Collateral held by it on the date hereof, and at any time hereafter, are held by it as sub-collateral agent of the Collateral Agent, for the benefit of the Secured Creditors, pursuant to the Security Documents and (y) it will act solely at the direction of the Collateral Agent or the Required Lenders in respect of such Collateral; provided that, notwithstanding the foregoing provisions of this Section 13.19, the Collateral Agent hereby authorizes SunTrust to release to the Borrower and its Subsidiaries from time to time such Distributor Notes, and to execute such UCC terminations and assignments related thereto (other than releases and terminations of UCC filings in favor of the Collateral Agent), as the Borrower or any of its Subsidiaries has confirmed to SunTrust, in writing signed by any person who purports to be an officer of the Borrower or such Subsidiary, have been repaid in full by such applicable Distributor.
(c) The Lenders hereby acknowledge that the Borrower has indicated that, subject to receipt of approval of the Required Lenders in accordance with the provisions of Section 13.12 of this Agreement, the Borrower and its Subsidiaries may wish to sell Distributor Notes owned by the Borrower and its Subsidiaries pursuant to a distributor note financing arrangement on terms and conditions, and subject to documentation, satisfactory to the Required Lenders. Notwithstanding anything to the contrary contained in this Agreement (including, without limitation, the provisions of Section 13.12), to the extent any such distributor note financing arrangement is approved by the Required Lenders, (i) the release of the Distributor Notes and related Collateral from the Liens in favor of the Secured Creditors pursuant to the Security Documents shall thereby be approved, (ii) the provisions of this Section 13.19 may be amended or modified by the Required Lenders in accordance with the requirements of Section 13.12 and (iii) the proceeds of any such Indebtedness incurred pursuant to such distributor note financing
arrangement as so approved by the Required Lenders shall be applied to repay outstanding Loans and/or reduce the Total Revolving Loan Commitment in a manner to be determined by the Required Lenders concurrently with such approval (which may be different than the application required pursuant to Section 4.02). In addition, each Lender hereby agrees that, to the extent any such distributor note financing arrangement is approved by the Required Lenders, the Administrative Agent, the Collateral Agent, the Borrower and its Subsidiaries shall be entitled to enter into any intercreditor arrangements deemed appropriate by the Administrative Agent and approved by the Required Lenders, and this Agreement and the other Credit Documents shall be amended as reasonably required to give effect to such distributor note financing arrangement as so approved.
* * * *
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute and deliver this Agreement as of the date first above written.
Address:
1919 Flowers Circle FLOWERS FOODS, INC.,
Thomasville, GA 31757 as Borrower
Attention: Secretary and General Counsel
Telephone: (229) 226-9110
Facsimile: (229) 225-3808
By /s/ Jimmy M. Woodward
----------------------------------------
Name: Jimmy M. Woodward
Title: Vice President and Chief
Financial Officer
BANKERS TRUST COMPANY,
Individually and as Administrative Agent
By /s/ Scottye D. Lyndsey
----------------------------------------
Name: Scottye D. Lyndsey
Title: Vice President
SUNTRUST BANK,
Individually and as Syndication Agent
By /s/ Michael Pugsley
----------------------------------------
Name: Michael Pugsley
Title: Vice President
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SCHEDULE I
COMMITMENTS
A Term B Term Revolving
Lender Loan Commitment Loan Commitment Loan Commitment
---------------- ---------------- ----------------
Bankers Trust Company $ 78,947,368.42 $ 118,421,052.63 $ 102,631,578.95
SunTrust Bank $ 21,052,631.58 $ 31,578,947.37 $ 27,368,421.05
================ ================ ================
Totals: $ 100,000,000.00 $ 150,000,000.00 $ 130,000,000.00
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SCHEDULE II
LENDER ADDRESSES
BANKERS TRUST COMPANY
130 Liberty Street
New York, New York 10006
Attention: Scottye Lindsey
Telephone: (212) 250-3964
Facsimile: (212) 250-7218
SUNTRUST BANK
303 Peachtree Street, N.E.
Third Floor
Atlanta, Georgia 30308
Attention: Michael Pugsley
Telephone: (404) 724-3635
Facsimile: (404) 230-5305
SCHEDULE III - EXISTING LIENS
Liens in certain trademarks, trademark applications, royalties, goodwill, certain recipes and formulas, related books and records, proceeds and related assets, under and to the extent created pursuant to that certain Security Agreement, detail as of May 31, 1996, by Mrs. Smith's Bakeries, Inc. in favor of The J.M. Smucker Company securing Mrs. Smith's Bakeries, LLC's obligations under the Smuckers Note: SEE BELOW:
TRADEMARK COLLATERAL
--------------------
TRADEMARKS REGISTRATION OR APPLICATION #
---------- -----------------------------
US TRADEMARKS REGISTERED
Mello-Rich (stylized) 817,477
Miracle Bake 789,525
Mrs. Smith's 786,887
Mrs. Smith's 1,276,937
Mrs. Smith's & Design 1,276,935
Mrs. Smith's & Design 1,696,347
Mrs. Smith's & Design 791,923
Old Fashioned 1,461,503
Smartstyle 1,803,860
Pie in Minutes 1,735,065
Golden Deluxe 1,140,046
FOREIGN TRADEMARKS REGISTERED
CANADA
Mrs. Smith's & Design 163,593
Mrs. Smith's 242,933
Mrs. Smith's Fruit Bundels 312,256
Mrs. Smith's Pie in Minutes 319,874
Mrs. Smith's & Design 336,319
Mrs. Smith's & Design 333,714
Mrs. Smith's & Design 333,566
Mrs. Smith's & Design 336,320
Mrs. Smith's & Design 336,321
Mrs. Smith's & Design 336,222
Mrs. Smith's & Design 336,323
Mrs. Smith's & Design 336,324
Mrs. Smith's & Design 336,325
Mrs. Smith's & Design 336,326
Mrs. Smith's & Design 411,813
MEXICO
Mrs. Smith's 471,452
US TRADEMARKS APPLIED FOR
The taste That Takes You Home 74/721,383
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SCHEDULE IV - EXISTING INDEBTEDNESS
SECTION A
Indebtedness to remain outstanding:
Indebtedness of the Borrower consisting of indemnification obligations arising in favor of Flowers Industries, Inc. and its successors and assigns, under the Distribution Agreement and the Employment Benefits Agreement between Flower's Industries, Inc. and Flowers Foods, Inc., dated as of October 26, 2000 as in effect on the Initial Borrowing Date.
SECTION B
Indebtedness to be Refinanced:
Loan Facility Agreement by and among Flowers Industries, Inc., SunTrust Bank, and each of the participants party thereto dated as of November 5, 1999 in the aggregate principal amount of $80,000,000, as amended by the First Amendment, dated December 31, 1999, the Second Amendment, dated March 30, 2000, and the Third Amendment, dated November 3, 2000. The amount outstanding on the Initial Borrowing Date is $77,887,144.07.
SCHEDULE V - INSURANCE
[OMITTED]
SCHEDULE VI - ERISA
Flowers Foods, Inc. 401(k) Retirement Savings Plan, as amended and restated effective as of March 26, 2001.
Tulip Retirement Plan No. 1 and the Tulip Retirement Plan No. 2 as described more fully in that certain Employment Benefits Agreement between Flower's Industries, Inc. and Flowers Foods, Inc. dated as of October 26, 2000.
Retail, Wholesale and Department Store International Union and Industry Pension Fund, the Bakery and Confectionery Workers Union and Industry Pension Fund, and the Employer-Teamsters Joint Council No. 84 Pension Fund as described more fully in that certain Employment Benefits Agreement between Flower's Industries, Inc. and Flowers Foods, Inc. dated as of October 26, 2000.
SCHEDULE VII - SUBSIDIARIES
PERCENTAGE
FEIN OWNED
---- ----------
I. Flowers Foods, Inc. (GA) 58-2582379 Parent
a. Flowers Finance, LLC (DE) 51-0407746 100%
b. Flowers Bakeries, LLC (GA) 59-3483283 100%
i. Flowers Baking Co. of Florida, LLC (FL) 58-1301118 100%
1. Flowers Baking Co. of Miami, LLC (FL) 59-1758784 100%
2. Flowers Baking Co. of Jacksonville, LLC (FL) 59-1718773 100%
3. Flowers Baking Co. of Bradenton, LLC (FL) 58-1723981 100%
ii. Flowers Baking Co. of Thomasville, LLC (GA) 58-1330782 100%
iii. Flowers Baking Co. of Villa Rica, LLC (GA) 58-2109227 100%
iv. Flowers Baking Co. of Opelika, LLC (AL) 63-0752595 100%
1. Bailey Street Bakery, LLC (AL) 58-2272791 100%
v. Hardin's Bakery, LLC (AL) 63-0252356 100%
vi. Home Baking Company, LLC (AL) 63-0334970 100%
vii. Huval Bakery, LLC (LA) 59-1686698 100%
1. Bunny Bread, LLC (LA) 72-0500448 100%
a. Flowers Baking Co. of Baton Rouge, LLC (LA) 58-1740889 100%
viii. Flowers Baking Co. of Jamestown, LLC (NC) 58-1567728 100%
ix. Franklin Baking Company, LLC (NC) 56-0605051 100%
x. Flowers Baking Co. of Lynchburg, LLC (VA) 58-1309193 100%
xi. Flowers Baking Co. of Norfolk, LLC (VA) 58-1330779 100%
xii. Flowers Baking Co. of Morristown, LLC (TN) 58-1403615 100%
xiii. Schott's Bakery, LLC (TX) 74-0886850 100%
xiv. Flowers Baking Co. of West Virginia, LLC (WV) 55-0654747 100%
1. The Donut House, LLC (WV) 55-0517749 100%
xv. Flowers Baking Co. of Texas, LLC (TX) 58-1453104 100%
1. Flowers Baking Co. of Tyler, LLC (GA) 75-1786865 100%
a. Butterkrust Bakery, LLC (TX) 74-2720708 100%
2. El Paso Baking Co., LLC (TX) 74-2657988 100%
a. El Paso Baking Company de Mexico, S.A. de C.V. (MEXICO) 100%
3. San Antonio Baking Co., LLC (TX) 74-2830409 100%
4. Austin Baking Co., LLC (TX) 74-2830410 100%
5. Corpus Christi Baking Co., LLC. (TX) 74-2830414 100%
xvi. Flowers Baking Co. of Texarkana, LLC (AR) 71-0638493 100%
xvii. Holsum Baking Company, LLC (AR) 71-0209537 100%
xviii. Shipley Baking Company, LLC (AR) 71-0254043 100%
xix. Storck Baking Company, LLC (WV) 55-0745937 100%
xx. Table Pride, LLC (GA) 58-1846861 100%
xxi. Flowers Baking Co. of Memphis, LLC (TN) 62-1799669 100%
xxii. Hampton Roads Baking Company, LLC (VA) 58-2593937 100%
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xxiii. Flowers Bakeries Brands, Inc. (DE) 51-0407486 100%
3. Mrs. Smith's Bakeries, LLC (GA) 58-2392473 100%
a. European Bakers, LLC (GA) 58-0944858 100%
b. Aunt Fanny's Bakery, LLC (GA) 58-2168689 100%
c. Dan-Co Bakery, LLC (GA) 58-1989098 100%
i. Daniel's Home Bakery of North Carolina, LLC (NC) 58-2023526 100%
d. Mrs. Smith's Bakeries Sales Support Group, LLC (GA) 58-1846859 100%
i. Mrs. Smith's Foil Company, LLC (GA) 23-2947803 100%
e. Mrs. Smith's Bakeries Frozen Distributors, LLC (GA) 58-2125054 100%
f. Mrs. Smith's Bakeries of Pennsylvania, LLC (GA) 58-2236380 100%
g. Flowers Specialty Foods of Montgomery, LLC (AL) 63-0998333 100%
h. Flowers Baking Company of Fountain Inn, LLC (SC) 57-0641441 100%
i. Flowers Fresh Bakery Distributors, Inc. (TN) 62-1574151 100%
j. Mrs. Smith's Bakery of London, LLC (KY) 61-1027735 100%
k. Mrs. Smith's Brands, Inc. (SC) 57-1069445 100%
l. Mrs. Smith's Bakery of Stilwell, LLC (OK) 73-0962847 100%
m. Mrs. Smith's Bakery of Spartanburg, LLC. (SC) 57-0518564 100%
n. Mrs. Smith's Bakery of Crossville, LLC. (TN) 58-1333171 100%
o. Mrs. Smith's Bakery of Suwanee, LLC (GA) 58-2480300 100%
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SCHEDULE VIII - TAX MATTERS
[OMITTED]
SCHEDULE IX - POST-CLOSING ACTIONS
1. On or prior to 30 days after the Initial Borrowing Date, the Borrower shall deliver to the Collateral Agent stock certificate representing 65% of its total issued and outstanding stock of El Paso Baking Company de Mexico, S.A. de C.V., accompanied by an executed and undated stock power.
2. On or prior to 30 days after the Initial Borrowing Date, the Borrower shall have provided to the Administrative Agent the remaining undelivered UCC-11 lien search results requested by the Administrative Agent prior to the Initial Borrowing Date.
3. On or prior to 30 days after the Initial Borrowing Date, the Borrower shall cause UCC-3 Termination Statements in respect of the liens existing under the Existing Distributor Note Documents to be executed, delivered and filed by the appropriate secured parties party thereto, in accordance with the Assignment, Assumption and Release Agreement delivered to the Borrower prior to the Initial Borrowing Date.
4. On or prior to 30 days after the Initial Borrowing Date, (i) the Borrower shall cause SunTrust to endorse the Distributor Notes (as defined in the Pledge Agreement) listed on Annex C to the Pledge Agreement to the order of the Borrower and (ii) following the receipt of each endorsement referred to in the preceding clause (i), the Borrower shall endorse such Distributor Notes in blank to the order of the Collateral Agent.
EXHIBIT A-1
NOTICE OF BORROWING
[Date]
Bankers Trust Company,
as Administrative Agent for the Lenders party
to the Credit Agreement
referred to below
130 Liberty Street
New York, New York 10006
Attention: Jagdesh Tarachand
Ladies and Gentlemen:
The undersigned, Flowers Foods, Inc. (the "Borrower"), refers to the Credit Agreement, dated as of March 26, 2001 (as amended, restated, modified and/or supplemented from time to time, the "Credit Agreement," the terms defined therein being used herein as therein defined), among the Borrower, the lenders from time to time party thereto (the "Lenders"), SunTrust Bank, as Syndication Agent, and you, as Administrative Agent for such Lenders, and hereby gives you notice, irrevocably, pursuant to Section 1.03(a) of the Credit Agreement, that the undersigned hereby requests a Borrowing under the Credit Agreement, and in that connection sets forth below the information relating to such Borrowing (the "Proposed Borrowing") as required by Section 1.03(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is ____________.1
(ii) The aggregate principal amount of the Proposed Borrowing is $____________.
(iii) The Proposed Borrowing shall consist of [A Term Loans]
[B Term Loans] [Revolving Loans].
1 Shall be (x) in the case of Base Rate Loans, the date hereof or any Business Day hereafter, provided that any such notice shall be deemed to have been given on a certain day only if received by the Administrative Agent no later than 10:00 A.M. (New York time) on such day and (y) in the case of Eurodollar Loans, at least three Business Days prior to the date hereof, provided that any such notice shall be deemed to have been given on a certain day only if received by the Administrative Agent no later than 11:00 A.M. (New York time) on such day.
Exhibit A-1
(iv) The Loans to be made pursuant to the Proposed Borrowing shall be initially maintained as [Base Rate Loans] [Eurodollar Loans].
[(v) The initial Interest Period for the Proposed Borrowing is ____ month(s).]2
The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties contained in the Credit Agreement and in the other Credit Documents are and will be true and correct in all material respects, both before and after giving effect to the Proposed Borrowing and to the application of the proceeds thereof, as though made on such date, unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date; and
(B) no Default or Event of Default has occurred and is continuing, or would result from such Proposed Borrowing or from the application of the proceeds thereof.
Very truly yours,
FLOWERS FOODS, INC.
By ________________________
Name:
Title:
2 To be included for a Proposed Borrowing of Eurodollar Loans.
Exhibit A-2
NOTICE OF CONVERSION/CONTINUATION
[Date]
Bankers Trust Company,
as Administrative Agent for the Lenders party
to the Credit Agreement
referred to below
130 Liberty Street
New York, New York 10006
Attention: Jagdesh Tarachand
Ladies and Gentlemen:
The undersigned, Flowers Foods, Inc. (the "Borrower"), refers
to the Credit Agreement, dated as of March 26, 2001 (as amended, restated,
modified and/or supplemented from time to time, the "Credit Agreement," the
terms defined therein being used herein as therein defined), among the Borrower,
the lenders from time to time party thereto (the "Lenders"), SunTrust Bank, as
Syndication Agent, and you, as Administrative Agent for such Lenders, and hereby
gives you notice, irrevocably, pursuant to Section [1.06] [1.09] of the Credit
Agreement, that the undersigned hereby requests to [convert] [continue] the
Borrowing of [A Term Loans] [B Term Loans] [Revolving Loans] referred to below,
and in that connection sets forth below the information relating to such
[conversion] [continuation] (the "Proposed [Conversion] [Continuation]") as
required by Section [1.06] [1.09] of the Credit Agreement:
(i) The Proposed [Conversion] [Continuation] relates to the
Borrowing of [A Term Loans] [B Term Loans] [Revolving Loans] originally made on
_____ __, ____ (the "Outstanding Borrowing") in the principal amount of
$________ and currently maintained as a Borrowing of [Base Rate Loans]
[Eurodollar Loans with an Interest Period ending on [Date]].
(ii) The Business Day of the Proposed [Conversion]
[Continuation] is [Date].1
Exhibit A-2
(iii) The Outstanding Borrowing shall be [continued as a Borrowing of Eurodollar Loans with an Interest Period of _______] [converted into a Borrowing of [Base Rate Loans] [Eurodollar Loans with an Interest Period of ___].2
The undersigned hereby certifies that no Specified Default or Event of Default has occurred and is continuing on the date hereof, or will exist on the date of the Proposed [Conversion][Continuation].
Very truly yours,
FLOWERS FOODS, INC.
By ________________________
Name:
Title:
EXHIBIT B-1
A TERM NOTE
$________ New York, New York
[Date]
FOR VALUE RECEIVED, FLOWERS FOODS, INC., a Georgia corporation
|
(the "Borrower"), hereby promises to pay to ____________ or its registered assigns (the "Lender"), in lawful money of the United States of America in immediately available funds, at the office of Bankers Trust Company (the "Administrative Agent") located at 130 Liberty Street, New York, New York 10006 on the A Term Loan Maturity Date (as defined in the Credit Agreement referred to below) the principal sum of _____________ DOLLARS ($_____) or, if less, the unpaid principal amount of all Term Loans (as defined in the Credit Agreement) made by the Lender pursuant to the Credit Agreement.
The Borrower promises also to pay interest on the unpaid principal amount hereof in like money at said office from the date hereof until paid at the rates and at the times provided in Section 1.08 of the Credit Agreement.
This Note is one of the A Term Notes referred to in the Credit Agreement, dated as of March 26, 2001, among the Borrower, the lenders from time to time party thereto (including the Lender), SunTrust Bank, as Syndication Agent, and the Administrative Agent (as amended, restated, modified and/or or supplemented from time to time, the "Credit Agreement") and is entitled to the benefits thereof and of the other Credit Documents (as defined in the Credit Agreement). This Note is secured by the Security Documents (as defined in the Credit Agreement) and is entitled to the benefits of the Subsidiaries Guaranty (as defined in the Credit Agreement). This Note is subject to voluntary prepayment and mandatory repayment prior to the A Term Loan Maturity Date, in whole or in part, as provided in the Credit Agreement.
In case an Event of Default (as defined in the Credit Agreement) shall occur and be continuing, the principal of and accrued interest on this Note may become or be declared to be due and payable in the manner and with the effect provided in the Credit Agreement.
The Borrower hereby waives presentment, demand, protest or notice of any kind in connection with this Note.
Exhibit B-1
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
FLOWERS FOODS, INC.
By _________________________
Name:
Title:
EXHIBIT B-2
B TERM NOTE
$________ New York, New York
[Date]
FOR VALUE RECEIVED, FLOWERS FOODS, INC., a Georgia corporation
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(the "Borrower"), hereby promises to pay to ____________ or its registered assigns (the "Lender"), in lawful money of the United States of America in immediately available funds, at the office of Bankers Trust Company (the "Administrative Agent") located at 130 Liberty Street, New York, New York 10006 on the B Term Loan Maturity Date (as defined in the Credit Agreement referred to below) the principal sum of _____________ DOLLARS ($_____) or, if less, the unpaid principal amount of all Term Loans (as defined in the Credit Agreement) made by the Lender pursuant to the Credit Agreement.
The Borrower promises also to pay interest on the unpaid principal amount hereof in like money at said office from the date hereof until paid at the rates and at the times provided in Section 1.08 of the Credit Agreement.
This Note is one of the B Term Notes referred to in the Credit Agreement, dated as of March 26, 2001, among the Borrower, the lenders from time to time party thereto (including the Lender), SunTrust Bank, as Syndication Agent, and the Administrative Agent (as amended, restated, modified and/or or supplemented from time to time, the "Credit Agreement") and is entitled to the benefits thereof and of the other Credit Documents (as defined in the Credit Agreement). This Note is secured by the Security Documents (as defined in the Credit Agreement) and is entitled to the benefits of the Subsidiaries Guaranty (as defined in the Credit Agreement). This Note is subject to voluntary prepayment and mandatory repayment prior to the B Term Loan Maturity Date, in whole or in part, as provided in the Credit Agreement.
In case an Event of Default (as defined in the Credit Agreement) shall occur and be continuing, the principal of and accrued interest on this Note may become or be declared to be due and payable in the manner and with the effect provided in the Credit Agreement.
The Borrower hereby waives presentment, demand, protest or notice of any kind in connection with this Note.
Exhibit B-2
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
FLOWERS FOODS, INC.
By _________________________
Name:
Title:
Exhibit B-3
REVOLVING NOTE
$__________ New York, New York
[Date]
FOR VALUE RECEIVED, FLOWERS FOODS, INC., a Georgia corporation
|
(the "Borrower"), hereby promises to pay to or its registered assigns (the "Lender"), in lawful money of the United States of America in immediately available funds, at the office of Bankers Trust Company (the "Administrative Agent") located at 130 Liberty Street, New York, New York 10006 on the Revolving Loan Maturity Date (as defined in the Credit Agreement referred to below) the principal sum of _____________ DOLLARS ($________) or, if less, the unpaid principal amount of all Revolving Loans (as defined in the Credit Agreement) made by the Lender pursuant to the Credit Agreement.
The Borrower promises also to pay interest on the unpaid principal amount hereof in like money at said office from the date hereof until paid at the rates and at the times provided in Section 1.08 of the Credit Agreement.
This Note is one of the Revolving Notes referred to in the Credit Agreement, dated as of March 26, 2001, among the Borrower, the lenders from time to time party thereto (including the Lender), SunTrust Bank, as Syndication Agent, and the Administrative Agent (as amended, restated, modified and/or supplemented from time to time, the "Credit Agreement") and is entitled to the benefits thereof and of the other Credit Documents (as defined in the Credit Agreement). This Note is secured by the Security Documents (as defined in the Credit Agreement) and is entitled to the benefits of the Subsidiaries Guaranty (as defined in the Credit Agreement). This Note is subject to voluntary prepayment and mandatory repayment prior to the Revolving Loan Maturity Date, in whole or in part, as provided in the Credit Agreement.
In case an Event of Default (as defined in the Credit Agreement) shall occur and be continuing, the principal of and accrued interest on this Note may become or be declared to be due and payable in the manner and with the effect provided in the Credit Agreement.
The Borrower hereby waives presentment, demand, protest or notice of any kind in connection with this Note.
Exhibit B-3
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
FLOWERS FOODS, INC.
By _________________________
Name:
Title:
Exhibit B-4
SWINGLINE NOTE
$________________ New York, New York
[Date]
FOR VALUE RECEIVED, FLOWERS FOODS, INC., a Georgia corporation
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(the "Borrower"), hereby promises to pay to BANKERS TRUST COMPANY or its registered assigns (the "Lender"), in lawful money of the United States of America in immediately available funds, at the office of Bankers Trust Company (the "Administrative Agent") located at 130 Liberty Street, New York, New York 10006 on the Swingline Expiry Date (as defined in the Credit Agreement referred to below) the principal sum of _____________ DOLLARS ($_________) or, if less, the unpaid principal amount of all Swingline Loans (as defined in the Credit Agreement) made by the Lender pursuant to the Credit Agreement.
The Borrower promises also to pay interest on the unpaid principal amount hereof in like money at said office from the date hereof until paid at the rates and at the times provided in Section 1.08 of the Credit Agreement.
This Note is the Swingline Note referred to in the Credit Agreement, dated as of March 26, 2001, among the Borrower, the lenders from time to time party thereto (including the Lender), SunTrust Bank, as Syndication Agent, and the Administrative Agent (as amended, restated, modified and/or supplemented from time to time, the "Credit Agreement") and is entitled to the benefits thereof and of the other Credit Documents (as defined in the Credit Agreement). This Note is secured by the Security Documents (as defined in the Credit Agreement) and is entitled to the benefits of the Subsidiaries Guaranty (as defined in the Credit Agreement). This Note is subject to voluntary prepayment and mandatory repayment prior to the Swingline Expiry Date, in whole or in part, as provided in the Credit Agreement.
In case an Event of Default (as defined in the Credit Agreement) shall occur and be continuing, the principal of and accrued interest on this Note may become or be declared to be due and payable in the manner and with the effect provided in the Credit Agreement.
The Borrower hereby waives presentment, demand, protest or notice of any kind in connection with this Note.
Exhibit B-4
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
FLOWERS FOODS, INC.
By _________________________
Name:
Title:
Exhibit C
LETTER OF CREDIT REQUEST
Bankers Trust Company, as Administrative Agent under
the Credit Agreement (as amended, restated, modified
and/or supplemented from time to time, the "Credit
Agreement"), dated as of March 26, 2001
among Flower Foods, Inc. (the "Borrower"),
the lenders from time to time party thereto,
SunTrust Bank, as Syndication Agent,
and Bankers Trust Company,
as Administrative Agent
130 Liberty Street
New York, New York 10006
Attention: Jagdesh Tarachand
Attention:
Dear Sirs:
We hereby request that [Issuing Lender], in its individual capacity, issue a [Standby] [Trade] Letter of Credit for the account of the undersigned on 3 (the "Date of Issuance") in the aggregate stated amount of 4 .
2 Name and address of the Issuing Lender. In those instances where Bankers Trust Company or one of its Affiliates is the Issuing Lender, (i) for Standby Letters of Credit insert Bankers Trust Company, 130 Liberty Street, New York, NY 10006-MS NYC02-1403, Attention: Commercial Loan Division Standby Letter of Credit Unit and (ii) for Trade Letters of Credit insert Deutsche Bank AG, NY Branch, 31 West 52nd Street, New York, NY 10019, Attention: Trade Finance, 12th Floor.
3 Date of Issuance which shall be at least five Business Days from the date hereof (or such shorter period as is acceptable to the respective Issuing Lender).
4 Aggregate initial Stated Amount of Letter of Credit
Exhibit C
For purposes of this Letter of Credit Request, unless otherwise defined herein, all capitalized terms used herein and defined in the Credit Agreement shall have the respective meaning provided such terms in the Credit Agreement.
The beneficiary of the requested Letter of Credit will be 5, and such Letter of Credit will be in support of 6 and will have a stated expiration date of 7.
We hereby certify that:
(1) the representations and warranties contained in the Credit Agreement and in the other Credit Documents are and will be true and correct in all material respects, both before and after giving effect to the issuance of the Letter of Credit requested hereby, on the Date of Issuance (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date); and
(2) no Default or Event of Default has occurred and is continuing nor, after giving effect to the issuance of the Letter of Credit requested hereby, would such a Default or an Event of Default occur.
Copies of all documentation with respect to the supported transaction are attached hereto.
FLOWERS FOODS, INC.
By:_________________________________
Name:
Title:
6 Insert a brief description of L/C Supportable Indebtedness or applicable trade obligations, as the case may be.
7 Insert the last date upon which drafts may be presented which may not be
later than (A) in the case of Standby Letters of Credit, the earlier of
(x) 12 months after the Date of Issuance and (y) the tenth Business Day
prior to the Revolving Loan Maturity Date and (B) in the case of Trade
Letters of Credit, the earlier of (x) 180 days after the Date of Issuance
and (y) 30 days prior to the Revolving Loan Maturity Date.
Exhibit D
SECTION 4.04(b)(ii) CERTIFICATE
Reference is hereby made to the Credit Agreement, dated as of March 26, 2001, among Flowers Foods, Inc., the lenders from time to time party thereto, SunTrust Bank, as Syndication Agent, and Bankers Trust Company, as Administrative Agent (as amended, restated, modified and/or supplemented from time to time, the "Credit Agreement"). Pursuant to the provisions of Section 4.04(b)(ii) of the Credit Agreement, the undersigned hereby certifies that it is not a "bank" as such term is used in Section 881(c)(3)(A) of the Internal Revenue Code of 1986, as amended.
[NAME OF LENDER]
By ____________________________
Name:
Title:
Date: _______________, ____
EXHIBIT [E-1/E-2]
[troutman sanders llp/
JONES DAY/GENERAL COUNSEL]
FORM OF OPINION OF COUNSEL
[Initial Borrowing Date]
To the Agents, the Collateral Agent
and each of the Lenders party to the
Credit Agreement referred to below
Ladies and Gentlemen:
We have acted as counsel to Flowers Foods, Inc., a Georgia corporation (the "Borrower") and each of the Subsidiaries of the Borrower listed in Annex I hereto (collectively with the Borrower, the "Credit Parties"), in connection with the execution and delivery of the Credit Agreement, dated as of March ___ 2001 (the "Credit Agreement"), among the Borrower, the lenders from time to time party thereto (the "Lenders"), ______________, as Syndication Agent, ______________, as Documentation Agent, and Bankers Trust Company, as Administrative Agent (the "Administrative Agent"), and the transactions contemplated thereby. Unless otherwise indicated, capitalized terms used herein but not otherwise defined herein shall have the respective meanings set forth in the Credit Agreement. This opinion is delivered to you pursuant to Section 5.03[(i)] [(ii)] of the Credit Agreement.
In connection with this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents as we have deemed necessary or appropriate as a basis for the opinions set forth herein, including, without limitation, the following (collectively, the "Documents"): (a) the Credit Documents, (b) the Merger Documents, (c) the Amended Distributor Note Documents, (d) the Lease Program Documents, (e) the Smuckers Note, (f) the Existing Debentures Tender Offer Documents and (f) the Uniform Commercial Code financing statements and the Grants of Security Interest in U.S. Trademarks described herein. We also have examined such other public, corporate and limited liability company documents and records as we have deemed necessary or appropriate in connection with this opinion.
In our examination, we have assumed the genuineness of all signatures (other than as to the Credit Parties), the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such copies. As to questions of fact not independently verified by us we have relied, to the extent we have deemed appropriate, upon representations and certificates of officers of the Credit Parties, public officials and other appropriate persons.
Based upon the foregoing, we are of the opinion that:
Exhibit [E-1/E-2]
1. Each Credit Party (i) is a duly organized and validly
existing corporation, limited liability company or partnership, as the case may
be, in good standing under the laws of the jurisdiction of its organization,
(ii) has the corporate or other applicable power and authority, as the case may
be, to own its property and assets and to transact the business in which it is
engaged and presently proposes to engage in and (iii) is duly qualified and is
authorized to do business and is in good standing in each jurisdiction where the
conduct of its business requires such qualifications, except for failures to be
so qualified that, either individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect.
2. Each Credit Party has the corporate or other applicable power and authority, as the case may be, to execute, deliver and perform the terms and provisions of each of the Documents to which it is a party and has taken all necessary corporate or other applicable action, as the case may be, to authorize the execution, delivery and performance by it of each of such Documents. Each Credit Party has duly executed and delivered each of the Documents to which it is a party.
3. Each Document constitutes the legal, valid and binding obligation of each Credit Party party thereto enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditor's rights and by equitable principles (regardless of whether enforcement is sought in equity or at law).
4. Neither the execution, delivery or performance by any Credit Party of the Documents to which it is a party (including, without limitation, the granting of Liens pursuant to the Security Documents), nor compliance by it with the terms and provisions thereof, nor the consummation of the transactions contemplated therein, will contravene any provision of any applicable law, statute, rule or regulation (including, without limitation, Regulations T, U and X of the Board of Governors of the Federal Reserve System), or any applicable order, writ, injunction or decree of any court or governmental instrumentality, (ii) will conflict or be inconsistent with or result in any breach of, any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien (except pursuant to the Security Documents and Permitted Liens) upon any of the property or assets of any Credit Party pursuant to the terms of any indenture, mortgage, deed of trust, credit agreement or loan agreement, or any other material agreement, contract or instrument to which such Credit Party is a party or by which it or any of its property or assets is bound or to which it may be subject or (iii) will violate any provision of the Certificate of Incorporation or By-Laws (or equivalent organizational documents) of such Credit Party.
5. No order, consent, approval, license, authorization, or validation of, or filing, recording or registration with (except for those that have been obtained or made or, in the case of any filings or recordings in respect of the Security Documents executed on the Initial Borrowing Date, will be made within 10 days thereof), or exemption by any governmental or public body or authority, or any subdivision thereof, is required to authorize, or is required in connection with, (i) the execution, delivery and performance of any Document or (ii) the legality, validity, binding effect or enforceability of any Document.
Exhibit [E-1/E-2]
6. There are no actions, suits or proceedings (private or governmental) pending or, to the knowledge of the Borrower after due inquiry, threatened (i) with respect to the Transaction, any Document, any Credit Party or the transactions contemplated thereby or (ii) that has had or could reasonably be expected to have a Material Adverse Effect.
7. No Credit Party is an "investment company" or a company "controlled" by an "investment company," within the meaning of the Investment Company Act of 1940, as amended.
8. No Credit Party is a "holding company," or a "subsidiary company" of a "holding company," or an "affiliate" of a "holding company" or of a "subsidiary company" of a "holding company" within the meaning of the Public Utility Holding Company Act of 1935, as amended.
9. The Transaction has been consummated in accordance with the terms of the respective Documents therefor and all applicable laws.
10. Each Credit Party is (i) the record owner of all of the Stock (as defined in the Pledge Agreement) listed under its name on Annex A to the Pledge Agreement and (ii) the record owner of all Limited Liability Company Interests (as defined in the Pledge Agreement) listed under its name in Annex D to the Pledge Agreement. All such Stock and Limited Liability Company Interests (if applicable) as the case may be, has been duly authorized and issued, is fully paid and non-assessable, and is free of preemptive rights.
11. Each of the Pledge Agreement and the Security Agreement creates a valid and enforceable security interest in favor of the Collateral Agent in the Collateral described therein.
12. After giving effect to the delivery to the Collateral Agent of the Certificated Securities and the Pledged Notes (each as defined in the Pledge Agreement) and assuming the continued possession by the Collateral Agent of such Pledge Agreement Collateral in the State of New York, the security interest created in favor of the Collateral Agent under the Pledge Agreement constitutes a valid and enforceable first perfected security interest in such Pledge Agreement Collateral (and the proceeds thereof) in favor of the Collateral Agent for the benefit of the Secured Creditors under the Pledge Agreement, subject to no other security interest. No filings, registrations or recordings are required in order to perfect (or maintain the perfection or priority of) the security interest created under the Pledge Agreement in respect of such Pledge Agreement Collateral.
13. We have examined the financing statements (the "Financing Statements") to be filed in the filing offices listed for each Credit Party on Schedule I attached hereto (the "Filing Offices"), and upon the filing of such Financing Statements in the Filing Offices, and assuming that the representations made by each Credit Party in the Security Agreement and the Pledge Agreement with respect to the location of its Collateral are and remain true and correct, all filings, registrations and recordings necessary or appropriate to create, maintain, preserve, protect and perfect the
Exhibit [E-1/E-2]
security interests granted by each Credit Party to the Collateral Agent under the Security Agreement and the Pledge Agreement in respect of all such Collateral thereunder will have been accomplished and the security interests granted to the Collateral Agent pursuant to the Security Agreement and the Pledge Agreement in and to such Collateral will constitute a perfected security interest therein in each case to the extent that such Collateral consists of the type of property in which a security interest may be perfected by filing a financing statement under the Uniform Commercial Code (the "UCC") as in effect in the States of New York, Georgia and those states listed on Schedule II attached hereto (collectively, the "Relevant States").
14. Assuming that the representation made by each Credit Party in Section 2.4 of the Security Agreement and in Section 17 of the Pledge Agreement with respect to the location of its chief executive office is and remains true and correct, under the law of the State of Georgia and each other Relevant State, the perfection and priority of the security interests granted by each Credit Party in its Receivables, Contracts, Contract Rights and General Intangibles (as each such term is defined in the Security Agreement) and each Partnership Interest, Limited Liability Company Interest, Distributor's Agreement[, Distributor Notes Related Collateral] and Contract Rights (as each such term is defined in the Pledge Agreement) are governed by the laws of the State in which each Credit Party's chief executive office is located to the extent that said Receivables, Contracts, Contract Rights (as defined in each of the Security Agreement and Pledge Agreement), General Intangibles, Partnership Interests, Limited Liability Company Interests[, Distributor Notes Related Collateral] and Distributor's Agreements consist of "accounts" or "general intangibles" as described in the UCC of each Relevant State.
15. We have examined the Assignment of Security Interest in certain United States Trademarks (the "Assignment of Security Interest") to be filed in the United States Patent and Trademark Office, and upon the filing of the Assignment of Security Interest in the United States Patent and Trademark Office, together with the filing of the Financing Statements in the Filing Offices, all filings, registrations and recordings necessary or appropriate to create, maintain, preserve, protect and perfect the security interests granted by such Credit Party to the Collateral Agent under the Security Agreement with respect to the United States trademark covered thereby will have been accomplished.
We are members of the Bar of the State of Georgia and, except
as set forth in the succeeding sentence, we do not hold ourselves out as being
conversant with, and express no opinion as to, the laws of any jurisdiction
other than those of the United States of America, the general corporate law of
the State of Delaware, the limited liability company act of the State of
Delaware and the State of Georgia. To the extent that our opinions set forth in
(i) paragraphs 1, 2 and 3 above are governed by the laws of any jurisdiction
other than those jurisdictions set forth in the immediately preceding sentence,
such opinions are based on our review of the generally available compilations of
the general corporate law of such jurisdictions, and (ii) paragraphs 8, 9 and 10
above are governed by the laws of any jurisdiction other than the State of
Georgia, such opinions are based on our review of the generally available
compilations of the UCC as in effect in the State of the other Relevant States.
Exhibit [E-1/E-2]
This opinion is being furnished only to the addresses hereof and is solely for their benefit and the benefit of their participants and assigns in connection with the above transaction. This opinion may not be relied upon for any other purpose, or relied upon by any other person, firm or corporation for any purpose, without our prior written consent.
Very truly yours,
[TROUTMAN SANDERS LLP/JONES DAY/
GENERAL COUNSEL]
Exhibit F
OFFICERS' CERTIFICATE
I, the undersigned, [Chairman of the Board/President/Vice President/Chief Financial Officer/Treasurer/Authorized Representative] of [Name of Credit Party] a [corporation/limited liability company] organized and existing under the laws of the State of ________ (the "Company"), do hereby certify on behalf of the Company that:
1. This Certificate is furnished pursuant to Section[s 5.02 and] 5.04(a) of the Credit Agreement, dated as of March 26, 2001, among Flowers Foods, Inc., the lenders from time to time party thereto, SunTrust Bank, as Syndication Agent, and Bankers Trust Company, as Administrative Agent (such Credit Agreement, as in effect on the date of this Certificate, being herein called the "Credit Agreement"). Unless otherwise defined herein, capitalized terms used in this Certificate shall have the meanings set forth in the Credit Agreement.
2. The following named individuals are [elected officers of the Company, each holds the office of the Company set forth opposite his or her name and has held such office since _________ __, ____.1] [Authorized Representatives (pursuant to Exhibit C hereto) of the Company.] The signature written opposite the name and title of each such [officer] [Authorized Representative] is his or her genuine signature.
Name2 Office Signature
------------- ----------- ------------
-------------- ----------- -------------
-------------- ----------- -------------
-------------- ----------- -------------
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3. Attached hereto as Exhibit A is a certified copy of the
[Articles of Incorporation] [Certificate of Incorporation] [Certificate of
Formation] of the Company, as filed in the Office of the Secretary of State of
the State of ________ on ___________, ____, together with all amendments thereto
adopted through the date hereof.
4. Attached hereto as Exhibit B is a true and correct copy of the [By-Laws] [Limited Liability Company Agreement] [insert other equivalent organizational document] of the Company which were duly adopted, are in full force and effect on the date hereof, and have been in effect since -------------, ----.
2 Include name, office and signature of each officer or Authorized Representative who will sign any Credit Document, including the officer who will sign the certification at the end of this Certificate or related documentation.
Exhibit F
5. Attached hereto as Exhibit C is a true and correct copy of resolutions which were duly adopted on __________, ____ [by unanimous written consent of the [Board of Directors] [Managing Member(s)] of the Company] [by a meeting of the [Board of Directors] [Managing Member(s)] of the Company at which a quorum was present and acting throughout], and said resolutions have not been rescinded, amended or modified. Except as attached hereto as Exhibit C, no resolutions have been adopted by the [Board of Directors] [Managing Member(s)] of the Company which deal with the execution, delivery or performance of any of the Documents to which the Company is party.
[6. On the date hereof, all of the applicable conditions set forth in Sections 5.06, 5.07, 5.08, 5.13, 5.14, 5.18 and Section 6.01 of the Credit Agreement have been satisfied.
7. Attached hereto as Exhibit D are true and correct copies of all Merger Documents.
8. Attached hereto as Exhibit E are true and correct copies of all Equipment Purchase Documents.
9. Attached hereto as Exhibit F are true and correct copies of all Existing Debentures Tender Offer Documents.
10. Attached hereto as Exhibit G are true and correct copies of all Lease Program Documents.
11. Attached hereto as Exhibit H are true and correct copies of all Employee Benefit Plans.
12. Attached hereto as Exhibit I are true and correct copies of all Debt Agreements.
13. Attached hereto as Exhibit J are true and correct copies of all Tax Sharing Agreements.]3
[6.][14.] On the date hereof, the representations and warranties contained in the Credit Agreement and in the other Credit Documents are true and correct in all material respects with the same effect as though such representations and warranties had been made on the date hereof, both before and after giving effect to the incurrence of Loans on the date hereof and the application of the proceeds thereof, unless stated to relate to a specific earlier date, in which case such representations and warranties were true and correct in all material respects as of such earlier date.
3 Insert in Officers' Certificate of the Borrower only.
Exhibit F
[7.][15.] On the date hereof, no Default or Event of Default has occurred and is continuing or would result from the Borrowing to occur on the date hereof or from the application of the proceeds thereof.
[8.][16.] There is no proceeding for the dissolution or liquidation of the Company or threatening its existence.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of ______, ______.
[NAME OF CREDIT PARTY]
By ______________________________
Name:
Title:
Exhibit F
I, the undersigned, [Secretary/Assistant Secretary/Authorized Representative] of the Company, do hereby certify on behalf of the Company that:
1. [Name of Person making above certifications] is the duly elected and qualified [Chairman of the Board/Vice Chairman of the Board/President/Vice President/Chief Financial Officer/Treasurer/Authorized Representative] of the Company and the signature above is his or her genuine signature.
2. The certifications made by [name of Person making above certifications] on behalf of the Company in Items 2, 3, 4, 5 and [8][16] above are true and correct.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of ______, ______.
[NAME OF CREDIT PARTY]
By ___________________________
Name:
Title:
EXHIBIT G
SUBSIDIARIES GUARANTY
SUBSIDIARIES GUARANTY, dated as of March 26, 2001 (as amended, restated, modified and/or supplemented from time to time, this "Guaranty"), made by each of the undersigned guarantors (each a "Guarantor," and together with any other entity that becomes a guarantor hereunder pursuant to Section 26 hereof, the "Guarantors"). Except as otherwise defined herein, capitalized terms used herein and defined in the Credit Agreement (as defined below) shall be used herein as therein defined.
WITNESSETH:
WHEREAS, Flowers Foods, Inc. (the "Borrower"), the lenders from time to time party thereto (the "Lenders"), and Bankers Trust Company, as Administrative Agent (together with any successor administrative agent, the "Administrative Agent"), have entered into a Credit Agreement, dated as of March 26, 2001 (as amended, restated, modified, and/or supplemented from time to time, the "Credit Agreement"), providing for the making of Loans to, and the issuance of Letters of Credit for the account of, the Borrower as contemplated therein (the Lenders, the Collateral Agent, the Letter of Credit Issuers and the Administrative Agent are herein called the "Lender Creditors");
WHEREAS, the Borrower may at any time and from time to time enter into one or more Interest Rate Protection Agreements with one or more Lenders or any affiliate thereof (each such Lender or affiliate, even if the respective Lender subsequently ceases to be a Lender under the Credit Agreement for any reason, together with such Lender's or affiliate's successors and assigns, if any, collectively, the "Interest Rate Protection Creditors," and together with the Lender Creditors, the "Secured Creditors");
WHEREAS, each Guarantor is a direct or indirect Subsidiary of the Borrower;
WHEREAS, it is a condition to the making of Loans to, and the issuance of Letters of Credit for the account of, the Borrower under the Credit Agreement that each Guarantor shall have executed and delivered this Guaranty; and
WHEREAS, each Guarantor will obtain benefits from the incurrence of Loans to, and the issuance of Letters of Credit for the account of, the Borrower under the Credit Agreement and the entering into by the Borrower of Interest Rate Protection Agreements and, accordingly, desires to execute this Guaranty in order to satisfy the conditions described in the preceding paragraph;
NOW, THEREFORE, in consideration of the foregoing and other benefits accruing to each Guarantor, the receipt and sufficiency of which are hereby acknowledged, each Guarantor hereby makes the following representations and warranties to the Secured Creditors and hereby covenants and agrees with each Secured Creditor as follows:
1. Each Guarantor, jointly and severally, irrevocably, absolutely and unconditionally guarantees: (i) to each Lender Creditor, the full and prompt payment when due (whether at the stated maturity, by acceleration or otherwise) of all obligations (including obliga-
Exhibit G
tions which, but for the automatic stay under Section 362(a) of the Bankruptcy Code, would become due) and, liabilities (including, without limitation, indemnities, Fees and interest (including, without limitation, all interest that accrues after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency, reorganization or similar proceeding of any Pledgor at the rate provided for in the respective documentation, whether or not a claim for post-petition interest is allowed in any such proceeding) thereon) owing by the Borrower to the Lender Creditors now existing or hereafter incurred under, arising out of or in connection with the Credit Agreement and the other Credit Documents to which the Borrower is at any time a party and the due performance and compliance by the Borrower with the terms of each such Credit Document (all such obligations and liabilities under this clause (i) being herein collectively called the "Credit Document Obligations"); and (ii) to each Interest Rate Protection Creditor, the full and prompt payment when due (whether at the stated maturity, by acceleration or otherwise) of all obligations (including obligations which, but for the automatic stay under Section 362(a) of the Bankruptcy Code, would become due) and liabilities (including, without limitation, all interest that accrues after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency, reorganization or similar proceeding of any Pledgor at the rate provided for in the respective documentation, whether or not a claim for post-petition interest is allowed in any such proceeding) owing by the Borrower to the Interest Rate Protection Creditors, now existing or hereafter incurred under, arising out of or in connection with any Interest Rate Protection Agreement and the due performance and compliance by the Borrower with the terms of each such Interest Rate Protection Agreement (all such obligations and liabilities under this clause (ii) being herein collectively called the "Interest Rate Protection Obligations", and together with the Credit Document Obligations, the "Guaranteed Obligations"). Each Guarantor understands, agrees and confirms that the Secured Creditors may enforce this Guaranty up to the full amount of the Guaranteed Obligations against such Guarantor without proceeding against any other Guarantor, the Borrower, against any security for the Guaranteed Obligations, or under any other guaranty covering all or a portion of the Guaranteed Obligations.
2. Additionally, each Guarantor, jointly and severally,
unconditionally, absolutely and irrevocably, guarantees the payment of any and
all Guaranteed Obligations whether or not due or payable by the Borrower upon
the occurrence in respect of the Borrower of any of the events specified in
Section 10.05 of the Credit Agreement, and unconditionally and irrevocably,
jointly and severally, promises to pay such Guaranteed Obligations to the
Secured Creditors, or order, on demand, in legal tender of the United States of
America. This Guaranty shall constitute a guaranty of payment, and not of
collection.
3. The liability of each Guarantor hereunder is primary,
absolute and unconditional and is exclusive and independent of any security for
or other guaranty of the indebtedness of the Borrower whether executed by such
Guarantor, any other Guarantor, any other guarantor or by any other party, and
the liability of each Guarantor hereunder shall not be affected or impaired by
any circumstance or occurrence whatsoever, including, without limitation: (a)
any direction as to application of payment by the Borrower or by any other
party, (b) any other continuing or other guaranty, undertaking or maximum
liability of a guarantor or of any other party as to the Guaranteed Obligations,
(c) any payment on or in reduction of any such other guaranty or undertaking,
(d) any dissolution, termination or increase, decrease or change in
Exhibit G
personnel by the Borrower, (e) any payment made to any Secured Creditor on the indebtedness which any Secured Creditor repays the Borrower pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding, and each Guarantor waives any right to the deferral or modification of its obligations hereunder by reason of any such proceeding, (f) any action or inaction by the Secured Creditors as contemplated in Section 6 hereof or (g) any invalidity, irregularity or unenforceability of all or any part of the Guaranteed Obligations or of any security therefor.
4. The obligations of each Guarantor hereunder are independent of the obligations of any other Guarantor, any other guarantor or the Borrower, and a separate action or actions may be brought and prosecuted against each Guarantor whether or not action is brought against any other Guarantor, any other guarantor or the Borrower and whether or not any other Guarantor, any other guarantor or the Borrower be joined in any such action or actions. Each Guarantor waives, to the fullest extent permitted by law, the benefits of any statute of limitations affecting its liability hereunder or the enforcement thereof. Any payment by the Borrower or other circumstance which operates to toll any statute of limitations as to the Borrower shall operate to toll the statute of limitations as to each Guarantor.
5. Each Guarantor hereby waives notice of acceptance of this Guaranty and notice of any liability to which it may apply, and waives promptness, diligence, presentment, demand of payment, protest, notice of dishonor or nonpayment of any such liabilities, suit or taking of other action by the Administrative Agent or any other Secured Creditor against, and any other notice to, any party liable thereon (including such Guarantor, any other Guarantor, any other guarantor or the Borrower).
6. Any Secured Creditor may at any time and from time to time without the consent of, or notice to, any Guarantor, without incurring responsibility to such Guarantor, without impairing or releasing the obligations of such Guarantor hereunder, upon or without any terms or conditions and in whole or in part:
(a) change the manner, place or terms of payment of, and/or change or extend the time of payment of, renew or alter, any of the Guaranteed Obligations (including any increase or decrease in the rate of interest thereon), any security therefor, or any liability incurred directly or indirectly in respect thereof, and the guaranty herein made shall apply to the Guaranteed Obligations as so changed, extended, renewed or altered;
(b) take and hold security for the payment of the Guaranteed Obligations and sell, exchange, release, surrender, impair, realize upon or otherwise deal with in any manner and in any order any property by whomsoever at any time pledged or mortgaged to secure, or howsoever securing, the Guaranteed Obligations or any liabilities (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and/or any offset there against;
(c) exercise or refrain from exercising any rights against the Borrower, any other Credit Party, any Subsidiary thereof or otherwise act or refrain from acting;
Exhibit G
(d) release or substitute any one or more endorsers, Guarantors, other guarantors, the Borrower or other obligors;
(e) settle or compromise any of the Guaranteed Obligations, any security therefor or any liability (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any liability (whether due or not) of the Borrower to creditors of the Borrower other than the Secured Creditors;
(f) apply any sums by whomsoever paid or howsoever realized to any liability or liabilities of the Borrower to the Secured Creditors regardless of what liabilities of the Borrower remain unpaid;
(g) consent to or waive any breach of, or any act, omission or default under, any of the Interest Rate Protection Agreements, the Credit Documents or any of the instruments or agreements referred to therein, or otherwise amend, modify or supplement any of the Interest Rate Protection Agreements, the Credit Documents or any of such other instruments or agreements;
(h) act or fail to act in any manner referred to in this Guaranty which may deprive such Guarantor of its right to subrogation against the Borrower to recover full indemnity for any payments made pursuant to this Guaranty; and/or
(i) take any other action which would, under otherwise applicable principles of common law, give rise to a legal or equitable discharge of such Guarantor from its liabilities under this Guaranty.
7. This Guaranty is a continuing one and all liabilities to which it applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon. No failure or delay on the part of any Secured Creditor in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein expressly specified are cumulative and not exclusive of any rights or remedies which any Secured Creditor would otherwise have. No notice to or demand on any Guarantor in any case shall entitle such Guarantor to any other further notice or demand in similar or other circumstances or constitute a waiver of the rights of any Secured Creditor to any other or further action in any circumstances without notice or demand. It is not necessary for any Secured Creditor to inquire into the capacity or powers of the Borrower or the officers, directors, partners or agents acting or purporting to act on its behalf, and any indebtedness made or created in reliance upon the professed exercise of such powers shall be guaranteed hereunder.
8. Any indebtedness of the Borrower now or hereafter held by any Guarantor is hereby subordinated to the indebtedness of the Borrower to the Secured Creditors, and such indebtedness of the Borrower to any Guarantor, if the Administrative Agent or the Collateral Agent, after the occurrence and during the continuance of an Event of Default, so requests, shall be collected, enforced and received by such Guarantor as trustee for the Secured Creditors and be
Exhibit G
paid over to the Secured Creditors on account of the indebtedness of the
Borrower to the Secured Creditors, but without affecting or impairing in any
manner the liability of such Guarantor under the other provisions of this
Guaranty. Without limiting the generality of the foregoing, each Guarantor
hereby agrees with the Secured Creditors that it will not exercise any right of
subrogation which it may at any time otherwise have as a result of this Guaranty
(whether contractual, under Section 509 of the Bankruptcy Code or otherwise)
until all Guaranteed Obligations have been irrevocably paid in full in cash.
9. (a) Each Guarantor waives any right (except as shall be required by applicable law and cannot be waived) to require the Secured Creditors to: (i) proceed against the Borrower, any other Guarantor, any other guarantor of the Guaranteed Obligations or any other party; (ii) proceed against or exhaust any security held from the Borrower, any other Guarantor, any other guarantor of the Guaranteed Obligations or any other party; or (iii) pursue any other remedy in the Secured Creditors' power whatsoever. Each Guarantor waives any defense based on or arising out of any defense of the Borrower, any other Guarantor, any other guarantor of the Guaranteed Obligations or any other party other than payment in full of the Guaranteed Obligations, including, without limitation, any defense based on or arising out of the disability of the Borrower, any other Guarantor, any other guarantor of the Guaranteed Obligations or any other party, or the unenforceability of the Guaranteed Obligations or any part thereof from any cause, or the cessation from any cause of the liability of the Borrower other than payment in full of the Guaranteed Obligations. The Secured Creditors may, at their election, foreclose on any security held by the Administrative Agent, the Collateral Agent or the other Secured Creditors by one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, or exercise any other right or remedy the Secured Creditors may have against the Borrower or any other party, or any security, without affecting or impairing in any way the liability of any Guarantor hereunder except to the extent the Guaranteed Obligations have been paid in full in cash. Each Guarantor waives any defense arising out of any such election by the Secured Creditors, even though such election operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of such Guarantor against the Borrower or any other party or any security.
(b) Each Guarantor waives all presentments, demands for performance, protests and notices, including, without limitation, notices of nonperformance, notices of protest, notices of dishonor, notices of acceptance of this Guaranty, and notices of the existence, creation or incurring of new or additional indebtedness. Each Guarantor assumes all responsibility for being and keeping itself informed of the Borrower's financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks which such Guarantor assumes and incurs hereunder, and agrees that the Secured Creditors shall have no duty to advise any Guarantor of information known to them regarding such circumstances or risks.
10. The Secured Creditors agree that this Guaranty may be enforced only by the action of the Administrative Agent or the Collateral Agent, in each case acting upon the instructions of the Required Lenders (or, after the date on which all Credit Document Obligations have been paid in full, the holders of at least the majority of the outstanding Interest Rate Protection Obligations) and that no other Secured Creditors shall have any right individually to seek to enforce or to enforce this Guaranty or to realize upon the security to be granted by the
Exhibit G
Security Documents, it being understood and agreed that such rights and remedies may be exercised by the Administrative Agent or the Collateral Agent or, after all the Credit Document Obligations have been paid in full, by the holders of at least a majority of the outstanding Interest Rate Protection Obligations, as the case may be, for the benefit of the Secured Creditors upon the terms of this Guaranty and the Security Documents. The Secured Creditors further agree that this Guaranty may not be enforced against any director, officer, employee, partner or stockholder of any Guarantor (except to the extent such partner or stockholder is also a Guarantor hereunder).
11. In order to induce the Lenders to make Loans to, and issue Letters of Credit for the account of, the Borrower pursuant to the Credit Agreement, and in order to induce the Interest Rate Protection Creditors to execute, deliver and perform the Interest Rate Protection Agreements, each Guarantor represents, warrants and covenants that:
(a) Such Guarantor (i) is a duly organized and validly
existing corporation, partnership or limited liability company, as the case may
be, in good standing under the laws of the jurisdiction of its organization,
(ii) has the corporate, partnership or limited liability company, power and
authority, as the case may be, to own its property and assets and to transact
the business in which it is engaged and presently proposes to engage and (iii)
is duly qualified and is authorized to do business and is in good standing in
each jurisdiction where the conduct of its business requires such qualification
except for failures to be so qualified which, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
(b) Such Guarantor has the corporate, partnership or limited liability company, power and authority, as the case may be, to execute, deliver and perform the terms and provisions of this Guaranty and each other Document to which it is a party and has taken all necessary corporate, partnership or limited liability company, action, as the case may be, to authorize the execution, delivery and performance by it of this Guaranty and each such other Document. Such Guarantor has duly executed and delivered this Guaranty and each other Document to which it is a party, and this Guaranty and each such other Document constitutes the legal, valid and binding obligation of such Guarantor enforceable in accordance with its terms, except to the extent that the enforceability hereof or thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors' rights and by equitable principles (regardless of whether enforcement is sought in equity or at law).
(c) Neither the execution, delivery or performance by such Guarantor of this Guaranty or any other Document to which it is a party, nor compliance by it with the terms and provisions hereof and thereof, will (i) contravene any material provision of any applicable law, statute, rule or regulation or any applicable order, writ, injunction or decree of any court or governmental instrumentality, (ii) conflict with or result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien (except pursuant to the Security Documents) upon any of the property or assets of such Guarantor or any of its Subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, credit agreement, or any other material agreement, contract or instrument to which such Guarantor or any of its Subsidiaries is a party or by which it or any of its property or assets is bound or to which it may be subject or (iii) violate any provision of the certificate of incorporation or by-laws (or equivalent organizational documents) of such Guarantor or any of its Subsidiaries.
Exhibit G
(d) No order, consent, approval, license, authorization or validation of, or filing, recording or registration with (except as have been obtained or made or, in the case of any filings or recordings in respect of the Security Documents executed on the Initial Borrowing Date, will be made within ten (10) days thereof), or exemption by, any governmental or public body or authority, or any subdivision thereof, is required to authorize, or is required for, (i) the execution, delivery and performance of this Guaranty by such Guarantor or any other Document to which such Guarantor is a party or (ii) the legality, validity, binding effect or enforceability of this Guaranty or any other Document (in each case consistent with the terms thereof) to which such Guarantor is a party.
(e) There are no actions, suits or proceedings pending or, to such Guarantor's knowledge, threatened (i) with respect to this Guaranty or any other Document to which such Guarantor is a party or (ii) with respect to such Guarantor that, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
12. Each Guarantor covenants and agrees that on and after
the Effective Date and until the termination of the Total Commitment, all
Interest Rate Protection Agreements and when no Note or Letter of Credit remains
outstanding and all Guaranteed Obligations have been paid in full, such
Guarantor will comply, and will cause each of its Subsidiaries to comply, with
all of the applicable provisions, covenants and agreements contained in Sections
8 and 9 of the Credit Agreement, and will take, or will refrain from taking, as
the case may be, all actions that are necessary to be taken or not taken so that
it is not in violation of any provision, covenant or agreement contained in
Section 8 or 9 of the Credit Agreement, and so that no Default or Event of
Default, is caused by the actions of such Guarantor or any of its Subsidiaries.
13. The Guarantors hereby jointly and severally agree to pay all reasonable out-of-pocket costs and expenses of each Secured Creditor in connection with the enforcement of this Guaranty and of the Administrative Agent in connection with any amendment, waiver or consent relating hereto (including in each case, without limitation, the reasonable fees and disbursements of counsel employed by each Secured Creditor).
14. This Guaranty shall be binding upon each Guarantor and its successors and assigns and shall inure to the benefit of the Secured Creditors and their successors and assigns.
15. Neither this Guaranty nor any provision hereof may be
changed, waived, discharged or terminated except with the written consent of
each Guarantor directly affected thereby and with the written consent of either
(x) the Required Lenders (or to the extent required by Section 13.12 of the
Credit Agreement, with the written consent of each Lender) at all times prior to
the time on which all Credit Document Obligations have been paid in full or (y)
the holders of at least a majority of the outstanding Interest Rate Protection
Obligations at all times after the time on which all Credit Document Obligations
have been paid in full; provided, that any change, waiver, modification or
variance affecting the rights and benefits of a single Class (as defined below)
of Secured Creditors (and not all Secured Creditors in a like or similar manner)
shall also require the written consent of the Requisite Creditors (as defined
below) of such Class of Secured Creditors (it being understood that the addition
or release of any Guarantor hereunder shall not constitute a change, waiver,
discharge or termination affecting any Guarantor other than the Guarantor so
added or released). For the purpose of this Guaranty, the term
Exhibit G
"Class" shall mean each class of Secured Creditors, i.e., whether (x) the Lender Creditors as holders of the Credit Document Obligations or (y) the Interest Rate Protection Creditors as the holders of the Interest Rate Protection Obligations. For the purpose of this Guaranty, the term "Requisite Creditors" of any Class shall mean (x) with respect to the Credit Document Obligations, the Required Lender (or to the extent required by Section 13.12 of the Credit Agreement, each Lender) and (y) with respect to the Interest Rate Protection Obligations, the holders of at least a majority of all obligations outstanding from time to time under the Interest Rate Protection Agreements.
16. Each Guarantor acknowledges that an executed (or conformed) copy of each of the Credit Documents and Interest Rate Protection Agreements has been made available to its principal executive officers and such officers are familiar with the contents thereof.
17. In addition to any rights now or hereafter granted under applicable law (including, without limitation, Section 151 of the New York Debtor and Secured Creditor Law) and not by way of limitation of any such rights, upon the occurrence and during the continuance of an Event of Default (such term to mean and include any "Event of Default" as defined in the Credit Agreement or any payment default under any Interest Rate Protection Agreement continuing after any applicable grace period), each Secured Creditor is hereby authorized, at any time or from time to time, without notice to any Guarantor or to any other Person, any such notice being expressly waived, to set off and to appropriate and apply any and all deposits (general or special) and any other indebtedness at any time held or owing by such Secured Creditor to or for the credit or the account of such Guarantor, against and on account of the obligations and liabilities of such Guarantor to such Secured Creditor under this Guaranty, irrespective of whether or not such Secured Creditor shall have made any demand hereunder and although said obligations, liabilities, deposits or claims, or any of them, shall be contingent or unmatured. Notwithstanding anything to the contrary contained in this Section 17, no Secured Creditor shall exercise any such right of set-off without the prior consent of the Administrative Agent or the Required Lenders if, and so long as, the Guaranteed Obligations shall be secured by any Real Property located in the State of California, it being understood and agreed, however, that this sentence is for the sole benefit of the Secured Creditors and may be amended, modified or waived in any respect by the Required Lenders without the requirement of prior notice to or consent by any Credit Party and does not constitute a waiver of any rights against any Credit Party or against any Collateral.
18. All notices, requests, demands or other communications pursuant hereto shall be sent or delivered by mail, telecopy or overnight courier service and all such notices and communications shall, when mailed, telecopied or sent by overnight courier, be effective when deposited in the mails, delivered to the overnight courier or sent by telecopier, except that notices and communications to the Administrative Agent or any Guarantor shall not be effective until received by the Administrative Agent or such Guarantor, as the case may be. All notices and other communications shall be in writing and addressed to such party at (i) in the case of any Lender Creditor, as provided in the Credit Agreement, (ii) in the case of any Guarantor, at c/o Flowers Foods, Inc. at 1919 Flowers Circle, Thomasville, Georgia 31757, Attention: Kirk Tolbert, Tel. No.: (912) 227-2278, Fax No. (912) 225-5435 and (iii) in the case of any Interest Rate Protection Creditor, at such address as such Interest Rate Protection Creditor shall have
Exhibit G
specified in writing to the Guarantors; or in any case at such other address as any of the Persons listed above may hereafter notify the others in writing.
19. If claim is ever made upon any Secured Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Guaranteed Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower) then and in such event each Guarantor agrees that any such judgment, decree, order, settlement or compromise shall be binding upon such Guarantor, notwithstanding any revocation hereof or other instrument evidencing any liability of the Borrower, and such Guarantor shall be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
20. (a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE SECURED CREDITORS AND OF THE UNDERSIGNED HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. Any legal action or proceeding with respect to this Guaranty or any other Credit Document to which any Guarantor is a party may be brought in the courts of the State of New York or of the United States of America for the Southern District of New York, in each case which are located in the City of New York, and, by execution and delivery of this Guaranty, each Guarantor hereby irrevocably accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of the aforesaid courts. Each Guarantor hereby further irrevocably waives any claim that any such court lacks personal jurisdiction over such Guarantor, and agrees not to plead or claim in any legal action or proceeding with respect to this Guaranty or any other Credit Document to which such Guarantor is a party brought in any of the aforesaid courts that any such court lacks personal jurisdiction over such Guarantor. Each Guarantor further irrevocably consents to the service of process out of any of the aforementioned courts in any such action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, to such Guarantor at its address set forth opposite its signature below, such service to become effective 30 days after such mailing. Each Guarantor hereby irrevocably waives any objection to such service of process and further irrevocably waives and agrees not to plead or claim in any action or proceeding commenced hereunder or under any other Credit Document to which such Guarantor is a party that such service of process was in any way invalid or ineffective. Nothing herein shall affect the right of any of the Secured Creditors to serve process in any other manner permitted by law or to commence legal proceedings or otherwise proceed against each Guarantor in any other jurisdiction.
(b) Each Guarantor hereby irrevocably waives (to the fullest extent permitted by applicable law) any objection which it may now or hereafter have to the laying of venue of any of the aforesaid actions or proceedings arising out of or in connection with this Guaranty or any other Credit Document to which such Guarantor is a party brought in the courts referred to in clause (a) above and hereby further irrevocably waives and agrees not to plead or claim in any such court that such action or proceeding brought in any such court has been brought in an inconvenient forum.
Exhibit G
(c) EACH GUARANTOR AND EACH SECURED CREDITOR (BY ITS ACCEPTANCE OF THE BENEFITS OF THIS GUARANTY) HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS GUARANTY, THE OTHER CREDIT DOCUMENTS TO WHICH SUCH GUARANTOR IS A PARTY OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
21. In the event that all of the capital stock of one or more Guarantors is sold or otherwise disposed of or liquidated in compliance with the requirements of Section 9.02 of the Credit Agreement (or such sale or other disposition has been approved in writing by the Required Lenders (or all Lenders if required by Section 13.12 of the Credit Agreement)) and the proceeds of such sale, disposition or liquidation are applied in accordance with the provisions of the Credit Agreement, to the extent applicable, such Guarantor shall upon consummation of such sale or other disposition (except to the extent that such sale or disposition is to the Borrower or another Subsidiary thereof) be released from this Guaranty automatically and without further action and this Guaranty shall, as to each such Guarantor or Guarantors, terminate, and have no further force or effect (it being understood and agreed that the sale of one or more Persons that own, directly or indirectly, all of the capital stock of any Guarantor shall be deemed to be a sale of such Guarantor for the purposes of this Section 21).
22. At any time a payment in respect of the Guaranteed Obligations is made under this Guaranty, the right of contribution of each Guarantor against each other Guarantor shall be determined as provided in the immediately following sentence, with the right of contribution of each Guarantor to be revised and restated as of each date on which a payment (a "Relevant Payment") is made on the Guaranteed Obligations under this Guaranty. At any time that a Relevant Payment is made by a Guarantor that results in the aggregate payments made by such Guarantor in respect of the Guaranteed Obligations to and including the date of the Relevant Payment exceeding such Guarantor's Contribution Percentage (as defined below) of the aggregate payments made by all Guarantors in respect of the Guaranteed Obligations to and including the date of the Relevant Payment (such excess, the "Aggregate Excess Amount"), each such Guarantor shall have a right of contribution against each other Guarantor who has made payments in respect of the Guaranteed Obligations to and including the date of the Relevant Payment in an aggregate amount less than such other Guarantor's Contribution Percentage of the aggregate payments made to and including the date of the Relevant Payment by all Guarantors in respect of the Guaranteed Obligations (the aggregate amount of such deficit, the "Aggregate Deficit Amount") in an amount equal to (x) a fraction the numerator of which is the Aggregate Excess Amount of such Guarantor and the denominator of which is the Aggregate Excess Amount of all Guarantors multiplied by (y) the Aggregate Deficit Amount of such other Guarantor. A Guarantor's right of contribution pursuant to the preceding sentences shall arise at the time of each computation, subject to adjustment to the preceding sentences shall arise at the time of each computation, subject to adjustment to the proceeding sentences; provided, that no Guarantor may take any action to enforce such right until the Guaranteed Obligations have been irrevocably paid in full in cash, it being expressly recognized and agreed by all parties hereto that any Guarantor's right of contribution arising pursuant to this Section 22 against any other Guarantor shall be expressly junior and subordinate to such other Guarantor's obligations and liabilities in respect of the Guaranteed Obligations and any other obligations owing under this
Exhibit G
Guaranty. As used in this Section 22: (i) each Guarantor's "Contribution
Percentage" shall mean the percentage obtained by dividing (x) the Adjusted Net
Worth (as defined below) of such Guarantor by (y) the aggregate Adjusted Net
Worth of all Guarantors; (ii) the "Adjusted Net Worth" of each Guarantor shall
mean the greater of (x) the Net Worth (as defined below) of such Guarantor and
(y) zero; and (iii) the "Net Worth" of each Guarantor shall mean the amount by
which the fair salable value of such Guarantor's assets on the date of any
Relevant Payment exceeds its existing debts and other liabilities (including
contingent liabilities, but without giving effect to any Guaranteed Obligations
arising under this Guaranty or under any guaranty of the Subordinated Notes) on
such date. All parties hereto recognize and agree that, except for any right of
contribution arising pursuant to this Section 22, each Guarantor who makes any
payment in respect of the Guaranteed Obligations shall have no right of
contribution or subrogation against any other Guarantor in respect of such
payment until all of the Guaranteed Obligations have been irrevocably paid in
full in cash. Each of the Guarantors recognizes and acknowledges that the rights
to contribution arising hereunder shall constitute an asset in favor of the
party entitled to such contribution. In this connection, each Guarantor has the
right to waive its contribution right against any Guarantor to the extent that
after giving effect to such waiver such Guarantor would remain solvent, in the
determination of the Required Lenders.
23. Each Guarantor and each Secured Creditor (by its acceptance of the benefits of this Guaranty) hereby confirms that it is its intention that this Guaranty not constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy Code, the Uniform Fraudulent Conveyance Act of any similar Federal or state law. To effectuate the foregoing intention, each Guarantor and each Secured Creditor (by its acceptance of the benefits of this Guaranty) hereby irrevocably agrees that the Guaranteed Obligations guaranteed by such Guarantor shall be limited to such amount as will, after giving effect to such maximum amount and all other (contingent or otherwise) liabilities of such Guarantor that are relevant under such laws, and after giving effect to any rights to contribution pursuant to any agreement providing for an equitable contribution among such Guarantor and other Guarantors, result in the Guaranteed Obligations of such Guarantor in respect of such maximum amount not constituting a fraudulent transfer or conveyance.
24. This Guaranty may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. A set of counterparts executed by all the parties hereto shall be lodged with the Guarantors and the Administrative Agent.
25. All payments made by any Guarantor hereunder will be made without setoff, counterclaim or other defense and on the same basis as payments are made by the Borrower under Sections 4.03 and 4.04 of the Credit Agreement.
26. It is understood and agreed that any Subsidiary of the Borrower that is required to execute a counterpart of this Guaranty after the date hereof pursuant to the Credit Agreement shall become a Guarantor hereunder by executing a counterpart hereof and delivering the same to the Administrative Agent.
* * *
EXHIBIT G
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be executed and delivered as of the date first above written.
FLOWERS BAKERIES BRANDS, INC.
FLOWERS FINANCE, LLC
FLOWERS BAKERIES, LLC
FLOWERS BAKING CO. OF FLORIDA, LLC
FLOWERS BAKING CO. OF MIAMI, LLC
FLOWERS BAKING CO. OF JACKSONVILLE, LLC
FLOWERS BAKING CO. OF BRADENTON, LLC
FLOWERS BAKING CO. OF THOMASVILLE, LLC
FLOWERS BAKING CO. OF VILLA RICA, LLC
FLOWERS BAKING CO. OF OPELIKA, LLC
HARDIN'S BAKERY, LLC
HOME BAKING COMPANY, LLC
HUVAL BAKERY, LLC
BUNNY BREAD, LLC
FLOWERS BAKING CO. OF BATON ROUGE, LLC
FLOWERS BAKING CO. OF JAMESTOWN, LLC
FRANKLIN BAKING COMPANY, LLC
FLOWERS BAKING CO. OF LYNCHBURG, LLC
FLOWERS BAKING CO. OF NORFOLK, LLC
FLOWERS BAKING CO. OF MORRISTOWN, LLC
SCHOTT'S BAKERY, LLC
FLOWERS BAKING CO. OF WEST VIRGINIA, LLC
THE DONUT HOUSE, LLC
FLOWERS BAKING CO. OF TEXAS, LLC
FLOWERS BAKING CO. OF TYLER, LLC
BUTTERKRUST BAKERY, LLC
EL PASO BAKING CO., LLC
SAN ANTONIO BAKING CO., LLC
AUSTIN BAKING CO., LLC
CORPUS CHRISTI BAKING CO., LLC
FLOWERS BAKING CO. OF TEXARKANA, LLC
HOLSUM BAKING COMPANY, LLC
SHIPLEY BAKING COMPANY, LLC
STORCK BAKING COMPANY, LLC
By: /s/ Thomas B. Jones, Jr. --------------------------------- Title: Authorized Representative |
BAILEY STREET BAKERY, LLC
TABLE PRIDE, LLC
FLOWERS BAKING CO. OF MEMPHIS, LLC
HAMPTON ROADS BAKING COMPANY, LLC
MRS. SMITH'S BAKERIES, LLC
EUROPEAN BAKERS, LLC
AUNT FANNY'S BAKERY, LLC
DAN-CO BAKERY, LLC
DANIEL'S HOME BAKERY OF NORTH CAROLINA, LLC
MRS. SMITH'S BAKERIES SALES SUPPORT GROUP, LLC
MRS. SMITH'S FOIL COMPANY, LLC
MRS. SMITH'S BAKERIES FROZEN DISTRIBUTORS, LLC
MRS. SMITH'S BAKERIES OF PENNSYLVANIA, LLC
FLOWERS SPECIALTY FOODS OF MONTGOMERY, LLC
FLOWERS BAKING COMPANY OF FOUNTAIN INN, LLC
FLOWERS FRESH BAKERY DISTRIBUTORS, INC.
MRS. SMITH'S BAKERY OF LONDON, LLC
MRS. SMITH'S BRANDS, INC.
MRS. SMITH'S BAKERY OF STILWELL, LLC
MRS. SMITH'S BAKERY OF SPARTANBURG, LLC
MRS. SMITH'S BAKERY OF CROSSVILLE, LLC
MRS. SMITH'S BAKERY OF SUWANEE, LLC
By: /s/ Thomas B. Jones, Jr. ------------------------------ Title: Authorized Representative |
Accepted and Agreed to:
BANKERS TRUST COMPANY,
as Collateral Agent
By: /s/ Scottye D. Lindsey --------------------------- Title: Vice President |
EXHIBIT H
PLEDGE AND SECURITY AGREEMENT
PLEDGE AND SECURITY AGREEMENT, dated as of March 26, 2001 (as amended, restated, modified and/or supplemented from time to time, this "Agreement"), made by each of the undersigned (each a "Pledgor", and together with any entity that becomes a party hereto pursuant to Section 25 hereof, the "Pledgors"), in favor of BANKERS TRUST COMPANY, as Collateral Agent (the "Pledgee"), for the benefit of the Secured Creditors (as defined below). Except as otherwise defined herein, terms used herein and defined in the Credit Agreement (as defined below) shall be used herein as therein defined.
W I T N E S S E T H :
WHEREAS, Flowers Foods, Inc. (the "Borrower"), various lenders from time to time party thereto (the "Lenders"), SunTrust Bank, as Syndication Agent (in such capacity, the "Syndication Agent") and Bankers Trust Company, as Administrative Agent (in such capacity, and together with any successor administrative agent, the "Administrative Agent" and, together with the Pledgee, the Syndication Agent, the Lenders, each Issuing Lender and their respective successors and assigns, the "Lender Creditors"), have entered into a Credit Agreement, dated as of March 26, 2001, providing for the making of Loans to the Borrower and the issuance of, and participation in, Letters of Credit for the account of the Borrower, all as contemplated therein (as used herein, the term "Credit Agreement" means the Credit Agreement described above in this paragraph, as the same may be amended, modified, extended, renewed, restated or supplemented from time to time);
WHEREAS, the Borrower may from time to time be party to (or guaranty the obligations of one or more of its Subsidiaries under) one or more Interest Rate Protection Agreements with one or more Lender Creditors or an affiliate of a Lender Creditor (each such Lender Creditor or affiliate, even if the respective Lender Creditor subsequently ceases to be a Lender under the Credit Agreement for any reason, together with such Lender Creditor's or affiliate's successors and assigns, collectively, the "Interest Rate Protection Creditors" and, together with the Lender Creditors, the "Secured Creditors");
WHEREAS, pursuant to the Subsidiaries Guaranty, the Subsidiary
Guarantors have jointly and severally guaranteed to the Lender Creditors and the
Interest Rate Protection Creditors the payment when due of all obligations and
liabilities of the Borrower under or with respect to (x) the Credit Documents
(as used herein, the term "Credit Documents" shall have the meaning provided in
the Credit Agreement and shall include any documentation executed and delivered
in connection with any replacement or refinancing of the Credit Agreement) and
(y) each Interest Rate Protection Agreement with one or more Interest Rate
Protection Creditors;
WHEREAS, it is a condition precedent to the extensions of credit under the Credit Agreement that each Pledgor shall have executed and delivered to the Pledgee this Agreement; and
WHEREAS, each Pledgor desires to execute this Agreement to satisfy the conditions described in the immediately preceding paragraph;
NOW, THEREFORE, in consideration of the benefits accruing to each Pledgor, the receipt and sufficiency of which are hereby acknowledged, each Pledgor hereby makes the following representations and warranties to the Pledgee and hereby covenants and agrees with the Pledgee as follows:
1. SECURITY FOR OBLIGATIONS; CERTAIN EXCLUDED OBLIGATIONS. Subject to the provisions of clause (b) of this Section 1, this Agreement is made by each Pledgor for the benefit of the Secured Creditors to secure:
(i) the full and prompt payment when due (whether at the stated maturity, by acceleration or otherwise) of all obligations (including obligations which, but for the automatic stay under Section 362(a) of the Bankruptcy Code, would become due) and liabilities (including, without limitation, indemnities, Fees and interest (including, without limitation, all interest that accrues after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency, reorganization or similar proceeding of any Pledgor at the rate provided for in the respective documentation, whether or not a claim for post-petition interest is allowed in any such proceeding) thereon) owing by such Pledgor to the Lender Creditors, now existing or hereafter incurred under, arising out of or in connection with the Credit Agreement and the other Credit Documents to which it is at any time a party (including, without limitation, all such obligations and liabilities of such Pledgor under the Subsidiaries Guaranty) and the due performance and compliance by such Pledgor with the terms of each such Credit Document (all such obligations and liabilities under this clause (i) being herein collectively called the "Credit Document Obligations");
(ii) the full and prompt payment when due (whether at the stated maturity, by acceleration or otherwise) of all obligations (including obligations which, but for the automatic stay under Section 362(a) of the Bankruptcy Code, would become due) and liabilities (including, without limitation, all interest that accrues after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency, reorganization or similar proceeding of any Pledgor at the rate provided for in the respective documentation, whether or not a claim for post-petition interest is allowed in any such proceeding) owing by such Pledgor to the Interest Rate Protection Creditors, now existing or hereafter incurred under, arising out of or in connection with any Interest Rate Protection Agreement (including, without limitation, all such obligations and liabilities of such Pledgor under the Subsidiaries Guaranty) and the due performance and compliance by such Pledgor with the terms of each such Interest Rate Protection Agreement (all such obligations and liabilities under this clause (ii) being herein collectively called the "Interest Rate Protection Obligations");
(iii) any and all sums advanced by the Pledgee in order to preserve the Collateral (as hereinafter defined) or preserve its security interest in the Collateral;
(iv) in the event of any proceeding for the collection or enforcement of any indebtedness, obligations, or liabilities referred to in clauses (i) through (iii) above, following the occurrence and during the continuation of an Event of Default, the reasonable expenses of retaking, holding, preparing for sale or lease, selling or otherwise disposing of or realizing on the Collateral, or of any exercise by the Pledgee of its rights hereunder, together with reasonable attorneys' fees and court costs; and
(v) all amounts paid by any Secured Creditor as to which such Secured Creditor has the right to reimbursement under Section 11 of this Agreement;
all such obligations, liabilities, sums and expenses set forth in clauses (i) through (v) of this Section 1 being herein collectively called the "Obligations," it being acknowledged and agreed that the "Obligations" shall include extensions of credit of the type described above, whether outstanding on the date of this Agreement or extended from time to time after the date of this Agreement.
2. DEFINITIONS. (a) Unless otherwise defined herein, all capitalized terms used herein and defined in the Credit Agreement shall be used herein as therein defined. Reference to singular terms shall include the plural and vice versa.
(b) The following capitalized terms used herein shall have the definitions specified below:
"Administrative Agent" has the meaning set forth in the Recitals hereto.
"Adverse Claim" has the meaning given such term in Section 8-102(a)(1) of the UCC.
"Agreement" has the meaning set forth in the first paragraph hereof.
"Borrower" shall have the meaning set forth in the Recitals hereto.
"Certificated Security" has the meaning given such term in
Section 8-102(a)(4) of the UCC.
"Clearing Corporation" has the meaning given such term in
Section 8-102(a)(5) of the UCC.
"Collateral" has the meaning set forth in Section 3.1 hereof.
"Collateral Accounts" means any and all investment or deposit accounts established and maintained by the Pledgee in the name of any Pledgor to which Collateral may be credited.
"Contract Rights" shall mean all rights of any Pledgor under each Distributor's Agreement, including, without limitation, (i) any and all rights to receive and demand payments under any or all such Distributor's Agreements, (ii) any and all rights to receive and compel
performance under any or all Distributor's Agreements and (iii) any and all rights, interests and claims now existing or in the future arising in connection with any or all Distributor's Agreements.
"Credit Agreement" has the meaning set forth in the Recitals hereto.
"Credit Document Obligations" has the meaning set forth in
Section 1 hereof.
"Distributor" means a Person or Persons (other than the Borrower and its Subsidiaries) party to a Distributor's Agreement pursuant to which such Person or Persons agree to distribute the Borrower's and its Subsidiaries' products in a specified geographic area.
"Distributor Loans" shall mean any loan advanced to one or more Distributors by the Borrower or any of its Subsidiaries or otherwise payable to the Borrower or any its Subsidiaries regardless of whether the Borrower or such Subsidiary originally advanced such loan.
"Distributor Notes" shall mean any promissory note executed by a Distributor and evidencing Distributor Loans.
"Distributor's Agreements" means the contractual arrangements between the Borrower or any of its Subsidiaries with their respective distributors, whereby such distributors agree to distribute the Borrower's and its Subsidiaries' products in a specified geographic area and the Borrower and/or its Subsidiaries agree to provide such distributors with products and other services, including certain proprietary administrative services.
"Documentation Agent" has the meaning set forth in the Recitals hereto.
"Domestic Corporation" has the meaning set forth in the definition of "Stock."
"Event of Default" means any "Event of Default" at any time under, and as defined in, the Credit Agreement.
"Financial Asset" has the meaning given such term in Section 8-102(a)(9) of the UCC.
"Foreign Corporation" has the meaning set forth in the definition of "Stock."
"Indemnitees" has the meaning set forth in Section 11 hereof.
"Instrument" has the meaning given such term in Section 9-105(1)(i) of the UCC.
"Interest Rate Protection Creditors" has the meaning set forth in the Recitals hereto.
"Interest Rate Protection Obligations" has the meaning set forth in Section 1 hereof.
"Investment Property" has the meaning given such term in
Section 9-115(f) of the UCC.
"Lender Creditors" has the meaning set forth in the Recitals hereto.
"Lenders" has the meaning set forth in the Recitals hereto.
"Limited Liability Company Assets" means all assets, whether tangible or intangible and whether real, personal or mixed (including, without limitation, all limited liability company capital and interest in other limited liability companies), at any time owned or represented by any Limited Liability Company Interest.
"Limited Liability Company Interests" means the entire limited liability company membership interest at any time owned by any Pledgor in any limited liability company.
"Non-Voting Stock" means all capital stock which is not Voting Stock.
"Notes" means (x) all Distributor Notes at any time owned or acquired by any Pledgor and (y) all other promissory notes from time to time issued to, or held by, any Pledgor.
"Obligations" has the meaning set forth in Section 1 hereof.
"Partnership Assets" means all assets, whether tangible or intangible and whether real, personal or mixed (including, without limitation, all partnership capital and interest in other partnerships), at any time owned or represented by any Partnership Interest.
"Partnership Interest" means the entire general partnership interest or limited partnership interest at any time owned by any Pledgor in any general partnership or limited partnership.
"Pledged Notes" has the meaning set forth in Section 3.5 hereof.
"Pledgee" has the meaning set forth in the first paragraph hereof.
"Pledgor" has the meaning set forth in the first paragraph hereof.
"Proceeds" has the meaning given such term in Section 9-306(l) of the UCC.
"Representative" has the meaning set forth in Section 9(e) hereof.
"Required Lenders" has the meaning given such term in the Credit Agreement.
"Required Secured Creditors" shall mean (i) the Required Lenders (or, to the extent required by Section 13.12 of the Credit Agreement, each of the Lenders) under the Credit Agreement so long as any Credit Document Obligations remain outstanding and (ii) in any situation not covered by the preceding clause (i), the holders of a majority of the outstanding principal amount of the Interest Rate Protection Obligations.
"Requisite Creditors" has the meaning set forth in Section 22 hereof.
"Secured Creditors" has the meaning set forth in the Recitals hereto.
"Secured Debt Agreements" has the meaning set forth in Section 5 hereof.
"Securities Account" has the meaning given such term in
Section 8-501(a) of the UCC.
"Securities Act" means the Securities Act of 1933, as amended, as in effect from time to time.
"Security" and "Securities" has the meaning given such term in
Section 8-102(a)(15) of the UCC, and shall in any event include all Stock and
Notes (whether or not same constitute "Securities" under Section 8-102(a)(15)).
"Security Entitlement" has the meaning given such term in
Section 8-102(a)(17) of the UCC.
"Stock" means (x) with respect to corporations incorporated under the laws of the United States or any State or territory thereof (each a "Domestic Corporation"), all of the issued and outstanding shares of capital stock of any corporation at any time owned by any Pledgor of any Domestic Corporation and (y) with respect to corporations not Domestic Corporations (each a "Foreign Corporation"), all of the issued and outstanding shares of capital stock at any time owned by any Pledgor of any Foreign Corporation.
"Syndication Agent" has the meaning set forth in the Recitals hereto.
"Termination Date" has the meaning set forth in Section 20 hereof.
"UCC" means the Uniform Commercial Code as in effect in the State of New York from time to time; provided that all references herein to specific sections or subsections of the UCC are references to such sections or subsections, as the case may be, of the Uniform Commercial Code as in effect in the State of New York on the date hereof.
"Uncertificated Security" has the meaning given such term in
Section 8-102(a)(18) of the UCC.
"Voting Stock" means all classes of capital stock of any Foreign Corporation entitled to vote.
3. PLEDGE OF SECURITIES, ETC.
3.1 Pledge. To secure the Obligations now or hereafter owed or to be performed by such Pledgor, each Pledgor does hereby grant, pledge and assign to the Pledgee for the benefit of the Secured Creditors, and does hereby create a continuing security interest in favor of the Pledgee for the benefit of the Secured Creditors in, all of the right, title and interest in and to the
following, whether now existing or hereafter from time to time acquired (collectively, the "Collateral"):
(a) each of the Collateral Accounts, including any and all assets of whatever type or kind deposited by such Pledgor in such Collateral Account, whether now owned or hereafter acquired, existing or arising, including, without limitation, all Financial Assets, Investment Property, monies, checks, drafts, Instruments, Securities or interests therein of any type or nature deposited or required by the Credit Agreement or any other Secured Debt Agreement to be deposited in such Collateral Account, and all investments and all certificates and other Instruments (including depository receipts, if any) from time to time representing or evidencing the same, and all dividends, interest, distributions, cash and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the foregoing;
(b) all Securities of such Pledgor from time to time, including, without limitation, all Distributor Notes;
(c) all Limited Liability Company Interests of such Pledgor from time to time and all of its right, title and interest in each limited liability company to which each such interest relates, whether now existing or hereafter acquired, including, without limitation:
(A) all the capital thereof and its interest in all profits, losses, Limited Liability Company Assets and other distributions to which such Pledgor shall at any time be entitled in respect of such Limited Liability Company Interests;
(B) all other payments due or to become due to such Pledgor in respect of Limited Liability Company Interests, whether under any limited liability company agreement or otherwise, whether as contractual obligations, damages, insurance proceeds or otherwise;
(C) all of its claims, rights, powers, privileges, authority, options, security interests, liens and remedies, if any, under any limited liability company agreement or operating agreement, or at law or otherwise in respect of such Limited Liability Company Interests;
(D) all present and future claims, if any, of such Pledgor against any such limited liability company for monies loaned or advanced, for services rendered or otherwise;
(E) all of such Pledgor's rights under any limited liability company agreement or operating agreement or at law to exercise and enforce every right, power, remedy, authority, option and privilege of such Pledgor relating to such Limited Liability Company Interests, including any power to terminate, cancel or modify any limited liability company agreement or operating agreement, to execute any instruments and to take any and all other action on behalf of and in the name of such Pledgor in respect of such Limited Liability Company Interests
and any such limited liability company, to make determinations, to exercise any election (including, but not limited to, election of remedies) or option or to give or receive any notice, consent, amendment, waiver or approval, together with full power and authority to demand, receive, enforce, collect or receipt for any of the foregoing or for any Limited Liability Company Asset, to enforce or execute any checks, or other instruments or orders, to file any claims and to take any action in connection with any of the foregoing; and
(F) all other property hereafter delivered in substitution for or in addition to any of the foregoing, all certificates and instruments representing or evidencing such other property and all cash, securities, interest, dividends, rights and other property at any time and from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all thereof;
(d) all Partnership Interests of such Pledgor from time to time and all of its right, title and interest in each partnership to which each such interest relates, whether now existing or hereafter acquired, including, without limitation:
(A) all the capital thereof and its interest in all profits, losses, Partnership Assets and other distributions to which such Pledgor shall at any time be entitled in respect of such Partnership Interests;
(B) all other payments due or to become due to such Pledgor in respect of Partnership Interests, whether under any partnership agreement or otherwise, whether as contractual obligations, damages, insurance proceeds or otherwise;
(C) all of its claims, rights, powers, privileges, authority, options, security interests, liens and remedies, if any, under any partnership agreement or operating agreement, or at law or otherwise in respect of such Partnership Interests;
(D) all present and future claims, if any, of such Pledgor against any such partnership for monies loaned or advanced, for services rendered or otherwise;
(E) all of such Pledgor's rights under any partnership agreement or operating agreement or at law to exercise and enforce every right, power, remedy, authority, option and privilege of such Pledgor relating to such Partnership Interests, including any power to terminate, cancel or modify any partnership agreement or operating agreement, to execute any instruments and to take any and all other action on behalf of and in the name of such Pledgor in respect of such Partnership Interests and any such partnership, to make determinations, to exercise any election (including, but not limited to, election of remedies) or option or to give or receive any notice, consent, amendment, waiver or approval, together with full power and authority to demand, receive, enforce, collect or receipt for any of the foregoing or for any Partnership Asset, to enforce or execute any
checks, or other instruments or orders, to file any claims and to take any action in connection with any of the foregoing; and
(F) all other property hereafter delivered in substitution for or in addition to any of the foregoing, all certificates and instruments representing or evidencing such other property and all cash, securities, interest, dividends, rights and other property at any time and from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all thereof;
(e) all Security Entitlements of such Pledgor from time to time in any and all of the foregoing;
(f) all Financial Assets and Investment Property of such Pledgor from time to time;
(g) all of such Pledgor's right, title and interest in, to and under the Distributor Notes and the Distributor's Agreements, together with all accessions thereto, all rights to payments thereunder, and all substitutions and replacements therefor; and
(h) all Proceeds and products of any and all of the foregoing.
Notwithstanding anything to the contrary contained in this
Section 3.1, (i) no Pledgor (to the extent that it is a Borrower or a Domestic
Subsidiary of a Borrower) shall be required at any time to pledge hereunder more
than 65% of the Voting Stock of any Foreign Corporation although each Pledgor
shall be required to pledge hereunder 100% of any Non-Voting Stock at any time
and from time to time acquired by such Pledgor of any Foreign Corporation and
(ii) no Pledgor shall be required to pledge hereunder any Stock held by such
Pledgor of Quality Bakers of America, Inc. so long as (x) such Pledgor is
prohibited from pledging such Stock pursuant to the terms of the organizational
documents of Quality Bakers of America, Inc. or any shareholders' agreement
applicable to such Stock and (y) the Borrower and its Subsidiaries taken as a
whole do not constitute the controlling shareholders of Quality Bakers of
America, Inc.
3.2 Procedures. (a) To the extent that any Pledgor at any time or from time to time owns, acquires or obtains any right, title or interest in any Collateral, such Collateral shall automatically (and without the taking of any action by the respective Pledgor) be pledged, and a security interest therein shall be granted, pursuant to Section 3.1 of this Agreement and, in addition thereto, such Pledgor shall (to the extent provided below) take the following actions as set forth below (as promptly as practicable and, in any event, within 10 days after it obtains such Collateral) for the benefit of the Pledgee and the Secured Creditors:
(i) with respect to a Certificated Security (other than a Certificated Security credited on the books of a Clearing Corporation), the respective Pledgor shall physically deliver such Certificated Security to the Pledgee, indorsed to the Pledgee or indorsed in blank;
(ii) with respect to an Uncertificated Security (other than an Uncertificated Security credited on the books of a Clearing Corporation), the respective Pledgor shall cause the issuer of such Uncertificated Security (or, if such issuer is not a Subsidiary of the Pledgor, the respective Pledgor shall use commercially reasonable efforts to cause the issuer of such Uncertificated Security) to duly authorize and execute, and deliver to the Pledgee, an agreement for the benefit of the Pledgee and the Secured Creditors substantially in the form of Annex I hereto (appropriately completed to the satisfaction of the Pledgee and with such modifications, if any, as shall be satisfactory to the Pledgee) pursuant to which such issuer agrees to comply with any and all instructions originated by the Pledgee without further consent by the registered owner and not to comply with instructions regarding such Uncertificated Security (and any Partnership Interests and Limited Liability Company Interests issued by such issuer) originated by any other Person other than a court of competent jurisdiction;
(iii) with respect to a Certificated Security,
Uncertificated Security, Partnership Interest or Limited Liability
Company Interest credited on the books of a Clearing Corporation
(including a Federal Reserve Bank, Participants Trust Company or The
Depository Trust Company), the respective Pledgor shall promptly notify
the Pledgee thereof and shall promptly take all actions required (i) to
comply with the applicable rules of such Clearing Corporation and (ii)
to perfect the security interest of the Pledgee under applicable law
(including, in any event, under Sections 9-115 (4)(a) and (b), 9-115
(1)(e) and 8-106 (d) of the UCC), subject, in the case of Certificated
Securities, Uncertificated Securities, Partnership Interests and
Limited Liability Company Interests in each case of non-Subsidiary
issuers, to receipt of any necessary consents of third parties (which
consents each respective Pledgor agrees to use commercially reasonable
efforts to obtain). The Pledgor further agrees to take such actions as
the Pledgee deems necessary or desirable to effect the foregoing;
(iv) with respect to a Partnership Interest or a Limited Liability Company Interest (other than a Partnership Interest or Limited Liability Company Interest credited on the books of a Clearing Corporation), (1) if such Partnership Interest or Limited Liability Company Interest is represented by a certificate, the procedure set forth in Section 3.2(a)(i) hereof, and (2) if such Partnership Interest or Limited Liability Company Interest is not represented by a certificate, the procedure set forth in Section 3.2(a)(ii) hereof;
(v) with respect to (x) any Note, other than the
Distributor Notes, physical delivery of such Note to the Pledgee,
indorsed to the Pledgee or indorsed in blank and (y) any Distributor
Note (A) to the extent a sub-collateral agent has been appointed by the
Pledgee to hold such Distributor Notes for the benefit of the Secured
Creditors pursuant to Section 4 hereof, physical delivery of such
Distributor Notes to such sub-collateral agent, endorsed to the Pledgee
or such sub-collateral agent or endorsed in blank and (B) to the extent
no sub-collateral agent has been appointed by the Pledgee to hold the
Distributor Notes for the benefit of the Secured Creditors pursuant to
Section 4 hereof, the applicable Pledgee or Pledgees shall retain
possession of such Distributor Notes in a
single location, in each case endorsed to the Pledgee, and each such Pledgor agrees that in such event it shall hold, as agent for the Secured Creditors, all such Distributor Notes and shall mark its records to clearly reflect that such Distributor Notes so held by each such Pledgor constitute Collateral pledged pursuant to this Agreement, and each such Pledgor further agrees that it shall, upon request of the Administrative Agent, the Pledgee or the Required Lenders, forthwith deliver all such Distributor Notes then held by such Pledgor to the Pledgee or its designee (including any sub-collateral agent appointed by the Pledgee in accordance with Section 4 hereof); and
(vi) with respect to cash not released to such Pledgor pursuant to Section 6, (i) establishment by the Pledgee of a cash account in the name of such Pledgor over which the Pledgee shall have exclusive and absolute control and dominion (and no withdrawals or transfers may be made therefrom by any Person except with the prior written consent of the Pledgee) and (ii) deposit of such cash in such cash account.
(b) In addition to the actions required to be taken pursuant to preceding Section 3.2(a) hereof, each Pledgor shall take the following additional actions with respect to the Securities and Collateral:
(i) with respect to all Collateral of such Pledgor of which the Pledgee may obtain "control" within the meaning of Section 8-106 of the UCC (or under any provision of the UCC as same may be amended or supplemented from time to time, or under the laws of any relevant State other than the State of New York) other than Cash Equivalents not required to be deposited in a Collateral Account or otherwise deposited with the Collateral Agent or its designee as cash collateral in accordance with the Credit Agreement, the respective Pledgor shall take all actions as may be requested from time to time by the Pledgee so that "control" of such Collateral is obtained and at all times held by the Pledgee; and
(ii) each Pledgor shall from time to time cause appropriate financing statements (on Form UCC-1 or other appropriate form) under the Uniform Commercial Code as in effect in the various relevant States, in form reasonably satisfactory to the Pledgee and covering all Collateral hereunder, to be filed in the relevant filing offices so that at all times the Pledgee has a security interest in all Collateral which is perfected by the filing of such financing statements (in each case to the maximum extent perfection by filing may be obtained under the laws of the relevant States, including, without limitation, Section 9-115(4)(b) of the UCC).
(c) In addition to the actions required to be taken pursuant to preceding Sections 3.2(a) and (b) hereof, each Pledgor shall take the following additional actions with respect to the Collateral described above in Section 3.1(g):
(i) Each Pledgor will keep and maintain at its own cost and expense records of its Distributor's Agreements that are accurate in all material respects, including, but not limited to, original counterparts of all documentation with respect thereto, records of all payments received, all credits granted thereon, all merchandise returned and all other
dealings therewith, and such Pledgor will make the same available on such Pledgor's premises to the Collateral Agent for inspection, at such Pledgor's own cost and expense, at any and all reasonable times during normal business hours upon prior written notice to such Pledgor. Upon the occurrence and during the continuance of an Event of Default and if the Collateral Agent so directs, such Pledgor shall legend, in form and manner satisfactory to the Collateral Agent, the Distributor's Agreements, as well as books, records and documents (if any) of such Pledgor evidencing or pertaining to such Distributor's Agreement with an appropriate reference to the fact that such Distributor's Agreements have been assigned to the Collateral Agent and that the Collateral Agent has a security interest therein.
(ii) Upon the occurrence and during the continuance of an
Event of Default, if the Collateral Agent so directs any Pledgor, such
Pledgor agrees (x) to cause all payments on account of the
Distributor's Agreements to be made directly to the Cash Collateral
Account, (y) that the Collateral Agent may, at its option, directly
notify the obligors with respect to any Distributor's Agreements to
make payments with respect thereto as provided in the preceding clause
(x), and (z) that the Collateral Agent may enforce collection of any
such Distributor's Agreements and may adjust, settle or compromise the
amount of payment thereunder, in the same manner and to the same extent
as such Pledgor. Without notice to or assent by any Pledgor, the
Collateral Agent may apply any or all amounts then in, or thereafter
deposited in, the Cash Collateral Account which application shall be
effected in the manner provided in Section 9 of this Agreement. The
costs and expenses (including reasonable attorneys' fees) of
collection, whether incurred by a Pledgor or the Collateral Agent,
shall be borne by the relevant Pledgor. The Collateral Agent shall
deliver a copy of each notice referred to in the preceding clause (y)
to the relevant Pledgor, provided, that the failure by the Collateral
Agent to so notify such Pledgor shall not affect the effectiveness of
such notice or the other rights of the Collateral Agent created by this
Section 3.2(c).
(iii) Except in accordance with such Pledgor's ordinary course of business and consistent with reasonable business judgment, no Pledgor shall rescind or cancel any indebtedness evidenced by any Distributor's Agreements, or modify any term thereof or make any adjustment with respect thereto, or extend or renew the same, or compromise or settle any material dispute, claim, suit or legal proceeding relating thereto, or sell any Distributor's Agreements, or interest therein, without the prior written consent of the Collateral Agent. No Pledgor will do anything to impair the rights of the Collateral Agent in the Distributor's Agreements.
(iv) Each Pledgor shall endeavor in accordance with reasonable business practices to cause to be collected from the obligor under any Distributor's Agreements, as and when due (including, without limitation, amounts which are delinquent, such amounts to be collected in accordance with generally accepted lawful collection procedures) any and all amounts owing under or on account of such Distributor's Agreements, and apply forthwith upon receipt thereof all such amounts as are so collected to the outstanding balance of such Distributor's Agreements. Except as otherwise
directed by the Collateral Agent after the occurrence and during the continuation of an Event of Default, any Pledgor may allow in the ordinary course of business as adjustments to amounts owing under its Distributor's Agreements (i) an extension or renewal of the time or times of payment, or settlement for less than the total unpaid balance, which such Pledgor finds appropriate in accordance with reasonable business judgment and (ii) a refund or credit due as a result of returned or damaged merchandise or improperly performed services or for other reasons which such Pledgor finds appropriate in accordance with reasonable business judgment. The reasonable costs and expenses (including, without limitation, reasonable attorneys' fees) of collection, whether incurred by a Pledgor or the Collateral Agent, shall be borne by the relevant Pledgor.
(v) If any Pledgor owns or acquires any Instrument constituting Collateral (other than checks and other payment instruments received and collected in the ordinary course of business) in respect of any Distributor's Agreement, such Pledgor will within 10 Business Days thereof, take such action as is required by Section 3.2(a)(v) hereof.
(vi) Anything herein to the contrary notwithstanding, the Pledgors shall remain liable under each of the Distributor's Agreements to observe and perform all of the conditions and obligations to be observed and performed by them thereunder, all in accordance with and pursuant to the terms and provisions of each Distributor's Agreement. Neither the Collateral Agent (or any sub-collateral agent appointed by the Pledgee pursuant to Section 4 hereof) nor any other Secured Creditor shall have any obligation or liability under any Distributor's Agreement by reason of or arising out of this Agreement or the receipt by the Collateral Agent (or any sub-collateral agent appointed by the Pledgee pursuant to Section 4 hereof) or any other Secured Creditor of any payment relating to such contract pursuant hereto, nor shall the Collateral Agent (or any sub-collateral agent appointed by the Pledgee pursuant to Section 4 hereof) or any other Secured Creditor be obligated in any manner to perform any of the obligations of any Pledgor under or pursuant to any Distributor's Agreement, to make any payment, to make any inquiry as to the nature or the sufficiency of any performance by any party under any Distributor's Agreement, to present or file any claim, to take any action to enforce any performance or to collect the payment of any amounts which may have been assigned to them or to which they may be entitled at any time or times.
3.3. Subsequently Acquired Collateral. If any Pledgor shall acquire (by purchase, stock dividend or otherwise) any additional Collateral at any time or from time to time after the date hereof, such Collateral shall automatically (and without any further action being required to be taken) be subject to the pledge and security interests created pursuant to Section 3.1 hereof and, furthermore, the Pledgor will promptly thereafter take (or cause to be taken) all action with respect to such Collateral in accordance with the procedures set forth in Section 3.2 hereof, and will promptly thereafter deliver to the Pledgee (i) a certificate executed by a principal executive officer of such Pledgor describing such Collateral and certifying that the same has been duly pledged in favor of, and assigned to, the Pledgee (for the benefit of the Secured Creditors) hereunder and (ii) supplements to Annexes A through G hereto as are necessary to cause such annexes to be complete and accurate at such time, provided that, unless the Administrative
Agent, the Pledgee (or any sub-collateral agent appointed by the Pledgee pursuant to Section 4 hereof) or the Required Lenders so request, the Pledgors shall not be required to update Annex C hereto to reflect additional Distributor Notes acquired or received by such Pledgors after the date hereof so long as the procedures set forth in Sections 3.2(a)(v) and 3.2(c)(v) hereto have been complied with. Without limiting the foregoing, each Pledgor shall be required to pledge hereunder any shares of stock at any time and from time to time after the date hereof acquired by such Pledgor of any Foreign Corporation, provided that no Pledgor (to the extent that it is the Borrower or a Domestic Subsidiary of the Borrower) shall be required at any time to pledge hereunder more than 65% of the Voting Stock of any Foreign Corporation, although each Pledgor shall be required to pledge hereunder 100% of any Non-Voting Stock at any time and from time to time acquired by such Pledgor of any Foreign Corporation.
3.4. Transfer Taxes. Each pledge of Collateral under Section 3.1 or Section 3.3 hereof shall be accompanied by any transfer tax stamps required in connection with the pledge of such Collateral.
3.5. Definition of Pledged Notes. All Notes at any time pledged or required to be pledged hereunder are hereinafter called the "Pledged Notes".
3.6. Certain Representations and Warranties Regarding the
Collateral. Each Pledgor represents and warrants that on the date hereof (i)
each Subsidiary of such Pledgor, and the direct ownership thereof, is listed in
Annex A hereto; (ii) the Stock held by such Pledgor consists of the number and
type of shares of the stock of the corporations as described in Annex B hereto;
(iii) such Stock referenced in clause (ii) of this paragraph constitutes that
percentage of the issued and outstanding capital stock of the issuing
corporation as is set forth in Annex B hereto; (iv) the Notes held by such
Pledgor consist of the promissory notes described in Annex C hereto where such
Pledgor is listed as the lender; (v) the Limited Liability Company Interests
held by such Pledgor consist of the number and type of interests of the Persons
described in Annex D hereto; (vi) each such Limited Liability Company Interest
referenced in clause (v) of this paragraph constitutes that percentage of the
issued and outstanding equity interest of the issuing Person as set forth in
Annex D hereto; (vii) the Partnership Interests held by such Pledgor consist of
the number and type of interests of the Persons described in Annex E hereto;
(viii) each such Partnership Interest referenced in clause (vii) of this
paragraph constitutes that percentage or portion of the entire partnership
interest of the Partnership as set forth in Annex E hereto; (ix) the
Distributor's Agreements held by such Pledgor consist of the agreements
described in Annex F hereto; (x) the Pledgor has complied with the respective
procedure set forth in Section 3.2(a) hereof with respect to each item of
Collateral described in Annexes A through F hereto; and (xi) on the date hereof,
such Pledgor owns no other Securities, Limited Liability Company Interests or
Partnership Interests and is not a party to any other Distributor's Agreement.
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. The Pledgee shall have the right to appoint one or more sub-collateral agents for the purpose of retaining physical possession of any or all of the Pledged Securities, which may be held (in the discretion of the Pledgee) in the name of such Pledgor, endorsed or assigned in blank or in favor of the
Pledgee or any nominee or nominees of the Pledgee or a sub-collateral agent appointed by the Pledgee. To the extent any sub-collateral agent is at any time appointed by the Pledgee pursuant to this Section 4, such sub-collateral agent shall hold all Collateral in its possession in accordance with the provisions of this Agreement, and shall be entitled to the benefits of this Agreement (including, without limitation, all indemnity provisions set forth herein) to the same extent as the Pledgee, except as otherwise expressly set forth herein. The Borrower hereby agrees that it shall timely pay to any sub-collateral agent appointed by the Pledgee pursuant to this Section 4 the customary and reasonable fees and expenses charged by such sub-collateral agent for acting in such capacity. With respect to the Distributor Notes and related Collateral, to the extent no sub-collateral agent has been appointed by the Pledgee pursuant to this Section 4 to retain physical possession of the Distributor Notes, each Pledgor hereby agrees that, to the extent it retains possession of any Distributor Notes, it shall hold such Distributor Notes as agent or trustee for the Secured Creditors in accordance with Section 3.2(a)(v). On the Initial Borrowing Date, and until further notice from the Collateral Agent, SunTrust has been designated by the Collateral Agent to act as sub-collateral agent in accordance with Section 13.19 of the Credit Agreement.
5. VOTING, ETC., WHILE NO EVENT OF DEFAULT. Unless and until an Event of Default shall have occurred and be continuing, each Pledgor shall be entitled to (i) exercise any and all voting and other consensual rights pertaining to the Collateral and to give all consents, waivers or ratifications in respect thereof; and (ii) exercise any and all voting, consent, administration, management and other rights and remedies under (x) any limited liability company agreement or operating agreement or otherwise with respect to the Pledged Limited Liability Interests of such Pledgor and (y) any partnership agreement or otherwise with respect to the Pledged Partnership Interests of such Pledgor; provided, that, in each case, no vote shall be cast or any consent, waiver or ratification given or any action taken or omitted to be taken which would violate or be inconsistent with any of the terms of this Agreement, the Credit Agreement, any other Credit Document, any Interest Rate Protection Agreement (collectively, the "Secured Debt Agreements"), or which would have the effect of impairing the value of the Collateral or any part thereof or the position, interests, rights, priorities or remedies of the Pledgee or any other Secured Creditor in the Collateral or under any Secured Debt Agreement. All such rights of such Pledgor to vote and to give consents, waivers and ratifications shall cease if an Event of Default has occurred and is continuing and the Collateral Agent has thereafter provided notice to the Borrower that such rights are suspended (provided that if any Default or Event of Default of the type described in Section 10.05 of the Credit Agreement shall occur, no such notice shall be required to give effect to this sentence), and Section 7 hereof shall become applicable.
6. DIVIDENDS AND OTHER DISTRIBUTIONS. Unless an Event of Default shall have occurred and be continuing, all cash dividends, cash distributions payable, cash Proceeds and other cash amounts payable in respect of the Collateral shall be paid to the respective Pledgor. The Pledgee shall be entitled to receive directly, and to retain as part of the Collateral:
(i) all other or additional stock, notes, limited liability company interests, partnership interests, instruments or other securities or property (including, but not
limited to, cash dividends other than as set forth above) paid or distributed by way of dividend or otherwise in respect of the Collateral;
(ii) all other or additional stock, notes, limited liability company interests, partnership interests, instruments or other securities or property (including, but not limited to, cash) paid or distributed in respect of the Collateral by way of stock-split, spin-off, split-up, reclassification, combination of shares or similar rearrangement; and
(iii) all other or additional stock, notes, limited liability company interests, partnership interests, instruments or other securities or property (including, but not limited to, cash) which may be paid in respect of the Collateral by reason of any consolidation, merger, exchange of stock, conveyance of assets, liquidation or similar corporate reorganization.
Nothing contained in this Section 6 shall limit or restrict in any way the Pledgee's right to receive proceeds of the Collateral in any form in accordance with Section 3 of this Agreement. All dividends, distributions or other payments which are received by the Pledgor contrary to the provisions of this Section 6 and Section 7 below shall be received in trust for the benefit of the Pledgee, shall be segregated from other property or funds of the Pledgor and shall be forthwith paid over to the Pledgee as Collateral in the same form as so received (with any necessary endorsement).
7. REMEDIES IN CASE OF EVENT OF DEFAULT. If an Event of Default shall have occurred and be continuing, then, and in every such case, the Pledgee shall be entitled to exercise all of the rights, powers and remedies (whether vested in it by this Agreement, any other Secured Debt Agreement or, to the extent then in effect and secured hereby, or by law) for the protection and enforcement of its rights in respect of the Collateral, and the Pledgee shall be entitled to exercise all the rights and remedies of a secured party under the UCC and also shall be entitled, without limitation, to exercise the following rights, which each Pledgor hereby agrees to be commercially reasonable:
(i) to receive all amounts payable in respect of the Collateral payable to such Pledgor under Section 6 hereof;
(ii) to transfer all or any part of the Collateral into the Pledgee's name or the name of its nominee or nominees;
(iii) to accelerate any Pledged Note which may be accelerated in accordance with its terms, and take any other lawful action to collect upon any Pledged Note (including, without limitation, to make any demand for payment thereon);
(iv) to vote all or any part of the Collateral (whether or not transferred into the name of the Pledgee) and give all consents, waivers and ratifications in respect of the Collateral and otherwise act with respect thereto as though it were the outright owner thereof (each Pledgor hereby irrevocably constituting and appointing the Pledgee the proxy and attorney-in-fact of such Pledgor, with full power of substitution to do so);
(v) at any time or from time to time to sell, assign and deliver, or grant options to purchase, all or any part of the Collateral, or any interest therein, at any public or private sale, without demand of performance, advertisement or notice of intention to sell or of the time or place of sale or adjournment thereof or to redeem or otherwise (all of which are hereby waived by each Pledgor), for cash, on credit or for other property, for immediate or future delivery without any assumption of credit risk, and for such price or prices and on such terms as the Pledgee in its absolute discretion may determine; provided, that at least 10 Business Days' notice of the time and place of any such sale shall be given to such Pledgor. The Pledgee shall not be obligated to make any such sale of Collateral regardless of whether any such notice of sale has theretofore been given. Each Pledgor hereby waives and releases to the fullest extent permitted by law any right or equity of redemption with respect to the Collateral, whether before or after sale hereunder, and all rights, if any, of marshaling the Collateral and any other security for the Obligations or otherwise. At any such sale, unless prohibited by applicable law, the Pledgee on behalf of the Secured Creditors may bid for and purchase all or any part of the Collateral so sold free from any such right or equity of redemption. Neither the Pledgee nor any Secured Creditor shall be liable for failure to collect or realize upon any or all of the Collateral or for any delay in so doing nor shall any of them be under any obligation to take any action whatsoever with regard thereto; and
(vi) to set-off any and all Collateral against any and all Obligations, and to withdraw any and all cash or other Collateral from any and all Collateral Accounts and to apply such cash and other Collateral to the payment of any and all Obligations.
8. REMEDIES, ETC., CUMULATIVE. Each and every right, power and remedy of the Pledgee provided for in this Agreement or any other Secured Debt Agreement, or now or hereafter existing at law or in equity or by statute, shall be cumulative and concurrent and shall be in addition to every other such right, power or remedy. The exercise or beginning of the exercise by the Pledgee or any other Secured Creditor of any one or more of the rights, powers or remedies provided for in this Agreement or any other Secured Debt Agreement or now or hereafter existing at law or in equity or by statute or otherwise shall not preclude the simultaneous or later exercise by the Pledgee or any other Secured Creditor of all such other rights, powers or remedies, and no failure or delay on the part of the Pledgee or any other Secured Creditor to exercise any such right, power or remedy shall operate as a waiver thereof. No notice to or demand on any Pledgor in any case shall entitle it to any other or further notice or demand in similar or other circumstances or constitute a waiver of any of the rights of the Pledgee or any other Secured Creditor to any other or further action in any circumstances without notice or demand. The Secured Creditors agree that this Agreement may be enforced only by the action of the Administrative Agent or the Pledgee, in each case acting upon the instructions of the Required Secured Creditors, and that no other Secured Creditor shall have any right individually to seek to enforce or to enforce this Agreement or to realize upon the security to be granted hereby, it being understood and agreed that such rights and remedies may be exercised by the Administrative Agent or the Pledgee, as the case may be, for the benefit of the Secured Creditors upon the terms of this Agreement.
9. APPLICATION OF PROCEEDS. (a) All monies collected by the Collateral Agent upon any sale or other disposition of the Collateral of each Pledgor, together with all other monies received by the Collateral Agent hereunder (except to the extent released in accordance with the applicable provisions of this Agreement or to the extent such monies are held in one or more Collateral Accounts pending the application thereof in accordance with the requirements of this Agreement), shall be applied to the payment of the Obligations as follows:
(i) first, to the payment of all amounts owing the Collateral Agent of the type described in clauses (iii) and (iv) of Section 1;
(ii) second, to the extent proceeds remain after the application pursuant to the preceding clause (i), an amount equal to the outstanding Primary Obligations shall be paid to the Secured Creditors as provided in Section 9(e) hereof, with each Secured Creditor receiving an amount equal to such outstanding Primary Obligations or, if the proceeds are insufficient to pay in full all such Primary Obligations, its Pro Rata Share of the amount remaining to be distributed;
(iii) third, to the extent proceeds remain after the application pursuant to the preceding clauses (i) and (ii), an amount equal to the outstanding Secondary Obligations shall be paid to the Secured Creditors as provided in Section 9(e) hereof, with each Secured Creditor receiving an amount equal to its outstanding Secondary Obligations or, if the proceeds are insufficient to pay in full all such Secondary Obligations, its Pro Rata Share of the amount remaining to be distributed; and
(iv) fourth, to the extent proceeds remain after the application pursuant to the preceding clauses (i) through (iii), inclusive, and following the termination of this Agreement pursuant to Section 20 hereof, to the relevant Pledgor or to whomever may be lawfully entitled to receive such surplus.
(b) For purposes of this Agreement (x) "Pro Rata Share" shall mean, when calculating a Secured Creditor's portion of any distribution or amount, that amount (expressed as a percentage) equal to a fraction the numerator of which is the then unpaid amount of such Secured Creditor's Primary Obligations or Secondary Obligations, as the case may be, and the denominator of which is the then outstanding amount of all Primary Obligations or Secondary Obligations, as the case may be, (y) "Primary Obligations" shall mean (i) in the case of the Credit Document Obligations, all principal of, and interest on, all Loans, all Unpaid Drawings and all Fees and (ii) in the case of the Interest Rate Protection Obligations, all amounts due under such Interest Rate Protection Agreements (other than indemnities, fees (including, without limitation, attorneys' fees) and similar obligations and liabilities) and (z) "Secondary Obligations" shall mean all Obligations other than Primary Obligations.
(c) When payments to Secured Creditors are based upon
their respective Pro Rata Shares, the amounts received by such Secured Creditors
hereunder shall be applied (for purposes of making determinations under this
Section 9 only) (i) first, to their Primary Obligations and (ii) second, to
their Secondary Obligations. If any payment to any Secured Creditor of its Pro
Rata Share of any distribution would result in overpayment to such Secured
Creditor, such excess amount shall instead be distributed in respect of the
unpaid Primary
Obligations or Secondary Obligations, as the case may be, of the other Secured Creditors, with each Secured Creditor whose Primary Obligations or Secondary Obligations, as the case may be, have not been paid in full to receive an amount equal to such excess amount multiplied by a fraction the numerator of which is the unpaid Primary Obligations or Secondary Obligations, as the case may be, of such Secured Creditor and the denominator of which is the unpaid Primary Obligations or Secondary Obligations, as the case may be, of all Secured Creditors entitled to such distribution.
(d) Each of the Secured Creditors, by their acceptance of the benefits hereof, agrees and acknowledges that if the Lender Creditors are to receive a distribution on account of undrawn amounts with respect to Letters of Credit issued under the Credit Agreement (which shall only occur after all outstanding Loans and Unpaid Drawings with respect to such Letters of Credit have been paid in full), such amounts shall be paid to the Administrative Agent under the Credit Agreement and held by it, for the equal and ratable benefit of the Lender Creditors, as cash security for the repayment of Obligations owing to the Lender Creditors as such. If any amounts are held as cash security pursuant to the immediately preceding sentence, then upon the termination of all outstanding Letters of Credit, and after the application of all such cash security to the repayment of all Obligations owing to the Lender Creditors after giving effect to the termination of all such Letters of Credit, if there remains any excess cash, such excess cash shall be returned by the Administrative Agent to the Collateral Agent for distribution in accordance with Section 9(a) hereof.
(e) All payments required to be made hereunder shall be made (x) if to the Lender Creditors, to the Administrative Agent under the Credit Agreement for the account of the Lender Creditors, and (y) if to the Interest Rate Protection Creditors, to the trustee, paying agent or other similar representative (each a "Representative") for the Interest Rate Protection Creditors or, in the absence of such a Representative, directly to the Interest Rate Protection Creditors.
(f) For purposes of applying payments received in accordance with this Section 9, the Collateral Agent shall be entitled to rely upon (i) the Administrative Agent under the Credit Agreement and (ii) the Representative for the Interest Rate Protection Creditors or, in the absence of such a Representative, upon the Interest Rate Protection Creditors for a determination (which the Administrative Agent, each Representative for any Interest Rate Protection Creditors and the Secured Creditors agree (or shall agree) to provide upon request of the Collateral Agent) of the outstanding Primary Obligations and Secondary Obligations owed to the Lender Creditors or the Interest Rate Protection Creditors, as the case may be. Unless it has actual knowledge (including by way of written notice from a Lender Creditor or an Interest Rate Protection Creditor) to the contrary, the Administrative Agent and each Representative, in furnishing information pursuant to the preceding sentence, and the Collateral Agent, in acting hereunder, shall be entitled to assume that no Secondary Obligations are outstanding. Unless it has actual knowledge (including by way of written notice from an Interest Rate Protection Creditor) to the contrary, the Collateral Agent, in acting hereunder, shall be entitled to assume that no Interest Rate Protection Agreements are in existence.
(g) It is understood and agreed that each Pledgor shall remain jointly and severally liable to the extent of any deficiency between the amount of the proceeds of the Collateral pledged by it hereunder and the aggregate amount of the Obligations of such Pledgor.
10. PURCHASERS OF COLLATERAL. Upon any sale of the Collateral by the Pledgee hereunder (whether by virtue of the power of sale herein granted, pursuant to judicial process or otherwise), the receipt of the Pledgee or the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold, and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Pledgee or such officer or be answerable in any way for the misapplication or nonapplication thereof.
11. INDEMNITY. Each Pledgor jointly and severally agrees (i) to indemnify and hold harmless the Pledgee in such capacity and each other Secured Creditor and their respective successors, assigns, employees, agents and servants (individually an "Indemnitee," and collectively the "Indemnitees") from and against any and all claims, demands, losses, judgments and liabilities (including liabilities for penalties of whatsoever kind or nature), and (ii) to reimburse each Indemnitee for all costs and expenses, including reasonable attorneys' fees, in each case to the extent growing out of or resulting from the exercise by any Indemnitee of any right or remedy granted to it hereunder or under any other Secured Debt Agreement except, with respect to clauses (i) and (ii) above, to the extent arising from gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision) of the respective Indemnitee. In no event shall the Pledgee be liable, in the absence of gross negligence or willful misconduct on its part (as determined by a court of competent jurisdiction in a final and non-appealable decision), for any matter or thing in connection with this Agreement other than to account for monies actually received by it in accordance with the terms hereof. If and to the extent that the obligations of the Pledgors under this Section 11 are unenforceable for any reason, each Pledgor hereby agrees to make the maximum contribution to the payment and satisfaction of such obligations which is permissible under applicable law.
12. PLEDGEE NOT A PARTNER OR LIMITED LIABILITY COMPANY MEMBER. (a) Nothing herein shall be construed to make the Pledgee or any other Secured Creditor liable as a member of any limited liability company or as a partner of any partnership and neither the Pledgee nor any other Secured Creditor by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or partnership. The parties hereto expressly agree that, unless the Pledgee shall become the absolute owner of Collateral consisting of a Limited Liability Company Interest or Partnership Interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Pledgee, any other Secured Creditor and/or any Pledgor.
(b) Except as provided in the last sentence of paragraph
(a) of this Section 12, the Pledgee, by accepting this Agreement, did not
intend to become a member of any limited liability company or a partner of any
partnership or otherwise be deemed to be a co-venturer with respect to any
Pledgor or any limited liability company or partnership either before or after
an
Event of Default shall have occurred. The Pledgee shall have only those powers set forth herein and the Secured Creditors shall assume none of the duties, obligations or liabilities of a member of any limited liability company or as a partner of any partnership or any Pledgor except as provided in the last sentence of paragraph (a) of this Section 12.
(c) The Pledgee and the other Secured Creditors shall not be obligated to perform or discharge any obligation of any Pledgor as a result of the pledge hereby effected.
(d) The acceptance by the Pledgee of this Agreement, with all the rights, powers, privileges and authority so created, shall not at any time or in any event obligate the Pledgee or any other Secured Creditor to appear in or defend any action or proceeding relating to the Collateral to which it is not a party, or to take any action hereunder or thereunder, or to expend any money or incur any expenses or perform or discharge any obligation, duty or liability under the Collateral.
13. FURTHER ASSURANCES; POWER OF ATTORNEY. (a) Each Pledgor agrees that it will join with the Pledgee in executing and, at such Pledgor's own expense, file and refile under the applicable UCC or such other law such financing statements, continuation statements and other documents in such offices as the Pledgee may reasonably deem necessary or appropriate and wherever required or permitted by law in order to perfect and preserve the Pledgee's security interest in the Collateral and hereby authorizes the Pledgee to file financing statements and amendments thereto relative to all or any part of the Collateral without the signature of such Pledgor where permitted by law, and agrees to do such further acts and things and to execute and deliver to the Pledgee such additional conveyances, assignments, agreements and instruments as the Pledgee may reasonably deem necessary or advisable to carry into effect the purposes of this Agreement or to further assure and confirm unto the Pledgee its rights, powers and remedies hereunder.
(b) Each Pledgor hereby appoints the Pledgee such Pledgor's attorney-in-fact, with full authority in the place and stead of such Pledgor and in the name of such Pledgor or otherwise, to act from time to time after the occurrence and during the continuance of an Event of Default in the Pledgee's reasonable discretion to take any action and to execute any instrument which the Pledgee may deem necessary or advisable to accomplish the purposes of this Agreement.
14. THE PLEDGEE AS AGENT. The Pledgee will, subject to the
provisions hold in accordance with this Agreement all items of the Collateral
at any time received under this Agreement. It is expressly understood and
agreed that the obligations of the Pledgee as holder of the Collateral and
interests therein and with respect to the disposition thereof, and otherwise
under this Agreement, are only those expressly set forth in this Agreement. The
Pledgee shall act hereunder on the terms and conditions set forth herein and in
Section 12 of the Credit Agreement, the terms of which shall be deemed
incorporated herein by reference as fully as if same were set forth herein in
their entirety.
15. TRANSFER BY PLEDGORS. No Pledgor will sell or otherwise dispose of, grant any option with respect to, or mortgage, pledge or otherwise encumber any of the
Collateral or any interest therein (except in accordance with the terms of this Agreement and as permitted by the terms of the Credit Agreement and the other Secured Debt Documents).
16. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGORS.
(a) Each Pledgor represents, warrants and covenants that:
(i) it is the legal, beneficial and record owner of, and has good and marketable title to, all Collateral consisting of one or more Securities and that it has sufficient interest in all Collateral in which a security interest is purported to be created hereunder for such security interest to attach (subject, in each case, to no pledge, lien, mortgage, hypothecation, security interest, charge, option, Adverse Claim or other encumbrance whatsoever, except the liens and security interests created by this Agreement);
(ii) it has full power, authority and legal right to pledge and assign all the Collateral pledged and assigned by it pursuant to this Agreement;
(iii) this Agreement has been duly authorized, executed and delivered by such Pledgor and constitutes the legal, valid and binding obligation of such Pledgor enforceable against such Pledgor in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by equitable principles (regardless of whether enforcement is sought in equity or at law);
(iv) except to the extent already obtained or made, no consent of any other party (including, without limitation, any stockholder or creditor of such Pledgor or any of its Subsidiaries and any other partners or members of such Pledgor's partnerships or limited liability companies) and no consent, license, permit, approval or authorization of, exemption by, notice or report to, or registration, filing (except any filings or recordings required to perfect the Pledgee's security interest in the Collateral, which will be made within ten (10) days of the Initial Borrowing Date) or declaration with, any governmental authority is required to be obtained by such Pledgor in connection with (a) the execution, delivery or performance of this Agreement, (b) the validity or enforceability of this Agreement (except as set forth in clause (iii) above), (c) the perfection or enforceability of the Pledgee's security interest in the Collateral (other than the Distributor Notes and related Collateral to the extent possession thereof has not been obtained, and is not then required to be obtained, by the Pledgee or any sub-collateral agent in accordance with the provisions of Section 3.2(a)(v)) or (d) except for compliance with or as may be required by applicable securities laws, the exercise by the Pledgee of any of its rights or remedies provided herein;
(v) the execution, delivery and performance of this Agreement by such Pledgor does not violate any provision of any applicable law or regulation or of any order, judgment, writ, award or decree of any court, arbitrator or governmental authority, domestic or foreign, or of the certificate of incorporation or by-laws (or analogous organizational documents) of such Pledgor or of any securities issued by such Pledgor or any of its Subsidiaries, or of any mortgage, indenture, lease, deed of trust, credit agreement or loan agreement, or any other material agreement, contract or instrument to which such Pledgor or
any of its Subsidiaries is a party or which purports to be binding upon such Pledgor or any of its Subsidiaries or upon any of their respective material assets and will not result in the creation or imposition (or the obligation to create or impose) of any lien or encumbrance on any of the assets of such Pledgor or any of its Subsidiaries except as contemplated by this Agreement;
(vi) all of the Collateral consisting of Securities, Limited Liability Company Interests and Partnership Interests has been duly and validly issued and acquired, is fully paid and nonassessable and is subject to no options to purchase or similar rights;
(vii) to such Pledgor's knowledge, each of the Pledged Notes constitutes, or when executed by the obligor thereof will constitute, the legal, valid and binding obligation of such obligor, enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors' rights and by equitable principles (regardless of whether enforcement is sought in equity or at law); and
(viii) the pledge, collateral assignment and delivery to the Pledgee of the Collateral consisting of Certificated Securities pursuant to this Agreement creates a valid and perfected first priority security interest in such Certificated Securities, and the proceeds thereof, subject to no prior Lien or encumbrance or to any agreement purporting to grant to any third party a Lien or encumbrance on the property or assets of such Pledgor which would include the Securities and the Pledgee is entitled to all the rights, priorities and benefits afforded by the UCC or other relevant law as enacted in any relevant jurisdiction to perfect security interests in respect of such Collateral; and
(ix) "control" (as defined in Section 8-106 of the UCC) has been obtained by the Pledgee over all Collateral consisting of Securities (including Notes which are Securities) with respect to which such "control" may be obtained pursuant to Section 8-106 of the UCC, except, (x) in the case of Securities issued by non-Subsidiaries of the respective Pledgors (other than the Distributor Notes), with respect to which such Pledgors have used commercially reasonable efforts to obtain "control" but have been unable to get applicable third parties to take necessary actions with respect thereto or (y) in the case of Distributor Notes, to the extent a sub-collateral agent has not been appointed by the Pledgee pursuant to Section 4 to hold such Distributor Notes.
(b) Each Pledgor covenants and agrees that it will defend the Pledgee's right, title and security interest in and to the Collateral and the proceeds thereof against the claims and demands of all persons whomsoever; and such Pledgor covenants and agrees that it will have like title to and right to pledge any other property at any time hereafter pledged to the Pledgee as Collateral hereunder and will likewise defend the right thereto and security interest therein of the Pledgee and the other Secured Creditors.
(c) Each Pledgor covenants and agrees that it will take no action which would violate any of the terms of any Secured Debt Agreement applicable to such Pledgor.
(d) Each Pledgor covenants and agrees that it will furnish to the Pledgee and any Secured Creditor at any time and from time to time such additional information regarding the Collateral from time to time owned by it or in its possession as may be reasonably requested by the Pledgee or the respective Secured Creditor.
17. CHIEF EXECUTIVE OFFICE; RECORDS; STATE OF INCORPORATION/ ORGANIZATION. (a) The chief executive office of each Pledgor is located at the address specified in Annex G hereto. Each Pledgor will not move its chief executive office except to such new location as such Pledgor may establish in accordance with the last sentence of this Section 17(a). The originals of all documents in the possession of such Pledgor evidencing all Collateral, including but not limited to all Limited Liability Company Interests, Partnership Interests and Distributor's Agreements, and the only original books of account and records of such Pledgor relating thereto are, and will continue to be, kept at such chief executive office as specified in Annex G hereto, or at such new locations as such Pledgor may establish in accordance with the penultimate sentence of this Section 17(a). All Limited Liability Company Interests, Partnership Interests and Distributor's Agreements are, and will continue to be, maintained at, and controlled and directed (including, without limitation, for general accounting purposes) from, such chief executive office as specified in Annex G hereto, or such new locations as such Pledgor may establish in accordance with the last sentence of this Section 17(a). No Pledgor shall establish a new location for such offices until (i) it shall have given to the Pledgee not less than 15 days' prior written notice of its intention so to do, providing a complete address for such new location and providing such other information in connection therewith as the Pledgee may reasonably request and (ii) with respect to such new location, it shall have taken all action, reasonably satisfactory to the Pledgee, necessary to maintain the security interest of the Collateral Agent in the Collateral intended to be granted hereby at all times fully perfected and in full force and effect. Promptly after establishing a new location for such offices in accordance with the immediately preceding sentence, the respective Pledgor shall deliver to the Pledgee a supplement to Annex G hereto so as to cause such Annex G hereto to be complete and accurate.
(b) The exact legal name of each Pledgor, and the state of incorporation or organization, as the case may be, of each Pledgor is as specified in Annex H hereto. No Pledgor shall change its name or establish a new state of incorporation or organization until (i) it shall have given to the Pledgee not less than 15 days' prior written notice of its intention so to do, clearly describing such new name and/or jurisdiction of organization and providing such other information in connection therewith as the Pledgee may reasonably request and (ii) with respect to such new name and/or jurisdiction of organization, it shall have taken all action, reasonably satisfactory to the Pledgee, necessary to maintain the security interest of the Pledgee in the Collateral intended to be granted hereby at all times fully perfected and in full force and effect. Promptly after establishing a new name and/or jurisdiction of organization in accordance with the immediately preceding sentence, the respective Pledgor shall deliver to the Pledgee a supplement to Annex H hereto so as to cause such Annex H hereto to be complete and accurate.
18. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC. The obligations of each Pledgor under this Agreement shall be absolute and unconditional and shall remain in full force and effect without regard to, and shall not be released, suspended, discharged, terminated or otherwise affected by, any circumstance or occurrence whatsoever, including, without limitation: (i) any renewal, extension, amendment or modification of or addition or supplement to or deletion from any Secured Debt Agreement or any other instrument or agreement referred to therein, or any assignment or transfer of any thereof; (ii) any waiver, consent, extension, indulgence or other action or inaction under or in respect of any such agreement or instrument or this Agreement; (iii) any furnishing of any additional security to the Pledgee or its assignee or any acceptance thereof or any release of any security by the Pledgee or its assignee; (iv) any limitation on any party's liability or obligations under any such instrument or agreement or any invalidity or unenforceability, in whole or in part, of any such instrument or agreement or any invalidity or unenforceability, in whole or in part, of any such instrument or agreement or any term thereof; or (v) any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation or other like proceeding relating to such Pledgor or any Subsidiary of such Pledgor, or any action taken with respect to this Agreement by any trustee or receiver, or by any court, in any such proceeding, whether or not such Pledgor shall have notice or knowledge of any of the foregoing.
19. REGISTRATION, ETC. (a) If an Event of Default shall have occurred and be continuing then, and in every such case, upon receipt by any Pledgor from the Pledgee of a written request or requests that such Pledgor cause any registration, qualification or compliance under any Federal or state securities law or laws to be effected with respect to all or any part of the Collateral consisting of Securities, Limited Liability Company Interests or Partnership Interests, such Pledgor as soon as practicable and at its expense will cause such registration to be effected (and be kept effective) and will cause such qualification and compliance to be effected (and be kept effective) as may be so requested and as would permit or facilitate the sale and distribution of such Collateral, including, without limitation, registration under the Securities Act as then in effect (or any similar statute then in effect), appropriate qualifications under applicable blue sky or other state securities laws and appropriate compliance with any other government requirements; provided, that the Pledgee shall furnish to such Pledgor such information regarding the Pledgee as such Pledgor may reasonably request in writing and as shall be required in connection with any such registration, qualification or compliance. Such Pledgor will cause the Pledgee to be kept reasonably advised in writing as to the progress of each such registration, qualification or compliance and as to the completion thereof, will furnish to the Pledgee such number of prospectuses, offering circulars or other documents incident thereto as the Pledgee from time to time may reasonably request, and will indemnify the Pledgee, each other Secured Creditor and all others participating in the distribution of such Collateral against all claims, losses, damages and liabilities caused by any untrue statement (or alleged untrue statement) of a material fact contained therein (or in any related registration statement, notification or the like) or by any omission (or alleged omission) to state therein (or in any related registration statement, notification or the like) a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same may have been caused by an untrue statement or omission based upon information furnished in writing to such Pledgor by the Pledgee or such other Secured Creditor expressly for use therein.
(b) If at any time when the Pledgee shall determine to exercise its right to sell all or any part of the Collateral consisting of Securities, Limited Liability Company Interests or Partnership Interests pursuant to Section 7 hereof, such part thereof to be sold shall not, for any reason whatsoever, be effectively registered under the Securities Act, as then in effect, the Pledgee may, in its sole and absolute discretion, sell such Collateral, or part thereof, as the case may be, by private sale in such manner and under such circumstances as the Pledgee may deem necessary or advisable in order that such sale may legally be effected without such registration. Without limiting the generality of the foregoing, in any such event the Pledgee, in its sole and absolute discretion: (i) may proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Pledged Securities or part thereof shall have been filed under such Securities Act; (ii) may approach and negotiate with a single possible purchaser to effect such sale; and (iii) may restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In the event of any such sale, the Pledgee shall incur no responsibility or liability for selling all or any part of the Pledged Securities at a price which the Pledgee, in its sole and absolute discretion, may in good faith deem reasonable under the circumstances, notwithstanding the possibility that a substantially higher price might be realized if the sale were deferred until after registration as aforesaid.
20. TERMINATION, RELEASE. (a) After the Termination Date, this Agreement shall terminate (provided that all indemnities set forth herein including, without limitation, in Section 11 hereof shall survive any such termination) and the Pledgee, at the request and expense of the respective Pledgor, will execute and deliver to such Pledgor a proper instrument or instruments (including Uniform Commercial Code termination statements on form UCC-3) acknowledging the satisfaction and termination of this Agreement, will terminate such control agreements or similar agreements with respect to the Collateral as may then exist, and will duly assign, transfer and deliver to such Pledgor (without recourse and without any representation or warranty) such of the Collateral as may be in the possession of the Pledgee and as has not theretofore been sold or otherwise applied or released pursuant to this Agreement, together with any monies at the time held by the Pledgee or any its sub-agents hereunder. As used in this Agreement, "Termination Date" shall mean the date upon which the total commitments to provide extensions of credit under all Secured Debt Agreements have terminated, and all Loans have been repaid in full, all Letters of Credit have been terminated, all extensions of credit pursuant to any Interest Rate Protection Agreements have been repaid in full and all Obligations (other than arising from indemnities for which no request has been made) have been paid in full.
(b) In the event that any part of the Collateral is sold or otherwise disposed of (to a Person other than a Credit Party) in connection with a sale or disposition permitted by the Credit Agreement or is otherwise released at the direction of the Required Secured Creditors, and the proceeds of such sale or disposition (or from such release) are applied in accordance with the terms of the Credit Agreement to the extent required to be so applied, the Pledgee, at the request and expense of such Pledgor, will duly assign, transfer and deliver to such Pledgor (without recourse and without any representation or warranty) such of the Collateral as is then being (or has been) so sold or released and as may be in possession of the Pledgee and has not theretofore
been released pursuant to this Agreement and, to the extent requested by such Pledgor, deliver, at such Pledgor's expense, appropriate UCC termination statements and instruments of satisfaction, discharge and or reconveyance, as the case may be.
(c) At any time that a Pledgor desires that Collateral be released as provided in the foregoing Section 20(a) or (b), it shall deliver to the Pledgee a certificate signed by the principal executive officer of such Pledgor stating that the release of the respective Collateral is permitted pursuant to Section 20(a) or (b) hereof, and the Pledgee shall be entitled (but not required) to conclusively rely thereon. If reasonably requested by the Pledgee (although the Pledgee shall have no obligation to make any such request), the relevant Pledgor shall furnish appropriate legal opinions (from counsel reasonably acceptable to the Pledgee) to the effect set forth in the immediately preceding sentence.
(d) The Pledgee shall have no liability whatsoever to any other Secured Creditor as the result of any release of Collateral by it in accordance with, or which it believes to be in accordance with, this Section 20.
21. NOTICES, ETC. All notices and communications hereunder shall be in writing and sent or delivered by mail, telecopy or overnight courier service and all such notices and communications shall, when mailed, telecopied, or sent by overnight courier, be effective when deposited in the mails, delivered to the overnight courier, or sent by telecopier, except that notices and communications to the Pledgee or any Pledgor shall not be effective until received by the Pledgee or such Pledgor, as the case may be. All such notices and other communications shall be addressed as follows:
(a) if to any Pledgor, at:
c/o Flowers Foods, Inc. 1919 Flowers Circle Thomasville, Georgia 31757 Attention: Kirk Tolbert Telephone No.: (912) 227-2278 Telecopier No.: (912) 225-5435
(b) if to the Pledgee, at:
130 Liberty Street New York, New York 10006 Attention: Scottye Lindsey Telephone No.: (212) 250-3964 Telecopier No.: (212) 250-7218
(c) if to any Lender Creditor (other than the Pledgee),
(x) to the Administrative Agent, at the address of the Administrative
Agent specified in the Credit Agreement or (y) at such address as such
Lender Creditor shall have specified in the Credit Agreement;
(d) if to any Interest Rate Protection Creditor, at such address at such Interest Rate Protection Creditor shall have specified in writing to the Borrower and the Pledgee;
or at such other address as shall have been furnished in writing by any Person described above to the party required to give notice hereunder.
22. WAIVER; AMENDMENT. Except as contemplated in Section 25 hereof, none of the terms and conditions of this Agreement may be changed, waived, discharged or terminated in any manner whatsoever except in writing duly signed by each Pledgor directly affected thereby and the Pledgee (with the written consent of either (x) the Required Lenders (or all of the Lenders to the extent required by Section 13.12 of the Credit Agreement) at all times prior to the time on which all Credit Document Obligations have been paid in full or (y) the holders of at least a majority of the outstanding Interest Rate Protection Obligations at all times after the time on which all Credit Document Obligations have been paid in full); provided, that any change, waiver, modification or variance affecting the rights and benefits of a single Class (as defined below) of Secured Creditors (and not all Secured Creditors in a like or similar manner) shall also require the written consent of the Requisite Creditors (as defined below) of such affected Class. For the purpose of this Agreement, the term "Class" shall mean each class of Secured Creditors, i.e., whether (i) the Lender Creditors as holders of the Credit Document Obligations or (ii) the Interest Rate Protection Creditors as the holders of the Interest Rate Protection Obligations. For the purpose of this Agreement, the term "Requisite Creditors" of any Class shall mean each of (i) with respect to the Credit Document Obligations, the Required Lenders and (ii) with respect to the Interest Rate Protection Obligations, the holders of at least a majority of all obligations outstanding from time to time under the Interest Rate Protection Agreements.
23. MISCELLANEOUS. This Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of and be enforceable by each of the parties hereto and its successors and assigns, provided that no Pledgor may assign any of its rights or obligations under this Agreement except in accordance with the terms of the Secured Debt Agreements. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK. EACH PARTY TO THIS AGREEMENT IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. The headings in this Agreement are for purposes of reference only and shall not limit or define the meaning hereof. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which shall constitute one instrument. In the event that any provision of this Agreement shall prove to be invalid or unenforceable, such provision shall be deemed to be severable from the other provisions of this Agreement which shall remain binding on all parties hereto.
24. RECOURSE. This Agreement is made with full recourse to the Pledgors and pursuant to and upon all the representations, warranties, covenants and agreements on the
part of the Pledgors contained herein and in the other Secured Debt Agreements and otherwise in writing in connection herewith or therewith.
25. ADDITIONAL PLEDGORS. It is understood and agreed that any Subsidiary of the Borrower that is required to become a party to this Agreement after the date hereof pursuant to the requirements of the Credit Agreement shall automatically become a Pledgor hereunder by (x) executing a counterpart hereof and/or a Subsidiary assumption agreement, in each case in form and substance satisfactory to the Pledgee, (y) delivering supplements to Annexes A through H hereto as are necessary to cause such Annexes to be complete and accurate with respect to such additional Pledgor on such date and (z) taking all actions as specified in Section 3 of this Agreement as would have been taken by such Pledgor had it been an original party to this Agreement, in each case with all documents required above to be delivered to the Pledgee and with all actions required to be taken above to be taken to the reasonable satisfaction of the Pledgee.
26. RELEASE OF GUARANTORS. In the event any Pledgor which is a Subsidiary of the Borrower is released from its obligations pursuant to the Subsidiaries Guaranty, such Pledgor (so long as not the Borrower) shall be released from this Agreement and this Agreement shall, as to such Pledgor only, have no further force or effect.
* * * *
Exhibit H
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered by their duly authorized officers as of the date first above written.
FLOWERS FOODS, INC.,
as an Assignor
By: /s/ Thomas B. Jones, Jr. --------------------------------------- Title: Treasurer |
FLOWERS BAKERIES BRANDS, INC.
FLOWERS FINANCE, LLC
FLOWERS BAKERIES, LLC
FLOWERS BAKING CO. OF FLORIDA, LLC
FLOWERS BAKING CO. OF MIAMI, LLC
FLOWERS BAKING CO. OF JACKSONVILLE, LLC
FLOWERS BAKING CO. OF BRADENTON, LLC
FLOWERS BAKING CO. OF THOMASVILLE, LLC
FLOWERS BAKING CO. OF VILLA RICA, LLC
FLOWERS BAKING CO. OF OPELIKA, LLC
HARDIN'S BAKERY, LLC
HOME BAKING COMPANY, LLC
HUVAL BAKERY, LLC
BUNNY BREAD, LLC
FLOWERS BAKING CO. OF BATON ROUGE, LLC
FLOWERS BAKING CO. OF JAMESTOWN, LLC
FRANKLIN BAKING COMPANY, LLC
FLOWERS BAKING CO. OF LYNCHBURG, LLC
FLOWERS BAKING CO. OF NORFOLK, LLC
FLOWERS BAKING CO. OF MORRISTOWN, LLC
SCHOTT'S BAKERY, LLC
FLOWERS BAKING CO. OF WEST VIRGINIA, LLC
THE DONUT HOUSE, LLC
FLOWERS BAKING CO. OF TEXAS, LLC
FLOWERS BAKING CO. OF TYLER, LLC
BUTTERKRUST BAKERY, LLC
EL PASO BAKING CO., LLC
By: /s/ Thomas B. Jones, Jr. --------------------------------- Title: Authorized Representative |
SAN ANTONIO BAKING CO., LLC
AUSTIN BAKING CO., LLC
CORPUS CHRISTI BAKING CO., LLC
FLOWERS BAKING CO. OF TEXARKANA, LLC
HOLSUM BAKING COMPANY, LLC
SHIPLEY BAKING COMPANY, LLC
STORCK BAKING COMPANY, LLC
BAILEY STREET BAKERY, LLC
TABLE PRIDE, LLC
FLOWERS BAKING CO. OF MEMPHIS, LLC
HAMPTON ROADS BAKING COMPANY, LLC
MRS. SMITH'S BAKERIES, LLC
EUROPEAN BAKERS, LLC
AUNT FANNY'S BAKERY, LLC
DAN-CO BAKERY, LLC
DANIEL'S HOME BAKERY OF NORTH CAROLINA, LLC
MRS. SMITH'S BAKERIES SALES SUPPORT GROUP, LLC
MRS. SMITH'S FOIL COMPANY, LLC
MRS. SMITH'S BAKERIES FROZEN DISTRIBUTORS, LLC
MRS. SMITH'S BAKERIES OF PENNSYLVANIA, LLC
FLOWERS SPECIALTY FOODS OF MONTGOMERY, LLC
FLOWERS BAKING COMPANY OF FOUNTAIN INN, LLC
FLOWERS FRESH BAKERY DISTRIBUTORS, INC.
MRS. SMITH'S BAKERY OF LONDON, LLC
MRS. SMITH'S BRANDS, INC.
MRS. SMITH'S BAKERY OF STILWELL, LLC
MRS. SMITH'S BAKERY OF SPARTANBURG, LLC
MRS. SMITH'S BAKERY OF CROSSVILLE, LLC
MRS. SMITH'S BAKERY OF SUWANEE, LLC
By: /s/ Thomas B. Jones, Jr. ------------------------------ Title: Authorized Representative |
Accepted and Agreed to:
BANKERS TRUST COMPANY,
as Collateral Agent
By: /s/ Scottye D. Lindsey --------------------------- Title: Vice President |
ANNEX A
to
PLEDGE AND SECURITY AGREEMENT
LIST OF SUBSIDIARIES
PERCENTAGE
FEIN OWNED
---- -----
I. Flowers Foods, Inc. (GA) 58-2582379 Parent
1. Flowers Finance, LLC (DE) 51-0407746 100%
2. Flowers Bakeries, LLC (GA) 59-3483283 100%
i. Flowers Baking Co. of Florida, LLC (FL) 58-1301118 100%
1. Flowers Baking Co. of Miami, LLC (FL) 59-1758784 100%
2. Flowers Baking Co. of Jacksonville, LLC (FL) 59-1718773 100%
3. Flowers Baking Co. of Bradenton, LLC (FL) 58-1723981 100%
ii. Flowers Baking Co. of Thomasville, LLC (GA) 58-1330782 100%
iii. Flowers Baking Co. of Villa Rica, LLC (GA) 58-2109227 100%
iv. Flowers Baking Co. of Opelika, LLC (AL) 63-0752595 100%
1. Bailey Street Bakery, LLC (AL) 58-2272791 100%
v. Hardin's Bakery, LLC (AL) 63-0252356 100%
vi. Home Baking Company, LLC (AL) 63-0334970 100%
vii. Huval Bakery, LLC (LA) 59-1686698 100%
1. Bunny Bread, LLC (LA) 72-0500448 100%
a. Flowers Baking Co. of Baton Rouge, LLC (LA) 58-1740889 100%
viii. Flowers Baking Co. of Jamestown, LLC (NC) 58-1567728 100%
ix. Franklin Baking Company, LLC (NC) 56-0605051 100%
x. Flowers Baking Co. of Lynchburg, LLC (VA) 58-1309193 100%
xi. Flowers Baking Co. of Norfolk, LLC (VA) 58-1330779 100%
xii. Flowers Baking Co. of Morristown, LLC (TN) 58-1403615 100%
xiii. Schott's Bakery, LLC (TX) 74-0886850 100%
xiv. Flowers Baking Co. of West Virginia, LLC (WV) 55-0654747 100%
1. The Donut House, LLC (WV) 55-0517749 100%
xv. Flowers Baking Co. of Texas, LLC (TX) 58-1453104 100%
1. Flowers Baking Co. of Tyler, LLC (GA) 75-1786865 100%
a. Butterkrust Bakery, LLC (TX) 74-2720708 100%
2. El Paso Baking Co., LLC (TX) 74-2657988 100%
a. El Paso Baking Company de Mexico, S.A. de C.V. (MEXICO) 100%
3. San Antonio Baking Co., LLC (TX) 74-2830409 100%
4. Austin Baking Co., LLC (TX) 74-2830410 100%
5. Corpus Christi Baking Co., LLC. (TX) 74-2830414 100%
xvi. Flowers Baking Co. of Texarkana, LLC (AR) 71-0638493 100%
xvii. Holsum Baking Company, LLC (AR) 71-0209537 100%
xviii.Shipley Baking Company, LLC (AR) 71-0254043 100%
xix. Storck Baking Company, LLC (WV) 55-0745937 100%
xx. Table Pride, LLC (GA) 58-1846861 100%
xxi. Flowers Baking Co. of Memphis, LLC (TN) 62-1799669 100%
xxii. Hampton Roads Baking Company, LLC (VA) 58-2593937 100%
|
ANNEX A
xxiii. Flowers Bakeries Brands, Inc. (DE) 51-0407486 100%
3. Mrs. Smith's Bakeries, LLC (GA) 58-2392473 100%
a. European Bakers, LLC (GA) 58-0944858 100%
b. Aunt Fanny's Bakery, LLC (GA) 58-2168689 100%
c. Dan-Co Bakery, LLC (GA) 58-1989098 100%
i. Daniel's Home Bakery of North Carolina, LLC (NC) 58-2023526 100%
d. Mrs. Smith's Bakeries Sales Support Group, LLC (GA) 58-1846859 100%
i. Mrs. Smith's Foil Company, LLC (GA) 23-2947803 100%
e. Mrs. Smith's Bakeries Frozen Distributors, LLC (GA) 58-2125054 100%
f. Mrs. Smith's Bakeries of Pennsylvania, LLC (GA) 58-2236380 100%
g. Flowers Specialty Foods of Montgomery, LLC (AL) 63-0998333 100%
h. Flowers Baking Company of Fountain Inn, LLC (SC) 57-0641441 100%
i. Flowers Fresh Bakery Distributors, Inc. (TN) 62-1574151 100%
j. Mrs. Smith's Bakery of London, LLC (KY) 61-1027735 100%
k. Mrs. Smith's Brands, Inc. (SC) 57-1069445 100%
l. Mrs. Smith's Bakery of Stilwell, LLC (OK) 73-0962847 100%
m. Mrs. Smith's Bakery of Spartanburg, LLC. (SC) 57-0518564 100%
n. Mrs. Smith's Bakery of Crossville, LLC. (TN) 58-1333171 100%
o. Mrs. Smith's Bakery of Suwanee, LLC (GA) 58-2480300 100%
|
ANNEX B
to
PLEDGE AND SECURITY AGREEMENT
LIST OF STOCK
1. Flowers Foods, Inc.
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
2. Flowers Bakeries Brands, Inc.
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
3. Flowers Bakeries, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
Flowers Bakeries Common 1,000 1 100% (i)
Brands, Inc.
4. Mrs. Smith's Bakeries, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
Flowers Fresh Bakery Common 1,000 1 100% (i)
Distributors, Inc.
Mrs. Smith's Brands, Common 1,000 1 100% (i)
Inc.
5. Flowers Baking Co. of Florida, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
6. Flowers Baking Co. of Thomasville, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
|
Annex B
7. Flowers Baking Co. of Villa Rica, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
8. Flowers Baking Co. of Opelika, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
9. Hardin's Bakery, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
10. Home Baking Company, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
11. Huval Bakery, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
12. Flowers Baking Co. of Jamestown, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
13. Franklin Baking Company, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
14. Flowers Baking Co. of Lynchburg, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
|
Annex B
15. Flowers Baking Co. of Norfolk, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
16. Flowers Baking Co. of Morristown, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
17. Schott's Bakery, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
18. Flowers Baking Co. of West Virginia, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
19. Flowers Baking Co. of Texas, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
20. Flowers Baking Co. of Texarkana, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
21. Holsum Baking Company, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
22. Shipley Baking Company, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
|
Annex B
23. Storck Baking Company, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
24 Bailey Street Bakery, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
25. Table Pride, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
26. Flowers Baking Co. of Memphis, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
27. Hampton Roads Baking Company, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
28. Flowers Baking Co. of Miami, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
29. Flowers Baking Co. of Jacksonville, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
30. Flowers Baking Co. of Bradenton, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
|
Annex B
31. Bunny Bread, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
32. Flowers Baking Co. of Baton Rouge, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
33. The Donut House, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
34. Flowers Baking Co. of Tyler, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
35. Butterkrust Bakery, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
36. El Paso Baking Co., LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
El Paso Baking 100% [(i)] [(ii)]
Company de Mexico,
S.A. de C.V.
37. El Paso Baking Company de Mexico, S.A. de C.V.
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
|
Annex B
38. San Antonio Baking Co., LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE. 100%
39. Austin Baking Co., LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
40. Corpus Christi Baking Co., LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
41. European Bakers, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
42. Aunt Fanny's Bakery, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
43. Dan-Co Bakery, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
44. Daniel's Home Bakery of North Carolina, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
45. Mrs. Smith's Bakeries Frozen Distributors, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
|
Annex B
46. Mrs. Smith's Bakeries of Pennsylvania, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
47. Flowers Specialty Foods of Montgomery, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
48. Flowers Baking Company of Fountain Inn, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
49. Flowers Fresh Bakery Distributors, Inc.
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
50. Mrs. Smith's Bakeries Sales Support Group, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
51. Mrs. Smith's Foil Company, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
52. Mrs. Smith's Bakery of London, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
Bluebird Brands, Inc. 100% [(i)] [(ii)]
53. Mrs. Smith's Brands, Inc.
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE. 100%
|
Annex B
54. Mrs. Smith's Bakery of Stilwell, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE.
55. Mrs. Smith's Bakery of Spartanburg, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE. 100%
56. Mrs. Smith's Bakery of Crossville, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE. 100%
57. Mrs. Smith's Bakery of Suwanee, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
NONE. 100%
|
ANNEX C
to
PLEDGE AND SECURITY AGREEMENT
LIST OF NOTES
1. Flowers Foods, Inc.
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
------ ------------- ------- --------------------
See Attached. 3.2(v)
2. Flowers Bakeries Brands, Inc.
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
3. Flowers Bakeries, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
4. Mrs. Smith's Bakeries, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
5. Flowers Baking Co. of Florida, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
6. Flowers Baking Co. of Thomasville, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
|
ANNEX C
7. Flowers Baking Co. of Villa Rica, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
8. Flowers Baking Co. of Opelika, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
9. Hardin's Bakery, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
10. Home Baking Company, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
11. Huval Bakery, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
12. Flowers Baking Co. of Jamestown, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
|
ANNEX C
13. Franklin Baking Company, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
14. Flowers Baking Co. of Lynchburg, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
15. Flowers Baking Co. of Norfolk, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
16. Flowers Baking Co. of Morristown, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
17. Schott's Bakery, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
18. Flowers Baking Co. of West Virginia, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
|
ANNEX C
19. Flowers Baking Co. of Texas, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
20. Flowers Baking Co. of Texasrkana, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
21. Holsum Baking Company, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
22. Shipley Baking Company, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
23. Storck Baking Company, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
24. Bailey Street Bakery, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
25. Table Pride, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
|
ANNEX C
26. Flowers Baking Co. of Memphis, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
27. Hampton Roads Baking Company, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
28. Flowers Baking Co. of Miami, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
29. Flowers Baking Co. of Jacksonville, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
30. Flowers Baking Co. of Bradenton, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
31. Bunny Bread, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
32. Flowers Baking Co. of Baton Rouge, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
|
ANNEX C
33. The Donut House, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
34. Flowers Baking Co. of Tyler, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
35. Butterkrust Bakery, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
36. El Paso Baking Co., LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
37. El Paso Baking Company de Mexico, S.A. de C.V.
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
38. San Antonio Baking Co., LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
39. Austin Baking Co., LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
|
ANNEX C
40. Corpus Christi Baking Co., LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
41. Eurpoean Bakers, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
42. Aunt Fanny's Bakery, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
43. Dan-Co Bakery, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
44. Daniel's Home Bakery of North Carolina, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
45. Mrs. Smith's Bakeries Frozen Distributors, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
46. Mrs. Smith's Bakeries of Pennsylvania, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
|
ANNEX C
47. Flowers Specialty Foods of Montgomery, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
48. Flowers Baking Company of Fountain Inn, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
49. Flowers Fresh Bakery Distributors, Inc.
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
50. Mrs. Smith's Bakeries Sales Support Group, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
51. Mrs. Smith's Foil Company, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
52. Mrs. Smith's Bakery of London, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
53. Mrs. Smith's Brands, Inc.
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
|
ANNEX C
54. Mrs. Smith's Bakery of Stilwell, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
55. Mrs. Smith's Bakery of Spartanburg, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
56. Mrs. Smith's Bakery of Crossville, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
57. Mrs. Smith's Bakery of Suwanee, LLC
Relevant Sub-clause
of Section 3.2(a) of
Pledge and
Amount Maturity Date Obligor Security Agreement
NONE.
|
ATTACHMENT TO ANNEX C
to
PLEDGE AND SECURITY AGREEMENT
FLOWERS INDUSTRIES, INC.
DISTRIBUTOR NOTE PROGRAM
STATUS THROUGH 12/31/00
DISTRIBUTOR DISTRIBUTOR PAYMENT BEGINNING PAYMENT REMAINING NAME SSN NUMBER NUMBER PRINCIPLE AMOUNT PRINCIPLE ---- --- ------ ------ --------- ------- ---------- TOTAL NUMBER OF DISTRIBUTORS = 2767 $91,731,698.38 $ 666,639.43 $90,435,141.72 Randy Walker 261416389 151 21 $30,406.22 $ 101.39 $30,375.00 ---------------------------------------------------------------------------------------------------------------------------- Ashley Faglie 251758234 152 9 28,747.06 95.76 28,717.64 ---------------------------------------------------------------------------------------------------------------------------- Richard Aliano 254336147 164 303 21,212.65 123.94 21,137.66 ---------------------------------------------------------------------------------------------------------------------------- L Nesmith 255399822 170 360 31,423.18 233.90 31,261.80 ---------------------------------------------------------------------------------------------------------------------------- C D Milam 261622187 172 361 13,977.97 104.64 13,905.59 ---------------------------------------------------------------------------------------------------------------------------- Gary Almond 266715967 173 99 21,417.48 79.47 21,387.43 ---------------------------------------------------------------------------------------------------------------------------- Ray Kirkland 253339916 336 109 29,235.31 110.03 29,192.75 ---------------------------------------------------------------------------------------------------------------------------- Michael O Cundiff Jr 260256297 360 71 44,930.06 160.41 44,873.33 ---------------------------------------------------------------------------------------------------------------------------- R W Merritt 260829415 361 361 9,779.34 73.17 9,728.74 ---------------------------------------------------------------------------------------------------------------------------- Jeffrey Corley 417963111 362 2 43,676.43 144.46 43,632.76 ---------------------------------------------------------------------------------------------------------------------------- Lamar Kornegay 262532588 374 21 32,631.22 110.07 32,596.45 ---------------------------------------------------------------------------------------------------------------------------- Frank Brannon 261668079 375 110 30,047.09 113.25 30,003.18 ---------------------------------------------------------------------------------------------------------------------------- John D Butler 262479907 440 182 19,471.90 82.71 19,434.13 ---------------------------------------------------------------------------------------------------------------------------- Ralph Thomas 417139994 441 125 28,575.54 110.17 28,531.31 ---------------------------------------------------------------------------------------------------------------------------- Chris Mcneil 424927903 443 96 27,079.23 100.05 27,041.67 ---------------------------------------------------------------------------------------------------------------------------- Jody Piercy 418986646 444 39 29,072.39 99.90 29,039.58 ---------------------------------------------------------------------------------------------------------------------------- Scotty R Deese 417920647 445 182 27,146.89 115.54 27,094.00 ---------------------------------------------------------------------------------------------------------------------------- Billy W Sullivan 417966621 450 125 22,011.28 84.85 21,977.23 ---------------------------------------------------------------------------------------------------------------------------- Elton R Carver 260905460 451 242 24,963.47 121.44 24,899.64 ---------------------------------------------------------------------------------------------------------------------------- M Hollister 419068515 452 361 13,546.93 101.34 13,476.85 ---------------------------------------------------------------------------------------------------------------------------- J L Leverette 417022653 453 361 16,931.13 126.69 16,843.51 ---------------------------------------------------------------------------------------------------------------------------- Floyd Richards 542800500 650 156 32,303.97 130.82 32,247.70 ---------------------------------------------------------------------------------------------------------------------------- Johnny Knight 260196686 661 93 22,435.11 82.55 22,404.33 ---------------------------------------------------------------------------------------------------------------------------- Erwin Crawford 256619175 662 9 23,450.02 78.11 23,426.03 ---------------------------------------------------------------------------------------------------------------------------- David Armentor 464293174 663 124 21,049.08 81.02 21,016.63 ---------------------------------------------------------------------------------------------------------------------------- Allen Martin 259130841 664 31 35,129.16 119.78 35,090.45 ---------------------------------------------------------------------------------------------------------------------------- Daniel Watson 257111860 667 334 25,013.77 164.84 24,906.65 ---------------------------------------------------------------------------------------------------------------------------- Berry Dexter Nevels 256887880 668 144 31,731.12 126.11 31,678.24 ---------------------------------------------------------------------------------------------------------------------------- J R Horne 255686222 760 365 14,614.96 111.69 14,537.00 ---------------------------------------------------------------------------------------------------------------------------- D L White 260171473 761 365 21,457.87 163.96 21,343.43 ---------------------------------------------------------------------------------------------------------------------------- Tracy Slater 411176740 763 30 28,231.06 96.16 28,200.05 ---------------------------------------------------------------------------------------------------------------------------- Wm R White 255643817 764 365 20,965.02 159.46 20,853.94 ---------------------------------------------------------------------------------------------------------------------------- W G Gaskins 256808055 765 365 14,202.32 107.94 14,127.15 ---------------------------------------------------------------------------------------------------------------------------- Artis Kirkland 255254513 768 2 31,938.14 105.64 31,906.20 ---------------------------------------------------------------------------------------------------------------------------- John Owens Jr 253138867 820 69 50,163.26 178.86 50,100.16 ---------------------------------------------------------------------------------------------------------------------------- Demetrius Reed 256475589 821 22 40,141.45 135.54 40,098.54 ---------------------------------------------------------------------------------------------------------------------------- Barry Ray 423983421 822 29 38,168.43 129.86 38,126.65 ---------------------------------------------------------------------------------------------------------------------------- Charles Walls 255089135 860 22 34,739.67 117.30 34,702.54 ---------------------------------------------------------------------------------------------------------------------------- Timothy Mccrary 259379929 873 166 29,750.24 122.85 29,696.04 ---------------------------------------------------------------------------------------------------------------------------- |
ATTACHMENT TO ANNEX C
S A Deloach 259907600 875 365 14,981.65 114.46 14,901.76 ---------------------------------------------------------------------------------------------------------------------------- J H Farr,Jr 258298411 876 365 14,190.59 109.01 14,114.33 ---------------------------------------------------------------------------------------------------------------------------- John Wayne Early 256980096 877 30 50,855.04 173.21 50,799.19 ---------------------------------------------------------------------------------------------------------------------------- Larry Whisby 255923854 960 16 48,895.64 164.06 48,844.42 ---------------------------------------------------------------------------------------------------------------------------- Tommy Wood 256339025 961 9 51,641.59 172.02 51,588.74 ---------------------------------------------------------------------------------------------------------------------------- Donald Patterson 253191496 962 41 40,985.79 141.33 40,939.04 ---------------------------------------------------------------------------------------------------------------------------- Dennis Culpepper 259236366 963 54 40,386.20 141.38 40,338.02 ---------------------------------------------------------------------------------------------------------------------------- R E Murch 569720537 964 365 12,849.43 98.17 12,780.91 ---------------------------------------------------------------------------------------------------------------------------- Dwayne Bawn 257136398 970 77 42,471.56 152.99 42,416.58 ---------------------------------------------------------------------------------------------------------------------------- James Neumans 254866581 1080 166 27,141.36 112.08 27,091.91 ---------------------------------------------------------------------------------------------------------------------------- Mike C Lewis 254980306 1081 194 36,764.16 160.26 36,688.74 ---------------------------------------------------------------------------------------------------------------------------- Richard Downs 256197748 1082 253 23,753.39 118.96 23,689.25 ---------------------------------------------------------------------------------------------------------------------------- Larry Taylor 258024384 1083 47 31,301.10 108.68 31,264.65 ---------------------------------------------------------------------------------------------------------------------------- C F Downs,Jr 256199050 1084 68 25,210.66 162.02 25,106.82 ---------------------------------------------------------------------------------------------------------------------------- E Braswell 259729965 1085 365 20,511.93 156.73 20,402.54 ---------------------------------------------------------------------------------------------------------------------------- W Kimbrell 259023352 1086 365 25,643.48 195.93 25,506.73 ---------------------------------------------------------------------------------------------------------------------------- Doug Roberson 253539542 1150 9 35,184.93 117.20 35,148.93 ---------------------------------------------------------------------------------------------------------------------------- David Thompson 257061690 1151 101 9,897.24 36.83 9,883.25 ---------------------------------------------------------------------------------------------------------------------------- William Harris 258964358 1161 341 21,430.33 154.04 21,325.74 ---------------------------------------------------------------------------------------------------------------------------- Daryl Thompson 257061519 1162 103 34,278.97 127.91 34,230.17 ---------------------------------------------------------------------------------------------------------------------------- S Lenderman 258514456 1175 11 44,853.69 149.72 44,807.48 ---------------------------------------------------------------------------------------------------------------------------- Van Whittle 257849451 1240 365 20,318.78 155.25 20,210.42 ---------------------------------------------------------------------------------------------------------------------------- L Evans 256563470 1241 365 15,652.79 119.58 15,569.33 ---------------------------------------------------------------------------------------------------------------------------- Kenneth Stephens 260983933 1242 145 29,398.24 117.04 29,349.04 ---------------------------------------------------------------------------------------------------------------------------- Ernie Parsons 123587932 1243 35 44,671.96 152.66 44,622.39 ---------------------------------------------------------------------------------------------------------------------------- W Pittman 260704297 1244 365 14,119.23 107.94 14,043.87 ---------------------------------------------------------------------------------------------------------------------------- Clifford Harper 260687875 1290 299 40,893.85 234.00 40,754.22 ---------------------------------------------------------------------------------------------------------------------------- Richard Allison 252377463 1292 94 48,796.50 179.07 48,730.04 ---------------------------------------------------------------------------------------------------------------------------- Allen Thoma 265919525 1461 1 54,600.00 180.42 54,545.58 ---------------------------------------------------------------------------------------------------------------------------- Allen Thoma 265919525 1462 21 48,579.60 48,691.71 0.00 ---------------------------------------------------------------------------------------------------------------------------- Ronnie Jackson 261678716 1463 140 22,319.25 88.13 22,282.63 ---------------------------------------------------------------------------------------------------------------------------- Charles Terry 591122484 1464 21 31,053.22 168.66 30,956.22 ---------------------------------------------------------------------------------------------------------------------------- Kenneth Dailey 302505678 1465 21 34,898.92 117.47 34,861.99 ---------------------------------------------------------------------------------------------------------------------------- Daniel Martin 314886418 1470 170 30,762.22 127.98 30,705.23 ---------------------------------------------------------------------------------------------------------------------------- Gary Dunaway 267430970 1580 68 27,486.67 97.76 27,452.34 ---------------------------------------------------------------------------------------------------------------------------- Michael Malden 267797213 1583 216 23,409.56 106.51 23,357.07 ---------------------------------------------------------------------------------------------------------------------------- Henry Elliott 265616143 1584 228 12,470.78 58.06 12,441.50 ---------------------------------------------------------------------------------------------------------------------------- Ron Hancock 577647390 1589 28 30,257.88 102.61 30,225.10 ---------------------------------------------------------------------------------------------------------------------------- Robert Reis 291768311 1590 1 30,450.00 100.62 30,419.65 ---------------------------------------------------------------------------------------------------------------------------- Frank Fortenberry,Ii 425066104 1660 228 23,747.53 111.61 23,690.72 ---------------------------------------------------------------------------------------------------------------------------- Mark Thompson 514641969 1661 96 29,639.21 109.36 29,598.25 ---------------------------------------------------------------------------------------------------------------------------- George H Yost Ii 229133984 1662 83 45,536.36 165.10 45,476.34 ---------------------------------------------------------------------------------------------------------------------------- William T Moody, Jr 433432215 1663 114 35,107.07 132.91 35,055.18 ---------------------------------------------------------------------------------------------------------------------------- Winston Moore 258478420 1664 228 5,693.07 26.75 5,679.46 ---------------------------------------------------------------------------------------------------------------------------- Charles Davis 452044244 1665 216 4,274.20 19.49 4,264.57 ---------------------------------------------------------------------------------------------------------------------------- Larry Dubois 266699568 1666 20 53,936.56 181.74 53,879.29 ---------------------------------------------------------------------------------------------------------------------------- Steve Jernigan 361522370 1667 128 55,018.74 212.76 54,932.95 ---------------------------------------------------------------------------------------------------------------------------- Benjamin Jones 428396646 1860 93 34,735.99 127.47 34,688.68 ---------------------------------------------------------------------------------------------------------------------------- Jason Thomas 267792486 1861 1 37,060.00 122.46 37,023.06 ---------------------------------------------------------------------------------------------------------------------------- Jeffery Booker 420925528 1870 58 32,915.45 115.78 32,875.63 ---------------------------------------------------------------------------------------------------------------------------- |
ATTACHMENT TO ANNEX C
Darrell Blow 423988329 1871 6 37,580.93 124.80 37,542.86 ---------------------------------------------------------------------------------------------------------------------------- Ellen Mae Albrest 435620444 1872 10 18,038.67 77.53 18,002.77 ---------------------------------------------------------------------------------------------------------------------------- Joey Majors 264838393 1890 46 36,235.69 141.23 36,178.08 ---------------------------------------------------------------------------------------------------------------------------- Michael Denault 329563763 1891 28 40,187.73 136.58 40,143.89 ---------------------------------------------------------------------------------------------------------------------------- Shane Thompson 590300223 1893 1 53,230.00 175.89 53,176.95 ---------------------------------------------------------------------------------------------------------------------------- Micheal Depew 109563142 1980 54 36,509.35 127.81 36,465.79 ---------------------------------------------------------------------------------------------------------------------------- Dusty Depew 109561011 1982 70 36,559.20 130.52 36,513.05 ---------------------------------------------------------------------------------------------------------------------------- Kenny Franklin 264798380 1983 3 68,812.42 227.83 68,743.39 ---------------------------------------------------------------------------------------------------------------------------- Jerry Allen 259924927 1990 296 20,453.81 116.64 20,384.37 ---------------------------------------------------------------------------------------------------------------------------- David Cutchins 261415115 1992 26 38,926.50 132.01 38,884.32 ---------------------------------------------------------------------------------------------------------------------------- Toney Dunaway 587336238 2060 25 57,560.41 194.99 57,498.25 ---------------------------------------------------------------------------------------------------------------------------- Tim Campbell 593448718 2061 28 42,624.27 144.86 42,577.77 ---------------------------------------------------------------------------------------------------------------------------- Chad Whiggins 593247648 2064 46 45,972.64 159.43 45,919.30 ---------------------------------------------------------------------------------------------------------------------------- Marcus Tate 144724999 2068 68 39,210.53 139.29 39,161.73 ---------------------------------------------------------------------------------------------------------------------------- Dwight Aligood 267907743 2069 16 58,999.79 197.96 58,937.98 ---------------------------------------------------------------------------------------------------------------------------- Paul Stockton 457591263 2160 170 24,901.20 103.59 24,855.07 ---------------------------------------------------------------------------------------------------------------------------- Steve Gunde 194581898 2163 142 30,227.29 119.54 30,177.51 ---------------------------------------------------------------------------------------------------------------------------- Kerry L Finley 416804041 2180 133 23,309.51 91.00 23,272.30 ---------------------------------------------------------------------------------------------------------------------------- Dwayne Kosch 270583987 2181 306 21,264.63 125.56 21,188.14 ---------------------------------------------------------------------------------------------------------------------------- Scott Drinkwater 591542069 2183 27 32,207.39 109.34 32,172.37 ---------------------------------------------------------------------------------------------------------------------------- Frank Sheridan 261737383 2190 58 36,832.48 129.56 36,787.92 ---------------------------------------------------------------------------------------------------------------------------- D L Messer 261411750 2191 361 10,817.33 80.92 10,761.37 ---------------------------------------------------------------------------------------------------------------------------- Shane Douglas 257493469 2225 69 42,555.00 151.73 42,501.47 ---------------------------------------------------------------------------------------------------------------------------- Timothy Andrews 253272310 2234 1 34,560.00 114.20 34,525.55 ---------------------------------------------------------------------------------------------------------------------------- Lester Martin 257980377 2235 68 36,839.73 131.03 36,793.71 ---------------------------------------------------------------------------------------------------------------------------- Dottie White 253192030 2241 30 33,906.42 115.49 33,869.18 ---------------------------------------------------------------------------------------------------------------------------- J A Ellis 42621819 2242 365 21,031.63 160.68 20,919.48 ---------------------------------------------------------------------------------------------------------------------------- George Robinson 253112080 2243 48 31,388.21 109.11 31,351.53 ---------------------------------------------------------------------------------------------------------------------------- Bradley Jones 256472031 2363 2 48,911.20 161.78 48,862.29 ---------------------------------------------------------------------------------------------------------------------------- R C Lenderman, Sr 253258575 2373 365 18,127.41 138.52 18,030.72 ---------------------------------------------------------------------------------------------------------------------------- Harrison Payne 258906857 2380 231 14,029.47 66.42 13,995.43 ---------------------------------------------------------------------------------------------------------------------------- Bobby Giddens 254116789 2381 60 15,257.87 53.74 15,239.34 ---------------------------------------------------------------------------------------------------------------------------- Mark Knight 258596265 2382 70 27,557.54 98.26 27,522.87 ---------------------------------------------------------------------------------------------------------------------------- Michael Wells 226130952 2383 16 15,589.44 52.31 15,573.11 ---------------------------------------------------------------------------------------------------------------------------- Charles Maddox 254313018 2384 16 18,947.76 63.57 18,927.92 ---------------------------------------------------------------------------------------------------------------------------- David Hill 254888901 2440 33 51,943.95 177.51 51,886.31 ---------------------------------------------------------------------------------------------------------------------------- Jeffrey Owens 252134375 2441 34 53,566.94 183.26 53,507.30 ---------------------------------------------------------------------------------------------------------------------------- R E Dollar 254781695 2443 365 18,809.55 142.28 18,710.68 ---------------------------------------------------------------------------------------------------------------------------- K Myers 259042760 2450 365 20,587.87 157.31 20,478.07 ---------------------------------------------------------------------------------------------------------------------------- David Jordan 258022648 2451 80 29,822.37 107.85 29,783.34 ---------------------------------------------------------------------------------------------------------------------------- Robert Lloyd 258701019 2452 124 37,714.77 145.17 37,656.63 ---------------------------------------------------------------------------------------------------------------------------- Billy Barrett 257926266 2453 365 29,320.67 222.85 29,165.48 ---------------------------------------------------------------------------------------------------------------------------- Jimmy Sanders, Jr 262952256 2540 247 20,580.20 101.43 20,526.26 ---------------------------------------------------------------------------------------------------------------------------- G N Chambliss 264259984 2550 361 17,975.11 133.79 17,882.80 ---------------------------------------------------------------------------------------------------------------------------- Douglas Lamar Skipper 263338161 2551 73 19,380.92 69.46 19,356.19 ---------------------------------------------------------------------------------------------------------------------------- Stephen Dailey 592207621 2552 2 20,629.42 68.23 20,608.80 ---------------------------------------------------------------------------------------------------------------------------- Howell Hewett 264779569 2553 335 17,769.83 117.60 17,693.24 ---------------------------------------------------------------------------------------------------------------------------- Perielathu Zachariah 590861656 2660 58 54,532.98 191.59 54,467.24 ---------------------------------------------------------------------------------------------------------------------------- Sam Creech 247335342 2661 35 72,612.11 247.86 72,531.82 ---------------------------------------------------------------------------------------------------------------------------- Eric Rabone 263210261 2663 56 31,338.39 109.71 31,301.00 ---------------------------------------------------------------------------------------------------------------------------- |
ATTACHMENT TO ANNEX C
Thomas Jernigan 264753536 2664 51 50,712.77 176.90 50,652.90 ---------------------------------------------------------------------------------------------------------------------------- James R Wells 227949773 2665 207 5,035.76 23.01 5,024.37 ---------------------------------------------------------------------------------------------------------------------------- Byron Lake 418920450 180 34 32,787.80 140.64 32,722.82 ---------------------------------------------------------------------------------------------------------------------------- Donny Selman 424316186 182 46 29,689.31 102.96 29,654.86 ---------------------------------------------------------------------------------------------------------------------------- Jeremy Flemming 424232314 191 34 36,357.13 129.64 36,311.39 ---------------------------------------------------------------------------------------------------------------------------- Chris Houge 419275950 197 38 32,923.51 113.14 32,886.35 ---------------------------------------------------------------------------------------------------------------------------- David Mcdonald 423800832 198 12 40,093.02 191.18 39,994.36 ---------------------------------------------------------------------------------------------------------------------------- Tom Demastus 421179334 231 6 37,172.97 123.45 37,135.30 ---------------------------------------------------------------------------------------------------------------------------- Jeff Brasher 417111705 233 63 47,476.49 168.02 47,418.03 ---------------------------------------------------------------------------------------------------------------------------- Glen Flower 422021988 235 63 21,966.54 102.75 21,914.48 ---------------------------------------------------------------------------------------------------------------------------- Steve Busby 424806807 236 40 25,032.57 144.72 24,945.62 ---------------------------------------------------------------------------------------------------------------------------- Danny Bates 419709985 237 191 39,125.32 169.51 39,046.10 ---------------------------------------------------------------------------------------------------------------------------- John Allen Postell 422868048 241 428 10,734.68 128.41 10,631.04 ---------------------------------------------------------------------------------------------------------------------------- Cayce Harrison 587088348 242 33 3,793.83 19.99 3,782.59 ---------------------------------------------------------------------------------------------------------------------------- Mark Wakefield 421784669 243 40 20,393.39 99.73 20,340.72 ---------------------------------------------------------------------------------------------------------------------------- Terry Demastus 416138274 244 40 28,168.78 137.39 28,096.39 ---------------------------------------------------------------------------------------------------------------------------- David Holt 421210260 245 176 36,796.03 154.81 36,726.13 ---------------------------------------------------------------------------------------------------------------------------- Ricky Griffin 428117566 380 16 41,942.89 140.73 41,898.95 ---------------------------------------------------------------------------------------------------------------------------- John Maynor 421132706 382 198 23,933.06 143.94 23,844.35 ---------------------------------------------------------------------------------------------------------------------------- Ralph Armstrong 427350088 383 61 34,752.86 123.45 34,709.61 ---------------------------------------------------------------------------------------------------------------------------- Tammy Hutson 587534029 385 46 15,248.15 62.74 15,220.60 ---------------------------------------------------------------------------------------------------------------------------- Eric Bevins 461797749 386 41 49,861.60 174.55 49,802.12 ---------------------------------------------------------------------------------------------------------------------------- George Brown 587422097 395 283 9,703.32 99.97 9,625.74 ---------------------------------------------------------------------------------------------------------------------------- Brad Robertson 427619436 397 61 37,375.33 134.81 37,326.77 ---------------------------------------------------------------------------------------------------------------------------- Joseph Bazzill 428572774 398 88 32,766.33 126.51 32,715.43 ---------------------------------------------------------------------------------------------------------------------------- Orlando Guyton 427239306 401 18 25,014.72 86.35 24,986.10 ---------------------------------------------------------------------------------------------------------------------------- Tim Robbins 425434750 402 18 53,235.17 178.99 53,179.03 ---------------------------------------------------------------------------------------------------------------------------- Derrick Holliday 426492291 403 18 40,665.86 136.73 40,622.97 ---------------------------------------------------------------------------------------------------------------------------- Ronald Sheppard 425353120 404 54 8,410.37 33.94 8,395.84 ---------------------------------------------------------------------------------------------------------------------------- James Lee Gable 425112954 405 18 47,800.56 160.72 47,750.15 ---------------------------------------------------------------------------------------------------------------------------- Dwayne Williams 428191845 420 31 40,100.58 136.73 40,056.39 ---------------------------------------------------------------------------------------------------------------------------- Henry Hathorn 427179111 421 54 22,574.70 93.05 22,533.75 ---------------------------------------------------------------------------------------------------------------------------- Charles Johnson, Jr 428516381 500 79 33,459.03 120.84 33,415.40 ---------------------------------------------------------------------------------------------------------------------------- Eddie Hinson 421726352 501 31 31,427.18 107.16 31,392.54 ---------------------------------------------------------------------------------------------------------------------------- Jennifer Gardned 424046930 502 54 25,923.96 95.92 25,887.86 ---------------------------------------------------------------------------------------------------------------------------- Charles Lafleur 463137961 504 82 47,517.40 172.29 47,454.77 ---------------------------------------------------------------------------------------------------------------------------- William Parker 553358576 505 54 29,942.98 113.20 29,898.88 ---------------------------------------------------------------------------------------------------------------------------- Wesley Nowlin 423198320 581 65 28,210.44 100.09 28,175.45 ---------------------------------------------------------------------------------------------------------------------------- Rob Walker 421159792 582 25 43,631.26 147.80 43,584.15 ---------------------------------------------------------------------------------------------------------------------------- Keith Williams 416133186 583 33 48,492.10 165.71 48,438.29 ---------------------------------------------------------------------------------------------------------------------------- Tony Newman 424628502 651 195 2,690.16 43.98 2,652.39 ---------------------------------------------------------------------------------------------------------------------------- Brian Montgomery 424154709 652 67 43,988.99 194.16 43,896.34 ---------------------------------------------------------------------------------------------------------------------------- Shae Harbin 418212680 655 46 45,715.30 158.54 45,662.26 ---------------------------------------------------------------------------------------------------------------------------- Brandon Murphy 419317933 661 31 32,434.91 110.60 32,399.16 ---------------------------------------------------------------------------------------------------------------------------- Council Mccall 419046416 1030 182 29,456.00 125.37 29,398.61 ---------------------------------------------------------------------------------------------------------------------------- Doug Perkins 230923942 1031 22 32,818.69 113.04 32,781.39 ---------------------------------------------------------------------------------------------------------------------------- Demetrius Mcintyre 419908600 1032 132 23,026.08 89.74 22,989.48 ---------------------------------------------------------------------------------------------------------------------------- Warren Hudson 421903548 1033 90 23,226.72 85.12 23,195.20 ---------------------------------------------------------------------------------------------------------------------------- Michael Schweitzer 421277553 1036 19 35,449.33 119.32 35,411.82 ---------------------------------------------------------------------------------------------------------------------------- Richard Deloach 423907638 1037 121 36,740.76 140.77 36,684.78 ---------------------------------------------------------------------------------------------------------------------------- |
ATTACHMENT TO ANNEX C
James Smith 419968932 1203 225 33,372.75 155.63 33,294.13 ---------------------------------------------------------------------------------------------------------------------------- Wayne Davenport 418089183 1205 76 18,327.76 138.83 18,231.22 ---------------------------------------------------------------------------------------------------------------------------- Samuel Carter 418607150 1212 62 26,165.79 96.82 26,129.35 ---------------------------------------------------------------------------------------------------------------------------- Mike Faufhender 424902645 1213 22 49,299.97 228.44 49,185.30 ---------------------------------------------------------------------------------------------------------------------------- Chad Madison 422134438 1215 22 56,462.36 203.39 56,389.27 ---------------------------------------------------------------------------------------------------------------------------- Dan Flynn 184564360 1217 127 52,548.80 203.22 52,466.85 ---------------------------------------------------------------------------------------------------------------------------- Gene Lowery 422886316 1219 76 48,814.25 190.87 48,736.03 ---------------------------------------------------------------------------------------------------------------------------- Jerri Morton 416296658 1226 161 28,469.92 116.99 28,418.63 ---------------------------------------------------------------------------------------------------------------------------- Michael Atcheson 416928484 1302 311 16,868.43 101.44 16,805.92 ---------------------------------------------------------------------------------------------------------------------------- Gerald Starkes 419966105 1306 90 44,750.36 174.70 44,678.93 ---------------------------------------------------------------------------------------------------------------------------- Ronnie Pilgram 422904225 1309 121 33,622.56 128.83 33,571.32 ---------------------------------------------------------------------------------------------------------------------------- Brian Rose 422961949 1320 67 45,967.92 176.67 45,897.33 ---------------------------------------------------------------------------------------------------------------------------- Jerrell Finch 420902458 1322 121 43,069.83 165.02 43,004.20 ---------------------------------------------------------------------------------------------------------------------------- Tom Uhls 405644277 1326 127 32,311.69 124.95 32,261.31 ---------------------------------------------------------------------------------------------------------------------------- Brian Reid 424089436 1401 314 22,976.59 139.74 22,889.87 ---------------------------------------------------------------------------------------------------------------------------- Tyrone Woodruff 421843175 1402 16 35,384.17 118.72 35,347.11 ---------------------------------------------------------------------------------------------------------------------------- Colon Barrentine 419587591 1403 192 40,195.52 174.51 40,113.77 ---------------------------------------------------------------------------------------------------------------------------- Roosevelt Sullivan 424909704 1405 39 37,362.04 128.54 37,319.72 ---------------------------------------------------------------------------------------------------------------------------- Mark Hodge 422905815 1406 204 33,620.11 149.65 33,548.04 ---------------------------------------------------------------------------------------------------------------------------- Leon Goodson 426259934 1503 19 45,246.69 152.30 45,198.81 ---------------------------------------------------------------------------------------------------------------------------- Kenneth Swindel 416661005 1504 19 32,836.69 127.58 32,784.89 ---------------------------------------------------------------------------------------------------------------------------- Bobby Aaron 416662199 1505 19 11,476.22 90.60 11,412.10 ---------------------------------------------------------------------------------------------------------------------------- Tim Vines 420215509 1506 19 39,268.24 132.17 39,226.69 ---------------------------------------------------------------------------------------------------------------------------- Wasilewski Kevin E 424179298 1521 105 40,732.24 170.72 40,655.52 ---------------------------------------------------------------------------------------------------------------------------- Gillespie Michael B 252477496 1522 118 36,992.11 141.09 36,936.39 ---------------------------------------------------------------------------------------------------------------------------- Eliff Alan 418170159 1523 40 40,119.82 166.90 40,045.50 ---------------------------------------------------------------------------------------------------------------------------- Guthrie Edis 421063980 1524 40 30,981.57 123.97 30,929.10 ---------------------------------------------------------------------------------------------------------------------------- Garland Thomas 283461052 1601 53 37,610.07 139.94 37,556.92 ---------------------------------------------------------------------------------------------------------------------------- Darren Mack 302785217 1603 8 63,842.25 214.66 63,774.92 ---------------------------------------------------------------------------------------------------------------------------- Danny Malley 56427652 1604 18 56,379.82 189.57 56,320.36 ---------------------------------------------------------------------------------------------------------------------------- Taylor Kerry J 421987368 1605 39 47,861.86 216.80 47,755.51 ---------------------------------------------------------------------------------------------------------------------------- Greg Messer 420046330 1606 17 53,881.31 180.98 53,824.67 ---------------------------------------------------------------------------------------------------------------------------- Jerry Cannon 424904090 1642 130 39,684.62 155.92 39,620.28 ---------------------------------------------------------------------------------------------------------------------------- Darion Adair 416215701 1643 63 28,878.05 102.20 28,842.49 ---------------------------------------------------------------------------------------------------------------------------- David Tomlin 419904794 1644 130 24,014.73 100.28 23,969.87 ---------------------------------------------------------------------------------------------------------------------------- Joe Horton 420701727 1645 31 18,800.25 64.10 18,779.54 ---------------------------------------------------------------------------------------------------------------------------- Daryl Chunn 412413528 1646 65 27,903.96 108.42 27,859.93 ---------------------------------------------------------------------------------------------------------------------------- Keith Higginbothom 424861021 1701 31 40,875.63 139.38 40,830.58 ---------------------------------------------------------------------------------------------------------------------------- Floyd Seals 418505477 1702 31 41,806.02 142.55 41,759.95 ---------------------------------------------------------------------------------------------------------------------------- Terrell Klimek 423922901 1703 320 20,937.17 130.32 20,855.17 ---------------------------------------------------------------------------------------------------------------------------- Cedric Orr 424848369 1704 90 24,931.32 91.36 24,897.49 ---------------------------------------------------------------------------------------------------------------------------- Bennett Terrell 408720180 1721 210 30,662.95 138.29 30,595.42 ---------------------------------------------------------------------------------------------------------------------------- David Rosenblum 417118472 1722 31 58,367.59 199.02 58,303.26 ---------------------------------------------------------------------------------------------------------------------------- Elkins Allen G 417546746 1723 169 16,281.17 67.60 16,251.14 ---------------------------------------------------------------------------------------------------------------------------- Rodney Jaharus 342561951 1724 17 52,897.63 177.67 52,842.03 ---------------------------------------------------------------------------------------------------------------------------- Jimmy Fields 425195877 1731 34 58,599.32 200.47 58,534.08 ---------------------------------------------------------------------------------------------------------------------------- Wright Norman Jr 575291860 1732 51 37,163.52 144.17 37,105.11 ---------------------------------------------------------------------------------------------------------------------------- David Spears 420130313 1733 31 38,772.72 132.21 38,729.99 ---------------------------------------------------------------------------------------------------------------------------- Robertson Jeffrey M 550119960 1734 105 28,734.94 119.98 28,681.27 ---------------------------------------------------------------------------------------------------------------------------- Marcus Kelley 422085070 1901 41 39,203.54 135.18 39,158.83 ---------------------------------------------------------------------------------------------------------------------------- |
Attachment to Annex C
------------------------------------------------------------------------------------------------------------------------------- Scott Patterson 421270971 1902 51 28,370.23 98.96 28,336.74 ------------------------------------------------------------------------------------------------------------------------------- Rogers, Mike 423885654 1903 492 1,706.27 60.35 1,649.86 ------------------------------------------------------------------------------------------------------------------------------- Shane Bevels 423338083 1911 25 28,726.64 97.31 28,695.62 ------------------------------------------------------------------------------------------------------------------------------- Todd Seay 418923861 1912 50 33,961.14 122.02 33,917.49 ------------------------------------------------------------------------------------------------------------------------------- Richardson, Michael W 424947094 1913 130 35,166.61 136.63 35,111.13 ------------------------------------------------------------------------------------------------------------------------------- Charles S Mitchell 265191983 1914 41 28,422.67 98.01 28,390.25 ------------------------------------------------------------------------------------------------------------------------------- Joe F Pate 421728829 2080 91 36,652.20 134.68 36,602.10 ------------------------------------------------------------------------------------------------------------------------------- Tim Reed 416927756 2900 32 37,915.55 140.49 37,862.56 ------------------------------------------------------------------------------------------------------------------------------- Roger Hoose 127609396 2901 36 40,531.96 156.21 40,469.29 ------------------------------------------------------------------------------------------------------------------------------- Kevin Taylor 416841534 2903 126 39,365.93 152.00 39,304.77 ------------------------------------------------------------------------------------------------------------------------------- John H Davis 419258145 2904 87 37,303.23 150.87 37,238.44 ------------------------------------------------------------------------------------------------------------------------------- Andrew J Tuma 417195675 2905 200 28,498.46 125.78 28,438.45 ------------------------------------------------------------------------------------------------------------------------------- Colburn Bragg 422900655 2906 167 42,046.59 173.95 41,969.67 ------------------------------------------------------------------------------------------------------------------------------- Donald Stanford 423580003 3010 84 38,812.27 141.09 38,760.75 ------------------------------------------------------------------------------------------------------------------------------- Gary Rose 263516518 3011 122 32,539.92 124.87 32,490.14 ------------------------------------------------------------------------------------------------------------------------------- Jeffery Vernon 417085864 3012 182 41,149.50 175.13 41,069.33 ------------------------------------------------------------------------------------------------------------------------------- Harold Thomas 421133339 3014 24 22,167.80 172.13 22,046.83 ------------------------------------------------------------------------------------------------------------------------------- Darrell Stanford 417235596 3015 24 25,130.46 91.00 25,097.45 ------------------------------------------------------------------------------------------------------------------------------- Brent Nelson 418966729 3016 25 38,958.99 131.97 38,916.93 ------------------------------------------------------------------------------------------------------------------------------- Jim Burnett 423826374 3112 72 43,402.20 155.34 43,347.02 ------------------------------------------------------------------------------------------------------------------------------- James Glliam, Jr 418905900 3113 16 39,756.73 133.39 39,715.09 ------------------------------------------------------------------------------------------------------------------------------- Rick Barnett 256135210 3114 21 53,438.50 180.25 53,381.57 ------------------------------------------------------------------------------------------------------------------------------- Tim Thomas 418115846 3210 24 34,030.73 155.53 33,953.73 ------------------------------------------------------------------------------------------------------------------------------- John D Crowder 420901287 3212 86 38,890.42 141.75 38,838.42 ------------------------------------------------------------------------------------------------------------------------------- Jeff Duke 419929188 3213 18 42,729.62 143.67 42,684.56 ------------------------------------------------------------------------------------------------------------------------------- Kevin R. Phillips 422351772 3214 24 37,928.32 138.43 37,877.42 ------------------------------------------------------------------------------------------------------------------------------- Paul Crane 416170794 3216 24 55,950.66 216.71 55,863.07 ------------------------------------------------------------------------------------------------------------------------------- Clyde Duke 419968773 3500 14 28,704.12 105.77 28,664.59 ------------------------------------------------------------------------------------------------------------------------------- Ricky Mcpherson 417087046 3501 8 33,361.56 113.63 33,324.92 ------------------------------------------------------------------------------------------------------------------------------- John Ray Fowler 418271092 3502 20 28,346.93 99.71 28,312.64 ------------------------------------------------------------------------------------------------------------------------------- Randall Cox 416274983 3504 90 25,846.80 164.75 25,741.70 ------------------------------------------------------------------------------------------------------------------------------- William F Edwards 238802857 3101 319 23,015.54 142.68 22,925.97 ------------------------------------------------------------------------------------------------------------------------------- Jeffrey A Bevelheimer 147725865 3102 23 31,138.29 105.26 31,104.89 ------------------------------------------------------------------------------------------------------------------------------- R J Clawson, Jr 409296093 3103 19 47,445.74 159.70 47,395.53 ------------------------------------------------------------------------------------------------------------------------------- Gregory W Viers 230063795 3104 23 26,185.15 26,245.58 0.00 ------------------------------------------------------------------------------------------------------------------------------- Jerry A Noe 413705913 3107 319 23,512.74 145.75 23,421.25 ------------------------------------------------------------------------------------------------------------------------------- Marty W Sandefur 412132464 3108 23 36,464.13 225.18 36,323.10 ------------------------------------------------------------------------------------------------------------------------------- Keith D Mcghee 410431430 3210 9 43,938.00 146.36 43,893.04 ------------------------------------------------------------------------------------------------------------------------------- Pat E Oglesby 412846768 3211 33 27,639.02 94.45 27,608.35 ------------------------------------------------------------------------------------------------------------------------------- Kristion A Fields 413391303 3212 21 61,512.65 207.48 61,447.12 ------------------------------------------------------------------------------------------------------------------------------- Jason D Freeman 411576629 3213 18 47,005.49 160.63 46,953.33 ------------------------------------------------------------------------------------------------------------------------------- Wade K Carter 408219251 3214 33 45,010.21 153.81 44,960.27 ------------------------------------------------------------------------------------------------------------------------------- James L Ragsdale 410531597 3215 33 48,753.27 166.60 48,699.18 ------------------------------------------------------------------------------------------------------------------------------- Timothy H Stanley 411270719 3217 4 27,423.57 90.89 27,395.97 ------------------------------------------------------------------------------------------------------------------------------- Leslie E Michaels 411044768 3218 33 35,746.74 122.16 35,707.07 ------------------------------------------------------------------------------------------------------------------------------- Douglas S York 514441456 3310 82 32,580.65 118.13 32,537.71 ------------------------------------------------------------------------------------------------------------------------------- Charles E Dennison 411883542 3311 33 38,041.31 130.00 37,999.10 ------------------------------------------------------------------------------------------------------------------------------- Derek K Sharp 370844611 3312 33 40,360.16 137.92 40,315.38 ------------------------------------------------------------------------------------------------------------------------------- Gregory K Griffin 409510614 3313 10 43,469.88 144.95 43,425.25 ------------------------------------------------------------------------------------------------------------------------------- Darrel L Crouch 411045633 3315 33 55,442.54 189.46 55,381.02 ------------------------------------------------------------------------------------------------------------------------------- |
Attachment to Annex C
------------------------------------------------------------------------------------------------------------------------------- Eddie E Lane 412748058 3316 33 48,316.10 165.11 48,262.49 ------------------------------------------------------------------------------------------------------------------------------- Nathan C Howard 413371461 3330 9 22,076.06 75.44 22,051.56 ------------------------------------------------------------------------------------------------------------------------------- Robert W Anderson 414027847 3332 9 35,133.35 120.06 35,094.37 ------------------------------------------------------------------------------------------------------------------------------- Sammy Houston, Jr 411707982 3333 9 38,919.56 132.56 38,876.81 ------------------------------------------------------------------------------------------------------------------------------- Brian P Hamby 415397604 3334 9 48,710.04 166.46 48,655.99 ------------------------------------------------------------------------------------------------------------------------------- Paul D Sturgill 227239275 3400 1 28,491.00 94.14 28,462.61 ------------------------------------------------------------------------------------------------------------------------------- Joel K Campbell 409130316 3401 79 29,542.95 106.70 29,504.43 ------------------------------------------------------------------------------------------------------------------------------- Randy J Patterson 408290019 3402 19 23,767.02 80.00 23,741.87 ------------------------------------------------------------------------------------------------------------------------------- Daniel W Williams 412497052 3403 313 19,413.66 117.63 19,340.83 ------------------------------------------------------------------------------------------------------------------------------- Joseph E Lowry 409233270 3404 10 44,422.15 148.13 44,376.53 ------------------------------------------------------------------------------------------------------------------------------- Brian P Bowers 412517100 3405 32 32,806.00 111.98 32,769.73 ------------------------------------------------------------------------------------------------------------------------------- Alan Moyers 413889047 3430 167 26,673.43 117.73 26,617.25 ------------------------------------------------------------------------------------------------------------------------------- Jimmie A Hensley 413981499 3431 167 21,288.49 131.97 21,205.65 ------------------------------------------------------------------------------------------------------------------------------- Jeffrey A Campbell 414198865 3500 51 43,216.43 156.28 43,159.88 ------------------------------------------------------------------------------------------------------------------------------- David S Rosenbalm 413431484 3501 44 33,931.30 117.40 33,892.20 ------------------------------------------------------------------------------------------------------------------------------- Thomas L Smawley, Jr 413044137 3502 1 27,798.00 91.85 27,770.30 ------------------------------------------------------------------------------------------------------------------------------- William G Ritch 239041530 3503 4 30,047.67 99.59 30,017.42 ------------------------------------------------------------------------------------------------------------------------------- William R Leighton 227253300 3504 75 23,843.04 85.66 23,812.40 ------------------------------------------------------------------------------------------------------------------------------- Mark J Ogilvie 409894741 3505 4 32,485.37 107.66 32,452.68 ------------------------------------------------------------------------------------------------------------------------------- Kirby W Collier 256087135 100 59 44,199.54 155.67 44,145.87 ------------------------------------------------------------------------------------------------------------------------------- A Copeland Ii 255612566 101 108 29,461.66 110.73 29,418.92 ------------------------------------------------------------------------------------------------------------------------------- Elishia Wright 259848969 102 55 31,812.13 137.00 31,748.54 ------------------------------------------------------------------------------------------------------------------------------- Robert E Tompkins 256489957 103 187 15,028.40 97.37 14,965.71 ------------------------------------------------------------------------------------------------------------------------------- Jack Pope 252842995 104 187 14,340.79 92.55 14,281.33 ------------------------------------------------------------------------------------------------------------------------------- Courtney L. Hampton 414373094 105 76 31,945.69 114.92 31,904.49 ------------------------------------------------------------------------------------------------------------------------------- Darnell Reid 259459920 106 128 40,162.18 155.56 40,099.30 ------------------------------------------------------------------------------------------------------------------------------- Emmett Stringer 427433206 205 149 31,197.05 125.03 31,144.01 ------------------------------------------------------------------------------------------------------------------------------- Clarence Hampton 414371565 206 330 14,286.61 92.59 14,226.99 ------------------------------------------------------------------------------------------------------------------------------- Clarence Jackson Jr 257276489 208 39 42,327.78 145.62 42,279.84 ------------------------------------------------------------------------------------------------------------------------------- David Boone 75481174 211 70 41,182.00 177.35 41,099.69 ------------------------------------------------------------------------------------------------------------------------------- Rudolph Fluellen 257743158 214 188 36,453.09 156.99 36,380.22 ------------------------------------------------------------------------------------------------------------------------------- Vawter James E 414803954 324 48 29,694.39 114.48 29,648.44 ------------------------------------------------------------------------------------------------------------------------------- Gary D White 415969140 325 79 31,364.12 113.27 31,323.23 ------------------------------------------------------------------------------------------------------------------------------- David R Mckinney 296525024 326 138 22,837.48 89.88 22,800.30 ------------------------------------------------------------------------------------------------------------------------------- Nathan L Martin, Jr 408255239 327 40 32,781.90 112.91 32,744.64 ------------------------------------------------------------------------------------------------------------------------------- Eslinger Timothy 414987670 331 41 18,871.73 84.01 18,831.27 ------------------------------------------------------------------------------------------------------------------------------- Bonner Norman L 410646916 332 357 21,682.52 158.96 21,573.60 ------------------------------------------------------------------------------------------------------------------------------- Leonard Williams 260474074 335 27 27,537.23 93.49 27,507.29 ------------------------------------------------------------------------------------------------------------------------------- Parker Larry R. Jr 412377736 337 41 20,175.04 147.90 20,073.70 ------------------------------------------------------------------------------------------------------------------------------- Tony R Brock 253319816 420 19 50,299.67 176.51 50,239.24 ------------------------------------------------------------------------------------------------------------------------------- James S Johnson 253946049 422 19 43,394.49 281.19 43,213.44 ------------------------------------------------------------------------------------------------------------------------------- Michael S Wilson 254596757 423 19 35,596.68 119.81 35,559.02 ------------------------------------------------------------------------------------------------------------------------------- Ernest E Clyde 253080951 429 24 43,425.86 156.22 43,369.85 ------------------------------------------------------------------------------------------------------------------------------- Trance Jackson 259471009 431 19 33,936.07 124.87 33,889.51 ------------------------------------------------------------------------------------------------------------------------------- Theresa Hammond 258297651 432 19 40,624.89 136.74 40,581.90 ------------------------------------------------------------------------------------------------------------------------------- Scottie Brown Jr 255110795 435 57 62,091.57 218.15 62,016.71 ------------------------------------------------------------------------------------------------------------------------------- Roy Cunningham 429435377 436 132 33,122.04 129.10 33,069.38 ------------------------------------------------------------------------------------------------------------------------------- Jerry Sayles 253436180 437 117 32,517.57 123.85 32,468.76 ------------------------------------------------------------------------------------------------------------------------------- Stacy Johnson 255235959 438 6 49,520.81 164.46 49,470.63 ------------------------------------------------------------------------------------------------------------------------------- James Evans 587440325 439 104 37,625.56 140.60 37,571.79 ------------------------------------------------------------------------------------------------------------------------------- |
Attachment to Annex C
------------------------------------------------------------------------------------------------------------------------------- Jeffrey Crafton 415068835 440 176 35,131.96 147.80 35,065.23 ------------------------------------------------------------------------------------------------------------------------------- Charlie R Burns 252316168 441 151 19,379.27 124.02 19,299.97 ------------------------------------------------------------------------------------------------------------------------------- Clinton D Willis 258682089 521 330 21,110.68 136.80 21,022.60 ------------------------------------------------------------------------------------------------------------------------------- J Klemm 258438418 522 135 30,490.22 119.41 30,441.17 ------------------------------------------------------------------------------------------------------------------------------- Donald Williams 253413430 523 101 46,991.90 174.85 46,925.49 ------------------------------------------------------------------------------------------------------------------------------- Byron Williams 255275433 524 108 39,238.79 147.47 39,181.87 ------------------------------------------------------------------------------------------------------------------------------- Brian Miller 257066177 525 171 29,666.80 123.65 29,611.61 ------------------------------------------------------------------------------------------------------------------------------- Wesley Sloan 259477246 526 80 37,554.58 135.81 37,505.43 ------------------------------------------------------------------------------------------------------------------------------- Henry S Dorsette 263491186 532 23 51,467.25 173.97 51,412.05 ------------------------------------------------------------------------------------------------------------------------------- Joe M Landress 260788935 533 19 29,560.00 190.75 29,437.47 ------------------------------------------------------------------------------------------------------------------------------- William C Megesi 278663544 534 19 30,010.54 166.66 29,913.14 ------------------------------------------------------------------------------------------------------------------------------- Brian Roberts 252652696 535 61 28,379.03 148.21 28,296.31 ------------------------------------------------------------------------------------------------------------------------------- Billy J Earle 257317205 536 13 42,587.84 142.45 42,543.67 ------------------------------------------------------------------------------------------------------------------------------- Jeff Kelley 256022840 538 89 34,439.22 140.95 34,377.75 ------------------------------------------------------------------------------------------------------------------------------- Malcome Scott Kimble 252299005 539 89 46,139.89 178.15 46,068.22 ------------------------------------------------------------------------------------------------------------------------------- Julian Howard 253112461 600 13 47,527.28 158.97 47,477.99 ------------------------------------------------------------------------------------------------------------------------------- Sandra D Thompson 257112433 601 330 21,974.30 142.38 21,882.63 ------------------------------------------------------------------------------------------------------------------------------- James J Mcgrath 254765782 603 330 20,692.52 134.09 20,606.18 ------------------------------------------------------------------------------------------------------------------------------- James R Moore 253947325 604 22 39,438.07 148.44 39,380.64 ------------------------------------------------------------------------------------------------------------------------------- Kevin Jenkins 257453217 605 8 47,269.78 175.15 47,203.71 ------------------------------------------------------------------------------------------------------------------------------- Sylvester Harris 260132480 606 46 25,278.37 113.25 25,223.45 ------------------------------------------------------------------------------------------------------------------------------- Derrek Padgett 61587842 724 107 50,609.76 189.93 50,536.62 ------------------------------------------------------------------------------------------------------------------------------- Dwane A White 243985298 731 77 29,996.25 108.05 29,957.42 ------------------------------------------------------------------------------------------------------------------------------- Emanuel Williams 255900685 735 6 31,561.22 104.81 31,529.24 ------------------------------------------------------------------------------------------------------------------------------- Steven L Crosby 250499359 901 44 12,185.98 42.16 12,171.94 ------------------------------------------------------------------------------------------------------------------------------- Willie Riggins 256868623 902 165 8,605.06 37.43 8,587.49 ------------------------------------------------------------------------------------------------------------------------------- Maverick Jackson 247085624 903 165 11,749.34 48.43 11,728.02 ------------------------------------------------------------------------------------------------------------------------------- Frank Toomey Jr 253849092 906 122 17,970.77 68.96 17,943.28 ------------------------------------------------------------------------------------------------------------------------------- Nathan Munson 253297148 907 93 25,988.51 95.63 25,952.85 ------------------------------------------------------------------------------------------------------------------------------- Troy Mealing 250275743 908 102 17,682.40 65.89 17,657.32 ------------------------------------------------------------------------------------------------------------------------------- Frank Newbegin 256552892 909 53 16,716.80 64.65 16,690.73 ------------------------------------------------------------------------------------------------------------------------------- Daniel J Haag 471882238 910 20 16,857.67 56.80 16,839.77 ------------------------------------------------------------------------------------------------------------------------------- George Hopper 252337751 913 29 21,854.99 74.36 21,831.06 ------------------------------------------------------------------------------------------------------------------------------- Robert F Christy 254842748 1001 10 4,913.98 32.81 4,892.51 ------------------------------------------------------------------------------------------------------------------------------- Joe L Armstrong 258709107 1002 10 21,076.17 83.35 21,041.46 ------------------------------------------------------------------------------------------------------------------------------- Douglas Oliver 258536083 1003 10 35,966.82 150.46 35,899.36 ------------------------------------------------------------------------------------------------------------------------------- Jason Weaver 255355607 1004 10 37,961.28 149.39 37,899.49 ------------------------------------------------------------------------------------------------------------------------------- Arnold Kranats 254842983 1005 188 35,026.95 150.84 34,956.94 ------------------------------------------------------------------------------------------------------------------------------- Douglas Wice, Jr 238378870 1006 47 35,517.03 123.32 35,475.67 ------------------------------------------------------------------------------------------------------------------------------- Charles Lovell 255708404 1007 307 10,096.26 59.82 10,059.74 ------------------------------------------------------------------------------------------------------------------------------- Patrick Sowell 260538372 1008 8 58,873.52 195.91 58,813.47 ------------------------------------------------------------------------------------------------------------------------------- Jay W Yarter 253274646 1103 248 25,899.38 151.85 25,807.30 ------------------------------------------------------------------------------------------------------------------------------- Joseph M Chancey 258598490 1104 106 44,228.63 165.74 44,164.96 ------------------------------------------------------------------------------------------------------------------------------- Michael Olson 254694182 1105 1 65,670.00 216.99 65,604.56 ------------------------------------------------------------------------------------------------------------------------------- Derek Jenkins 252049232 1107 71 43,331.09 168.09 43,262.99 ------------------------------------------------------------------------------------------------------------------------------- Shawn Holmes 260612753 1108 47 50,706.34 176.05 50,647.30 ------------------------------------------------------------------------------------------------------------------------------- Terry Lawson 252277725 1109 50 47,180.92 164.39 47,125.41 ------------------------------------------------------------------------------------------------------------------------------- Anthony Batchelor 255492321 1110 129 14,151.34 66.19 14,117.81 ------------------------------------------------------------------------------------------------------------------------------- Philip C Hannay 256069390 1111 71 35,810.41 128.01 35,765.04 ------------------------------------------------------------------------------------------------------------------------------- Jason Ray Murray 260512457 1113 37 55,043.42 188.94 54,981.50 ------------------------------------------------------------------------------------------------------------------------------- |
Attachment to Annex C
------------------------------------------------------------------------------------------------------------------------------- Jeffrey Head 259021094 1114 20 30,067.21 101.31 30,035.29 ------------------------------------------------------------------------------------------------------------------------------- James C Gunter 254513365 1122 248 21,757.36 129.90 21,677.67 ------------------------------------------------------------------------------------------------------------------------------- Mike Aro 259841674 1123 46 29,168.83 129.29 29,106.85 ------------------------------------------------------------------------------------------------------------------------------- David Wells 254848702 1201 52 29,299.51 171.18 29,195.94 ------------------------------------------------------------------------------------------------------------------------------- David Mclane 255867758 1202 52 25,036.17 110.04 24,983.91 ------------------------------------------------------------------------------------------------------------------------------- Joseph Weaver 255355734 1203 136 30,609.34 131.55 30,548.43 ------------------------------------------------------------------------------------------------------------------------------- Larry T Williams 260703700 1204 337 16,646.84 111.12 16,574.14 ------------------------------------------------------------------------------------------------------------------------------- Thomas C Songer 430708061 1205 52 17,522.81 116.99 17,446.26 ------------------------------------------------------------------------------------------------------------------------------- Nathan W Witcher 257769959 1206 136 14,851.94 98.72 14,787.49 ------------------------------------------------------------------------------------------------------------------------------- William M Wilson 248909508 1207 54 27,009.29 94.55 26,977.07 ------------------------------------------------------------------------------------------------------------------------------- Ricky Slingluff 483561604 1210 193 26,464.43 115.12 26,410.38 ------------------------------------------------------------------------------------------------------------------------------- Ronald Tillman 266418474 1213 37 30,226.54 103.76 30,192.53 ------------------------------------------------------------------------------------------------------------------------------- Timmy L Arthur 259768977 1214 46 43,023.55 155.18 42,967.66 ------------------------------------------------------------------------------------------------------------------------------- Paul Seabolt 259497938 1215 46 30,716.01 120.49 30,666.40 ------------------------------------------------------------------------------------------------------------------------------- Troy Gabriel 260410626 1216 30 28,850.25 98.26 28,818.57 ------------------------------------------------------------------------------------------------------------------------------- James Adam Noll 215700287 1309 54 39,812.70 139.38 39,765.20 ------------------------------------------------------------------------------------------------------------------------------- James Marsh 417909331 1310 50 17,235.25 83.22 17,191.80 ------------------------------------------------------------------------------------------------------------------------------- Michael Mcwaters 258049082 1311 50 30,247.67 161.77 30,155.70 ------------------------------------------------------------------------------------------------------------------------------- Jason Keith Payne 252293632 1312 40 58,685.37 202.12 58,618.68 ------------------------------------------------------------------------------------------------------------------------------- Ralph E Puckett 255780564 1313 117 20,961.42 139.94 20,869.85 ------------------------------------------------------------------------------------------------------------------------------- Allen R Grant 214421053 1314 31 54,064.84 184.35 54,005.25 ------------------------------------------------------------------------------------------------------------------------------- Charles Overby 257863287 1315 121 39,893.67 152.86 39,832.87 ------------------------------------------------------------------------------------------------------------------------------- Allan Jay Blalock 259595612 1316 50 48,432.85 168.75 48,375.87 ------------------------------------------------------------------------------------------------------------------------------- Anthony R Fuller 256805672 1402 337 3,878.30 25.91 3,861.34 ------------------------------------------------------------------------------------------------------------------------------- Donald H Robinson 252944059 1405 122 14,874.02 99.31 14,809.03 ------------------------------------------------------------------------------------------------------------------------------- Lamar Y Simmons 252805499 1407 336 32,421.00 215.52 32,280.30 ------------------------------------------------------------------------------------------------------------------------------- Travis G Smith 260379745 1408 337 26,109.14 174.30 25,995.09 ------------------------------------------------------------------------------------------------------------------------------- Glenn W Spooner 184342453 1411 337 17,039.45 113.77 16,965.00 ------------------------------------------------------------------------------------------------------------------------------- Jimmy Lance 255391323 1415 50 26,208.32 108.83 26,159.97 ------------------------------------------------------------------------------------------------------------------------------- Timothy Jordan 260375936 1501 282 30,336.85 165.28 30,241.58 ------------------------------------------------------------------------------------------------------------------------------- Gerald F Ashworth 257788255 1502 337 24,779.68 165.45 24,671.41 ------------------------------------------------------------------------------------------------------------------------------- Danny Weaver 258802147 1503 337 19,305.46 128.89 19,221.12 ------------------------------------------------------------------------------------------------------------------------------- Donnie S Scott 259988448 1504 337 21,356.96 142.58 21,263.67 ------------------------------------------------------------------------------------------------------------------------------- Kevin M Fields 253375001 1505 337 22,908.87 152.96 22,808.78 ------------------------------------------------------------------------------------------------------------------------------- James Foley 341662397 1506 159 33,342.46 135.97 33,283.43 ------------------------------------------------------------------------------------------------------------------------------- Robert E Hart 257611351 1507 170 32,438.50 134.95 32,378.41 ------------------------------------------------------------------------------------------------------------------------------- Billy Payne 255294997 1508 231 40,494.09 191.68 40,395.86 ------------------------------------------------------------------------------------------------------------------------------- Robert Renew 257826841 1610 234 30,291.14 144.44 30,216.60 ------------------------------------------------------------------------------------------------------------------------------- Philip Hannay 255880656 1611 61 35,827.90 126.49 35,784.09 ------------------------------------------------------------------------------------------------------------------------------- Ricardo Van Valen 256452968 1612 20 32,273.81 108.74 32,239.55 ------------------------------------------------------------------------------------------------------------------------------- John Armistead 260926533 1613 137 34,338.58 134.91 34,282.91 ------------------------------------------------------------------------------------------------------------------------------- James E Masters 252199602 1614 86 31,009.16 175.64 30,905.08 ------------------------------------------------------------------------------------------------------------------------------- Marshall Biggs 255312820 1615 283 27,495.40 150.74 27,408.11 ------------------------------------------------------------------------------------------------------------------------------- Joseph Bradley York 414479324 1701 1 36,844.00 121.74 36,807.28 ------------------------------------------------------------------------------------------------------------------------------- Rex H Hall 242867463 1702 161 18,401.22 121.80 18,321.88 ------------------------------------------------------------------------------------------------------------------------------- Harold E Thurman 257725590 1705 113 16,242.92 108.44 16,171.96 ------------------------------------------------------------------------------------------------------------------------------- Stacy Lynn Curtis 253539991 1706 36 54,093.34 185.47 54,032.70 ------------------------------------------------------------------------------------------------------------------------------- James Wright 257028786 1707 337 22,189.12 148.13 22,092.20 ------------------------------------------------------------------------------------------------------------------------------- Donald J Godfrey 412351756 1709 34 40,064.28 137.06 40,019.68 ------------------------------------------------------------------------------------------------------------------------------- Fred W Kite 413214274 1801 32 27,530.39 93.97 27,499.95 ------------------------------------------------------------------------------------------------------------------------------- |
Attachment to Annex C
------------------------------------------------------------------------------------------------------------------------------- Randy L Moon 413026016 1802 85 38,252.38 139.24 38,201.41 ------------------------------------------------------------------------------------------------------------------------------- John M Mcfarlen 418081999 1803 32 37,065.21 126.52 37,024.23 ------------------------------------------------------------------------------------------------------------------------------- James Robert Pigg 420648255 1805 32 28,633.77 97.74 28,602.11 ------------------------------------------------------------------------------------------------------------------------------- Phillip Brent Moyers 414290200 1807 32 24,636.05 84.09 24,608.81 ------------------------------------------------------------------------------------------------------------------------------- Donnie Humphrey 411903194 1809 6 23,700.74 78.71 23,676.72 ------------------------------------------------------------------------------------------------------------------------------- Sammie D Logue Jr 409908379 1810 32 38,613.94 131.81 38,571.24 ------------------------------------------------------------------------------------------------------------------------------- Kenneth A. Soroky 270766453 1911 32 41,043.77 140.10 40,998.39 ------------------------------------------------------------------------------------------------------------------------------- Edmund Ducharme 557252751 1912 32 54,779.76 186.99 54,719.18 ------------------------------------------------------------------------------------------------------------------------------- David A Martin 415024261 1913 6 26,496.70 87.99 26,469.86 ------------------------------------------------------------------------------------------------------------------------------- Thomas G Alling 7682841 1915 32 22,893.36 78.15 22,868.04 ------------------------------------------------------------------------------------------------------------------------------- Dwayne Leroy Jones 412021944 1920 32 10,541.77 35.98 10,530.12 ------------------------------------------------------------------------------------------------------------------------------- Scott Dowling 260980401 1921 15 16,887.38 56.60 16,869.75 ------------------------------------------------------------------------------------------------------------------------------- Darrell Ward 401021997 1922 32 14,636.37 49.96 14,620.19 ------------------------------------------------------------------------------------------------------------------------------- Mario D. Coleman 415575936 1923 32 24,084.16 82.21 24,057.53 ------------------------------------------------------------------------------------------------------------------------------- Omar Y Walker 414411750 1924 32 22,438.61 76.59 22,413.80 ------------------------------------------------------------------------------------------------------------------------------- Anthony L Wainman 414377487 1925 6 14,586.62 48.44 14,571.84 ------------------------------------------------------------------------------------------------------------------------------- Evans T Carey 412197292 1926 32 11,596.64 39.59 11,583.81 ------------------------------------------------------------------------------------------------------------------------------- Vincent Fowlkes 415196528 1930 32 37,481.50 127.94 37,440.06 ------------------------------------------------------------------------------------------------------------------------------- James Todd Ford 412250646 1931 32 18,518.12 63.21 18,497.64 ------------------------------------------------------------------------------------------------------------------------------- John L Cross 414431746 1932 16 20,937.01 70.25 20,915.08 ------------------------------------------------------------------------------------------------------------------------------- Lance Cannon 408111783 1933 15 26,972.42 90.41 26,944.25 ------------------------------------------------------------------------------------------------------------------------------- Dylan Smith 409291913 1934 52 21,818.22 88.36 21,780.21 ------------------------------------------------------------------------------------------------------------------------------- Paul K. Cone 262735108 2001 32 21,073.78 71.93 21,050.48 ------------------------------------------------------------------------------------------------------------------------------- Lawrence M Buchanan 412331594 2002 32 14,345.94 48.97 14,330.08 ------------------------------------------------------------------------------------------------------------------------------- Gary J Frye 261316386 2003 32 25,768.49 87.96 25,740.00 ------------------------------------------------------------------------------------------------------------------------------- Estel L Vaughn 411889688 2004 32 33,890.18 115.68 33,852.71 ------------------------------------------------------------------------------------------------------------------------------- Scott Floyd 409041768 2007 32 23,793.72 81.22 23,767.41 ------------------------------------------------------------------------------------------------------------------------------- Jeffrey F Brown 139605848 2008 7 23,130.06 76.89 23,106.55 ------------------------------------------------------------------------------------------------------------------------------- Theron Dawson 257617668 2009 32 27,733.46 94.67 27,702.79 ------------------------------------------------------------------------------------------------------------------------------- Thomas E Ware 411311264 2010 32 26,513.99 90.50 26,484.68 ------------------------------------------------------------------------------------------------------------------------------- Jerry W Biggs 424563450 2101 171 20,910.94 137.81 20,821.39 ------------------------------------------------------------------------------------------------------------------------------- Stanley C Chatman, Sr 259882319 2102 47 36,564.12 126.95 36,521.55 ------------------------------------------------------------------------------------------------------------------------------- Daniel C Renaud 29307211 2104 330 15,766.78 102.17 15,700.99 ------------------------------------------------------------------------------------------------------------------------------- Ronald E Turner 260705414 2105 334 20,988.91 138.33 20,899.02 ------------------------------------------------------------------------------------------------------------------------------- David Titus 239968591 2106 15 59,012.11 197.80 58,950.49 ------------------------------------------------------------------------------------------------------------------------------- William M Dempsey 253986250 2107 64 33,226.92 117.74 33,185.86 ------------------------------------------------------------------------------------------------------------------------------- Jimmy R Henderson 259862539 2301 334 23,457.27 154.60 23,356.80 ------------------------------------------------------------------------------------------------------------------------------- Malcolm Downing 132589846 2302 8 42,211.35 140.47 42,168.29 ------------------------------------------------------------------------------------------------------------------------------- Mitchell Descoteau 612093667 2303 6 49,102.93 163.07 49,053.17 ------------------------------------------------------------------------------------------------------------------------------- Scott A Cottrill 293566741 2304 63 49,240.77 174.27 49,180.13 ------------------------------------------------------------------------------------------------------------------------------- Paul Leggett 254332993 2305 51 26,526.53 129.38 26,458.37 ------------------------------------------------------------------------------------------------------------------------------- James H Parker 260270708 2306 122 14,488.05 95.48 14,426.00 ------------------------------------------------------------------------------------------------------------------------------- Joseph Emory 255067013 2310 6 40,934.04 135.94 40,892.56 ------------------------------------------------------------------------------------------------------------------------------- William A Gattis Jr 258597238 2311 133 15,370.68 73.61 15,332.54 ------------------------------------------------------------------------------------------------------------------------------- Michael Forney 460558519 2314 82 45,622.44 165.41 45,562.31 ------------------------------------------------------------------------------------------------------------------------------- Al Gattis 255803904 2315 12 38,434.02 128.42 38,394.29 ------------------------------------------------------------------------------------------------------------------------------- John S Bowles 255944362 2501 55 40,774.32 142.91 40,725.50 ------------------------------------------------------------------------------------------------------------------------------- Cheryl D Johnston 427922374 2502 346 17,524.11 121.83 17,442.72 ------------------------------------------------------------------------------------------------------------------------------- Larry E Hamby 259863756 2503 218 24,672.12 171.52 24,557.54 ------------------------------------------------------------------------------------------------------------------------------- Joseph Phagan 259174299 2504 146 26,183.31 104.42 26,139.31 ------------------------------------------------------------------------------------------------------------------------------- |
ATTACHMENT TO ANNEX C
Page 11
Mike Cook 258728955 2505 179 24,122.78 102.07 24,076.38
-------------------------------------------------------------------------------------------------------------------
Michael B Smith Sr 259027116 2506 13 30,881.40 103.29 30,849.37
-------------------------------------------------------------------------------------------------------------------
Robert Jenkins 259270475 2507 133 27,245.51 106.37 27,202.01
-------------------------------------------------------------------------------------------------------------------
James Pitts 257807109 2508 66 30,946.68 157.53 30,860.57
-------------------------------------------------------------------------------------------------------------------
Michael Todd 256198096 2509 1 35,990.00 118.92 35,954.13
-------------------------------------------------------------------------------------------------------------------
Timothy R Mccormick 422254106 2510 66 48,779.32 173.28 48,718.61
-------------------------------------------------------------------------------------------------------------------
James H Davis 258909791 2512 66 35,031.21 124.44 34,987.61
-------------------------------------------------------------------------------------------------------------------
Mike E Pruitt 253293026 2601 96 19,108.33 125.40 19,027.03
-------------------------------------------------------------------------------------------------------------------
John Seay 255725553 2602 96 45,913.88 177.83 45,842.01
-------------------------------------------------------------------------------------------------------------------
Eric Middleton 557611700 2603 96 31,328.43 124.31 31,276.42
-------------------------------------------------------------------------------------------------------------------
Joe Ray 257864713 2604 178 15,769.01 104.37 15,701.03
-------------------------------------------------------------------------------------------------------------------
Robert E Mimna 162486131 2605 114 42,244.34 277.21 42,064.62
-------------------------------------------------------------------------------------------------------------------
Timothy A Firebaugh 254319352 2606 8 24,839.02 163.00 24,733.34
-------------------------------------------------------------------------------------------------------------------
Michael Tedesco 144585234 2607 25 66,273.44 232.29 66,194.09
-------------------------------------------------------------------------------------------------------------------
Robin C Horton 253982061 2608 96 27,721.60 181.92 27,603.65
-------------------------------------------------------------------------------------------------------------------
Martin A Paine 256965362 2701 16 49,457.05 165.94 49,405.24
-------------------------------------------------------------------------------------------------------------------
Charles A Straub 49540549 2702 176 22,436.93 147.87 22,340.84
-------------------------------------------------------------------------------------------------------------------
Robert W Huff 253865340 2703 65 44,807.29 158.97 44,751.72
-------------------------------------------------------------------------------------------------------------------
Patrick Kaliher 265516141 2704 48 48,308.16 171.60 48,248.04
-------------------------------------------------------------------------------------------------------------------
Sam English 252195677 2705 178 25,601.90 168.73 25,492.25
-------------------------------------------------------------------------------------------------------------------
Gregory C Heeter 305925555 2707 45 35,198.90 121.93 35,158.20
-------------------------------------------------------------------------------------------------------------------
Benjamin Gifford 252638956 2709 120 41,907.35 160.32 41,843.74
-------------------------------------------------------------------------------------------------------------------
Alfred Foster 254218951 2710 77 32,144.76 128.84 32,090.10
-------------------------------------------------------------------------------------------------------------------
James Heeter 313504620 2711 96 37,116.09 142.00 37,059.74
-------------------------------------------------------------------------------------------------------------------
David Brown 256556009 2801 77 30,947.80 120.06 30,899.16
-------------------------------------------------------------------------------------------------------------------
Joseph E Lee 260723210 2802 48 28,803.89 189.82 28,680.54
-------------------------------------------------------------------------------------------------------------------
William Skeen 252398528 2803 193 31,333.35 136.30 31,269.36
-------------------------------------------------------------------------------------------------------------------
Johnny Johnson 258331002 2804 171 17,097.30 112.67 17,024.09
-------------------------------------------------------------------------------------------------------------------
Jerry R Wiley 256632790 2805 241 24,992.45 135.25 24,914.87
-------------------------------------------------------------------------------------------------------------------
Abdimalik S M Abdi 256899267 2807 26 65,293.41 221.42 65,222.67
-------------------------------------------------------------------------------------------------------------------
Robert Vollmer 219383542 2808 188 13,343.57 57.46 13,316.90
-------------------------------------------------------------------------------------------------------------------
Ronald E Nesmith 255478227 2902 27 24,091.80 119.99 24,027.41
-------------------------------------------------------------------------------------------------------------------
Donnie Warren 254310509 2904 27 15,489.67 87.45 15,437.97
-------------------------------------------------------------------------------------------------------------------
William A Davis 332686986 2905 24 45,057.72 242.45 44,919.25
-------------------------------------------------------------------------------------------------------------------
Gary S Titshaw 252909238 2906 31 45,856.81 156.36 45,806.27
-------------------------------------------------------------------------------------------------------------------
Gary Rounsaville 414216279 2907 19 42,920.21 144.46 42,874.80
-------------------------------------------------------------------------------------------------------------------
Emory Sharpton 254275121 2908 51 15,421.54 80.54 15,376.59
-------------------------------------------------------------------------------------------------------------------
Stephen Floyd 258139573 2911 12 44,125.14 147.44 44,079.53
-------------------------------------------------------------------------------------------------------------------
Jeffrey P Dodson 254514829 3003 6 46,635.38 154.87 46,588.13
-------------------------------------------------------------------------------------------------------------------
Eric Carne 259395480 3004 262 21,089.02 108.27 21,029.42
-------------------------------------------------------------------------------------------------------------------
Russell W Dudley 48641069 3005 39 45,449.24 156.36 45,397.76
-------------------------------------------------------------------------------------------------------------------
Dwayne D Spencer 253453597 3006 31 74,667.46 254.60 74,585.17
-------------------------------------------------------------------------------------------------------------------
Salahaldin Abdallah-Aljaber 263771799 3007 27 51,063.06 175.28 51,005.62
-------------------------------------------------------------------------------------------------------------------
William C Hammond 414433181 3009 36 33,941.96 116.38 33,903.91
-------------------------------------------------------------------------------------------------------------------
Jeffery W Durham 419130322 3201 70 36,346.31 129.76 36,300.43
-------------------------------------------------------------------------------------------------------------------
Durham Jerry L 423529149 3204 261 27,003.63 140.21 26,925.74
-------------------------------------------------------------------------------------------------------------------
Leigh A Durham 437438693 3205 83 26,674.36 97.10 26,638.82
-------------------------------------------------------------------------------------------------------------------
Segrest Gene 416626874 3211 76 17,356.96 110.19 17,286.82
-------------------------------------------------------------------------------------------------------------------
Patrick M Borders 418025850 3214 40 26,536.30 91.40 26,506.14
-------------------------------------------------------------------------------------------------------------------
Bryan Battles 423177314 3301 37 40,372.95 138.58 40,327.54
===================================================================================================================
|
ATTACHMENT TO ANNEX C
Page 12
James D Langley Jr 420177886 3303 71 28,988.78 103.62 28,952.06
-------------------------------------------------------------------------------------------------------------------
Hall, Jimmy Louis 424804815 3304 493 2,164.71 76.20 2,093.51
-------------------------------------------------------------------------------------------------------------------
Hall Gerald G 417946037 3305 76 25,864.01 102.45 25,821.25
-------------------------------------------------------------------------------------------------------------------
Evans Ordie 424526718 3307 76 4,726.54 174.50 4,562.95
-------------------------------------------------------------------------------------------------------------------
Craig D Kuykendall 419922759 3330 127 33,709.04 130.35 33,656.48
-------------------------------------------------------------------------------------------------------------------
Donald H Morgan 419709156 3331 71 26,918.08 96.22 26,883.98
-------------------------------------------------------------------------------------------------------------------
Carpenter Steve O 421949210 3401 159 33,423.60 136.30 33,364.43
-------------------------------------------------------------------------------------------------------------------
Christopher R Bullard 418941134 3403 24 46,129.13 156.10 46,079.48
-------------------------------------------------------------------------------------------------------------------
Douglas E Holland 570154481 3404 34 40,199.28 137.53 40,154.52
-------------------------------------------------------------------------------------------------------------------
Earl Lybrand 418949533 3405 99 38,649.38 143.41 38,595.16
-------------------------------------------------------------------------------------------------------------------
Thomas R Bullard 419629799 3420 64 41,477.45 146.98 41,426.19
-------------------------------------------------------------------------------------------------------------------
Michael E Shankles 408112148 3431 36 27,408.21 93.97 27,377.49
-------------------------------------------------------------------------------------------------------------------
Jeffrey B Littlejohn 252518318 3501 74 42,433.37 152.26 42,379.03
-------------------------------------------------------------------------------------------------------------------
Vincente Reyna 265736847 3503 13 40,197.18 134.45 40,155.49
-------------------------------------------------------------------------------------------------------------------
Sammuel L Mann 227277292 3504 20 49,700.21 167.46 49,647.44
-------------------------------------------------------------------------------------------------------------------
Russell E Kendall 445469668 3506 1 54,110.00 178.80 54,056.07
-------------------------------------------------------------------------------------------------------------------
Westerfield David 267869527 3507 357 17,726.46 129.96 17,637.41
-------------------------------------------------------------------------------------------------------------------
John J Waller Sr 257663561 3508 57 28,168.12 98.96 28,134.16
-------------------------------------------------------------------------------------------------------------------
Gordon T Erickson 98443540 3509 37 39,150.18 134.39 39,106.14
-------------------------------------------------------------------------------------------------------------------
William D Vandagriff 412940893 3603 7 55,156.24 183.36 55,100.16
-------------------------------------------------------------------------------------------------------------------
Crowder, David A 252354195 3604 65 9,664.66 70.85 9,616.11
-------------------------------------------------------------------------------------------------------------------
Miles E Burnham 253356096 3605 31 42,377.74 144.50 42,331.03
-------------------------------------------------------------------------------------------------------------------
Newsome Phillip A 413255635 3606 65 20,914.72 107.36 20,855.62
-------------------------------------------------------------------------------------------------------------------
James H Mcwilliams 409614268 3607 74 22,238.71 79.80 22,210.23
-------------------------------------------------------------------------------------------------------------------
Randall Burnham 256457557 3608 13 33,444.15 113.54 33,407.79
-------------------------------------------------------------------------------------------------------------------
Oneal John Timothy 412236839 3701 159 22,775.86 92.88 22,735.54
-------------------------------------------------------------------------------------------------------------------
Sharp Micheal G 415902104 3702 231 18,962.70 78.28 18,928.18
-------------------------------------------------------------------------------------------------------------------
Johnny W Denton 414060962 3703 26 26,698.01 90.54 26,669.08
-------------------------------------------------------------------------------------------------------------------
Chip Ingram Jr 417138517 3704 8 30,037.48 99.96 30,006.84
-------------------------------------------------------------------------------------------------------------------
Ricky L Botts 415023569 3705 16 34,162.87 114.63 34,127.08
-------------------------------------------------------------------------------------------------------------------
Alan Tiller 414083240 3706 41 29,257.68 108.87 29,216.33
-------------------------------------------------------------------------------------------------------------------
Samuel C Hutcheson 590341819 3707 36 20,228.25 69.36 20,205.57
-------------------------------------------------------------------------------------------------------------------
Bowen John L 467960319 3721 357 11,238.49 82.71 11,181.71
-------------------------------------------------------------------------------------------------------------------
Parker David L 415746361 3722 76 7,743.83 56.77 7,704.93
-------------------------------------------------------------------------------------------------------------------
Wilson Donald S 415299019 3723 357 17,716.59 89.94 17,667.53
-------------------------------------------------------------------------------------------------------------------
Charles R Hardaway 413923858 3807 32 34,848.24 118.96 34,809.70
-------------------------------------------------------------------------------------------------------------------
Jason Hart 414259561 3809 32 31,924.92 108.98 31,889.61
-------------------------------------------------------------------------------------------------------------------
Michael E Mayo 415922850 3810 32 34,016.03 116.11 33,978.42
-------------------------------------------------------------------------------------------------------------------
Michael White 252981604 3813 32 21,325.42 72.79 21,301.84
-------------------------------------------------------------------------------------------------------------------
Terry Adams 550311442 3814 32 38,972.19 133.03 38,929.10
-------------------------------------------------------------------------------------------------------------------
James L Cherry 223940410 3815 32 13,900.62 47.45 13,885.25
-------------------------------------------------------------------------------------------------------------------
Donald C Barnes 410271480 3816 32 34,635.37 118.23 34,597.07
-------------------------------------------------------------------------------------------------------------------
Malinda C Baggett 413238020 3901 32 29,320.99 100.09 29,288.56
-------------------------------------------------------------------------------------------------------------------
Steve L White 421316042 3902 32 9,389.76 32.05 9,379.38
-------------------------------------------------------------------------------------------------------------------
Scott D Sutton 411294944 3910 20 12,121.05 40.84 12,108.18
-------------------------------------------------------------------------------------------------------------------
Samuel J Malone, Sr 415723548 3911 6 26,954.41 89.51 26,927.10
-------------------------------------------------------------------------------------------------------------------
Christopher Brewer 415296540 3912 32 20,967.13 71.57 20,943.95
-------------------------------------------------------------------------------------------------------------------
Gary Hull 513601467 141 69 19,057.80 118.14 18,983.64
-------------------------------------------------------------------------------------------------------------------
Scott J Andrepont 433396419 142 83 34,822.48 126.42 34,776.42
-------------------------------------------------------------------------------------------------------------------
Cody J Desormeaux 435652202 144 43 30,432.48 105.18 30,397.53
===================================================================================================================
|
Attachment to Annex C
Page 13
Tommy Stout 437628984 145 243 20,810.92 101.51 20,757.44
-------------------------------------------------------------------------------------------------------------------
Randy D Pacetti 433882955 146 22 27,835.09 151.65 27,747.67
-------------------------------------------------------------------------------------------------------------------
Derby Doucet 438924063 147 74 5,833.76 38.44 5,808.78
-------------------------------------------------------------------------------------------------------------------
Douglas J Matt 437042867 149 36 54,048.95 185.32 53,988.36
-------------------------------------------------------------------------------------------------------------------
Reginald Joubert 437630520 200 54 31,881.56 121.06 31,834.07
-------------------------------------------------------------------------------------------------------------------
John B Pousson 434069179 202 2 39,021.07 129.07 38,982.05
-------------------------------------------------------------------------------------------------------------------
David Morin 2389716 204 30 20,581.96 187.15 20,442.31
-------------------------------------------------------------------------------------------------------------------
Anthony L Miller 436029350 210 198 27,101.98 119.12 27,045.40
-------------------------------------------------------------------------------------------------------------------
Robert C Monceaux 389707013 212 426 965.63 108.16 859.70
-------------------------------------------------------------------------------------------------------------------
Nelson T Soileau, Jr 435471679 214 54 25,116.36 179.64 24,994.68
-------------------------------------------------------------------------------------------------------------------
John A Alloway Jr 451492479 222 138 45,801.80 180.25 45,727.25
-------------------------------------------------------------------------------------------------------------------
David W Yancy 439591478 223 59 24,150.09 85.05 24,120.77
-------------------------------------------------------------------------------------------------------------------
Chad J Hollie 434376140 224 67 39,790.88 141.52 39,741.19
-------------------------------------------------------------------------------------------------------------------
Gregory Lejeune 434291965 312 18 6,978.01 58.74 6,935.37
-------------------------------------------------------------------------------------------------------------------
Mark W Bueche 437216871 313 235 29,065.32 138.95 28,993.44
-------------------------------------------------------------------------------------------------------------------
Ronnie Ard 436357120 315 74 40,186.31 144.20 40,134.85
-------------------------------------------------------------------------------------------------------------------
Prentice J Kraemer 433216971 318 205 33,924.62 151.34 33,851.57
-------------------------------------------------------------------------------------------------------------------
Norman Williams 434631744 370 22 50,142.55 169.31 50,088.95
-------------------------------------------------------------------------------------------------------------------
Thaddeus J Boudwin 437255430 371 245 20,322.87 115.32 20,254.45
-------------------------------------------------------------------------------------------------------------------
Ray A Zeringue 438470958 372 205 14,398.07 217.28 14,214.02
-------------------------------------------------------------------------------------------------------------------
Gary Boudwin 435067904 375 171 12,572.54 74.51 12,527.04
-------------------------------------------------------------------------------------------------------------------
Ronnie Venable 436336627 470 17 48,185.30 178.29 48,118.21
-------------------------------------------------------------------------------------------------------------------
Bobby D Fontenot 433272423 471 7 44,302.39 152.24 44,252.39
-------------------------------------------------------------------------------------------------------------------
Troy A Mouton 433494683 476 53 43,460.55 151.97 43,408.87
-------------------------------------------------------------------------------------------------------------------
Tommy Poirier 439191869 481 156 36,947.00 191.29 36,840.97
-------------------------------------------------------------------------------------------------------------------
John T Parrett 425920936 484 517 654.49 164.21 491.79
-------------------------------------------------------------------------------------------------------------------
Chris A Lyons 434044223 485 41 4,645.30 45.69 4,610.33
-------------------------------------------------------------------------------------------------------------------
Bryan D Thibodeaux 438436542 486 17 50,811.94 170.67 50,758.53
-------------------------------------------------------------------------------------------------------------------
Casey M Dohman 435398455 487 44 42,077.31 145.59 42,028.82
-------------------------------------------------------------------------------------------------------------------
Kevin S Maynard 436392288 506 212 32,622.75 159.11 32,538.92
-------------------------------------------------------------------------------------------------------------------
Thomas Cosenza 436434148 508 115 39,351.02 149.42 39,292.41
-------------------------------------------------------------------------------------------------------------------
Ricky L Cooper 433399901 509 54 39,015.64 163.83 38,941.85
-------------------------------------------------------------------------------------------------------------------
James E Deslatte 433847536 530 17 35,848.75 120.41 35,811.07
-------------------------------------------------------------------------------------------------------------------
Billy D Hullett 463338432 531 64 39,071.91 138.45 39,023.63
-------------------------------------------------------------------------------------------------------------------
Troy L Lambert 437278774 533 31 42,804.27 145.95 42,757.10
-------------------------------------------------------------------------------------------------------------------
Joseph N Boltz 523212911 535 71 47,799.34 170.87 47,738.78
-------------------------------------------------------------------------------------------------------------------
Benjamin L Hunt 433439048 540 17 24,486.24 82.24 24,460.51
-------------------------------------------------------------------------------------------------------------------
John J Buckley 438530951 541 54 36,465.35 133.81 36,415.69
-------------------------------------------------------------------------------------------------------------------
Kenneth D Chelette 435556885 542 7 48,089.04 159.86 48,040.15
-------------------------------------------------------------------------------------------------------------------
Nathan Robert 438172674 544 97 37,641.13 139.28 37,588.71
-------------------------------------------------------------------------------------------------------------------
John Duplechin 439271533 691 253 17,421.72 87.23 17,374.69
-------------------------------------------------------------------------------------------------------------------
Jeffrey S Zelman 160647510 692 414 6,053.83 125.92 5,941.88
-------------------------------------------------------------------------------------------------------------------
David S Smith 438310705 693 17 43,010.72 144.46 42,965.52
-------------------------------------------------------------------------------------------------------------------
Leo Paul Brignac 433761299 695 161 32,481.58 132.93 32,423.61
-------------------------------------------------------------------------------------------------------------------
James D Sebastien 437909098 696 386 11,529.61 99.51 11,456.71
-------------------------------------------------------------------------------------------------------------------
Michael P Harrington 433251780 736 88 43,455.04 186.03 43,369.29
-------------------------------------------------------------------------------------------------------------------
John A Fisher 437574275 737 48 45,564.74 161.66 45,508.23
-------------------------------------------------------------------------------------------------------------------
Randy P Savoy 439315577 738 68 28,587.64 101.81 28,551.80
-------------------------------------------------------------------------------------------------------------------
Michael Kinsella 460022328 751 94 40,820.30 150.41 40,764.09
-------------------------------------------------------------------------------------------------------------------
Chris R Pacetti 433172466 752 22 58,675.64 198.13 58,612.92
===================================================================================================================
|
Annex to Annex C
Page 14
Dwayne P Chreene 438941320 756 231 28,256.10 133.76 28,187.55
---------------------------------------------------------------------------------------------------------------
David R Pacetti 433173671 757 80 41,520.25 150.15 41,465.92
---------------------------------------------------------------------------------------------------------------
Darrell J Richard 434042933 861 188 33,978.19 156.01 33,900.59
---------------------------------------------------------------------------------------------------------------
Scott M Zeringue 434677146 863 7 41,234.11 144.87 41,184.40
---------------------------------------------------------------------------------------------------------------
Don L Duhon 433945766 865 54 14,948.88 163.23 14,820.15
---------------------------------------------------------------------------------------------------------------
Brent J David 435150985 866 112 38,074.72 145.89 38,016.69
---------------------------------------------------------------------------------------------------------------
Thomas E Istre 436602361 867 3 37,471.08 156.17 37,401.38
---------------------------------------------------------------------------------------------------------------
Clint A Crappell 433215561 934 7 36,707.88 122.03 36,670.56
---------------------------------------------------------------------------------------------------------------
Brien P Mabile 436330783 935 60 30,480.45 138.37 30,412.42
---------------------------------------------------------------------------------------------------------------
Ransdal Fontenot 436430575 936 316 17,019.21 104.28 16,954.21
---------------------------------------------------------------------------------------------------------------
George S Thibodeaux 437239097 939 13 43,387.96 145.13 43,342.96
---------------------------------------------------------------------------------------------------------------
Remy Usey 433254345 950 146 24,799.87 136.84 24,720.26
---------------------------------------------------------------------------------------------------------------
Karl J Larousse 437966310 951 340 2,689.85 82.32 2,613.74
---------------------------------------------------------------------------------------------------------------
Nelis P Chassion 437600552 955 13 23,858.68 99.07 23,814.67
---------------------------------------------------------------------------------------------------------------
Douglas G Suire 439062297 956 15 35,904.20 120.34 35,866.72
---------------------------------------------------------------------------------------------------------------
Corey P Fanguy 437614503 957 17 39,370.66 132.24 39,329.28
---------------------------------------------------------------------------------------------------------------
James Kirkpatrick 439119602 101 62 46,104.24 162.97 46,047.66
---------------------------------------------------------------------------------------------------------------
Forrest F Fields 426068503 102 35 36,816.53 126.09 36,775.40
---------------------------------------------------------------------------------------------------------------
Jimmie Ridge 563158179 104 72 19,830.74 129.58 19,746.92
---------------------------------------------------------------------------------------------------------------
Daniel Barnett 428214718 105 32 41,992.37 143.34 41,945.94
---------------------------------------------------------------------------------------------------------------
Daniel Remel 426332053 106 15 43,317.67 145.19 43,272.44
---------------------------------------------------------------------------------------------------------------
Tommy Margiotta Ii 435413371 107 102 38,349.95 142.90 38,295.55
---------------------------------------------------------------------------------------------------------------
Steven R Buza 213082521 108 75 56,728.62 203.82 56,655.71
---------------------------------------------------------------------------------------------------------------
Carl T Mcqueen 427843066 109 234 15,501.18 96.19 15,440.76
---------------------------------------------------------------------------------------------------------------
Rodney A Yarber 257961329 110 15 63,470.09 212.74 63,403.82
---------------------------------------------------------------------------------------------------------------
Nicholas J Deters 426477072 111 152 27,502.17 110.79 27,454.85
---------------------------------------------------------------------------------------------------------------
Bedford Smith 430535591 112 41 29,553.81 101.90 29,520.11
---------------------------------------------------------------------------------------------------------------
James P Groth 82560383 113 35 38,312.06 131.21 38,269.26
---------------------------------------------------------------------------------------------------------------
Russell Schmermund 426358932 114 82 19,805.15 134.80 19,716.05
---------------------------------------------------------------------------------------------------------------
Douglas W Boquoi 437518719 212 104 31,905.76 119.22 31,860.17
---------------------------------------------------------------------------------------------------------------
Chris L Doseff 436768320 213 402 12,521.91 120.45 12,430.36
---------------------------------------------------------------------------------------------------------------
Charles R Strong 587075191 215 168 34,903.10 144.66 34,838.99
---------------------------------------------------------------------------------------------------------------
Robert R Fink 438564489 216 493 2,849.18 105.40 2,750.36
---------------------------------------------------------------------------------------------------------------
James A Wheat 439233062 217 154 46,534.21 188.11 46,453.49
---------------------------------------------------------------------------------------------------------------
Cory J Termine 437673345 219 126 38,293.57 147.86 38,234.08
---------------------------------------------------------------------------------------------------------------
Mark A Guevara 436511117 240 281 21,921.31 119.05 21,852.85
---------------------------------------------------------------------------------------------------------------
Todd A Traina 436619488 242 182 35,275.61 150.12 35,206.90
---------------------------------------------------------------------------------------------------------------
Carol F Cheramie 436661848 244 357 14,069.35 103.14 13,998.68
---------------------------------------------------------------------------------------------------------------
Marvin K Collins 434062811 245 297 2,583.58 164.70 2,424.84
---------------------------------------------------------------------------------------------------------------
Randy J Dela Gardelle 433193584 246 71 46,015.55 164.49 45,957.25
---------------------------------------------------------------------------------------------------------------
David Fernandez 434110779 248 28 55,924.99 190.06 55,863.99
---------------------------------------------------------------------------------------------------------------
Michael P Bernard 434159971 249 121 40,057.26 153.49 39,996.21
---------------------------------------------------------------------------------------------------------------
Ahmad I Hawa 241458391 340 510 879.54 86.10 795.47
---------------------------------------------------------------------------------------------------------------
David J Young 434905201 343 215 29,037.90 132.41 28,972.50
---------------------------------------------------------------------------------------------------------------
Charles L Godail 438419618 346 215 39,745.11 181.24 39,655.59
---------------------------------------------------------------------------------------------------------------
Glenn J Damare 439724495 352 141 57,901.29 228.99 57,805.92
---------------------------------------------------------------------------------------------------------------
Artie R Ferrill Jr 437133194 354 148 43,124.49 172.55 43,051.46
---------------------------------------------------------------------------------------------------------------
Craig J Bolotte 439219722 356 470 3,169.71 66.45 3,110.57
---------------------------------------------------------------------------------------------------------------
Wesley W Boudoin 439064095 421 490 3,874.24 131.30 3,751.88
---------------------------------------------------------------------------------------------------------------
David W Recotta 439135723 422 324 27,075.46 171.20 26,966.74
===============================================================================================================
|
Attachment to Annex C
Page 15
Farron D Whitehead 587117135 424 324 26,222.61 165.81 26,117.31
--------------------------------------------------------------------------------------------------------------
Stuart B Roberts 437708573 425 410 13,563.03 138.65 13,455.68
--------------------------------------------------------------------------------------------------------------
Michael D Boudreaux Jr 434273221 426 324 30,861.09 195.14 30,737.17
--------------------------------------------------------------------------------------------------------------
Brad C Monistere 435339406 430 231 37,192.04 176.05 37,101.82
--------------------------------------------------------------------------------------------------------------
Joseph E Vaurigaud 437588667 431 328 684.79 86.55 599.82
--------------------------------------------------------------------------------------------------------------
Robert L Bankston 438535016 432 304 18,792.69 110.18 18,725.88
--------------------------------------------------------------------------------------------------------------
Rhett M. Ardonne 438046968 550 116 47,025.47 178.83 46,955.16
--------------------------------------------------------------------------------------------------------------
Joseph W Jarreau 433198584 551 311 33,306.97 199.57 33,184.26
--------------------------------------------------------------------------------------------------------------
Ferinand A Boeneke 435588387 552 343 6,469.59 154.79 6,329.73
--------------------------------------------------------------------------------------------------------------
Philip G Meyer 439216064 553 264 29,327.36 151.40 29,243.64
--------------------------------------------------------------------------------------------------------------
Scott C Schaefer 439538778 554 210 36,503.86 164.62 36,423.48
--------------------------------------------------------------------------------------------------------------
Barry D Brown 434883246 555 397 15,267.89 141.72 15,161.40
--------------------------------------------------------------------------------------------------------------
Jerry M. Pinkerton 433237263 556 137 37,197.07 146.15 37,136.76
--------------------------------------------------------------------------------------------------------------
Dale J Almquist 573495950 558 513 835.60 109.80 727.73
--------------------------------------------------------------------------------------------------------------
Wayne A Smith 439829950 612 20 36,728.63 141.38 36,672.01
--------------------------------------------------------------------------------------------------------------
Christopher P Cain 435450635 613 345 24,901.79 172.31 24,786.95
--------------------------------------------------------------------------------------------------------------
Derek B Skidmore 438492292 614 19 38,123.53 128.32 38,083.19
--------------------------------------------------------------------------------------------------------------
Keith A Licciardi 439743981 615 44 43,185.22 149.42 43,135.46
--------------------------------------------------------------------------------------------------------------
Jeffery K Helgason 436158692 616 330 21,315.24 138.12 21,226.31
--------------------------------------------------------------------------------------------------------------
David Freeman 434193213 617 20 53,631.19 180.71 53,574.24
--------------------------------------------------------------------------------------------------------------
Danny L Mayfield 433061381 620 67 73,042.94 259.79 72,951.71
--------------------------------------------------------------------------------------------------------------
Jody M Neil 435772671 621 1 51,880.00 171.43 51,828.29
--------------------------------------------------------------------------------------------------------------
Frank P Keating 438966986 623 407 15,442.63 154.21 15,324.06
--------------------------------------------------------------------------------------------------------------
John E Pierce 439459606 624 131 46,544.65 181.13 46,470.93
--------------------------------------------------------------------------------------------------------------
Joseph J Barraco Jr 435559784 625 257 27,786.96 140.66 27,710.42
--------------------------------------------------------------------------------------------------------------
Brady J Perque Jr 433258531 626 45 47,313.68 163.89 47,258.98
--------------------------------------------------------------------------------------------------------------
Byron B Bloemer 433864339 627 320 23,998.31 149.36 23,904.33
--------------------------------------------------------------------------------------------------------------
Joseph J Barraco Sr 433863413 630 383 13,568.78 114.93 13,485.16
--------------------------------------------------------------------------------------------------------------
Gary O Siverio 433336658 751 244 50,876.74 248.15 50,746.00
--------------------------------------------------------------------------------------------------------------
Casey J Brinson 592079363 754 210 21,981.34 99.13 21,932.94
--------------------------------------------------------------------------------------------------------------
Adrian Mcauley 438132360 755 28 49,138.44 167.00 49,084.84
--------------------------------------------------------------------------------------------------------------
Michael L Clark 416906608 800 98 39,345.53 145.79 39,290.54
--------------------------------------------------------------------------------------------------------------
Scott E Stark 320449379 801 220 18,216.94 122.83 18,136.15
--------------------------------------------------------------------------------------------------------------
Wesley G Davis 420926457 804 61 37,063.42 130.85 37,018.10
--------------------------------------------------------------------------------------------------------------
Kushon M Anderson 423089860 805 96 43,301.34 159.99 43,241.28
--------------------------------------------------------------------------------------------------------------
Howard Graham 420544580 806 41 29,524.69 101.81 29,491.01
--------------------------------------------------------------------------------------------------------------
Donnie R Kelley 255806833 807 57 44,190.54 155.07 44,137.45
--------------------------------------------------------------------------------------------------------------
Donnie Os Seaman 423503905 808 124 45,330.58 174.48 45,260.71
--------------------------------------------------------------------------------------------------------------
Eric W Sandberg 521138478 809 220 27,670.36 139.04 27,595.17
--------------------------------------------------------------------------------------------------------------
James Fulford 434929407 811 41 35,600.15 122.76 35,559.54
--------------------------------------------------------------------------------------------------------------
Jeffrey A Sanderson 420175925 812 15 46,235.74 154.97 46,187.47
--------------------------------------------------------------------------------------------------------------
James Duncan 407668263 813 115 49,975.65 189.77 49,901.21
--------------------------------------------------------------------------------------------------------------
Allen R Walley 587296749 814 57 52,752.33 185.34 52,688.73
--------------------------------------------------------------------------------------------------------------
Michael D Bugg 179423192 815 220 31,468.91 145.15 31,396.38
--------------------------------------------------------------------------------------------------------------
Charles Salesman 427946770 817 59 42,681.72 150.32 42,629.90
--------------------------------------------------------------------------------------------------------------
James A Ethington 370486574 818 15 52,742.24 176.78 52,687.17
--------------------------------------------------------------------------------------------------------------
Brandon Hall 632057253 131 33 43,870.01 149.92 43,821.33
--------------------------------------------------------------------------------------------------------------
Rob C Mullins 464472959 133 33 36,846.54 158.36 36,773.21
--------------------------------------------------------------------------------------------------------------
Timothy Norris 340625817 134 53 33,575.48 124.40 33,528.56
--------------------------------------------------------------------------------------------------------------
Donnie Tipton 224646046 136 44 48,279.28 183.60 48,207.09
==============================================================================================================
|
Attachment to Annex C
Page 16
Brent Hall 466991516 150 35 46,609.16 159.63 46,557.09
-------------------------------------------------------------------------------------------------------------------
Robert L Humble 449807952 151 20 54,917.29 185.04 54,858.98
-------------------------------------------------------------------------------------------------------------------
Arthur R Pearson 456783730 156 61 29,025.10 126.01 28,966.07
-------------------------------------------------------------------------------------------------------------------
Clyde M Jones 455543722 157 8 39,643.55 131.92 39,603.12
-------------------------------------------------------------------------------------------------------------------
Karl Boehler 464968073 158 13 58,700.30 196.34 58,639.42
-------------------------------------------------------------------------------------------------------------------
Gregory P Johnson 464195188 159 68 48,904.51 185.98 48,831.39
-------------------------------------------------------------------------------------------------------------------
Jimmy A Ford 462271884 170 18 44,005.18 147.96 43,958.77
-------------------------------------------------------------------------------------------------------------------
Dennie Reeves 449138507 171 16 37,038.66 124.27 36,999.86
-------------------------------------------------------------------------------------------------------------------
Paul Mcfarland 460588015 172 70 63,268.31 225.88 63,188.43
-------------------------------------------------------------------------------------------------------------------
Harold W Alvarez 465826066 173 19 40,441.34 136.12 40,398.55
-------------------------------------------------------------------------------------------------------------------
Daryl D Buteaux 455150371 174 11 12,710.29 182.53 12,557.09
-------------------------------------------------------------------------------------------------------------------
John Phillips 263026184 230 119 39,423.26 150.59 39,363.65
-------------------------------------------------------------------------------------------------------------------
Darren Krolczyk 452714553 231 63 31,470.98 141.30 31,402.31
-------------------------------------------------------------------------------------------------------------------
Charles Pipes 450825927 232 91 42,284.51 155.17 42,226.92
-------------------------------------------------------------------------------------------------------------------
Phillip Pearce 244902258 233 22 41,194.82 421.11 40,868.77
-------------------------------------------------------------------------------------------------------------------
Booker T Jones Jr 458359957 234 16 62,574.53 209.96 62,508.97
-------------------------------------------------------------------------------------------------------------------
Jimmy Brewer 436133815 235 35 39,465.87 280.92 39,276.03
-------------------------------------------------------------------------------------------------------------------
Richard Armstrong 462397284 236 2 63,533.15 213.62 63,466.14
-------------------------------------------------------------------------------------------------------------------
Mark E Domingues 435704072 237 32 32,818.77 151.37 32,743.14
-------------------------------------------------------------------------------------------------------------------
Armando Ojeda 461978704 330 13 53,143.01 183.88 53,081.77
-------------------------------------------------------------------------------------------------------------------
James Kallus 458719498 331 13 56,062.62 187.52 56,004.48
-------------------------------------------------------------------------------------------------------------------
Francisco Hernandez 467314667 332 8 50,017.16 166.44 49,966.14
-------------------------------------------------------------------------------------------------------------------
Tommy Theard Jr 135734488 334 18 51,397.27 172.82 51,343.06
-------------------------------------------------------------------------------------------------------------------
Joseph Gonzales 462377888 337 13 43,210.86 155.05 43,155.53
-------------------------------------------------------------------------------------------------------------------
Ronald Valentine 449251698 338 76 49,139.68 176.78 49,076.30
-------------------------------------------------------------------------------------------------------------------
Ralph C. Brooks 455743947 450 71 39,602.93 141.57 39,552.75
-------------------------------------------------------------------------------------------------------------------
Alonzo Gabrich 426276860 451 72 46,310.10 165.75 46,251.22
-------------------------------------------------------------------------------------------------------------------
Michael Benner 213966563 453 30 40,882.02 139.24 40,837.12
-------------------------------------------------------------------------------------------------------------------
Charles K Wimberly 460668789 456 6 36,826.07 147.60 36,763.45
-------------------------------------------------------------------------------------------------------------------
Jesse S Oliver 450215551 465 70 49,971.92 178.63 49,908.61
-------------------------------------------------------------------------------------------------------------------
Bruce Sutherland 69408730 466 101 46,267.67 172.15 46,202.29
-------------------------------------------------------------------------------------------------------------------
Robert Tavares 465199393 467 70 48,198.06 172.07 48,137.22
-------------------------------------------------------------------------------------------------------------------
Jeffery West 462757408 470 44 50,910.32 209.48 50,818.33
-------------------------------------------------------------------------------------------------------------------
Jack Armstrong 467159074 471 32 41,490.88 141.63 41,445.00
-------------------------------------------------------------------------------------------------------------------
Elman T Gamboa 638480724 473 2 37,970.23 128.49 37,929.36
-------------------------------------------------------------------------------------------------------------------
Dusty Ward 450026616 506 5 51,168.68 177.25 51,109.51
-------------------------------------------------------------------------------------------------------------------
Kenneth W Guidry 463966328 507 22 74,003.00 370.57 73,803.21
-------------------------------------------------------------------------------------------------------------------
Ronald Rice 449040764 508 32 50,849.48 173.58 50,793.24
-------------------------------------------------------------------------------------------------------------------
Gordon Greer 456490598 520 37 37,128.68 127.45 37,086.91
-------------------------------------------------------------------------------------------------------------------
Gene A Alegre 450500919 522 332 10,473.85 128.57 10,369.45
-------------------------------------------------------------------------------------------------------------------
William Owen 458641063 523 37 32,443.44 111.37 32,406.94
-------------------------------------------------------------------------------------------------------------------
Santos Jordan Jr 462434988 600 146 47,638.85 195.67 47,553.12
-------------------------------------------------------------------------------------------------------------------
Enrique Posada 451711111 601 30 40,432.84 292.03 40,234.12
-------------------------------------------------------------------------------------------------------------------
Jose F Vela 453576387 602 18 50,926.69 171.23 50,872.98
-------------------------------------------------------------------------------------------------------------------
Joe A Nunio 459733001 603 5 52,124.17 198.22 52,046.24
-------------------------------------------------------------------------------------------------------------------
Gustavo Reynero 454719260 604 9 60,251.83 200.70 60,190.17
-------------------------------------------------------------------------------------------------------------------
Daniel Velazquez 460594121 605 71 45,664.65 163.23 45,606.80
-------------------------------------------------------------------------------------------------------------------
Michael Miller 458839263 607 76 49,858.66 179.37 49,794.35
-------------------------------------------------------------------------------------------------------------------
Dennis White 464819299 608 23 47,563.86 160.78 47,512.84
-------------------------------------------------------------------------------------------------------------------
Jerry Musgrove 449511519 609 6 41,523.88 177.41 41,442.29
===================================================================================================================
|
Attachment to Annex C
-------------------------------------------------------------------------------------------------------------------------------- Greg Edel 561557663 610 45 54,483.15 196.00 54,412.88 -------------------------------------------------------------------------------------------------------------------------------- Samuel Arancibia 463895665 780 93 49,640.40 187.65 49,567.30 -------------------------------------------------------------------------------------------------------------------------------- Donald E Craft 454317679 781 5 65,768.86 218.19 65,702.44 -------------------------------------------------------------------------------------------------------------------------------- Luis Mancinas 459990787 782 24 37,091.64 202.08 36,975.16 -------------------------------------------------------------------------------------------------------------------------------- Ronald L Givans 221446216 783 77 42,676.59 183.06 42,592.01 -------------------------------------------------------------------------------------------------------------------------------- Ron Jowell 451259233 787 31 57,009.31 206.43 56,934.44 -------------------------------------------------------------------------------------------------------------------------------- Mahawa Ndiaye 642422711 789 70 49,800.23 177.79 49,737.36 -------------------------------------------------------------------------------------------------------------------------------- Benjamin Foster 234863984 790 65 41,258.91 146.38 41,207.74 -------------------------------------------------------------------------------------------------------------------------------- Jesus Gomez 458850651 871 78 51,449.60 185.57 51,382.76 -------------------------------------------------------------------------------------------------------------------------------- Moses Maldonado 453433107 872 5 50,721.47 198.65 50,639.87 -------------------------------------------------------------------------------------------------------------------------------- Simon Rodriguez 425161720 873 45 53,653.62 192.28 53,585.16 -------------------------------------------------------------------------------------------------------------------------------- Fernando A Zapata 353363179 874 156 11,557.70 197.31 11,387.06 -------------------------------------------------------------------------------------------------------------------------------- Charles B.Tubbs 452685048 875 56 65,916.37 235.62 65,832.86 -------------------------------------------------------------------------------------------------------------------------------- Jorge A Lara 464995801 876 158 32,232.85 189.67 32,117.56 -------------------------------------------------------------------------------------------------------------------------------- Manuel R Ramirez 461557202 877 116 48,955.27 186.16 48,882.08 -------------------------------------------------------------------------------------------------------------------------------- Francisco Velazquez 460591637 879 6 64,511.33 236.41 64,423.79 -------------------------------------------------------------------------------------------------------------------------------- Mario Cantu 467930412 880 42 50,298.13 184.83 50,229.37 -------------------------------------------------------------------------------------------------------------------------------- Jesse Davila 449710393 900 42 46,136.68 159.27 46,083.88 -------------------------------------------------------------------------------------------------------------------------------- Steven Astolfo 459983455 901 22 40,326.62 201.40 40,218.28 -------------------------------------------------------------------------------------------------------------------------------- Victor M Lara 640485176 902 33 44,619.82 157.53 44,565.26 -------------------------------------------------------------------------------------------------------------------------------- Pedro Rodas 643148041 903 100 22,074.22 132.44 21,992.72 -------------------------------------------------------------------------------------------------------------------------------- Francisco Lemus 453792446 904 83 45,026.56 178.36 44,952.11 -------------------------------------------------------------------------------------------------------------------------------- Elias J Lara 454976855 905 20 38,985.52 238.90 38,836.59 -------------------------------------------------------------------------------------------------------------------------------- Jose Gonzalez 621203689 906 54 38,116.57 231.81 37,972.72 -------------------------------------------------------------------------------------------------------------------------------- Rene Vasquez 451712309 907 3 60,738.56 201.10 60,677.63 -------------------------------------------------------------------------------------------------------------------------------- Marshall Smith 313729676 1100 60 55,081.74 194.23 55,014.62 -------------------------------------------------------------------------------------------------------------------------------- Dwain Hibler 466579309 1101 2 67,245.92 222.42 67,178.68 -------------------------------------------------------------------------------------------------------------------------------- Kevin Crocker 466874879 1102 42 53,382.81 184.28 53,321.72 -------------------------------------------------------------------------------------------------------------------------------- Jason Hackney 458739450 1103 2 41,521.57 137.34 41,480.05 -------------------------------------------------------------------------------------------------------------------------------- William J Lacoste 456732926 1104 116 47,599.07 181.01 47,527.90 -------------------------------------------------------------------------------------------------------------------------------- Raymond West 465086249 1105 48 47,366.08 189.52 47,285.87 -------------------------------------------------------------------------------------------------------------------------------- James Hinson 456335750 1121 94 44,736.24 185.76 44,653.72 -------------------------------------------------------------------------------------------------------------------------------- Ronald Koska 452041703 1122 43 37,836.90 130.76 37,793.46 -------------------------------------------------------------------------------------------------------------------------------- Robert Lake 453941327 1130 45 50,344.12 174.39 50,285.91 -------------------------------------------------------------------------------------------------------------------------------- Kenneth D Skelton 459722556 1131 26 64,164.10 217.59 64,094.58 -------------------------------------------------------------------------------------------------------------------------------- Gonzalo Armas 602227580 1309 71 29,429.70 112.94 29,384.67 -------------------------------------------------------------------------------------------------------------------------------- Miguel R Corrigeux 634038525 1320 217 30,232.42 138.48 30,163.71 -------------------------------------------------------------------------------------------------------------------------------- Malick Ba 645681180 1321 40 43,504.95 149.84 43,455.51 -------------------------------------------------------------------------------------------------------------------------------- Jesus Joel Mancinas 457899480 1322 16 48,175.81 161.64 48,125.34 -------------------------------------------------------------------------------------------------------------------------------- Sammy Grant 453746017 1323 72 60,382.35 216.12 60,305.57 -------------------------------------------------------------------------------------------------------------------------------- Raymond Davis 423826766 1324 132 35,436.55 138.12 35,380.21 -------------------------------------------------------------------------------------------------------------------------------- Alex Varughese 456313205 1325 72 41,136.65 147.23 41,084.35 -------------------------------------------------------------------------------------------------------------------------------- Robert Morris 457135710 1326 99 22,807.33 136.15 22,723.81 -------------------------------------------------------------------------------------------------------------------------------- Michael Jamail 463455200 1327 47 79,589.55 284.86 79,488.36 -------------------------------------------------------------------------------------------------------------------------------- Jonathan Davis 464190802 1328 13 33,262.13 111.26 33,227.63 -------------------------------------------------------------------------------------------------------------------------------- James Rhodes 466714465 1400 13 25,846.94 143.08 25,763.51 -------------------------------------------------------------------------------------------------------------------------------- Jose E Gonzalez 466878454 1401 159 26,659.29 131.05 26,589.76 -------------------------------------------------------------------------------------------------------------------------------- Armando Cuevas 457330333 1402 153 9,953.64 203.36 9,773.25 -------------------------------------------------------------------------------------------------------------------------------- Jacob V Moore 514446272 1403 43 31,295.92 180.94 31,187.20 -------------------------------------------------------------------------------------------------------------------------------- Ruben Navarro 451994407 1404 13 50,816.96 169.97 50,764.26 -------------------------------------------------------------------------------------------------------------------------------- |
Attachment to Annex C
-------------------------------------------------------------------------------------------------------------------------------- Rafael Artiga 636010184 1406 43 49,147.56 169.85 49,091.13 -------------------------------------------------------------------------------------------------------------------------------- Joseph Nunez 452048450 1407 13 46,598.61 166.78 46,539.37 -------------------------------------------------------------------------------------------------------------------------------- Cleveland Glaze 437642196 1408 43 38,040.14 152.73 37,975.19 -------------------------------------------------------------------------------------------------------------------------------- Saad Aniss Chehali 113744725 1409 9 52,445.04 174.70 52,391.37 -------------------------------------------------------------------------------------------------------------------------------- Michael Racine 468926175 1500 16 53,839.90 192.70 53,771.45 -------------------------------------------------------------------------------------------------------------------------------- David Laws 456883924 1501 72 48,456.76 173.43 48,395.15 -------------------------------------------------------------------------------------------------------------------------------- Kenneth Sanchez 463935073 1503 26 43,763.51 149.89 43,714.61 -------------------------------------------------------------------------------------------------------------------------------- Norbert R Staudt 466575899 1504 72 33,516.08 122.33 33,471.09 -------------------------------------------------------------------------------------------------------------------------------- Tony A Garcia 459114516 1506 45 70,052.66 242.66 69,971.66 -------------------------------------------------------------------------------------------------------------------------------- Ronald Crooks 465336066 1507 8 58,579.72 199.96 58,514.94 -------------------------------------------------------------------------------------------------------------------------------- Mark Darnell 241024918 102 39 45,968.10 158.14 45,916.04 -------------------------------------------------------------------------------------------------------------------------------- Douglas Routh 237686868 103 5 52,065.88 172.73 52,013.30 -------------------------------------------------------------------------------------------------------------------------------- Dalton Beaman 238903432 104 118 26,618.12 101.52 26,578.03 -------------------------------------------------------------------------------------------------------------------------------- Charles Moser 239627280 105 322 25,223.04 168.06 25,113.19 -------------------------------------------------------------------------------------------------------------------------------- Randy Bullard 384849616 108 90 51,054.78 187.10 50,985.50 -------------------------------------------------------------------------------------------------------------------------------- Darrell Harris 238481964 111 323 22,309.25 140.50 22,220.23 -------------------------------------------------------------------------------------------------------------------------------- Jerry Whitaker 246887804 112 61 47,087.36 166.24 47,029.78 -------------------------------------------------------------------------------------------------------------------------------- Jeff Stanley 246373029 113 30 47,243.14 160.91 47,191.25 -------------------------------------------------------------------------------------------------------------------------------- Wesley Smith 231064079 115 17 33,290.93 111.82 33,255.94 -------------------------------------------------------------------------------------------------------------------------------- Robert Liske 421726776 116 59 46,705.91 164.49 46,649.20 -------------------------------------------------------------------------------------------------------------------------------- James Schuck 240311363 117 277 26,093.94 139.97 26,014.19 -------------------------------------------------------------------------------------------------------------------------------- Andre Braswell 237273225 119 17 40,226.62 135.11 40,184.34 -------------------------------------------------------------------------------------------------------------------------------- Randy Houchins 243088215 202 142 45,789.25 181.38 45,713.54 -------------------------------------------------------------------------------------------------------------------------------- Bryon K Moore 243171120 203 268 18,523.39 129.35 18,436.79 -------------------------------------------------------------------------------------------------------------------------------- Jason A Smith 244550672 204 120 33,615.69 128.60 33,564.66 -------------------------------------------------------------------------------------------------------------------------------- James R Nance 243130607 205 245 28,942.97 141.91 28,867.85 -------------------------------------------------------------------------------------------------------------------------------- Walter Futch 238725729 301 75 49,120.37 176.48 49,057.24 -------------------------------------------------------------------------------------------------------------------------------- Jason Belue 236154808 302 75 49,827.66 179.02 49,763.63 -------------------------------------------------------------------------------------------------------------------------------- Tim Viverette 240022430 303 75 26,336.49 94.63 26,302.64 -------------------------------------------------------------------------------------------------------------------------------- Steven Wahl 316840546 304 75 46,107.07 165.66 46,047.81 -------------------------------------------------------------------------------------------------------------------------------- Henry L Smith 245942635 305 75 51,180.57 183.88 51,114.80 -------------------------------------------------------------------------------------------------------------------------------- Daniel Smith 378949445 306 75 41,339.47 148.53 41,286.34 -------------------------------------------------------------------------------------------------------------------------------- Cecil Hargis 243662633 307 75 44,976.77 161.60 44,918.96 -------------------------------------------------------------------------------------------------------------------------------- Wallace Cavanaugh 139288483 308 75 37,248.20 133.81 37,200.35 -------------------------------------------------------------------------------------------------------------------------------- Curtis Higgs 228960515 311 20 42,554.12 143.38 42,508.94 -------------------------------------------------------------------------------------------------------------------------------- Todd Freeman 239413222 313 323 16,133.05 101.61 16,068.67 -------------------------------------------------------------------------------------------------------------------------------- Thomas Norwood 231234471 431 20 36,722.06 123.73 36,683.07 -------------------------------------------------------------------------------------------------------------------------------- Susan Sandarelli 95560294 433 11 28,183.54 94.05 28,154.53 -------------------------------------------------------------------------------------------------------------------------------- Gwendolyn Brazelle 241175520 434 78 27,926.33 100.73 27,890.05 -------------------------------------------------------------------------------------------------------------------------------- Curtis Chambers 243174036 441 38 28,192.74 96.88 28,160.92 -------------------------------------------------------------------------------------------------------------------------------- Elmer D Long 237940165 442 3 36,120.78 119.59 36,084.55 -------------------------------------------------------------------------------------------------------------------------------- Randy Lambert 242331607 541 90 46,962.19 172.10 46,898.46 -------------------------------------------------------------------------------------------------------------------------------- Robert Mcclain 237783951 542 90 34,407.59 126.09 34,360.90 -------------------------------------------------------------------------------------------------------------------------------- Richard Story 238742866 543 90 28,125.22 199.24 27,990.88 -------------------------------------------------------------------------------------------------------------------------------- Charles Tilley 243278960 544 90 49,916.47 168.38 49,863.28 -------------------------------------------------------------------------------------------------------------------------------- Kevin Long 244256821 545 90 14,332.66 137.88 14,227.86 -------------------------------------------------------------------------------------------------------------------------------- Lewis Boger 244921477 546 125 34,739.09 100.71 34,718.55 -------------------------------------------------------------------------------------------------------------------------------- Frank Taylor 242171876 548 90 47,595.19 174.42 47,530.61 -------------------------------------------------------------------------------------------------------------------------------- Jeff Young 600033061 631 23 44,028.08 148.83 43,980.85 -------------------------------------------------------------------------------------------------------------------------------- Glenda Moore 246683687 633 224 26,498.62 168.92 26,390.85 -------------------------------------------------------------------------------------------------------------------------------- |
Attachment to Annex C
-------------------------------------------------------------------------------------------------------------------------------- Gary Collier Sr 224744962 634 22 40,774.55 137.68 40,730.97 -------------------------------------------------------------------------------------------------------------------------------- Ken Kirk 242948486 661 326 2,630.32 158.44 2,477.95 -------------------------------------------------------------------------------------------------------------------------------- Ricky Ellerbee 248252149 662 62 56,801.25 200.78 56,731.55 -------------------------------------------------------------------------------------------------------------------------------- Jeff Kirk 240156510 663 326 25,611.89 163.27 25,507.72 -------------------------------------------------------------------------------------------------------------------------------- Eric S Fowler 238394261 664 50 44,240.81 154.15 44,188.75 -------------------------------------------------------------------------------------------------------------------------------- Jeffry Davis 240132740 665 62 38,576.33 136.36 38,528.99 -------------------------------------------------------------------------------------------------------------------------------- Roy E Mills 235889933 667 137 45,336.03 178.13 45,262.52 -------------------------------------------------------------------------------------------------------------------------------- Gary Gray 240900478 1021 142 25,590.96 101.38 25,548.64 -------------------------------------------------------------------------------------------------------------------------------- Walter D Ledford 239844069 1022 59 49,378.56 173.91 49,318.60 -------------------------------------------------------------------------------------------------------------------------------- David Scott Sr 241081312 1023 19 37,263.61 125.42 37,224.18 -------------------------------------------------------------------------------------------------------------------------------- Thomas Moucka 440401487 1031 33 26,947.40 171.77 26,837.82 -------------------------------------------------------------------------------------------------------------------------------- Carlos Sabino 153561411 1032 123 30,557.69 117.44 30,510.77 -------------------------------------------------------------------------------------------------------------------------------- Ron Capel 245800383 1033 326 17,435.63 111.12 17,364.75 -------------------------------------------------------------------------------------------------------------------------------- Christopher Fowler 246133221 1043 40 54,705.59 188.42 54,643.41 -------------------------------------------------------------------------------------------------------------------------------- Brian Koonts 237174090 1044 40 47,490.06 163.57 47,436.08 -------------------------------------------------------------------------------------------------------------------------------- Mike Woods 242861692 1127 22 24,946.91 84.24 24,920.24 -------------------------------------------------------------------------------------------------------------------------------- James Harley 248550936 1141 117 46,250.02 151.56 46,205.19 -------------------------------------------------------------------------------------------------------------------------------- Daniel Tart 242824120 1142 62 34,504.10 121.97 34,461.75 -------------------------------------------------------------------------------------------------------------------------------- Joseph Spicer 242136246 1143 106 20,872.61 156.92 20,763.86 -------------------------------------------------------------------------------------------------------------------------------- Brian Fortier 592101082 1146 181 44,016.63 186.97 43,931.24 -------------------------------------------------------------------------------------------------------------------------------- Michael Mcdonald 238519160 1148 50 42,655.07 148.98 42,604.52 -------------------------------------------------------------------------------------------------------------------------------- Jimmy Snipes 243741576 1221 326 19,525.46 124.26 19,446.26 -------------------------------------------------------------------------------------------------------------------------------- James D Whitley Sr 243682338 1222 278 28,608.10 154.91 28,519.21 -------------------------------------------------------------------------------------------------------------------------------- Michael Puckett 227179225 1223 58 34,485.74 121.31 34,444.01 -------------------------------------------------------------------------------------------------------------------------------- Michael Austin 239081314 1224 100 43,530.70 161.75 43,469.41 -------------------------------------------------------------------------------------------------------------------------------- Aaron Drye 245155791 1226 16 47,142.66 158.18 47,093.27 -------------------------------------------------------------------------------------------------------------------------------- Mickey Monroe Mcguire 237885412 1228 269 23,811.79 150.00 23,716.74 -------------------------------------------------------------------------------------------------------------------------------- Jay Smith 236049729 1229 326 11,879.97 71.63 11,835.76 -------------------------------------------------------------------------------------------------------------------------------- Ronny L Griffin 237725359 1244 118 29,053.14 137.86 28,982.33 -------------------------------------------------------------------------------------------------------------------------------- Larry M Conrad 243399781 1246 173 31,989.37 133.84 31,929.35 -------------------------------------------------------------------------------------------------------------------------------- Chad Brown 483902756 1247 9 36,168.95 120.48 36,131.94 -------------------------------------------------------------------------------------------------------------------------------- Christopher Grant 239451686 1301 75 41,402.42 148.75 41,349.21 -------------------------------------------------------------------------------------------------------------------------------- Jack Watson 245529423 1302 75 41,383.52 148.69 41,330.33 -------------------------------------------------------------------------------------------------------------------------------- Charles Barton 246499067 1303 38 44,335.43 152.35 44,285.39 -------------------------------------------------------------------------------------------------------------------------------- Larry Talley 242783126 1304 75 41,358.37 148.59 41,305.22 -------------------------------------------------------------------------------------------------------------------------------- Russell Clamp 251622867 1305 21 57,704.80 194.64 57,643.32 -------------------------------------------------------------------------------------------------------------------------------- David Arnette 240968700 1332 75 41,860.10 150.40 41,806.30 -------------------------------------------------------------------------------------------------------------------------------- Danny Lee Barnes 240908645 1333 75 51,386.53 184.62 51,320.49 -------------------------------------------------------------------------------------------------------------------------------- Danny Bullard 237256737 1334 11 36,320.47 121.24 36,283.05 -------------------------------------------------------------------------------------------------------------------------------- Roger Fogarty 261455962 1335 75 50,238.49 180.50 50,173.92 -------------------------------------------------------------------------------------------------------------------------------- Kim Hefner 238863016 1420 2 41,333.76 136.72 41,292.43 -------------------------------------------------------------------------------------------------------------------------------- Bill Mcgruther 595011842 1422 291 23,896.05 134.03 23,817.16 -------------------------------------------------------------------------------------------------------------------------------- Thomas Williams 239590073 1424 68 39,251.82 131.80 39,210.60 -------------------------------------------------------------------------------------------------------------------------------- Fred Swann 242218879 1425 326 14,681.06 126.87 14,588.07 -------------------------------------------------------------------------------------------------------------------------------- Edward Mckee 241529507 1426 326 13,725.58 89.65 13,667.60 -------------------------------------------------------------------------------------------------------------------------------- Paul Hutchins 248191442 1427 69 35,967.00 128.24 35,921.76 -------------------------------------------------------------------------------------------------------------------------------- Danny Byrd 241272125 1432 156 22,957.27 136.39 22,873.86 -------------------------------------------------------------------------------------------------------------------------------- Brian Hinson 248632402 1501 175 36,775.88 158.96 36,701.79 -------------------------------------------------------------------------------------------------------------------------------- Gary Hayes 247714027 1502 95 33,199.22 137.82 33,138.01 -------------------------------------------------------------------------------------------------------------------------------- Allen Riley 224232739 1503 326 6,690.21 96.95 6,608.70 -------------------------------------------------------------------------------------------------------------------------------- |
Attachment to Annex C
-------------------------------------------------------------------------------------------------------------------------------- Jon Williams 411024503 1504 219 13,210.73 112.97 13,128.25 -------------------------------------------------------------------------------------------------------------------------------- Gordon Gillelan 226962819 1506 261 11,886.42 75.08 11,838.77 -------------------------------------------------------------------------------------------------------------------------------- Randy Kirk 250714997 1507 95 26,160.56 96.53 26,124.40 -------------------------------------------------------------------------------------------------------------------------------- Kevin Sexton 251653000 1509 9 29,803.51 99.28 29,773.01 -------------------------------------------------------------------------------------------------------------------------------- Gerald B Gibbs 251210440 1601 30 14,529.80 49.49 14,513.84 -------------------------------------------------------------------------------------------------------------------------------- Clayton Brown 247234780 1602 134 9,750.53 84.92 9,688.11 -------------------------------------------------------------------------------------------------------------------------------- Billy H Henderson 248826259 1605 171 10,548.15 43.89 10,528.60 -------------------------------------------------------------------------------------------------------------------------------- Richie Washington 249415672 1609 91 10,391.22 38.13 10,377.07 -------------------------------------------------------------------------------------------------------------------------------- Ray Walker 227132736 1610 171 8,664.79 36.12 8,648.67 -------------------------------------------------------------------------------------------------------------------------------- Rupert Kelly 251196795 1612 98 15,107.52 55.97 15,086.41 -------------------------------------------------------------------------------------------------------------------------------- Anthony Montgomery 248475334 1701 178 7,454.05 31.48 7,439.77 -------------------------------------------------------------------------------------------------------------------------------- Eddie Banks 452820973 1702 27 14,235.82 48.33 14,220.34 -------------------------------------------------------------------------------------------------------------------------------- Kenneth Montgomery 249318249 1703 54 15,972.14 55.92 15,953.08 -------------------------------------------------------------------------------------------------------------------------------- Vincent Evans 521814544 1704 54 11,201.79 39.32 11,188.32 -------------------------------------------------------------------------------------------------------------------------------- Jason Anderson 248719058 1706 27 30,464.19 103.42 30,431.07 -------------------------------------------------------------------------------------------------------------------------------- Edward Nelson 251654877 1707 53 18,323.70 64.07 18,301.92 -------------------------------------------------------------------------------------------------------------------------------- Laertes Byrd 250716997 1708 53 23,463.72 82.04 23,435.83 -------------------------------------------------------------------------------------------------------------------------------- Sampson Muller 250379709 1709 14 23,418.28 78.41 23,393.91 -------------------------------------------------------------------------------------------------------------------------------- Asim Rahman 111566804 1710 132 15,560.81 60.65 15,536.07 -------------------------------------------------------------------------------------------------------------------------------- Eddie Davis 247413760 1713 41 24,169.99 83.34 24,142.43 -------------------------------------------------------------------------------------------------------------------------------- Michael Brown 248612889 1714 54 14,626.56 51.20 14,609.11 -------------------------------------------------------------------------------------------------------------------------------- David Langdale 247439492 1715 41 13,607.76 46.92 13,592.24 -------------------------------------------------------------------------------------------------------------------------------- Dennis Fowler 223130132 1801 14 46,760.53 156.57 46,711.87 -------------------------------------------------------------------------------------------------------------------------------- Matthew King 248210862 1803 15 24,310.78 81.48 24,285.40 -------------------------------------------------------------------------------------------------------------------------------- Tyronne Simmons 248432819 1804 43 47,565.93 164.39 47,511.31 -------------------------------------------------------------------------------------------------------------------------------- Douglas Graham 86386786 1805 15 31,292.34 104.89 31,259.66 -------------------------------------------------------------------------------------------------------------------------------- Mark Sanders 284528319 1806 15 34,295.28 114.95 34,259.47 -------------------------------------------------------------------------------------------------------------------------------- Stanley Masinsky 179406986 1812 67 11,501.33 40.91 11,486.96 -------------------------------------------------------------------------------------------------------------------------------- Michael Garrison 181581290 1816 118 21,476.37 81.91 21,444.02 -------------------------------------------------------------------------------------------------------------------------------- Mark Kauffman 201604364 1817 5 36,827.08 122.18 36,789.89 -------------------------------------------------------------------------------------------------------------------------------- Johnny Williams 247679606 1902 89 16,838.28 61.63 16,815.51 -------------------------------------------------------------------------------------------------------------------------------- Rodney Cain 250597485 1903 178 6,143.74 25.95 6,131.97 -------------------------------------------------------------------------------------------------------------------------------- Wilson Robinson 247535974 1921 50 13,474.19 46.95 13,458.33 -------------------------------------------------------------------------------------------------------------------------------- Nathaniel Snell 601241606 1922 41 27,019.74 92.82 26,989.27 -------------------------------------------------------------------------------------------------------------------------------- Daniel Warner 247087119 1923 50 14,945.34 52.07 14,927.76 -------------------------------------------------------------------------------------------------------------------------------- Cornell Riley 251551665 1925 29 18,386.83 62.56 18,366.70 -------------------------------------------------------------------------------------------------------------------------------- Robert Holmes 250337030 2101 69 19,637.00 70.02 19,612.30 -------------------------------------------------------------------------------------------------------------------------------- Charlton E Jackson 247376721 2103 89 26,226.48 143.79 26,143.21 -------------------------------------------------------------------------------------------------------------------------------- Melvin Haskell 251497003 2106 72 26,948.70 96.45 26,914.44 -------------------------------------------------------------------------------------------------------------------------------- John Neal 266479073 2201 60 47,228.99 166.54 47,171.44 -------------------------------------------------------------------------------------------------------------------------------- David Smith 256922721 2202 7 27,155.71 90.27 27,128.11 -------------------------------------------------------------------------------------------------------------------------------- Roy J Fowler 248614161 2203 77 40,986.45 154.26 40,926.77 -------------------------------------------------------------------------------------------------------------------------------- Calvin Smith 247253413 2205 9 38,229.28 127.34 38,190.16 -------------------------------------------------------------------------------------------------------------------------------- Phillip M Haynie 247662642 2207 77 16,840.26 104.40 16,774.72 -------------------------------------------------------------------------------------------------------------------------------- Shane Garner 298822929 2301 19 47,482.10 159.82 47,431.85 -------------------------------------------------------------------------------------------------------------------------------- William Mc Nutt 159448234 2302 69 37,290.68 132.97 37,243.77 -------------------------------------------------------------------------------------------------------------------------------- Prince Glenn 249875405 2303 7 36,211.89 120.38 36,175.08 -------------------------------------------------------------------------------------------------------------------------------- Melvin D Gillard 248688503 2305 77 22,927.25 110.42 22,869.74 -------------------------------------------------------------------------------------------------------------------------------- James Roberts 532747367 2307 9 46,376.25 154.48 46,328.79 -------------------------------------------------------------------------------------------------------------------------------- Ronald D Edmonds 249060830 2402 122 37,789.33 145.02 37,731.52 -------------------------------------------------------------------------------------------------------------------------------- |
Attachment to Annex C
-------------------------------------------------------------------------------------------------------------------------------- Gary W Lewis 250707378 2403 203 21,697.72 134.52 21,613.27 -------------------------------------------------------------------------------------------------------------------------------- Loyd Gunnels 251941814 2404 16 35,915.88 120.51 35,878.25 -------------------------------------------------------------------------------------------------------------------------------- Carl Ford 251294828 2405 34 43,642.58 149.31 43,593.98 -------------------------------------------------------------------------------------------------------------------------------- Virgil Martin 247337485 2406 43 29,612.34 102.34 29,578.34 -------------------------------------------------------------------------------------------------------------------------------- Robert Robinson 250860759 2410 43 27,074.90 93.57 27,043.81 -------------------------------------------------------------------------------------------------------------------------------- Chad Clark 249616409 2411 53 49,126.90 171.78 49,068.49 -------------------------------------------------------------------------------------------------------------------------------- Ronnie Johns 249470586 2414 43 22,645.33 78.26 22,619.33 -------------------------------------------------------------------------------------------------------------------------------- Genevieve Rollerson 248118866 2702 73 23,507.55 84.24 23,477.56 -------------------------------------------------------------------------------------------------------------------------------- Kenneth Wood 578069352 2705 73 21,212.24 76.02 21,185.17 -------------------------------------------------------------------------------------------------------------------------------- Carla Shaffer 352460400 2706 73 19,635.57 70.37 19,610.51 -------------------------------------------------------------------------------------------------------------------------------- Michael R Edgin 532788133 2708 73 29,956.30 107.35 29,918.08 -------------------------------------------------------------------------------------------------------------------------------- Nathan Rushton 251945694 2712 74 25,704.57 92.24 25,671.65 -------------------------------------------------------------------------------------------------------------------------------- Raymond L Martin 331406173 2803 162 21,829.67 135.33 21,744.72 -------------------------------------------------------------------------------------------------------------------------------- Brian Mc Lyea 249559211 2804 51 26,986.96 94.14 26,955.10 -------------------------------------------------------------------------------------------------------------------------------- Chris Gossett 247672302 2805 51 27,188.97 94.84 27,156.87 -------------------------------------------------------------------------------------------------------------------------------- Douglas J Lindey 166467190 2806 145 28,421.07 116.11 28,370.55 -------------------------------------------------------------------------------------------------------------------------------- James A Cannon 251439059 2807 145 24,137.21 149.63 24,043.28 -------------------------------------------------------------------------------------------------------------------------------- David Smith 241158264 3001 11 22,313.00 74.48 22,290.01 -------------------------------------------------------------------------------------------------------------------------------- Donald Looney 227158843 3002 39 34,951.52 120.24 34,911.94 -------------------------------------------------------------------------------------------------------------------------------- Robert Huffhine 415923078 3003 6 43,786.70 145.41 43,742.34 -------------------------------------------------------------------------------------------------------------------------------- Johnny A Punch 241311711 3004 62 33,439.81 118.20 33,398.78 -------------------------------------------------------------------------------------------------------------------------------- Walter Bellamy 248232627 3005 15 36,782.49 123.29 36,744.08 -------------------------------------------------------------------------------------------------------------------------------- Ronnie Cadle 232173184 3006 15 33,053.07 110.79 33,018.56 -------------------------------------------------------------------------------------------------------------------------------- David Morris 418766517 3007 92 35,780.52 131.25 35,731.84 -------------------------------------------------------------------------------------------------------------------------------- Gary Setzer 246411124 3008 281 18,028.11 127.45 17,942.26 -------------------------------------------------------------------------------------------------------------------------------- Danny Nichols 243157730 3021 196 27,052.42 118.41 26,996.44 -------------------------------------------------------------------------------------------------------------------------------- Jeremy Sumlin 242530087 3022 12 29,451.70 98.41 29,421.26 -------------------------------------------------------------------------------------------------------------------------------- Earl F Price 238558941 3023 158 28,126.05 114.49 28,076.47 -------------------------------------------------------------------------------------------------------------------------------- Danny Buchanan 246310475 3024 1 30,730.00 101.54 30,699.38 -------------------------------------------------------------------------------------------------------------------------------- Robert Nichols 237311235 3025 26 34,678.27 117.60 34,640.70 -------------------------------------------------------------------------------------------------------------------------------- Brian Koontz 242317909 3031 11 50,992.27 170.21 50,939.73 -------------------------------------------------------------------------------------------------------------------------------- Jim Penley 225580031 3032 271 19,962.80 144.87 19,864.00 -------------------------------------------------------------------------------------------------------------------------------- Jamie Bobbitt 237573900 3102 24 52,539.81 177.79 52,483.27 -------------------------------------------------------------------------------------------------------------------------------- Kevin Adcock 227116963 3104 4 46,462.34 153.99 46,415.57 -------------------------------------------------------------------------------------------------------------------------------- Mickey Dudley 246352560 3106 178 34,763.42 146.81 34,696.83 -------------------------------------------------------------------------------------------------------------------------------- Homer Casstevens 238949151 3107 43 39,163.80 135.35 39,118.83 -------------------------------------------------------------------------------------------------------------------------------- Larry W Freeman 244252213 3108 102 47,753.34 177.94 47,685.60 -------------------------------------------------------------------------------------------------------------------------------- William Coalson Jr 241042021 3109 16 35,534.77 119.23 35,497.54 -------------------------------------------------------------------------------------------------------------------------------- Rufus Sims 237197336 3110 11 50,791.29 169.54 50,738.96 -------------------------------------------------------------------------------------------------------------------------------- Craig A Kirby 226150430 3112 120 41,792.66 163.74 41,725.36 -------------------------------------------------------------------------------------------------------------------------------- Chris Allen 590589844 3113 57 34,260.33 120.37 34,219.02 -------------------------------------------------------------------------------------------------------------------------------- John Miller 244537986 3121 16 40,012.76 134.25 39,970.85 -------------------------------------------------------------------------------------------------------------------------------- Anthony Johnson 241274090 3122 5 43,657.64 144.84 43,613.55 -------------------------------------------------------------------------------------------------------------------------------- Dale Gilliam 245061559 3124 14 41,177.78 137.88 41,134.93 -------------------------------------------------------------------------------------------------------------------------------- Scott Hall 243067981 3125 5 30,678.78 101.78 30,647.80 -------------------------------------------------------------------------------------------------------------------------------- Danny R Perkins 402861001 3201 72 46,317.24 165.78 46,258.35 -------------------------------------------------------------------------------------------------------------------------------- Darrell G James 238354679 3203 319 29,534.08 183.09 29,419.15 -------------------------------------------------------------------------------------------------------------------------------- Randall Robinson 241273888 3204 11 80,353.62 268.21 80,270.84 -------------------------------------------------------------------------------------------------------------------------------- George A Bennett 246354182 3206 245 22,914.71 112.35 22,855.24 -------------------------------------------------------------------------------------------------------------------------------- Stephen King 246293041 3208 48 51,712.00 179.75 51,651.59 -------------------------------------------------------------------------------------------------------------------------------- |
Attachment to Annex C
-------------------------------------------------------------------------------------------------------------------------------- John Ramsey 241355575 3209 24 55,120.73 186.52 55,061.41 -------------------------------------------------------------------------------------------------------------------------------- James Cooper 238114747 3210 14 55,421.21 185.57 55,363.54 -------------------------------------------------------------------------------------------------------------------------------- William Schmidt 371509630 3221 15 32,700.25 109.60 32,666.11 -------------------------------------------------------------------------------------------------------------------------------- Christopher Frese 265955648 3222 23 41,796.04 141.29 41,751.20 -------------------------------------------------------------------------------------------------------------------------------- Bruce Robinson 297585492 100 247 37,157.34 183.10 37,059.99 -------------------------------------------------------------------------------------------------------------------------------- James Keith White 223666231 101 33 77,964.30 266.43 77,877.79 -------------------------------------------------------------------------------------------------------------------------------- Ronnie Phelps 237769914 103 66 3,739.64 13.28 3,734.99 -------------------------------------------------------------------------------------------------------------------------------- Donna Faye Sammons 224179872 106 54 14,472.39 212.97 14,292.82 -------------------------------------------------------------------------------------------------------------------------------- Willie P. Jones, Jr. 223805612 107 31 21,473.00 111.17 21,411.38 -------------------------------------------------------------------------------------------------------------------------------- Kevin Wayne Lester 228231934 115 3 37,055.52 125.39 37,015.64 -------------------------------------------------------------------------------------------------------------------------------- Michael D Yancey 230199572 200 18 64,846.24 218.03 64,777.86 -------------------------------------------------------------------------------------------------------------------------------- Herbert R. King, Jr 231944623 201 54 27,693.02 355.40 27,401.53 -------------------------------------------------------------------------------------------------------------------------------- William Columbus Bristow 231508886 203 14 29,260.50 97.97 29,230.05 -------------------------------------------------------------------------------------------------------------------------------- Joseph M Guthrie 230026409 204 150 11,461.59 131.00 11,357.04 -------------------------------------------------------------------------------------------------------------------------------- Charles D Holt 223886970 205 6 47,510.18 157.62 47,462.20 -------------------------------------------------------------------------------------------------------------------------------- Calvin Johnson 527751199 206 77 50,779.84 181.52 50,715.50 -------------------------------------------------------------------------------------------------------------------------------- John R. Clark 223945572 207 18 47,702.27 160.39 47,651.96 -------------------------------------------------------------------------------------------------------------------------------- Bernard A. Birdsong 223588127 300 31 42,529.51 197.53 42,430.13 -------------------------------------------------------------------------------------------------------------------------------- Ronald L. Stinecipher 409703729 301 15 6,368.57 53.10 6,330.17 -------------------------------------------------------------------------------------------------------------------------------- Randy Day Pettry 224703868 304 111 29,194.81 110.36 29,151.82 -------------------------------------------------------------------------------------------------------------------------------- Curtis Wayne Barricks 229644388 305 24 41,060.00 139.09 41,015.66 -------------------------------------------------------------------------------------------------------------------------------- David T Bowles 223460380 308 15 3,408.81 28.42 3,388.26 -------------------------------------------------------------------------------------------------------------------------------- Grace Ann Harris 229356128 321 9 22,864.77 76.16 22,841.37 -------------------------------------------------------------------------------------------------------------------------------- Charles T Weade 228023450 400 60 46,854.01 165.22 46,796.91 -------------------------------------------------------------------------------------------------------------------------------- William D Terrell 230485057 401 47 29,407.45 102.10 29,373.21 -------------------------------------------------------------------------------------------------------------------------------- Kenneth E Massie 223563353 402 50 19,837.75 118.86 19,764.67 -------------------------------------------------------------------------------------------------------------------------------- Donald Ray Dedrick 227688388 403 168 32,948.81 136.57 32,888.28 -------------------------------------------------------------------------------------------------------------------------------- Jerry W Ball 245727573 404 47 23,601.78 81.95 23,574.30 -------------------------------------------------------------------------------------------------------------------------------- Darrel Gutshall 223648467 430 194 8,345.09 35.59 8,328.76 -------------------------------------------------------------------------------------------------------------------------------- Timothy Keith Miller 590054989 432 67 37,013.12 131.64 36,966.89 -------------------------------------------------------------------------------------------------------------------------------- Boyd Keith Rexrode 228764909 434 133 45,308.59 176.88 45,236.27 -------------------------------------------------------------------------------------------------------------------------------- Raymond Ralph Ritchie 227740272 435 304 24,492.76 121.35 24,427.93 -------------------------------------------------------------------------------------------------------------------------------- Anthony Shane Sites 235213041 436 9 41,196.19 137.23 41,154.03 -------------------------------------------------------------------------------------------------------------------------------- Mark E Kearney 559062503 580 206 19,762.30 88.16 19,719.75 -------------------------------------------------------------------------------------------------------------------------------- James A. Herring 229237844 582 3 49,986.02 187.59 49,913.78 -------------------------------------------------------------------------------------------------------------------------------- Paul Jason Thomas 227191506 583 11 39,204.19 130.86 39,163.80 -------------------------------------------------------------------------------------------------------------------------------- Brent L. Barnes 230084849 585 4 30,249.10 100.25 30,218.66 -------------------------------------------------------------------------------------------------------------------------------- Lawrence Eugene Walker,Jr. 559577240 587 163 28,301.33 116.25 28,250.39 -------------------------------------------------------------------------------------------------------------------------------- David Romeo Genest 2366925 588 520 84.92 85.12 0.00 -------------------------------------------------------------------------------------------------------------------------------- Jody Mosser 520823249 591 50 23,753.95 120.59 23,688.18 -------------------------------------------------------------------------------------------------------------------------------- Ed Hand 226084733 592 7 51,150.51 170.04 51,098.51 -------------------------------------------------------------------------------------------------------------------------------- William S. White,Jr. 225270250 593 72 38,518.98 137.69 38,470.18 -------------------------------------------------------------------------------------------------------------------------------- Johnny Gordon 223319738 642 31 59,113.92 201.56 59,048.78 -------------------------------------------------------------------------------------------------------------------------------- Bruce A. Prillaman 226044881 643 27 49,454.47 198.21 49,370.39 -------------------------------------------------------------------------------------------------------------------------------- Justin Joseph 220929944 645 32 56,851.36 194.06 56,788.50 -------------------------------------------------------------------------------------------------------------------------------- James William Hurd 232660084 647 47 5,755.36 90.33 5,678.31 -------------------------------------------------------------------------------------------------------------------------------- Neil Clark Townsend 224664080 850 415 12,567.17 132.70 12,463.47 -------------------------------------------------------------------------------------------------------------------------------- Bernard Edward Lamay 231649504 851 172 32,546.05 135.89 32,485.27 -------------------------------------------------------------------------------------------------------------------------------- Keith C. Reed 231047923 852 17 55,046.50 253.89 54,919.64 -------------------------------------------------------------------------------------------------------------------------------- Joel L. Dollarhite 223925872 853 35 39,261.66 134.62 39,217.64 -------------------------------------------------------------------------------------------------------------------------------- |
Attachment to Annex C
---------------------------------------------------------------------------------------------------------------------- John Delbert Via 229319837 860 304 26,227.58 153.52 26,134.59 ---------------------------------------------------------------------------------------------------------------------- Deborah Berberette 230909814 861 45 39,129.17 135.54 39,083.93 ---------------------------------------------------------------------------------------------------------------------- Thomas Eroh, Jr 180543824 862 15 45,604.74 152.86 45,557.12 ---------------------------------------------------------------------------------------------------------------------- Blaine Staton 226962312 870 51 35,622.26 175.56 35,528.91 ---------------------------------------------------------------------------------------------------------------------- Kenneth Ray Clark 227901795 871 1 51,769.00 171.06 51,717.41 ---------------------------------------------------------------------------------------------------------------------- Eric Moran 229251654 903 2 50,739.38 167.83 50,688.64 ---------------------------------------------------------------------------------------------------------------------- John Leech Jr 577827092 906 595 41,422.07 148.83 41,368.83 ---------------------------------------------------------------------------------------------------------------------- Wesley Allen Webb 225232949 908 26 70,058.08 237.58 69,982.17 ---------------------------------------------------------------------------------------------------------------------- Michael Richard Neighbors 250135964 915 1 24,197.00 140.86 24,111.98 ---------------------------------------------------------------------------------------------------------------------- William Keith Hanks 228131254 2071 10 29,805.16 145.75 29,728.19 ---------------------------------------------------------------------------------------------------------------------- Robert P Davis 216720010 2075 320 14,745.72 108.10 14,671.65 ---------------------------------------------------------------------------------------------------------------------- Mark Woodyard 579962158 2120 2 66,004.15 218.32 65,938.15 ---------------------------------------------------------------------------------------------------------------------- Martin W. Henderson 529888844 2122 9 47,286.83 157.52 47,238.43 ---------------------------------------------------------------------------------------------------------------------- Joseph Travis Peyton 227255740 2123 18 31,015.38 104.28 30,982.67 ---------------------------------------------------------------------------------------------------------------------- David Tetzlaff 279684362 2124 34 50,321.87 50,438.00 0.00 ---------------------------------------------------------------------------------------------------------------------- Richard C. Pruitt 253515362 2125 9 44,784.90 148.76 44,739.49 ---------------------------------------------------------------------------------------------------------------------- William Bryant Regan 591942425 2126 34 45,686.81 45,792.24 0.00 ---------------------------------------------------------------------------------------------------------------------- Robert Duane Lindsay 235881198 2202 41 19,776.57 158.80 19,663.41 ---------------------------------------------------------------------------------------------------------------------- William H. Barrett, Jr 6467485 2203 74 48,418.82 173.74 48,356.82 ---------------------------------------------------------------------------------------------------------------------- Warren Lambert 227885407 2204 143 37,648.96 149.39 37,586.45 ---------------------------------------------------------------------------------------------------------------------- Kevin A. Byars 116502409 2205 98 19,592.25 72.60 19,564.86 ---------------------------------------------------------------------------------------------------------------------- James M Daughtry 223941405 2206 104 40,729.18 152.20 40,670.97 ---------------------------------------------------------------------------------------------------------------------- James Junius Vaughan 227546889 2207 460 8,726.88 153.55 8,593.47 ---------------------------------------------------------------------------------------------------------------------- Kenneth P. Hendricks 223158292 2208 322 45,378.76 285.55 45,197.93 ---------------------------------------------------------------------------------------------------------------------- Ruben Calderon 156649567 3000 10 39,826.17 132.80 39,785.28 ---------------------------------------------------------------------------------------------------------------------- James Emmanuel Goldman Sr 231152951 3001 31 31,975.58 117.98 31,931.39 ---------------------------------------------------------------------------------------------------------------------- James William Arrington 228582891 3003 32 22,330.50 82.17 22,299.86 ---------------------------------------------------------------------------------------------------------------------- Lloyd Lemont Edmonds 231026013 3004 14 30,474.29 102.04 30,442.58 ---------------------------------------------------------------------------------------------------------------------- Van B. Ferguson 224781754 3020 270 28,331.41 148.85 28,247.94 ---------------------------------------------------------------------------------------------------------------------- William A. Thompson 223439305 3021 82 38,878.23 140.96 38,826.99 ---------------------------------------------------------------------------------------------------------------------- Charles Thompson 243787616 3022 21 31,878.65 115.43 31,836.79 ---------------------------------------------------------------------------------------------------------------------- Frank Dwight Worsham 225430614 3100 63 33,226.59 128.69 33,174.58 ---------------------------------------------------------------------------------------------------------------------- James D Mullins 232114930 3101 8 30,122.24 174.15 30,017.60 ---------------------------------------------------------------------------------------------------------------------- Danny Elroy Alexander 229045252 3102 18 43,230.72 145.36 43,185.12 ---------------------------------------------------------------------------------------------------------------------- Daniel Spencer Eure 230623772 3104 290 15,336.46 119.88 15,251.97 ---------------------------------------------------------------------------------------------------------------------- Frank Worsham 227626546 3105 49 37,190.88 129.43 37,147.28 ---------------------------------------------------------------------------------------------------------------------- Chad Randolph Turner 227881047 3106 43 35,930.06 124.18 35,888.80 ---------------------------------------------------------------------------------------------------------------------- Michael Jonah Brown 230175182 3150 117 37,923.63 144.43 37,866.72 ---------------------------------------------------------------------------------------------------------------------- Roger Newton 224882451 3152 117 6,783.00 146.48 6,652.17 ---------------------------------------------------------------------------------------------------------------------- Johnnie M Powell 228521673 3153 180 2,911.69 14.11 2,904.30 ---------------------------------------------------------------------------------------------------------------------- Don Neely 225191125 3155 143 24,676.10 108.50 24,624.54 ---------------------------------------------------------------------------------------------------------------------- Eric David Hanks 231371649 3156 45 33,415.18 115.75 33,376.54 ---------------------------------------------------------------------------------------------------------------------- Page W. Summerlin 237908946 3201 248 43,395.59 189.55 43,306.18 ---------------------------------------------------------------------------------------------------------------------- Grant Edwin Schages 224393760 3204 115 47,653.23 180.94 47,582.26 ---------------------------------------------------------------------------------------------------------------------- Kenneth Green 218565724 3205 26 31,530.95 106.93 31,496.78 ---------------------------------------------------------------------------------------------------------------------- Bobby Joe Collins 228503202 3220 3 33,632.74 111.36 33,598.99 ---------------------------------------------------------------------------------------------------------------------- Mark Robertson 231118288 3221 4 46,948.88 155.60 46,901.62 ---------------------------------------------------------------------------------------------------------------------- Jamey B. Arthur 227279928 3241 24 37,096.04 154.04 37,027.61 ---------------------------------------------------------------------------------------------------------------------- Timothy Scott Morgan 224967056 3300 95 5,430.56 100.00 5,343.09 ---------------------------------------------------------------------------------------------------------------------- Morgan Thomas Borum 229040738 3301 292 21,000.93 118.16 20,931.23 ---------------------------------------------------------------------------------------------------------------------- |
Attachment to Annex C
---------------------------------------------------------------------------------------------------------------------- Roger Lee Dowdy 226642400 3302 393 14,960.54 135.00 14,860.06 ---------------------------------------------------------------------------------------------------------------------- Nathan G Holman, Jr 224841708 3303 79 35,490.70 128.17 35,444.43 ---------------------------------------------------------------------------------------------------------------------- Steve Rogers 226112765 3304 84 32,612.78 118.56 32,569.48 ---------------------------------------------------------------------------------------------------------------------- Daniel B. Puckett 231211217 3307 26 32,135.05 108.98 32,100.23 ---------------------------------------------------------------------------------------------------------------------- Edward E. Evans 230025975 3400 228 35,009.29 164.95 34,925.13 ---------------------------------------------------------------------------------------------------------------------- David Eagle 231067386 3401 24 31,260.05 149.06 31,183.13 ---------------------------------------------------------------------------------------------------------------------- Charles D. Kidd 228883486 3402 41 52,303.31 180.35 52,243.66 ---------------------------------------------------------------------------------------------------------------------- Marvin P.Owen 224962272 3403 43 56,209.11 194.26 56,144.56 ---------------------------------------------------------------------------------------------------------------------- Darrell Crouch 223908125 3404 253 29,014.08 139.40 28,941.64 ---------------------------------------------------------------------------------------------------------------------- William D. Luders 482684643 3406 220 31,244.12 163.25 31,152.97 ---------------------------------------------------------------------------------------------------------------------- Larry Dean Johns 231133282 3407 4 47,277.89 156.69 47,230.30 ---------------------------------------------------------------------------------------------------------------------- Michael Stinnette 229765154 3408 137 27,274.79 107.12 27,230.61 ---------------------------------------------------------------------------------------------------------------------- Troy Hughes 498821066 220 12 53,489.35 178.80 53,433.99 ---------------------------------------------------------------------------------------------------------------------- Robert Sweet Jr 436694230 222 43 42,219.98 145.95 42,171.46 ---------------------------------------------------------------------------------------------------------------------- Brian Tullis 439672581 224 38 48,960.23 168.25 48,904.97 ---------------------------------------------------------------------------------------------------------------------- Michael Tates 435337790 232 256 42,546.32 214.80 42,429.70 ---------------------------------------------------------------------------------------------------------------------- Kenneth Ebarb 433723448 234 375 12,106.21 97.80 12,036.35 ---------------------------------------------------------------------------------------------------------------------- Gary Watkins 433257586 235 12 36,253.29 121.15 36,215.80 ---------------------------------------------------------------------------------------------------------------------- Donald Bryant 433171098 238 120 22,483.65 86.00 22,449.54 ---------------------------------------------------------------------------------------------------------------------- Mark Reynolds 433136739 239 141 43,132.48 170.60 43,061.42 ---------------------------------------------------------------------------------------------------------------------- Phillip Hester 439110668 242 208 35,095.02 157.60 35,018.41 ---------------------------------------------------------------------------------------------------------------------- Gary Helm 452723500 310 107 53,460.75 200.65 53,383.47 ---------------------------------------------------------------------------------------------------------------------- Timothy Ingalls 372808720 321 116 28,004.82 28,069.45 0.00 ---------------------------------------------------------------------------------------------------------------------- Thurston Rockmore 464652166 323 24 22,508.34 76.15 22,484.13 ---------------------------------------------------------------------------------------------------------------------- Danny Echols 461892273 373 10 41,431.53 138.15 41,388.99 ---------------------------------------------------------------------------------------------------------------------- Michael Johnson 449310430 374 10 47,723.89 159.15 47,674.87 ---------------------------------------------------------------------------------------------------------------------- Donald Marsh 458928303 375 10 54,254.46 180.90 54,198.76 ---------------------------------------------------------------------------------------------------------------------- William Wahl 458647942 377 356 8,683.82 63.40 8,640.46 ---------------------------------------------------------------------------------------------------------------------- Greg Bell 461710209 431 138 44,413.77 174.90 44,341.36 ---------------------------------------------------------------------------------------------------------------------- Ronn Earp 455531074 435 34 29,420.30 100.65 29,387.54 ---------------------------------------------------------------------------------------------------------------------- Robert Wade 459570119 437 113 44,371.89 168.10 44,306.19 ---------------------------------------------------------------------------------------------------------------------- Bruce Lambert 445583272 439 300 33,029.85 191.00 32,915.07 ---------------------------------------------------------------------------------------------------------------------- G W Webster 444763271 450 16 57,681.67 193.50 57,621.28 ---------------------------------------------------------------------------------------------------------------------- Phillip Howell 448660591 452 61 48,970.54 173.00 48,910.55 ---------------------------------------------------------------------------------------------------------------------- Terry Beckham 444724874 453 16 55,149.78 185.00 55,092.05 ---------------------------------------------------------------------------------------------------------------------- Arvy Howell 448662094 454 23 54,330.36 183.70 54,272.04 ---------------------------------------------------------------------------------------------------------------------- Mark Mincey 489640042 530 118 10,940.09 41.70 10,923.64 ---------------------------------------------------------------------------------------------------------------------- James Gibson 451732031 531 32 62,542.91 213.50 62,473.74 ---------------------------------------------------------------------------------------------------------------------- Jimmy Aldridge 451866849 532 12 54,676.78 182.70 54,620.26 ---------------------------------------------------------------------------------------------------------------------- James Dodson 585012499 534 77 47,446.98 171.00 47,385.47 ---------------------------------------------------------------------------------------------------------------------- Terry Stevens 510801232 537 32 45,583.65 155.60 45,533.24 ---------------------------------------------------------------------------------------------------------------------- Raymond Wright 570210516 538 113 37,326.25 141.35 37,271.04 ---------------------------------------------------------------------------------------------------------------------- Sam Kincaid 566748491 540 12 55,774.08 186.40 55,716.39 ---------------------------------------------------------------------------------------------------------------------- Chad Pierce 459592774 565 12 41,870.48 139.90 41,827.20 ---------------------------------------------------------------------------------------------------------------------- Gary Oneal 451907058 566 389 11,885.11 104.65 11,807.89 ---------------------------------------------------------------------------------------------------------------------- Kenneth Parr 573027953 567 126 35,588.78 137.45 35,533.46 ---------------------------------------------------------------------------------------------------------------------- Donald Martinez 456215864 620 123 12,756.79 49.05 12,737.18 ---------------------------------------------------------------------------------------------------------------------- Carl Cochran 449557476 621 123 24,088.49 92.60 24,051.48 ---------------------------------------------------------------------------------------------------------------------- Melvin Taylor 449583064 622 117 19,488.57 19,533.54 0.00 ---------------------------------------------------------------------------------------------------------------------- Randy Head 538708092 623 59 26,119.68 92.00 26,087.96 ---------------------------------------------------------------------------------------------------------------------- |
Attachment to Annex C
---------------------------------------------------------------------------------------------------------------------- Edwin Roddy 466793919 624 46 18,475.73 64.05 18,454.32 ---------------------------------------------------------------------------------------------------------------------- Kevin Francis 437215685 625 59 22,798.54 80.30 22,770.85 ---------------------------------------------------------------------------------------------------------------------- Glen W House 452111169 740 40 41,482.63 142.90 41,435.46 ---------------------------------------------------------------------------------------------------------------------- Randy Bakenhus 432173045 741 154 29,657.00 120.00 29,605.44 ---------------------------------------------------------------------------------------------------------------------- Richard Conaster 432191068 742 68 43,881.09 156.35 43,826.00 ---------------------------------------------------------------------------------------------------------------------- Tony Hill 443667695 750 40 34,509.09 118.85 34,469.88 ---------------------------------------------------------------------------------------------------------------------- Jerry Lynn Page 463475900 751 46 56,298.58 195.30 56,233.20 ---------------------------------------------------------------------------------------------------------------------- Cornelius John 448747805 753 244 19,290.81 94.40 19,240.93 ---------------------------------------------------------------------------------------------------------------------- Steven Taylor 431042035 761 289 20,914.89 116.55 20,846.61 ---------------------------------------------------------------------------------------------------------------------- Joel King 458677414 762 32 47,808.44 163.25 47,755.52 ---------------------------------------------------------------------------------------------------------------------- Ronnie Skinner 430943689 764 177 44,597.66 188.05 44,512.53 ---------------------------------------------------------------------------------------------------------------------- Raymond Melton 429821306 773 289 24,396.48 135.95 24,316.83 ---------------------------------------------------------------------------------------------------------------------- Chris Bickerstaff 457551094 775 29 83,397.36 283.75 83,306.07 ---------------------------------------------------------------------------------------------------------------------- Donald Hupp 430451967 780 72 47,337.95 169.50 47,277.69 ---------------------------------------------------------------------------------------------------------------------- Carroll Bryant 430820773 781 40 33,127.24 114.10 33,089.59 ---------------------------------------------------------------------------------------------------------------------- Terry Ingersoll 429984773 782 151 35,282.96 141.95 35,222.43 ---------------------------------------------------------------------------------------------------------------------- John Wilson 452198241 813 80 50,094.01 181.25 50,028.36 ---------------------------------------------------------------------------------------------------------------------- Jeff King 454796305 816 106 46,071.05 172.65 46,004.72 ---------------------------------------------------------------------------------------------------------------------- Edwin Frederick 456153157 817 6 46,565.67 154.65 46,518.48 ---------------------------------------------------------------------------------------------------------------------- Bobby Tucker 466827134 818 106 23,460.51 87.95 23,426.70 ---------------------------------------------------------------------------------------------------------------------- Randall Haberman 455333671 851 73 47,765.85 171.70 47,704.38 ---------------------------------------------------------------------------------------------------------------------- Steven Whittenburg 585164914 852 24 39,283.64 132.95 39,241.34 ---------------------------------------------------------------------------------------------------------------------- Curtis Antley 456887173 853 469 6,024.71 123.40 5,915.21 ---------------------------------------------------------------------------------------------------------------------- James Mann 452299226 854 104 43,925.79 164.20 43,862.96 ---------------------------------------------------------------------------------------------------------------------- Glenn Watts 572475614 856 24 25,789.40 87.25 25,761.66 ---------------------------------------------------------------------------------------------------------------------- Joe Zitek 459232540 857 24 56,291.93 190.60 56,231.23 ---------------------------------------------------------------------------------------------------------------------- Paul Hudgins 453134527 859 130 30,572.18 118.80 30,523.93 ---------------------------------------------------------------------------------------------------------------------- Steve Germanos 585608768 920 31 42,813.43 146.00 42,766.23 ---------------------------------------------------------------------------------------------------------------------- Jose Delafuente 459616484 921 53 28,126.00 98.25 28,092.66 ---------------------------------------------------------------------------------------------------------------------- Alex Gonzalez 466747655 923 180 26,254.47 111.00 26,204.06 ---------------------------------------------------------------------------------------------------------------------- Philip Haynes 417883901 925 99 29,783.32 110.65 29,741.40 ---------------------------------------------------------------------------------------------------------------------- Jimmy Wiles 312844004 926 31 52,416.89 178.75 52,359.10 ---------------------------------------------------------------------------------------------------------------------- Douglas Grubbs 456638693 927 20 35,412.69 119.35 35,375.06 ---------------------------------------------------------------------------------------------------------------------- Marcos A Hernandez 640165263 928 127 33,258.46 128.70 33,206.51 ---------------------------------------------------------------------------------------------------------------------- Jose Arguijo 640684264 929 11 57,029.96 190.35 56,971.22 ---------------------------------------------------------------------------------------------------------------------- Jose Arguijo 632682575 930 46 31,747.21 110.10 31,710.37 ---------------------------------------------------------------------------------------------------------------------- Erick Sandoval 630680235 931 84 32,548.80 118.20 32,505.71 ---------------------------------------------------------------------------------------------------------------------- Authur Degray 18421036 932 14 27,663.35 92.50 27,634.69 ---------------------------------------------------------------------------------------------------------------------- Erick Saavedra 473129725 933 34 41,417.78 141.65 41,371.71 ---------------------------------------------------------------------------------------------------------------------- Larry Huffman Jr 466639656 936 112 21,659.11 81.80 21,627.29 ---------------------------------------------------------------------------------------------------------------------- Jimmy Crutcher 462376136 1021 12 62,320.96 208.25 62,256.53 ---------------------------------------------------------------------------------------------------------------------- Jimmy Cregg 454510489 1023 12 32,584.32 108.90 32,550.61 ---------------------------------------------------------------------------------------------------------------------- Billy Wallace 449499822 1026 25 44,230.72 149.85 44,182.94 ---------------------------------------------------------------------------------------------------------------------- Corey Voorheese 459833299 1028 12 39,160.82 130.85 39,120.34 ---------------------------------------------------------------------------------------------------------------------- Matthew Neyra 326640622 1029 12 46,785.08 156.35 46,736.70 ---------------------------------------------------------------------------------------------------------------------- Kevin Beach 570312713 1100 165 22,596.46 93.00 22,555.61 ---------------------------------------------------------------------------------------------------------------------- Urial R Mayes 466251107 1101 31 37,498.85 127.85 37,457.54 ---------------------------------------------------------------------------------------------------------------------- Roger Eddington 460714575 1102 52 48,361.60 168.55 48,304.65 ---------------------------------------------------------------------------------------------------------------------- Joey Eddington 461531340 1103 23 39,089.11 132.25 39,047.07 ---------------------------------------------------------------------------------------------------------------------- Eric White 445608180 1105 31 53,241.24 181.50 53,182.60 ---------------------------------------------------------------------------------------------------------------------- |
Attachment to Annex C
---------------------------------------------------------------------------------------------------------------------- Daniel Crommett 463789077 1106 11 42,438.36 141.65 42,394.64 ---------------------------------------------------------------------------------------------------------------------- Kenneth Mills 487922449 1107 45 40,798.83 141.25 40,751.73 ---------------------------------------------------------------------------------------------------------------------- Michael Smallwood 454697960 1108 23 37,613.25 127.25 37,572.80 ---------------------------------------------------------------------------------------------------------------------- Bruce Rogers 440600894 1109 18 32,842.00 110.50 32,807.29 ---------------------------------------------------------------------------------------------------------------------- Eric Marriott 450738606 1110 180 30,471.22 129.15 30,412.39 ---------------------------------------------------------------------------------------------------------------------- Kelly Parchman 451802324 1201 72 38,062.22 136.20 38,013.86 ---------------------------------------------------------------------------------------------------------------------- Galen Evans 463114165 1202 24 28,795.28 97.50 28,764.23 ---------------------------------------------------------------------------------------------------------------------- Ron Belcher 449296705 1203 24 19,531.76 66.00 19,510.83 ---------------------------------------------------------------------------------------------------------------------- John A Remsza 457391223 1230 73 32,673.35 117.00 32,631.75 ---------------------------------------------------------------------------------------------------------------------- Matt Johnson 458374394 1231 51 27,117.07 94.65 27,085.00 ---------------------------------------------------------------------------------------------------------------------- James Peterson 456951144 1233 68 24,292.33 86.50 24,261.89 ---------------------------------------------------------------------------------------------------------------------- Jimmy Thompson 432823817 1234 98 23,722.72 88.00 23,689.46 ---------------------------------------------------------------------------------------------------------------------- Martin Torres 460478645 1235 131 29,725.92 115.45 29,679.07 ---------------------------------------------------------------------------------------------------------------------- Donald Gonzalez 459294871 1243 97 29,904.41 110.50 29,862.92 ---------------------------------------------------------------------------------------------------------------------- George Green 463314563 1250 176 24,345.14 102.50 24,298.82 ---------------------------------------------------------------------------------------------------------------------- Ryan Lackey 450834754 1251 11 23,149.73 77.25 23,125.90 ---------------------------------------------------------------------------------------------------------------------- Jason Mccrary 461395884 1252 40 32,877.44 113.25 32,840.06 ---------------------------------------------------------------------------------------------------------------------- Larry Evans 573110972 1254 14 34,156.81 114.25 34,121.38 ---------------------------------------------------------------------------------------------------------------------- Ricki Allen 461909614 1255 118 11,346.89 43.30 11,329.78 ---------------------------------------------------------------------------------------------------------------------- Jason Smart 498761293 1400 23 47,089.78 159.00 47,039.45 ---------------------------------------------------------------------------------------------------------------------- Richard Warner 575883434 1401 51 41,105.51 143.50 41,056.87 ---------------------------------------------------------------------------------------------------------------------- Hasan Saida 358522416 1403 113 39,450.87 149.35 39,392.56 ---------------------------------------------------------------------------------------------------------------------- Kenneth Howard 458355170 1405 112 24,656.59 93.00 24,620.49 ---------------------------------------------------------------------------------------------------------------------- Steve Sargent 464432673 1406 34 106,657.82 364.50 106,539.45 ---------------------------------------------------------------------------------------------------------------------- David Hampton 509769622 1407 95 31,164.79 31,236.71 0.00 ---------------------------------------------------------------------------------------------------------------------- Herbert Dodge 522045596 1408 180 15,088.64 63.25 15,060.21 ---------------------------------------------------------------------------------------------------------------------- David Rose 552337887 1410 23 44,123.82 149.25 44,076.39 ---------------------------------------------------------------------------------------------------------------------- Jose Torres 460477796 1411 14 40,964.85 137.15 40,922.23 ---------------------------------------------------------------------------------------------------------------------- James Mcgrath 465635470 1412 157 26,771.46 108.75 26,724.49 ---------------------------------------------------------------------------------------------------------------------- Tommy Williams 456191221 1413 167 19,052.45 78.95 19,017.47 ---------------------------------------------------------------------------------------------------------------------- Rudy Perez 461739684 1414 23 56,675.97 191.65 56,615.11 ---------------------------------------------------------------------------------------------------------------------- Anthony Wallace 464210690 1415 30 45,817.22 155.80 45,767.15 ---------------------------------------------------------------------------------------------------------------------- Robert Haubold 508543053 1417 51 26,617.61 92.85 26,586.19 ---------------------------------------------------------------------------------------------------------------------- Thomas Sargent 457531100 1418 14 25,125.24 84.15 25,099.07 ---------------------------------------------------------------------------------------------------------------------- Robert E Brown 459271132 1420 23 59,306.44 200.50 59,242.80 ---------------------------------------------------------------------------------------------------------------------- Anthony Brown 465775834 1422 150 26,151.80 105.00 26,107.15 ---------------------------------------------------------------------------------------------------------------------- Jason Youngblood 435433599 1424 10 33,980.08 113.25 33,945.25 ---------------------------------------------------------------------------------------------------------------------- Joe Bonfanti 436338241 1721 174 15,666.83 65.66 15,637.32 ---------------------------------------------------------------------------------------------------------------------- John Woodard 431632029 1722 196 20,150.14 88.25 20,108.39 ---------------------------------------------------------------------------------------------------------------------- Lee Mabry 430174185 1724 289 25,486.54 141.02 25,404.34 ---------------------------------------------------------------------------------------------------------------------- Gary Pruitt 430886440 1727 289 29,432.15 163.98 29,336.09 ---------------------------------------------------------------------------------------------------------------------- Danny Weaver 431275867 1728 174 19,867.17 83.27 19,829.75 ---------------------------------------------------------------------------------------------------------------------- Chris Mcelroy 430618982 1750 88 28,949.66 105.80 28,910.67 ---------------------------------------------------------------------------------------------------------------------- John Knight 431644721 1751 289 20,615.98 114.87 20,548.69 ---------------------------------------------------------------------------------------------------------------------- Mike Hogg 432988517 1753 289 19,101.89 106.42 19,039.55 ---------------------------------------------------------------------------------------------------------------------- James Hudler 461150687 1754 99 27,791.46 103.15 27,752.44 ---------------------------------------------------------------------------------------------------------------------- Kenneth Johnson 458196267 1757 151 23,353.95 95.25 23,312.59 ---------------------------------------------------------------------------------------------------------------------- Clinton Rowland 430571982 1800 10 29,401.76 98.00 29,371.61 ---------------------------------------------------------------------------------------------------------------------- Ricky Sanford 438847290 1801 10 38,795.71 129.35 38,755.89 ---------------------------------------------------------------------------------------------------------------------- Melvin Mcmullan 435314029 1802 294 21,702.53 123.00 21,629.61 ---------------------------------------------------------------------------------------------------------------------- |
Attachment to Annex C
---------------------------------------------------------------------------------------------------------------------- Elbert Scarbrough 550357896 1803 63 43,192.85 153.00 43,139.53 ---------------------------------------------------------------------------------------------------------------------- Steven Breazeale 431578408 1804 10 29,600.05 98.65 29,569.71 ---------------------------------------------------------------------------------------------------------------------- Chris Collins 437213647 1805 10 35,922.12 119.75 35,885.27 ---------------------------------------------------------------------------------------------------------------------- Charlie Caldwell 438115431 1806 243 19,258.62 94.00 19,209.06 ---------------------------------------------------------------------------------------------------------------------- Richard Tomboli 437435878 1809 2 41,478.62 137.20 41,437.14 ---------------------------------------------------------------------------------------------------------------------- Jimmy Hankins, Jr 437398437 1820 121 39,382.95 151.00 39,322.83 ---------------------------------------------------------------------------------------------------------------------- Dustin Stewart 431699515 2100 12 40,129.84 134.10 40,088.35 ---------------------------------------------------------------------------------------------------------------------- Richard Cooper 459278003 2101 194 50,400.35 219.70 50,296.96 ---------------------------------------------------------------------------------------------------------------------- Cliff Schlund 537666299 2103 72 28,823.44 103.15 28,786.81 ---------------------------------------------------------------------------------------------------------------------- David Baxley 572130597 2104 106 23,198.19 86.94 23,164.78 ---------------------------------------------------------------------------------------------------------------------- Kelley Eaton 431782022 2105 195 24,440.64 106.76 24,390.28 ---------------------------------------------------------------------------------------------------------------------- Ken Harris 435314025 2107 106 35,048.77 131.35 34,998.30 ---------------------------------------------------------------------------------------------------------------------- Jim Mccord 432114487 2109 77 42,149.13 151.85 42,094.55 ---------------------------------------------------------------------------------------------------------------------- Greg Deweese 432157262 2202 171 30,213.85 125.93 30,157.64 ---------------------------------------------------------------------------------------------------------------------- Nathan Gregory 427494751 2203 5 46,931.50 155.70 46,884.10 ---------------------------------------------------------------------------------------------------------------------- Donald Ballard 457278637 2204 140 35,539.45 140.20 35,481.26 ---------------------------------------------------------------------------------------------------------------------- James Walters 432048472 2300 112 32,787.89 151.27 32,712.28 ---------------------------------------------------------------------------------------------------------------------- Miles Daubenheyer 431711261 2301 112 28,512.08 107.79 28,470.09 ---------------------------------------------------------------------------------------------------------------------- Brian Daubenheyer 431619644 2303 34 30,626.95 104.80 30,592.83 ---------------------------------------------------------------------------------------------------------------------- Roy Lewis 431392659 2310 154 22,433.58 90.70 22,394.65 ---------------------------------------------------------------------------------------------------------------------- Louis Leach 431670309 2311 34 32,781.45 112.15 32,744.95 ---------------------------------------------------------------------------------------------------------------------- Ricky Andrews 451040735 2320 154 40,854.92 165.16 40,784.04 ---------------------------------------------------------------------------------------------------------------------- Darrell Clum 445883805 2400 9 39,728.80 132.25 39,688.23 ---------------------------------------------------------------------------------------------------------------------- Richard Edison 440660400 2401 129 38,559.54 149.50 38,499.02 ---------------------------------------------------------------------------------------------------------------------- Esker Evans 445762047 2402 44 36,466.62 126.30 36,424.47 ---------------------------------------------------------------------------------------------------------------------- Steve Ruggiero 104503072 2403 183 3,584.46 15.30 3,577.43 ---------------------------------------------------------------------------------------------------------------------- Donald Dearmon 448840735 2405 26 46,089.43 156.25 46,039.54 ---------------------------------------------------------------------------------------------------------------------- Jose Holguin 525375794 2406 26 50,794.64 172.25 50,739.61 ---------------------------------------------------------------------------------------------------------------------- Danny Treesh 443804088 2409 26 46,955.09 159.25 46,904.20 ---------------------------------------------------------------------------------------------------------------------- Billy Graddy 445841999 2412 44 29,868.13 103.25 29,833.81 ---------------------------------------------------------------------------------------------------------------------- William Grantham 457981521 2420 196 16,051.73 70.25 16,018.52 ---------------------------------------------------------------------------------------------------------------------- Leonard Christenson 388426478 2430 154 19,092.93 77.72 19,059.27 ---------------------------------------------------------------------------------------------------------------------- Stuart Pierce 465171218 2431 26 28,889.70 98.00 28,858.37 ---------------------------------------------------------------------------------------------------------------------- Brandon Tripp 446901067 2432 26 25,520.11 86.50 25,492.50 ---------------------------------------------------------------------------------------------------------------------- Kiley Loyd 431698552 2500 72 43,120.61 154.35 43,065.77 ---------------------------------------------------------------------------------------------------------------------- Philip Carter 431677874 2501 31 40,806.22 139.20 40,761.19 ---------------------------------------------------------------------------------------------------------------------- Larry Schluterman 431153688 2503 154 22,625.66 91.46 22,586.41 ---------------------------------------------------------------------------------------------------------------------- Michael Hicks 431439505 2504 154 31,157.12 126.00 31,103.02 ---------------------------------------------------------------------------------------------------------------------- Kent Jenson 431575799 2506 47 33,041.57 114.75 33,003.07 ---------------------------------------------------------------------------------------------------------------------- Leon Cochran 561661581 2508 65 35,046.15 124.35 35,002.68 ---------------------------------------------------------------------------------------------------------------------- Jeffery Browder 430432725 2509 96 35,676.31 131.80 35,626.84 ---------------------------------------------------------------------------------------------------------------------- Martin Stueart 430698504 2510 15 40,754.46 136.60 40,711.91 ---------------------------------------------------------------------------------------------------------------------- Jerry Leonard 447386485 2513 127 39,621.26 153.22 39,559.47 ---------------------------------------------------------------------------------------------------------------------- Andrick Todd 432572922 2600 34 21,972.56 75.20 21,948.07 ---------------------------------------------------------------------------------------------------------------------- Timothy Mccuien 429378067 2601 8 28,250.20 94.00 28,221.39 ---------------------------------------------------------------------------------------------------------------------- Melvin Faddis 447465107 2602 193 9,078.27 39.70 9,059.52 ---------------------------------------------------------------------------------------------------------------------- Harold Robertson Jr 430230068 2603 77 12,277.80 44.25 12,261.88 ---------------------------------------------------------------------------------------------------------------------- George Moore 432496667 2604 8 43,244.10 143.90 43,199.99 ---------------------------------------------------------------------------------------------------------------------- Robert Carroll 437354311 2605 21 27,252.66 91.95 27,223.60 ---------------------------------------------------------------------------------------------------------------------- Donald Jordan 432211472 2608 8 32,897.41 109.45 32,863.88 ---------------------------------------------------------------------------------------------------------------------- |
Attachment to Annex C
---------------------------------------------------------------------------------------------------------------------- Carlos Garcia 600300450 2609 33 15,306.90 52.30 15,289.92 ---------------------------------------------------------------------------------------------------------------------- Robert Riley 431613030 2612 34 22,079.28 75.55 22,054.68 ---------------------------------------------------------------------------------------------------------------------- Cleo Ussery 432375117 2613 20 24,614.47 82.95 24,588.32 ---------------------------------------------------------------------------------------------------------------------- John Elliott 431516921 2614 34 28,039.99 95.90 28,008.80 ---------------------------------------------------------------------------------------------------------------------- Danny Hill 430064489 2615 34 33,195.87 113.60 33,158.88 ---------------------------------------------------------------------------------------------------------------------- Paul Claypool 429232374 2619 34 19,723.85 67.45 19,701.92 ---------------------------------------------------------------------------------------------------------------------- Chris Stephens 431591436 2620 8 41,466.56 138.00 41,424.25 ---------------------------------------------------------------------------------------------------------------------- Danny Williams 432712044 2621 34 32,452.31 111.05 32,416.15 ---------------------------------------------------------------------------------------------------------------------- Gene Sutton 455566866 2622 289 22,996.35 128.11 22,921.31 ---------------------------------------------------------------------------------------------------------------------- Jack Shope 457741919 2624 289 31,360.38 174.73 31,258.02 ---------------------------------------------------------------------------------------------------------------------- James Holmes 185505194 2625 33 23,574.31 80.55 23,548.16 ---------------------------------------------------------------------------------------------------------------------- Chris Moix 429618209 2630 34 31,477.20 107.70 31,442.14 ---------------------------------------------------------------------------------------------------------------------- William Terry 430780923 2631 174 22,130.82 92.75 22,089.14 ---------------------------------------------------------------------------------------------------------------------- Gregory D Blankenship 236945628 180 25 50,799.36 50,916.59 0.00 ---------------------------------------------------------------------------------------------------------------------- Michael A Baker 231271583 181 19 54,095.63 183.00 54,037.47 ---------------------------------------------------------------------------------------------------------------------- Tim W Carroll 225024238 182 8 19,636.53 66.00 19,615.85 ---------------------------------------------------------------------------------------------------------------------- Dennis W Harmon 234920341 185 227 31,606.08 149.00 31,530.02 ---------------------------------------------------------------------------------------------------------------------- Rodney Furches 233987290 186 14 39,817.26 134.00 39,775.15 ---------------------------------------------------------------------------------------------------------------------- James J Bourne 234709155 187 243 26,913.99 148.00 26,828.10 ---------------------------------------------------------------------------------------------------------------------- Brenton Doty 281821244 189 9 37,475.02 125.00 37,436.50 ---------------------------------------------------------------------------------------------------------------------- Gregory L Roope 236967231 190 4 43,829.00 146.00 43,784.14 ---------------------------------------------------------------------------------------------------------------------- James M Wright 228271443 192 7 28,854.95 96.00 28,825.54 ---------------------------------------------------------------------------------------------------------------------- Kim Reed 235234031 193 10 28,562.31 96.00 28,532.22 ---------------------------------------------------------------------------------------------------------------------- Ricky L Hodge 223900861 260 22 42,048.84 143.00 42,002.88 ---------------------------------------------------------------------------------------------------------------------- Blake Covey 230470151 263 126 42,473.45 164.00 42,407.47 ---------------------------------------------------------------------------------------------------------------------- Kenneth E Albert Jr 230783266 265 15 41,463.97 139.00 41,420.66 ---------------------------------------------------------------------------------------------------------------------- Ricky L Greer 224317127 266 50 37,005.75 130.00 36,961.15 ---------------------------------------------------------------------------------------------------------------------- Willard W Anderson 224157883 281 10 38,748.96 130.00 38,708.38 ---------------------------------------------------------------------------------------------------------------------- William C Holdaway 231279774 283 10 38,103.50 128.00 38,063.43 ---------------------------------------------------------------------------------------------------------------------- Joseph F Sandy Jr 235748196 301 155 10,975.34 50.00 10,950.67 ---------------------------------------------------------------------------------------------------------------------- Frederick A Showalter 232233741 303 4 44,143.23 147.00 44,098.10 ---------------------------------------------------------------------------------------------------------------------- David Cavrich 233027524 304 224 17,574.05 83.00 17,531.61 ---------------------------------------------------------------------------------------------------------------------- Tracy Talkington 234049931 306 224 8,173.36 39.00 8,153.22 ---------------------------------------------------------------------------------------------------------------------- Clifford E Powell 236881944 307 325 6,275.25 75.00 6,214.73 ---------------------------------------------------------------------------------------------------------------------- Dave Ford 235213941 309 5 32,686.49 109.00 32,652.92 ---------------------------------------------------------------------------------------------------------------------- Charles B Casto 235297534 311 3 22,694.90 75.00 22,672.27 ---------------------------------------------------------------------------------------------------------------------- Rollin L Simpson,Jr 311601908 404 362 33,986.69 180.00 33,885.12 ---------------------------------------------------------------------------------------------------------------------- Curtis L Hamilton 406464603 405 512 811.06 112.00 700.93 ---------------------------------------------------------------------------------------------------------------------- Anthony Compton 405197244 406 27 34,412.55 117.00 34,374.96 ---------------------------------------------------------------------------------------------------------------------- Charles K Stumbo 406137031 407 60 46,165.39 163.00 46,108.93 ---------------------------------------------------------------------------------------------------------------------- Ricky E Lowe 272686102 408 27 36,936.47 126.00 36,895.71 ---------------------------------------------------------------------------------------------------------------------- Carolyn S Johnson 404669589 409 235 18,150.42 177.00 18,015.31 ---------------------------------------------------------------------------------------------------------------------- Joe S Mcclure 403066897 410 27 49,633.76 198.00 49,550.30 ---------------------------------------------------------------------------------------------------------------------- James R Fannin 296387603 411 22 41,106.20 139.00 41,062.06 ---------------------------------------------------------------------------------------------------------------------- Danny Slone 402086677 412 31 1,936.79 93.00 1,848.26 ---------------------------------------------------------------------------------------------------------------------- David H Derossett 406566098 415 326 13,800.13 94.00 13,737.98 ---------------------------------------------------------------------------------------------------------------------- Troy Jay Wood 589128464 500 137 38,758.42 153.00 38,694.86 ---------------------------------------------------------------------------------------------------------------------- Ronnie Compton 224703627 502 121 33,687.81 130.00 33,635.55 ---------------------------------------------------------------------------------------------------------------------- Kenneth E Hicks Jr 234252489 503 13 31,386.08 105.00 31,353.51 ---------------------------------------------------------------------------------------------------------------------- Bandy R Kennedy 235193613 505 13 49,886.72 167.00 49,834.84 ---------------------------------------------------------------------------------------------------------------------- |
---------------------------------------------------------------------------------------------------------------------------------- Brian D Bandy 234290511 506 5 46,950.49 156.00 46,902.84 ---------------------------------------------------------------------------------------------------------------------------------- Shannon D Owens 226299726 508 49 40,151.23 140.00 40,103.89 ---------------------------------------------------------------------------------------------------------------------------------- David K Regon 225026393 509 248 20,608.53 102.00 20,554.09 ---------------------------------------------------------------------------------------------------------------------------------- Adam Ben Hooper 228062899 652 168 28,000.13 144.00 27,920.75 ---------------------------------------------------------------------------------------------------------------------------------- Brian Mullins 227357173 654 44 40,052.93 139.00 40,006.36 ---------------------------------------------------------------------------------------------------------------------------------- Michael B Stallard 212544175 656 14 29,869.75 101.00 29,837.68 ---------------------------------------------------------------------------------------------------------------------------------- Jeffrey Lynn Barker 223984680 658 122 33,656.70 130.00 33,604.37 ---------------------------------------------------------------------------------------------------------------------------------- Gary W Clem 400886723 670 250 26,835.34 157.00 26,740.27 ---------------------------------------------------------------------------------------------------------------------------------- James M Howard 406313709 672 65 28,623.60 102.00 28,587.65 ---------------------------------------------------------------------------------------------------------------------------------- Estes Hensley 407903593 673 246 22,430.11 111.00 22,370.87 ---------------------------------------------------------------------------------------------------------------------------------- Tad J Smith 404238289 674 277 11,867.86 74.00 11,821.25 ---------------------------------------------------------------------------------------------------------------------------------- Melvin Nantz 406310588 675 92 33,733.69 125.00 33,686.54 ---------------------------------------------------------------------------------------------------------------------------------- Larry Wine 233801530 720 224 20,050.06 93.34 20,002.99 ---------------------------------------------------------------------------------------------------------------------------------- Buddy W. Allen 235046520 721 69 52,833.09 189.00 52,766.01 ---------------------------------------------------------------------------------------------------------------------------------- Baron J Morton 235230079 751 8 50,472.63 168.00 50,421.11 ---------------------------------------------------------------------------------------------------------------------------------- Kevin R Mcmillion 235171559 752 14 46,176.35 155.00 46,127.91 ---------------------------------------------------------------------------------------------------------------------------------- Johnny D Johns 235062519 754 160 36,834.77 151.00 36,768.77 ---------------------------------------------------------------------------------------------------------------------------------- Arthur D Chidester 233238273 755 52 32,609.74 115.00 32,569.99 ---------------------------------------------------------------------------------------------------------------------------------- Steven R Brown 234066763 756 122 58,258.29 224.00 58,168.73 ---------------------------------------------------------------------------------------------------------------------------------- Dan Legg 235984065 757 14 27,646.45 93.00 27,617.25 ---------------------------------------------------------------------------------------------------------------------------------- Stanley P Brown 235684841 800 195 21,109.77 94.00 21,064.48 ---------------------------------------------------------------------------------------------------------------------------------- James K Goins 233193949 802 431 4,997.32 62.00 4,946.85 ---------------------------------------------------------------------------------------------------------------------------------- Michael R Balser 235313378 803 59 28,104.22 100.00 28,069.08 ---------------------------------------------------------------------------------------------------------------------------------- James Lake 212589456 804 185 24,872.69 107.00 24,823.09 ---------------------------------------------------------------------------------------------------------------------------------- Fred R Barrett 235085141 805 218 29,599.25 138.00 29,529.56 ---------------------------------------------------------------------------------------------------------------------------------- Ronald A Tucker 302726358 810 47 35,143.40 123.00 35,101.50 ---------------------------------------------------------------------------------------------------------------------------------- Ronald D Heater 232154433 812 46 37,427.21 130.00 37,383.58 ---------------------------------------------------------------------------------------------------------------------------------- Roger Page 235213821 814 109 32,284.06 122.00 32,236.56 ---------------------------------------------------------------------------------------------------------------------------------- Warren J Lanham, Sr 234722145 816 230 22,805.47 108.00 22,750.10 ---------------------------------------------------------------------------------------------------------------------------------- Jeff King 233319598 831 237 9,373.51 45.04 9,350.10 ---------------------------------------------------------------------------------------------------------------------------------- John Carte 236235716 832 9 24,897.76 83.00 24,872.22 ---------------------------------------------------------------------------------------------------------------------------------- Juventino D Garcia 229134418 900 12 24,043.17 81.00 24,017.65 ---------------------------------------------------------------------------------------------------------------------------------- Mark C. Keaton 232236559 901 127 43,668.13 170.00 43,598.90 ---------------------------------------------------------------------------------------------------------------------------------- Tim Zutaut 235926376 903 159 35,848.51 147.00 35,784.24 ---------------------------------------------------------------------------------------------------------------------------------- Samuel W Scarbrough 223330811 904 49 31,133.73 109.00 31,096.58 ---------------------------------------------------------------------------------------------------------------------------------- Daniel Clifford 234197318 905 167 32,998.88 138.00 32,937.03 ---------------------------------------------------------------------------------------------------------------------------------- Charles R Fitzwater 232843411 906 73 31,404.34 113.00 31,363.81 ---------------------------------------------------------------------------------------------------------------------------------- Donald D Smith Jr 236743738 910 332 17,414.32 114.00 17,340.51 ---------------------------------------------------------------------------------------------------------------------------------- Hal Withrow H 234111897 911 146 32,219.75 129.00 32,165.10 ---------------------------------------------------------------------------------------------------------------------------------- Carlos Wriston 235705429 912 168 28,203.83 118.00 28,150.92 ---------------------------------------------------------------------------------------------------------------------------------- Andrew T Finch 233047139 913 599 7,494.77 130.00 7,382.07 ---------------------------------------------------------------------------------------------------------------------------------- Thomas Wolfe 235331746 1002 144 25,899.53 103.00 25,856.30 ---------------------------------------------------------------------------------------------------------------------------------- Shawn D Hall 234115233 1003 5 27,143.20 91.00 27,114.84 ---------------------------------------------------------------------------------------------------------------------------------- Dustin W Nesselrotte 233358132 1004 23 39,187.93 133.00 39,145.36 ---------------------------------------------------------------------------------------------------------------------------------- Fernando C Velasquez 115581499 1021 8 23,352.79 78.00 23,328.68 ---------------------------------------------------------------------------------------------------------------------------------- Kenneth P Pence Jr 233198154 1023 8 31,445.03 105.00 31,412.60 ---------------------------------------------------------------------------------------------------------------------------------- Robert A Redmond 236824464 1024 39 24,007.02 83.00 23,979.42 ---------------------------------------------------------------------------------------------------------------------------------- Charles M Cox 233082471 1026 89 21,465.95 79.00 21,436.49 ---------------------------------------------------------------------------------------------------------------------------------- Ralph Kerns 301402803 1029 144 12,214.40 97.00 12,145.59 ---------------------------------------------------------------------------------------------------------------------------------- William Hall 234117090 1030 144 27,546.15 110.00 27,499.72 |
----------------------------------------------------------------------------------------------------------------------------------- Michael Wolfe 235290268 1031 141 22,600.16 91.00 22,561.31 ----------------------------------------------------------------------------------------------------------------------------------- James E Robertson 232191326 1034 3 26,647.17 88.00 26,620.66 ----------------------------------------------------------------------------------------------------------------------------------- James Mcgary 300647003 1102 93 46,714.14 172.00 46,649.94 ----------------------------------------------------------------------------------------------------------------------------------- Johnny E Forrest 402761235 1103 84 35,031.64 128.00 34,984.48 ----------------------------------------------------------------------------------------------------------------------------------- James E Barnett 268761748 1104 222 22,860.84 106.00 22,807.60 ----------------------------------------------------------------------------------------------------------------------------------- Gregory A Hunter 235067234 1105 73 35,090.21 127.00 35,044.19 ----------------------------------------------------------------------------------------------------------------------------------- Thomas E Cook 404192143 1106 12 32,818.25 110.00 32,783.98 ----------------------------------------------------------------------------------------------------------------------------------- John M Davidson 291800758 1107 22 47,917.07 162.00 47,865.65 ----------------------------------------------------------------------------------------------------------------------------------- Eddie R Christian 406687574 1109 10 41,084.64 137.00 41,042.45 ----------------------------------------------------------------------------------------------------------------------------------- Wayne C Parker 407724445 1110 376 9,910.81 97.00 9,836.68 ----------------------------------------------------------------------------------------------------------------------------------- Roger Ramey 271820596 1121 22 45,129.66 153.00 45,080.81 ----------------------------------------------------------------------------------------------------------------------------------- Houston A Trimble 402113328 1122 8 26,371.74 88.00 26,344.60 ----------------------------------------------------------------------------------------------------------------------------------- Carl J Hylton Ii 224337089 1270 65 43,597.31 155.00 43,542.92 ----------------------------------------------------------------------------------------------------------------------------------- Dale P Counts Ii 226961443 1271 50 48,491.26 170.00 48,433.16 ----------------------------------------------------------------------------------------------------------------------------------- Donald R Brooks Jr 223275232 1272 19 37,390.58 126.00 37,350.87 ----------------------------------------------------------------------------------------------------------------------------------- Jeffrey J Griffith 223296116 1273 114 34,456.18 131.00 34,404.69 ----------------------------------------------------------------------------------------------------------------------------------- Garland L Anderson 230969771 1274 415 10,048.98 96.00 9,976.17 ----------------------------------------------------------------------------------------------------------------------------------- David M Jackson 228945266 1277 19 37,171.71 126.00 37,131.49 ----------------------------------------------------------------------------------------------------------------------------------- Wille Stidham 407969827 1303 33 44,114.03 151.00 44,064.83 ----------------------------------------------------------------------------------------------------------------------------------- Donald K Combs 406026268 1304 467 6,771.03 135.00 6,651.66 ----------------------------------------------------------------------------------------------------------------------------------- Estes R Wooten 406967639 1305 438 12,300.67 164.00 12,165.06 ----------------------------------------------------------------------------------------------------------------------------------- Gregory Begley 405133040 1307 134 29,094.24 115.00 29,046.38 ----------------------------------------------------------------------------------------------------------------------------------- John S Boggs 405171527 1308 56 36,308.88 128.00 36,264.67 ---------------------------------------------------------------------------------------------------------------------------------- Dwayne M Poling 234215672 1425 32 27,271.64 94.00 27,240.57 ----------------------------------------------------------------------------------------------------------------------------------- Mark C Mullens 232924536 1426 5 26,812.12 89.00 26,784.99 ----------------------------------------------------------------------------------------------------------------------------------- Jeff Stapleton 383642522 1427 60 26,712.03 95.00 26,678.67 ----------------------------------------------------------------------------------------------------------------------------------- Ed Hitt 233667711 1430 124 28,564.12 110.00 28,520.04 ----------------------------------------------------------------------------------------------------------------------------------- Todd C Mullins 234255489 1500 70 35,509.04 127.00 35,463.98 ----------------------------------------------------------------------------------------------------------------------------------- Laben Slater 405920256 1502 77 33,974.46 123.00 33,929.86 ----------------------------------------------------------------------------------------------------------------------------------- Claude C Sammons Jr 235626634 1504 421 17,768.32 131.00 17,678.32 ----------------------------------------------------------------------------------------------------------------------------------- Franklin Ramey 406509738 1505 550 2,213.68 101.00 2,117.79 ----------------------------------------------------------------------------------------------------------------------------------- Scott Woolum 233275588 1512 34 61,317.94 210.00 61,249.44 ----------------------------------------------------------------------------------------------------------------------------------- Timothy J Morrison 235254175 1514 34 3,129.60 155.00 2,981.82 ----------------------------------------------------------------------------------------------------------------------------------- Danny D Stidham 296720442 1600 27 36,141.94 123.00 36,102.34 ----------------------------------------------------------------------------------------------------------------------------------- Terry Gallagher 406133082 1604 207 24,658.48 111.00 24,604.38 ----------------------------------------------------------------------------------------------------------------------------------- Roger L Campbell 268403011 1605 268 27,853.08 147.00 27,770.36 ----------------------------------------------------------------------------------------------------------------------------------- Scott E Altman 288806722 1606 13 41,110.13 138.00 41,067.00 ----------------------------------------------------------------------------------------------------------------------------------- Floyd E Callahan Jr 272468350 1620 23 32,394.87 110.00 32,359.63 ----------------------------------------------------------------------------------------------------------------------------------- James Harmon 277829165 1621 38 29,688.23 103.00 29,653.74 ----------------------------------------------------------------------------------------------------------------------------------- Daniel J Workman 233861485 1622 38 20,060.17 70.00 20,036.46 ----------------------------------------------------------------------------------------------------------------------------------- Brady A Turley 234762306 1623 174 25,815.96 118.00 25,757.54 ----------------------------------------------------------------------------------------------------------------------------------- Rickey Copen 232808177 1760 33 39,385.87 135.00 39,341.76 ----------------------------------------------------------------------------------------------------------------------------------- Ricky D Callison 234068299 1761 13 44,196.09 148.00 44,150.08 ----------------------------------------------------------------------------------------------------------------------------------- Donald Wayne Dorsey 235174444 1762 212 22,381.63 124.00 22,309.28 ----------------------------------------------------------------------------------------------------------------------------------- Ronnie Fields 229907912 1763 57 39,396.72 139.00 39,348.64 ---------------------------------------------------------------------------------------------------------------------------------- Randall G Keener 236330449 1764 38 43,040.20 149.00 42,990.52 ----------------------------------------------------------------------------------------------------------------------------------- Jerry Mcclung 232273150 1766 33 56,933.86 195.00 56,870.25 ----------------------------------------------------------------------------------------------------------------------------------- Joe J Wesley 436687867 101 2 34,503.58 114.12 34,469.08 ----------------------------------------------------------------------------------------------------------------------------------- Rocky L. Nicholas 439942239 102 179 26,038.03 110.17 25,987.95 ----------------------------------------------------------------------------------------------------------------------------------- Robert H Kerr 413909005 108 250 18,511.87 91.96 18,462.63 |
---------------------------------------------------------------------------------------------------------------------------------- Chad L. Miranda 435063797 109 70 26,063.40 93.05 26,030.50 ---------------------------------------------------------------------------------------------------------------------------------- Glen W Bracey 436616959 110 8 30,871.60 102.73 30,840.11 ---------------------------------------------------------------------------------------------------------------------------------- Eric A West 437615977 120 135 63,058.69 246.96 62,957.25 ---------------------------------------------------------------------------------------------------------------------------------- James W Banes Jr 428908463 121 35 31,536.12 108.01 31,500.89 ---------------------------------------------------------------------------------------------------------------------------------- Johnny R Dixon 433377395 122 35 29,310.59 100.38 29,277.85 ---------------------------------------------------------------------------------------------------------------------------------- Donald R. Parker 434881895 123 155 33,641.47 136.24 33,582.86 ---------------------------------------------------------------------------------------------------------------------------------- Douglas R Wills Jr 433374029 208 321 14,852.34 92.82 14,793.79 ---------------------------------------------------------------------------------------------------------------------------------- Michael A Fletcher 433352576 209 24 34,440.74 116.54 34,403.68 ---------------------------------------------------------------------------------------------------------------------------------- Chester C Kloss Jr 439982495 212 60 35,562.34 125.40 35,519.01 ---------------------------------------------------------------------------------------------------------------------------------- Barry Devall 435849067 216 43 6,378.66 110.54 6,282.84 ---------------------------------------------------------------------------------------------------------------------------------- Steven C Gourd 593202659 223 47 28,236.69 98.04 28,203.81 ---------------------------------------------------------------------------------------------------------------------------------- John W Simpson 437312439 300 232 32,894.64 156.09 32,814.46 ---------------------------------------------------------------------------------------------------------------------------------- Michael L. Pounds 427574779 302 74 45,895.38 164.69 45,836.60 ---------------------------------------------------------------------------------------------------------------------------------- David M Simpson 587610418 303 5 39,114.68 137.38 39,067.56 ---------------------------------------------------------------------------------------------------------------------------------- James D Moore 587331600 304 250 9,913.88 49.25 9,887.51 ---------------------------------------------------------------------------------------------------------------------------------- James B. Moak 587331696 305 516 655.10 121.93 534.68 ---------------------------------------------------------------------------------------------------------------------------------- Kevin L Coon 426532206 306 18 17,398.73 137.38 17,301.50 ---------------------------------------------------------------------------------------------------------------------------------- Bobby Coker 426259614 307 18 31,864.65 149.04 31,789.14 ---------------------------------------------------------------------------------------------------------------------------------- Johnie Miller 439648303 371 438 3,900.31 52.26 3,857.05 ---------------------------------------------------------------------------------------------------------------------------------- Kenneth R. Shelton 436411675 372 74 27,735.95 99.53 27,700.43 ---------------------------------------------------------------------------------------------------------------------------------- Paul D. Smith 587395700 373 124 31,006.91 119.35 30,959.11 ---------------------------------------------------------------------------------------------------------------------------------- Robert M Wells 425967131 420 197 25,607.32 112.31 25,554.10 ---------------------------------------------------------------------------------------------------------------------------------- Bruce W. Rainey 435112970 421 153 30,457.17 122.51 30,404.95 ---------------------------------------------------------------------------------------------------------------------------------- Henry K. Perrin 439984107 422 68 22,704.90 80.86 22,676.44 ---------------------------------------------------------------------------------------------------------------------------------- Kevin C. Creith 368840038 426 122 45,255.36 173.66 45,186.14 ---------------------------------------------------------------------------------------------------------------------------------- Jeremy W Carter 428394430 427 19 33,250.24 111.92 33,215.05 ---------------------------------------------------------------------------------------------------------------------------------- Lazaro Jimenez 435049637 428 368 17,960.52 79.60 17,922.37 ---------------------------------------------------------------------------------------------------------------------------------- Ronald J. Joachim, Jr. 438396328 431 124 27,265.91 112.80 27,216.03 ---------------------------------------------------------------------------------------------------------------------------------- Alfonza Gaston, Jr. 587083198 500 75 41,630.87 149.58 41,577.36 ---------------------------------------------------------------------------------------------------------------------------------- Michael O Hannah 428084051 501 12 21,261.63 71.04 21,239.66 ---------------------------------------------------------------------------------------------------------------------------------- Wade C Tolliver 425082441 502 185 9,538.94 40.83 9,520.12 ---------------------------------------------------------------------------------------------------------------------------------- Donald Sanders 426279392 503 185 20,014.55 88.16 19,972.58 ---------------------------------------------------------------------------------------------------------------------------------- Thomas Smith Jr 425511219 504 11 23,748.42 79.27 23,723.95 ---------------------------------------------------------------------------------------------------------------------------------- Tommy W. Griggs 435802937 505 85 41,583.42 151.37 41,528.01 ---------------------------------------------------------------------------------------------------------------------------------- Michael W Brown 323663634 506 13 28,520.25 95.40 28,490.67 ---------------------------------------------------------------------------------------------------------------------------------- Christopher D Hamilton 425450303 508 48 32,604.97 113.34 32,566.87 ---------------------------------------------------------------------------------------------------------------------------------- Irving R Haddad 426621633 509 185 24,461.17 104.71 24,412.91 ---------------------------------------------------------------------------------------------------------------------------------- Timothy G Nichols 422949888 510 47 26,707.00 92.72 26,675.91 ---------------------------------------------------------------------------------------------------------------------------------- Robert B Shows 587430327 512 14 43,155.48 144.50 43,110.57 ---------------------------------------------------------------------------------------------------------------------------------- Terrance L. Reeves 587669005 513 185 17,850.87 76.50 17,815.56 ---------------------------------------------------------------------------------------------------------------------------------- Gregory A Bonnette 435190317 547 185 18,847.38 100.72 18,790.15 ---------------------------------------------------------------------------------------------------------------------------------- Joseph J Roche 435889692 600 49 45,116.36 157.01 45,063.46 ---------------------------------------------------------------------------------------------------------------------------------- Gerald J. Wolf 439688889 603 509 1,225.74 103.79 1,124.78 ---------------------------------------------------------------------------------------------------------------------------------- George Kauffman 433191429 605 69 12,640.46 45.07 12,624.56 ---------------------------------------------------------------------------------------------------------------------------------- Frank A. Pastrano 437172220 616 79 40,279.51 145.28 40,227.18 ---------------------------------------------------------------------------------------------------------------------------------- Timothy M Pejsach 481981754 617 170 19,855.71 128.66 19,772.87 ---------------------------------------------------------------------------------------------------------------------------------- Charles Fath Jr 433568409 618 110 25,948.32 97.80 25,910.40 ---------------------------------------------------------------------------------------------------------------------------------- Nathan R Talford 434775288 619 11 37,864.81 126.39 37,825.80 ---------------------------------------------------------------------------------------------------------------------------------- Ronald L Gardet Sr 357483312 621 197 47,225.29 206.70 47,127.57 ---------------------------------------------------------------------------------------------------------------------------------- Hubert C Jarrow Jr. 437089231 624 65 45,443.18 161.43 45,386.62 |
------------------------------------------------------------------------------------------------------------------------------------ Lonnie Vaughn 439194247 700 326 38,369.06 144.41 38,313.19 ------------------------------------------------------------------------------------------------------------------------------------ Hong T Phan 586405059 709 174 23,591.35 98.88 23,546.91 ------------------------------------------------------------------------------------------------------------------------------------ Gordon L Frank 435703502 713 263 26,947.19 138.71 26,870.67 ------------------------------------------------------------------------------------------------------------------------------------ Raymond P Vincent 436684686 809 23 26,745.26 90.41 26,716.57 ------------------------------------------------------------------------------------------------------------------------------------ Ronald Karr 438588771 810 48 28,027.58 99.20 27,993.06 ------------------------------------------------------------------------------------------------------------------------------------ Gerard C. Glaudi 438920231 812 190 32,088.78 138.75 32,024.08 ------------------------------------------------------------------------------------------------------------------------------------ Bernard Gilliam 435135966 816 48 23,197.46 86.94 23,164.05 ------------------------------------------------------------------------------------------------------------------------------------ Christopher Brown Sr 438317821 817 120 24,564.25 93.97 24,526.97 ------------------------------------------------------------------------------------------------------------------------------------ James D. Carter 255901631 900 122 27,686.24 102.30 27,647.83 ------------------------------------------------------------------------------------------------------------------------------------ Rudolph L Lataxes Jr 438191801 903 13 31,009.83 103.72 30,977.67 ------------------------------------------------------------------------------------------------------------------------------------ Carl A. Trusty 438297245 906 183 30,957.31 132.01 30,896.74 ------------------------------------------------------------------------------------------------------------------------------------ Dale M. Mcgregor 438196589 908 18 19,704.30 76.08 19,673.69 ------------------------------------------------------------------------------------------------------------------------------------ Jerry C Mauldin 438391760 911 405 11,643.47 120.28 11,550.06 ------------------------------------------------------------------------------------------------------------------------------------ Warren Delcambre, Jr. 436258267 912 18 49,710.04 167.14 49,657.62 ------------------------------------------------------------------------------------------------------------------------------------ Johnny H Smith 587800767 1021 185 32,730.75 140.12 32,666.16 ------------------------------------------------------------------------------------------------------------------------------------ Richard D Hayes 527636652 1022 163 30,612.52 125.74 30,557.42 ------------------------------------------------------------------------------------------------------------------------------------ Millard T. Eaton 427964792 1023 111 30,173.78 113.90 30,129.51 ------------------------------------------------------------------------------------------------------------------------------------ David R Firmin 438986544 1024 47 35,457.73 123.11 35,416.45 ------------------------------------------------------------------------------------------------------------------------------------ Kenneth G. Walters 587049893 1025 89 36,235.59 132.61 36,186.60 ------------------------------------------------------------------------------------------------------------------------------------ Gary C Newton 424588944 1026 48 32,527.25 113.07 32,489.24 ------------------------------------------------------------------------------------------------------------------------------------ Cesar Navarro 456433135 100 18 50,579.68 170.07 50,526.33 ------------------------------------------------------------------------------------------------------------------------------------ George Harrison Jr. 559639937 101 28 37,701.72 128.13 37,660.59 ------------------------------------------------------------------------------------------------------------------------------------ George R Harrison Sr 541443770 102 150 23,757.93 95.38 23,717.38 ------------------------------------------------------------------------------------------------------------------------------------ Steve S Pacheco 585880626 104 64 23,639.22 83.76 23,610.01 ------------------------------------------------------------------------------------------------------------------------------------ Patrick C Barela 525554301 105 154 24,574.07 99.34 24,531.44 ------------------------------------------------------------------------------------------------------------------------------------ David O Sanchez 525374292 106 127 25,859.93 100.00 25,819.61 ------------------------------------------------------------------------------------------------------------------------------------ Dagoberto Varela 585498745 107 13 28,906.56 96.69 28,876.58 ------------------------------------------------------------------------------------------------------------------------------------ Armando Troncoso 585293743 117 135 10,615.12 43.36 10,596.26 ------------------------------------------------------------------------------------------------------------------------------------ Ronnie D Barnwell 585416453 118 77 23,281.69 83.86 23,251.56 ------------------------------------------------------------------------------------------------------------------------------------ Darold W Morhead 499461574 120 157 13,587.46 55.22 13,563.60 ------------------------------------------------------------------------------------------------------------------------------------ Adan Morones 585370159 121 12 27,277.13 91.14 27,248.94 ------------------------------------------------------------------------------------------------------------------------------------ Anthony M Gallegos 545021982 200 113 44,851.12 169.80 44,784.82 ------------------------------------------------------------------------------------------------------------------------------------ William R. Pruitt 221248514 202 8 22,123.49 73.62 22,100.92 ------------------------------------------------------------------------------------------------------------------------------------ Ernest E Martinez 525060186 204 160 19,708.46 80.51 19,673.43 ------------------------------------------------------------------------------------------------------------------------------------ Lawrence A Tachias 585643266 205 173 32,728.60 136.92 32,667.21 ------------------------------------------------------------------------------------------------------------------------------------ Gerald Garcia 585119080 207 90 41,743.11 152.98 41,686.46 ------------------------------------------------------------------------------------------------------------------------------------ Walter Gibson 585299885 209 11 31,137.13 103.93 31,105.05 ------------------------------------------------------------------------------------------------------------------------------------ Jim Peralta 585132356 211 89 31,911.82 116.79 31,868.67 ------------------------------------------------------------------------------------------------------------------------------------ James R Barela 585023434 212 59 23,784.25 83.76 23,755.38 ------------------------------------------------------------------------------------------------------------------------------------ Douglas T Kitchen 585843871 213 2 23,778.28 78.65 23,754.50 ------------------------------------------------------------------------------------------------------------------------------------ Richard Smith 525293463 214 160 16,374.49 66.90 16,345.38 ------------------------------------------------------------------------------------------------------------------------------------ Jeff Montoya 525291515 215 37 30,131.35 103.43 30,097.45 ------------------------------------------------------------------------------------------------------------------------------------ Raymond Gonzales 525131695 216 21 24,098.69 81.29 24,073.01 ------------------------------------------------------------------------------------------------------------------------------------ David M Shurtleff 437689713 217 152 14,785.98 59.57 14,760.53 ------------------------------------------------------------------------------------------------------------------------------------ Tony Pena 585076367 218 26 34,600.22 117.34 34,562.73 ------------------------------------------------------------------------------------------------------------------------------------ Robert Ruiz 458314814 500 51 36,857.32 128.57 36,813.81 ------------------------------------------------------------------------------------------------------------------------------------ Santiago Valdez 460599483 502 215 28,425.12 129.62 28,361.10 ------------------------------------------------------------------------------------------------------------------------------------ George Lara 465334403 503 29 43,432.38 147.77 43,384.84 ------------------------------------------------------------------------------------------------------------------------------------ C Rueda 454673411 504 357 9,842.72 143.07 9,722.36 ------------------------------------------------------------------------------------------------------------------------------------ Noel Guardado 467552822 510 274 30,873.15 163.63 30,780.77 |
-------------------------------------------------------------------------------------------------------------------------------- Martin Coronado 454996004 511 438 8,375.49 110.99 8,283.83 -------------------------------------------------------------------------------------------------------------------------------- Noel Guardado Jr 450813363 512 215 36,671.37 167.23 36,588.77 -------------------------------------------------------------------------------------------------------------------------------- R.C.Englisbee 463273784 513 238 21,023.90 101.25 20,971.17 -------------------------------------------------------------------------------------------------------------------------------- Victor J Duarte 467253621 600 49 41,179.28 143.31 41,131.00 -------------------------------------------------------------------------------------------------------------------------------- Luis Brown 459552640 601 51 22,045.58 76.91 22,019.54 -------------------------------------------------------------------------------------------------------------------------------- Abraham Rivera 304888274 602 35 36,083.30 123.58 36,042.99 -------------------------------------------------------------------------------------------------------------------------------- Jesus Carlos Nunez Jr. 641123863 603 51 40,371.52 140.83 40,323.86 -------------------------------------------------------------------------------------------------------------------------------- Lewis Bustamante 453957426 620 134 33,989.05 132.90 33,934.59 -------------------------------------------------------------------------------------------------------------------------------- Alfredo Martinez 467045526 621 60 34,604.46 158.16 34,526.16 ------------------------------------------------------------------------------------------------------------------------------- Ruben Garcia 465975020 622 64 54,501.69 193.13 54,434.33 -------------------------------------------------------------------------------------------------------------------------------- Alfonso Velasquez 633488084 624 10 36,456.91 121.57 36,419.47 -------------------------------------------------------------------------------------------------------------------------------- Abelardo E Molinar 458021088 625 100 21,586.49 80.21 21,556.09 -------------------------------------------------------------------------------------------------------------------------------- Terry Lee Harris 455431803 626 33 30,168.70 103.09 30,135.23 -------------------------------------------------------------------------------------------------------------------------------- Jack Olvera 450178233 627 12 34,182.64 114.22 34,147.30 -------------------------------------------------------------------------------------------------------------------------------- Salim Jusufovic 637606328 1551 18 30,613.66 102.93 30,581.38 -------------------------------------------------------------------------------------------------------------------------------- John Gonzalez 456371052 1552 66 35,021.62 124.41 34,978.03 -------------------------------------------------------------------------------------------------------------------------------- Anthony Hernandez 455338245 1553 258 31,807.04 161.46 31,718.98 -------------------------------------------------------------------------------------------------------------------------------- Jose Cardenas 452674639 1554 32 38,351.63 130.91 38,309.22 ------------------------------------------------------------------------------------------------------------------------------- Gilbert Tovar 461135806 1555 258 19,986.39 101.46 19,931.05 -------------------------------------------------------------------------------------------------------------------------------- Jose Filio Jr 454416871 1556 180 15,593.30 66.11 15,563.17 -------------------------------------------------------------------------------------------------------------------------------- Rolando L Verastegui 467857285 1557 136 38,755.94 152.03 38,693.35 -------------------------------------------------------------------------------------------------------------------------------- Porfirio Rodriguez 459826411 1559 258 28,277.50 143.54 28,199.22 -------------------------------------------------------------------------------------------------------------------------------- Humberto Sanchez 462235543 1560 258 30,493.14 154.80 30,408.71 -------------------------------------------------------------------------------------------------------------------------------- Victor Hiller 435151345 1561 258 29,119.22 147.83 29,038.59 -------------------------------------------------------------------------------------------------------------------------------- Vincent Salazar Jr 461417888 1562 230 27,589.85 107.15 27,546.37 -------------------------------------------------------------------------------------------------------------------------------- Michael Gonzales 465595722 1563 32 31,547.40 107.69 31,512.51 -------------------------------------------------------------------------------------------------------------------------------- Cipriano Hernandez 461135567 1564 258 28,101.19 169.00 27,997.04 -------------------------------------------------------------------------------------------------------------------------------- Richard De La Fuente 452570768 1565 22 25,443.15 85.91 25,415.95 -------------------------------------------------------------------------------------------------------------------------------- Hugh Hardin 454198279 1653 77 37,876.20 136.43 37,827.18 -------------------------------------------------------------------------------------------------------------------------------- Glen Connor 453926643 1670 130 15,813.57 80.27 15,769.79 -------------------------------------------------------------------------------------------------------------------------------- Robert Sauer 461065622 1672 258 18,483.06 93.82 18,431.89 -------------------------------------------------------------------------------------------------------------------------------- Rudy Arredondo Jr 458412744 1675 185 33,584.71 143.77 33,518.44 -------------------------------------------------------------------------------------------------------------------------------- Samuel Sotello 451937484 1676 66 45,272.65 160.82 45,216.31 -------------------------------------------------------------------------------------------------------------------------------- Jesse Balderas Jr 463627237 1679 258 26,440.50 134.21 26,367.31 -------------------------------------------------------------------------------------------------------------------------------- Melvin Gleitz 456135299 1681 258 28,487.60 144.61 28,408.73 -------------------------------------------------------------------------------------------------------------------------------- Sammy Sapp 464826975 1682 75 40,732.47 146.35 40,680.12 -------------------------------------------------------------------------------------------------------------------------------- Christopher Tovar 453635896 1698 49 44,387.73 154.48 44,335.68 -------------------------------------------------------------------------------------------------------------------------------- Ray Veliz 449840768 1762 258 22,648.51 150.55 22,550.23 -------------------------------------------------------------------------------------------------------------------------------- Jose Maciel 457437799 1763 258 17,759.76 90.16 17,710.58 -------------------------------------------------------------------------------------------------------------------------------- Daniel Merlo 463765408 1764 189 26,365.98 113.77 26,313.05 -------------------------------------------------------------------------------------------------------------------------------- Rogelio Gatica Jr 450807206 1765 258 29,402.21 149.26 29,320.80 -------------------------------------------------------------------------------------------------------------------------------- Fred Coker Jr 457516939 1766 258 34,877.64 177.06 34,781.07 -------------------------------------------------------------------------------------------------------------------------------- Roger Martinez 456115728 1767 234 34,426.25 164.16 34,341.54 -------------------------------------------------------------------------------------------------------------------------------- Oliver Krivic 631446002 1770 18 29,177.68 98.10 29,146.91 -------------------------------------------------------------------------------------------------------------------------------- Frank O Sandoval 577687644 1771 151 34,325.93 138.05 34,267.09 -------------------------------------------------------------------------------------------------------------------------------- Roger Leal 461533068 1772 226 38,560.28 180.36 38,468.91 -------------------------------------------------------------------------------------------------------------------------------- Jesse Gomez 466219256 1773 258 17,559.84 89.13 17,511.23 -------------------------------------------------------------------------------------------------------------------------------- Jesus V Garcia 450154307 1774 189 36,825.27 158.91 36,751.34 -------------------------------------------------------------------------------------------------------------------------------- Raymond B Sanchez 459823184 1775 147 46,149.59 184.35 46,071.74 -------------------------------------------------------------------------------------------------------------------------------- Gilberto Garza 458313297 1781 258 25,767.34 130.80 25,696.00 |
---------------------------------------------------------------------------------------------------------------------------------- Jaime Martinez 451082798 1783 32 32,254.11 110.10 32,218.44 ---------------------------------------------------------------------------------------------------------------------------------- Jason Addington 451417645 1851 40 42,443.02 146.18 42,394.79 ---------------------------------------------------------------------------------------------------------------------------------- Joey Reiman 467945566 1852 142 33,808.96 133.93 33,753.05 ---------------------------------------------------------------------------------------------------------------------------------- Frankie R Oneill 449437622 1854 261 24,029.18 123.01 23,961.62 ---------------------------------------------------------------------------------------------------------------------------------- Glen A Dolezal 454217013 1861 124 32,950.11 126.83 32,899.32 ---------------------------------------------------------------------------------------------------------------------------------- James G Zumwalt 450540890 1871 261 24,263.40 124.20 24,195.19 ---------------------------------------------------------------------------------------------------------------------------------- Jesse B Soefje 467172556 1876 137 31,879.30 125.26 31,827.61 ---------------------------------------------------------------------------------------------------------------------------------- Donald W Legnon Sr 461602751 1880 261 24,101.99 123.37 24,034.24 ---------------------------------------------------------------------------------------------------------------------------------- Armand Markwordt Iii 464151374 1952 90 38,077.19 139.54 38,025.52 ---------------------------------------------------------------------------------------------------------------------------------- Paul A Glowka 451640574 1953 261 23,274.32 119.14 23,208.89 ---------------------------------------------------------------------------------------------------------------------------------- Robert M Saenz 465606474 1954 261 21,194.79 108.50 21,135.20 ---------------------------------------------------------------------------------------------------------------------------------- Theophil De Cock Jr 457681954 1955 29 32,051.55 109.05 32,016.47 ---------------------------------------------------------------------------------------------------------------------------------- Mike Leal 467738860 1956 102 46,765.36 174.26 46,699.02 ---------------------------------------------------------------------------------------------------------------------------------- Eloy Castillo 456455404 1957 8 31,993.70 106.46 31,961.07 ---------------------------------------------------------------------------------------------------------------------------------- Alfred Leal 454313751 1973 76 41,910.64 150.78 41,856.58 ---------------------------------------------------------------------------------------------------------------------------------- Ramiro H Alaniz Jr 269548086 2060 261 21,092.39 107.98 21,033.08 ---------------------------------------------------------------------------------------------------------------------------------- Hilberto F Zamora 452660633 2061 261 16,299.01 83.43 16,253.19 ---------------------------------------------------------------------------------------------------------------------------------- Juan Ibarra 455252351 2062 32 39,127.02 133.56 39,083.75 ---------------------------------------------------------------------------------------------------------------------------------- Raul Martinez 453538605 2063 39 31,560.92 108.58 31,525.17 ---------------------------------------------------------------------------------------------------------------------------------- Arturo Perez 461494597 2066 27 27,058.48 91.86 27,029.06 ---------------------------------------------------------------------------------------------------------------------------------- Fernando T Lopez 466041298 2067 261 22,109.41 113.19 22,047.24 ---------------------------------------------------------------------------------------------------------------------------------- Richard Wiatrek 459472581 2401 107 27,006.19 149.50 26,919.01 ---------------------------------------------------------------------------------------------------------------------------------- Robert Fowler 449419800 2404 16 38,052.90 127.68 38,013.03 ---------------------------------------------------------------------------------------------------------------------------------- Richard C Russell 487646368 2405 101 30,957.05 115.19 30,913.30 ---------------------------------------------------------------------------------------------------------------------------------- Michael Dickens 460816071 2500 106 48,230.92 180.74 48,161.48 ---------------------------------------------------------------------------------------------------------------------------------- Mickey J Schwalm 79489776 2501 98 43,703.30 168.74 43,635.41 ---------------------------------------------------------------------------------------------------------------------------------- Steve Hout 570026618 2502 20 18,829.58 124.09 18,748.94 ---------------------------------------------------------------------------------------------------------------------------------- Jackie Cox 454064786 2504 128 32,520.49 169.83 32,425.71 ---------------------------------------------------------------------------------------------------------------------------------- Ralph Bane 299362361 2505 128 30,354.51 158.53 30,266.03 ---------------------------------------------------------------------------------------------------------------------------------- David W Smith 333568769 2507 128 21,166.87 95.25 21,120.47 ---------------------------------------------------------------------------------------------------------------------------------- Randy E Harrell 432158177 2508 128 37,611.81 151.53 37,547.08 ---------------------------------------------------------------------------------------------------------------------------------- Richard Trevino 459922769 2509 268 25,558.04 133.47 25,483.55 ---------------------------------------------------------------------------------------------------------------------------------- Delmar Karnes 460471648 2511 128 30,034.60 116.33 29,987.58 ---------------------------------------------------------------------------------------------------------------------------------- Vincent Reed 463116563 2512 22 31,138.51 105.14 31,105.23 ---------------------------------------------------------------------------------------------------------------------------------- David Martinez 467353867 2605 12 34,285.52 114.56 34,250.08 ---------------------------------------------------------------------------------------------------------------------------------- Richard Moore 465495213 2606 8 35,171.18 117.04 35,135.30 ---------------------------------------------------------------------------------------------------------------------------------- John Jones 466889721 2607 268 13,881.64 72.49 13,841.18 ---------------------------------------------------------------------------------------------------------------------------------- Ritchie Cravens 460477308 2611 40 36,763.42 126.62 36,721.64 ---------------------------------------------------------------------------------------------------------------------------------- Charles Wadlington 462946428 2612 268 21,376.34 111.64 21,314.03 ---------------------------------------------------------------------------------------------------------------------------------- Carman Wadlington 452694440 2614 128 29,644.18 154.82 29,557.77 ---------------------------------------------------------------------------------------------------------------------------------- James De Groff 452760423 2616 22 44,975.50 151.87 44,927.42 ---------------------------------------------------------------------------------------------------------------------------------- Ernest Contreras 449297917 2700 268 30,402.11 158.78 30,313.49 ---------------------------------------------------------------------------------------------------------------------------------- Charles Schneider 460767967 2701 169 30,257.64 125.64 30,201.83 ---------------------------------------------------------------------------------------------------------------------------------- Jon Dumaran 461655267 2702 36 52,410.98 178.99 52,352.94 ---------------------------------------------------------------------------------------------------------------------------------- Clide Alexander 451358163 2706 59 45,979.81 161.91 45,924.01 ---------------------------------------------------------------------------------------------------------------------------------- John Coburn 418923065 2708 268 22,468.47 117.34 22,402.98 ---------------------------------------------------------------------------------------------------------------------------------- Ralph Faykus 456158548 2710 128 31,771.22 165.93 31,678.61 ---------------------------------------------------------------------------------------------------------------------------------- Marion E Cooksey 479783891 2712 103 32,291.65 120.50 32,245.67 ---------------------------------------------------------------------------------------------------------------------------------- Sebastian Juarez 462647779 2714 126 28,203.41 147.10 28,121.39 ---------------------------------------------------------------------------------------------------------------------------------- Alan Evans 467703150 2800 27 25,243.74 97.98 25,204.01 ---------------------------------------------------------------------------------------------------------------------------------- |
Attachment to Annex C
------------------------------------------------------------------------------------------------------------------------------- Terry W Pruiett 458918344 2802 111 29,349.51 132.07 29,285.17 ------------------------------------------------------------------------------------------------------------------------------- Stan Dancer 427257987 2805 150 33,900.39 136.11 33,842.51 ------------------------------------------------------------------------------------------------------------------------------- Julio Betancourt 453358026 2806 126 36,532.09 189.98 36,426.41 ------------------------------------------------------------------------------------------------------------------------------- Lon Slatten 463787072 2807 268 25,240.18 131.81 25,166.62 ------------------------------------------------------------------------------------------------------------------------------- Chad Stadler 556311630 2808 268 17,342.22 90.57 17,291.67 ------------------------------------------------------------------------------------------------------------------------------- Donovan Hughes 457195751 2812 190 33,110.59 143.17 33,043.83 ------------------------------------------------------------------------------------------------------------------------------- John Foster 453825472 2813 8 47,938.97 159.53 47,890.07 ------------------------------------------------------------------------------------------------------------------------------- Lester L Pickett 456665605 3041 158 30,028.46 122.23 29,975.53 ------------------------------------------------------------------------------------------------------------------------------- Edward Davis 451961299 3043 252 31,608.35 157.86 31,523.43 ------------------------------------------------------------------------------------------------------------------------------- Joseph Suiters 452139822 3046 8 25,906.74 86.21 25,880.31 ------------------------------------------------------------------------------------------------------------------------------- Steve A Dickens 461118851 3048 174 32,411.77 135.84 32,350.73 ------------------------------------------------------------------------------------------------------------------------------- Shane Simmons 467871864 3049 25 39,784.48 134.77 39,741.52 ------------------------------------------------------------------------------------------------------------------------------- Jose De Lao 456973790 3161 12 30,764.96 102.80 30,733.16 ------------------------------------------------------------------------------------------------------------------------------- Patrick Gonzales 464437770 3171 32 25,583.55 87.33 25,555.26 ------------------------------------------------------------------------------------------------------------------------------- Nathan Tekell 455375274 3240 88 34,826.51 127.29 34,779.59 ------------------------------------------------------------------------------------------------------------------------------- Rusty Heine 458411431 3241 88 36,205.01 132.32 36,156.24 ------------------------------------------------------------------------------------------------------------------------------- Don De La Cruz 451475667 3243 174 21,352.65 89.50 21,312.43 ------------------------------------------------------------------------------------------------------------------------------- James E Byerly 404156417 3253 148 26,844.24 107.41 26,798.78 ------------------------------------------------------------------------------------------------------------------------------- Stephen E Peterson 452233133 3301 195 35,574.95 155.39 35,501.66 ------------------------------------------------------------------------------------------------------------------------------- Rudy Ridenour 524450145 3302 118 43,800.75 167.07 43,734.76 ------------------------------------------------------------------------------------------------------------------------------- Timothy Swalm 457258036 3304 120 48,376.70 184.70 48,303.64 ------------------------------------------------------------------------------------------------------------------------------- Martin Hernandez 463492005 3305 123 21,500.80 94.70 21,455.72 ------------------------------------------------------------------------------------------------------------------------------- Ted Sparks 462709389 3306 203 19,298.16 138.03 19,204.66 ------------------------------------------------------------------------------------------------------------------------------- Rosendo Gonzalez 450793136 3309 49 33,886.74 117.93 33,847.01 ------------------------------------------------------------------------------------------------------------------------------- Juan Olalde 457965494 3310 40 39,583.79 136.34 39,538.80 ------------------------------------------------------------------------------------------------------------------------------- Hector Botello Jr 451193047 3311 12 40,278.35 134.58 40,236.72 ------------------------------------------------------------------------------------------------------------------------------- Edward Peralez 450279023 3312 123 30,669.35 129.28 30,610.85 ------------------------------------------------------------------------------------------------------------------------------- Brian S Pechin 179547145 3314 194 32,445.85 141.43 32,379.30 ------------------------------------------------------------------------------------------------------------------------------- Carlos Balli 451279084 3400 8 46,183.30 153.68 46,136.20 ------------------------------------------------------------------------------------------------------------------------------- Richard Stephens 191403677 3402 8 27,058.59 90.04 27,030.99 ------------------------------------------------------------------------------------------------------------------------------- Richard Villa 454041527 3403 54 29,076.40 101.79 29,041.71 ------------------------------------------------------------------------------------------------------------------------------- Randy Chilek 464431931 3410 268 18,913.65 98.77 18,858.53 ------------------------------------------------------------------------------------------------------------------------------- George Torres 461291328 3411 22 36,011.74 121.60 35,973.24 ------------------------------------------------------------------------------------------------------------------------------- Robert Brosch 462663264 3412 268 28,418.68 148.41 28,335.85 ------------------------------------------------------------------------------------------------------------------------------- Michael Lusk 455983915 3413 32 39,688.36 135.48 39,644.47 ------------------------------------------------------------------------------------------------------------------------------- Tomas Cisneros 460807376 3500 128 23,560.07 126.01 23,488.43 ------------------------------------------------------------------------------------------------------------------------------- Armando Lopez 451024121 3501 128 35,648.13 190.65 35,539.74 ------------------------------------------------------------------------------------------------------------------------------- Manuel Romo 462970183 3502 276 29,548.61 158.03 29,458.77 ------------------------------------------------------------------------------------------------------------------------------- Salvador Aloia 203505846 3503 145 33,144.85 131.95 33,089.39 ------------------------------------------------------------------------------------------------------------------------------- Gilberto Chapa 454235922 3505 203 22,334.74 119.09 22,267.19 ------------------------------------------------------------------------------------------------------------------------------- Mario Rios 458594536 3601 254 22,396.82 112.45 22,336.05 ------------------------------------------------------------------------------------------------------------------------------- Gerardo Rojas 589706071 3602 72 21,224.29 75.97 21,197.30 ------------------------------------------------------------------------------------------------------------------------------- Manuel Figueroa 455742692 3604 223 44,836.47 208.24 44,731.70 ------------------------------------------------------------------------------------------------------------------------------- Ramiro Reyna 454633784 3605 137 31,939.91 125.49 31,888.13 ------------------------------------------------------------------------------------------------------------------------------- Antonio Garcia Jr 465599023 3606 118 35,767.42 140.08 35,709.88 ------------------------------------------------------------------------------------------------------------------------------- Mario Narvaez 645546790 3607 70 36,629.90 130.77 36,583.66 ------------------------------------------------------------------------------------------------------------------------------- Willie Johnson 449291325 3608 88 20,526.33 75.02 20,498.68 ------------------------------------------------------------------------------------------------------------------------------- Oscar Fuentes Jr 462452513 3609 22 25,834.62 87.23 25,807.01 ------------------------------------------------------------------------------------------------------------------------------- Jose Vasquez 459783336 3701 276 5,296.81 28.32 5,280.71 ------------------------------------------------------------------------------------------------------------------------------- Efrain Salinas 452624867 3703 276 17,591.83 94.09 17,538.34 ------------------------------------------------------------------------------------------------------------------------------- |
Attachment to Annex C
------------------------------------------------------------------------------------------------------------------------------- Hugo R Garza 465230517 3704 139 27,851.36 109.79 27,805.84 ------------------------------------------------------------------------------------------------------------------------------- Urbano Anzaldua 461762049 3705 276 13,095.37 70.03 13,055.56 ------------------------------------------------------------------------------------------------------------------------------- Raymundo Silva 627057597 3706 18 23,526.75 79.11 23,501.93 ------------------------------------------------------------------------------------------------------------------------------- Esteban E Guzman 633485180 3707 121 27,203.47 104.23 27,162.02 ------------------------------------------------------------------------------------------------------------------------------- Gerardo Rodriguez 451619269 3708 66 18,008.71 63.97 17,986.30 ------------------------------------------------------------------------------------------------------------------------------- Eddie Garcia 456896546 3709 36 31,071.78 106.53 31,036.95 ------------------------------------------------------------------------------------------------------------------------------- Dante Sarabia 463431728 3710 276 12,016.43 64.27 11,979.89 ------------------------------------------------------------------------------------------------------------------------------- Noe Alaniz Jr 461596347 3711 146 31,586.50 125.96 31,533.43 ------------------------------------------------------------------------------------------------------------------------------- Roel Zuniga 450616772 3712 18 25,777.34 86.67 25,750.16 ------------------------------------------------------------------------------------------------------------------------------- R Rodriguez 453238888 3800 273 34,197.83 181.25 34,095.50 ------------------------------------------------------------------------------------------------------------------------------- J Garza 450608061 3801 273 18,960.49 100.49 18,903.75 ------------------------------------------------------------------------------------------------------------------------------- A Salazar 449923169 3803 215 32,829.66 149.70 32,755.72 ------------------------------------------------------------------------------------------------------------------------------- Ponciano Ramos 463491278 3805 137 36,419.77 143.10 36,360.72 ------------------------------------------------------------------------------------------------------------------------------- Alex Olivarez 461537047 3807 32 40,617.73 138.65 40,572.81 ------------------------------------------------------------------------------------------------------------------------------- Juan A Aguilar 450158179 3808 129 44,874.56 174.08 44,804.04 ------------------------------------------------------------------------------------------------------------------------------- David Longoria 453848741 3810 276 29,316.65 156.80 29,227.50 ------------------------------------------------------------------------------------------------------------------------------- Steven Smithwich 231021766 132 68 4,864.32 137.31 4,738.24 ------------------------------------------------------------------------------------------------------------------------------- Jack K Jenkins 229542771 134 58 50,193.15 228.38 50,080.60 ------------------------------------------------------------------------------------------------------------------------------- Edwin Cordero Jr 227945171 135 48 61,569.36 214.02 61,497.42 ------------------------------------------------------------------------------------------------------------------------------- Michael L Parker 223721713 136 95 42,924.97 158.61 42,865.42 ------------------------------------------------------------------------------------------------------------------------------- John F Quinn 59462512 243 215 29,378.64 133.97 29,312.47 ------------------------------------------------------------------------------------------------------------------------------- Gordon M Westrick 378506604 244 95 41,159.83 168.15 41,086.66 ------------------------------------------------------------------------------------------------------------------------------- Larry Davis 228926843 330 148 20,753.64 122.12 20,679.41 ------------------------------------------------------------------------------------------------------------------------------- Jack Harley Alligood 223487418 331 148 2,565.47 45.14 2,526.25 ------------------------------------------------------------------------------------------------------------------------------- Carlton E Joyner 228608305 332 120 31,924.52 122.14 31,876.05 ------------------------------------------------------------------------------------------------------------------------------- Carlos Perez, Jr 51609937 333 47 45,186.30 156.89 45,133.69 ------------------------------------------------------------------------------------------------------------------------------- David L Kelley 248230307 335 65 33,464.22 119.62 33,421.83 ------------------------------------------------------------------------------------------------------------------------------- Sandra Ulwelling 469507529 431 23 41,382.03 139.88 41,337.65 ------------------------------------------------------------------------------------------------------------------------------- John David Wells 229216698 432 246 10,968.52 78.86 10,914.97 ------------------------------------------------------------------------------------------------------------------------------- Samuel Dejean 570495643 433 2 44,285.82 146.48 44,241.54 ------------------------------------------------------------------------------------------------------------------------------- Wendell N Quesenberry 230965193 436 83 43,411.15 220.37 43,290.96 ------------------------------------------------------------------------------------------------------------------------------- Dennis Wells 228257632 437 22 52,843.44 178.43 52,786.96 ------------------------------------------------------------------------------------------------------------------------------- Jeffrey S Clinton 225043187 531 80 47,871.21 173.11 47,808.57 ------------------------------------------------------------------------------------------------------------------------------- Kevin E Smith 230194162 532 173 41,457.36 181.84 41,371.19 ------------------------------------------------------------------------------------------------------------------------------- Wyatt R Bowman 231645726 533 132 31,245.69 121.78 31,196.02 ------------------------------------------------------------------------------------------------------------------------------- George Taylor 237640167 536 212 25,121.09 115.08 25,063.98 ------------------------------------------------------------------------------------------------------------------------------- Arlyn D Pirtle 358624564 537 64 58,505.42 207.31 58,433.12 ------------------------------------------------------------------------------------------------------------------------------ Marty Manchester 480821172 633 19 16,733.28 117.98 16,653.92 ------------------------------------------------------------------------------------------------------------------------------- David Smith 228215162 634 112 34,565.93 150.67 34,495.03 ------------------------------------------------------------------------------------------------------------------------------- Walter E Mclaughlin 231042065 635 64 42,904.54 152.03 42,851.52 ------------------------------------------------------------------------------------------------------------------------------- Michael T Kane 152486329 636 56 30,179.34 105.90 30,143.08 ------------------------------------------------------------------------------------------------------------------------------- Richard L Lawhon 227433288 640 64 55,129.65 195.35 55,061.52 ------------------------------------------------------------------------------------------------------------------------------- John Stephen Beckham 230741251 701 69 33,318.24 155.48 33,239.65 ------------------------------------------------------------------------------------------------------------------------------- Tommy Obrien Favor 255927758 702 36 38,548.69 132.17 38,505.48 ------------------------------------------------------------------------------------------------------------------------------- Daniel G Nickisher 195508148 704 83 38,939.87 141.37 38,888.36 ------------------------------------------------------------------------------------------------------------------------------- John S Bailey 228358192 813 160 36,972.87 164.93 36,893.26 ------------------------------------------------------------------------------------------------------------------------------- Richard Byrd 206327339 814 51 63,584.21 234.62 63,496.32 ------------------------------------------------------------------------------------------------------------------------------- Billie Lee Daniels 240801861 900 142 512.78 57.63 456.33 ------------------------------------------------------------------------------------------------------------------------------- Stephen Brinkley 225297527 902 97 47,294.83 175.00 47,228.97 ------------------------------------------------------------------------------------------------------------------------------- Donald E. Powell 577806796 905 97 22,584.42 83.57 22,552.97 ------------------------------------------------------------------------------------------------------------------------------- |
Attachment to Annex C
------------------------------------------------------------------------------------------------------------------------------- Tony Jones 240983565 1102 74 32,939.50 118.19 32,897.32 ------------------------------------------------------------------------------------------------------------------------------- William Jeanes 244251424 1104 74 45,922.92 164.79 45,864.11 ------------------------------------------------------------------------------------------------------------------------------- Steve Shaw 242213917 1107 3 45,568.89 150.87 45,523.18 ------------------------------------------------------------------------------------------------------------------------------- Eric Boyer 266879362 1112 23 48,690.95 164.59 48,638.72 ------------------------------------------------------------------------------------------------------------------------------- William Burton 246199331 1115 74 25,958.86 93.15 25,925.62 ------------------------------------------------------------------------------------------------------------------------------- Charles Taylor 238622245 1201 74 37,764.36 135.51 37,716.00 ------------------------------------------------------------------------------------------------------------------------------- Kenneth Faircloth 238519754 1202 5 49,845.79 165.37 49,795.45 ------------------------------------------------------------------------------------------------------------------------------- Nathan Brehm 286700526 1203 2 50,333.79 166.48 50,283.46 ------------------------------------------------------------------------------------------------------------------------------- John Clegg Jr 266518506 1204 56 35,395.49 126.85 35,350.32 ------------------------------------------------------------------------------------------------------------------------------- David Dwayne Akins 240296360 1207 26 42,210.31 143.14 42,164.58 ------------------------------------------------------------------------------------------------------------------------------- Dan K. Ellis 256824073 1208 40 40,725.48 140.27 40,679.19 ------------------------------------------------------------------------------------------------------------------------------- Robert F Halton 488782251 1302 12 55,897.87 199.06 55,827.81 ------------------------------------------------------------------------------------------------------------------------------- Jody Bussiere 5789917 1306 9 38,340.04 134.56 38,293.96 ------------------------------------------------------------------------------------------------------------------------------- Bailey Howard 241117153 1309 2 38,620.66 138.58 38,571.20 ------------------------------------------------------------------------------------------------------------------------------- Michael Kelly 220560258 1310 74 55,636.92 199.64 55,565.67 ------------------------------------------------------------------------------------------------------------------------------- Mark Fairweather 225986948 1312 32 51,871.78 188.76 51,802.72 ------------------------------------------------------------------------------------------------------------------------------- Edward W. Johnson 200427951 1313 52 53,635.99 187.32 53,572.45 ------------------------------------------------------------------------------------------------------------------------------- Clifford Rutledge 237941187 1316 74 43,328.74 155.47 43,273.26 ------------------------------------------------------------------------------------------------------------------------------- Samuel Roy Shaver 273480265 1318 34 50,852.99 173.97 50,796.37 ------------------------------------------------------------------------------------------------------------------------------- James Parin 240042808 1322 12 42,400.87 152.15 42,346.57 ------------------------------------------------------------------------------------------------------------------------------- Gary Johnson 413239570 1324 12 43,404.20 150.01 43,354.35 ------------------------------------------------------------------------------------------------------------------------------- Keith Wall 243435987 1450 74 21,741.83 78.01 21,713.99 ------------------------------------------------------------------------------------------------------------------------------- Tim Ressigue 126566850 1451 74 28,116.78 185.30 27,996.36 ------------------------------------------------------------------------------------------------------------------------------- Ivan Lewis 237927038 1452 74 46,374.84 166.40 46,315.46 ------------------------------------------------------------------------------------------------------------------------------- Charles Narron 246944754 1453 74 45,352.04 162.74 45,293.96 ------------------------------------------------------------------------------------------------------------------------------- Marshall Perry 239235283 1454 58 77,389.14 272.22 77,295.51 ------------------------------------------------------------------------------------------------------------------------------- Jeff Prichard 237356795 1455 74 52,562.65 188.61 52,495.34 ------------------------------------------------------------------------------------------------------------------------------- Stanley Krycia 34521438 1456 28 41,550.55 163.52 41,482.92 ------------------------------------------------------------------------------------------------------------------------------- Pleasant Carr 244292646 1457 57 49,123.10 171.94 49,064.52 ------------------------------------------------------------------------------------------------------------------------------- Tedric Jeffery 249112024 1458 74 46,918.13 168.35 46,858.05 ------------------------------------------------------------------------------------------------------------------------------- Terry Mclamb 237086206 1460 74 57,792.97 207.38 57,718.96 ------------------------------------------------------------------------------------------------------------------------------- Tim Ratley 244251094 1550 74 39,523.33 141.82 39,472.72 ------------------------------------------------------------------------------------------------------------------------------- George B. Tarrant 245270252 1551 52 38,091.16 133.03 38,046.03 ------------------------------------------------------------------------------------------------------------------------------- Micah Martin 230981241 1552 74 31,548.31 113.21 31,507.90 ------------------------------------------------------------------------------------------------------------------------------- Richard Hobbs 240211935 1553 74 33,473.35 120.11 33,430.49 ------------------------------------------------------------------------------------------------------------------------------- Kevin Smith 238412336 1554 74 27,690.22 99.36 27,654.76 ------------------------------------------------------------------------------------------------------------------------------- Melvin Mcallister Jr 245066809 1555 7 42,814.92 142.33 42,771.39 ------------------------------------------------------------------------------------------------------------------------------- Rocky Mcleod 246292501 1580 74 33,528.45 120.31 33,485.51 ------------------------------------------------------------------------------------------------------------------------------- Kenneth Gautier 245259005 1581 44 38,018.84 131.54 37,975.04 ------------------------------------------------------------------------------------------------------------------------------- Donnie Eugene Bass 237748593 1582 51 32,822.24 114.49 32,783.49 ------------------------------------------------------------------------------------------------------------------------------- James Hunter 224988764 1583 74 39,643.06 142.25 39,592.29 ------------------------------------------------------------------------------------------------------------------------------- Tammy Davis 243317697 1600 21 36,775.18 124.04 36,736.01 ------------------------------------------------------------------------------------------------------------------------------- Steve Hickman 245357870 1601 74 24,144.81 86.64 24,113.89 ------------------------------------------------------------------------------------------------------------------------------- Larry Mccormick 241727900 1602 74 31,953.77 114.66 31,912.85 ------------------------------------------------------------------------------------------------------------------------------- Jesse Formyduval 244023657 1700 74 29,190.96 104.75 29,153.57 ------------------------------------------------------------------------------------------------------------------------------- Ronald Pridgen 246062453 1703 74 30,047.57 107.82 30,009.09 ------------------------------------------------------------------------------------------------------------------------------- Jeffrey M Hansen 75545619 2114 120 28,918.97 110.63 28,875.08 ------------------------------------------------------------------------------------------------------------------------------- Curtis Norman 241413340 2152 59 37,857.35 133.33 37,811.38 ------------------------------------------------------------------------------------------------------------------------------- Howard G Fulford 239661558 2300 63 27,494.84 99.33 27,458.96 ------------------------------------------------------------------------------------------------------------------------------- Timmy Carl Vines 240178179 2301 10 47,060.07 156.92 47,011.75 ------------------------------------------------------------------------------------------------------------------------------- |
Attachment to Annex C
------------------------------------------------------------------------------------------------------------------------------- Davis R Davis 219461091 2302 79 38,043.32 137.39 37,993.72 ------------------------------------------------------------------------------------------------------------------------------- Arden Jeff Hardee Jr 244371442 2303 10 39,792.16 140.14 39,743.85 ------------------------------------------------------------------------------------------------------------------------------- Fred R Wiggins Iii 265479532 2304 10 42,367.76 153.21 42,312.32 ------------------------------------------------------------------------------------------------------------------------------- Timothy Harris 239351389 2305 6 52,442.13 174.16 52,388.99 ------------------------------------------------------------------------------------------------------------------------------- William B Harrell 239599677 2306 79 36,139.97 130.52 36,092.85 ------------------------------------------------------------------------------------------------------------------------------- Herman L Ebron 243809461 2307 10 38,538.00 128.50 38,498.43 ------------------------------------------------------------------------------------------------------------------------------- James E. Sessoms 240905531 2308 61 42,997.30 151.80 42,944.72 ------------------------------------------------------------------------------------------------------------------------------- Timothy M Bryant 238086316 2400 79 26,771.41 96.68 26,736.51 ------------------------------------------------------------------------------------------------------------------------------- Emmett Land 240604476 2401 79 27,759.41 100.25 27,723.22 ------------------------------------------------------------------------------------------------------------------------------- Joe Nathan Rook Jr 240963868 2402 79 36,844.87 133.06 36,796.84 ------------------------------------------------------------------------------------------------------------------------------- Steve Storey 244804095 2403 79 31,483.03 113.70 31,441.98 ------------------------------------------------------------------------------------------------------------------------------- Dwayne O. Brinkley 244199321 2404 61 22,331.63 78.84 22,304.32 ------------------------------------------------------------------------------------------------------------------------------- Johnny Rawls 243862529 2500 79 23,843.26 86.11 23,812.17 ------------------------------------------------------------------------------------------------------------------------------- Richard M Campbell 551967726 2501 79 33,951.14 122.62 33,906.87 ------------------------------------------------------------------------------------------------------------------------------- Richard L Nichols 246848018 2502 79 40,320.13 145.62 40,267.56 ------------------------------------------------------------------------------------------------------------------------------- Clayton E Roberson 243082325 2503 59 41,647.72 146.68 41,597.15 ------------------------------------------------------------------------------------------------------------------------------- James F Allen 245981194 2504 79 27,375.33 98.86 27,339.64 ------------------------------------------------------------------------------------------------------------------------------- Jimmie Baker 240821238 2600 79 31,089.53 112.28 31,049.00 ------------------------------------------------------------------------------------------------------------------------------- Shelton E Rouse 243942884 2604 79 43,816.55 158.24 43,759.43 ------------------------------------------------------------------------------------------------------------------------------- Rodney R Canter 245311162 2703 39 25,554.34 102.43 25,510.88 ------------------------------------------------------------------------------------------------------------------------------- Bobby Gardner 243881875 2804 74 39,210.00 140.70 39,159.78 ------------------------------------------------------------------------------------------------------------------------------- Newsome Ayers 241645870 2805 74 31,567.17 113.27 31,526.75 ------------------------------------------------------------------------------------------------------------------------------- Peter W Coffey 68364395 3100 56 39,708.59 139.34 39,660.89 ------------------------------------------------------------------------------------------------------------------------------- Brian Mclain 237550408 3103 11 56,582.38 188.87 56,524.08 ------------------------------------------------------------------------------------------------------------------------------- Bill Hines 246725537 3104 74 26,013.27 93.35 25,979.95 ------------------------------------------------------------------------------------------------------------------------------- William Lehman 281749352 3105 20 37,327.97 125.78 37,288.33 ------------------------------------------------------------------------------------------------------------------------------- Dennis L Peterson 243113236 3200 53 48,289.80 168.85 48,232.39 ------------------------------------------------------------------------------------------------------------------------------- Clifford Clark 248084409 3201 6 55,576.62 199.42 55,505.45 ------------------------------------------------------------------------------------------------------------------------------- Matthew Parks 48541288 3202 6 55,692.80 184.95 55,636.37 ------------------------------------------------------------------------------------------------------------------------------- Walter Jones 238747199 3203 74 39,403.66 141.39 39,353.20 ------------------------------------------------------------------------------------------------------------------------------- Robert Kennedy 536684705 3204 74 43,556.97 156.29 43,501.20 ------------------------------------------------------------------------------------------------------------------------------- Martin Benton 244393062 3206 6 49,839.06 178.84 49,775.23 ------------------------------------------------------------------------------------------------------------------------------- Duane M. Coleman 240640269 3207 6 42,603.66 141.48 42,560.50 ------------------------------------------------------------------------------------------------------------------------------- Thomas Coleman 575397482 3301 12 70,626.44 237.97 70,551.45 ------------------------------------------------------------------------------------------------------------------------------- Stanley Morse 76389257 3302 12 34,819.57 116.34 34,783.58 ------------------------------------------------------------------------------------------------------------------------------- Ronnie Jackson 245179530 3303 18 27,950.11 93.98 27,920.63 ------------------------------------------------------------------------------------------------------------------------------- Harris Marshburn 242689544 3304 74 44,100.20 158.24 44,043.73 ------------------------------------------------------------------------------------------------------------------------------- Jimmy Whitman 246680335 3305 74 42,994.75 154.28 42,939.69 ------------------------------------------------------------------------------------------------------------------------------- David Nairn 163524924 3306 74 63,207.98 226.52 63,127.32 ------------------------------------------------------------------------------------------------------------------------------- Jason Mobley 244532432 3308 7 48,529.34 161.33 48,480.00 ------------------------------------------------------------------------------------------------------------------------------- Carroll Hill 238885439 3400 74 39,753.22 142.65 39,702.31 ------------------------------------------------------------------------------------------------------------------------------- Mark Houle 239195905 3401 68 29,515.80 105.11 29,478.80 ------------------------------------------------------------------------------------------------------------------------------- Robert E. Jones Iii 364627597 3402 20 44,188.83 148.89 44,141.91 ------------------------------------------------------------------------------------------------------------------------------- Jason Lund 232214211 3403 19 59,893.72 201.60 59,830.34 ------------------------------------------------------------------------------------------------------------------------------- Gary Carter 139508590 3404 74 38,280.13 137.36 38,231.11 ------------------------------------------------------------------------------------------------------------------------------- Craig Snyder 493529004 3405 74 39,965.05 143.41 39,913.87 ------------------------------------------------------------------------------------------------------------------------------- William Inman 241375723 3406 74 35,536.25 127.51 35,490.75 ------------------------------------------------------------------------------------------------------------------------------- Charles W. Heartsill 442424123 3407 26 39,569.61 134.19 39,526.73 ------------------------------------------------------------------------------------------------------------------------------- Robert Stinsberger 316420113 3408 74 25,425.09 91.23 25,392.53 ------------------------------------------------------------------------------------------------------------------------------- Bobby Ray Heath 237331538 3500 41 34,220.35 118.00 34,181.32 ------------------------------------------------------------------------------------------------------------------------------- |
Attachment to Annex C
------------------------------------------------------------------------------------------------------------------------------- Steve Linelli 149600424 3503 22 38,957.40 131.54 38,915.76 ------------------------------------------------------------------------------------------------------------------------------- Corey White 464634115 3504 22 36,373.89 122.82 36,335.01 ------------------------------------------------------------------------------------------------------------------------------- Charles Stewart 465932630 3506 74 33,003.33 118.43 32,961.06 ------------------------------------------------------------------------------------------------------------------------------- Robert Bass Jr 238413574 3600 6 29,636.90 98.42 29,606.87 ------------------------------------------------------------------------------------------------------------------------------- Marty Hamm 241945037 3601 12 44,144.99 147.50 44,099.36 ------------------------------------------------------------------------------------------------------------------------------- Kenneth Edmundson 246046144 3602 74 48,077.83 172.52 48,016.26 ------------------------------------------------------------------------------------------------------------------------------- Bobby Stafford 242602372 3603 74 41,898.76 150.35 41,845.10 ------------------------------------------------------------------------------------------------------------------------------- Greg Barrett 246513648 3604 74 37,313.28 133.89 37,265.50 ------------------------------------------------------------------------------------------------------------------------------- Le Vern J. Wade 242982117 3605 14 44,278.53 148.26 44,232.45 ------------------------------------------------------------------------------------------------------------------------------- Ernie Best 238475261 3606 11 40,948.47 136.68 40,906.29 ------------------------------------------------------------------------------------------------------------------------------- Tony Ezzell 243277940 3607 12 34,244.23 122.88 34,200.38 ------------------------------------------------------------------------------------------------------------------------------- John Baker 238595594 3700 7 44,629.98 148.36 44,584.61 ------------------------------------------------------------------------------------------------------------------------------- Larry Donnelle Beamon 246137182 3702 48 40,418.78 140.50 40,371.55 ------------------------------------------------------------------------------------------------------------------------------- Bill Asbury 239821885 3704 6 34,617.86 124.22 34,573.53 ------------------------------------------------------------------------------------------------------------------------------- Vickie Towner 349542492 3705 7 43,429.24 144.37 43,385.09 ------------------------------------------------------------------------------------------------------------------------------- Billy Curtis Smith 237707762 3706 43 47,479.99 164.09 47,425.47 ------------------------------------------------------------------------------------------------------------------------------- Rodney Powell 240375064 3800 74 36,927.11 132.51 36,879.82 ------------------------------------------------------------------------------------------------------------------------------- William Hudson 245318862 3801 6 40,813.65 135.54 40,772.30 ------------------------------------------------------------------------------------------------------------------------------- Michael Wayne 243353830 3803 74 35,474.53 127.29 35,429.10 ------------------------------------------------------------------------------------------------------------------------------- Peter Clark 238514300 3804 50 31,276.77 108.98 31,239.97 ------------------------------------------------------------------------------------------------------------------------------- Jerry Ramming 257067329 730 37 27,175.18 93.28 27,144.61 ------------------------------------------------------------------------------------------------------------------------------- Fred Dorsey 426133234 731 35 29,976.26 102.66 29,942.78 ------------------------------------------------------------------------------------------------------------------------------- Jimmy Rogers 413557634 733 21 26,829.13 91.89 26,799.15 ------------------------------------------------------------------------------------------------------------------------------- Derrick Irby 409393716 735 35 34,491.30 118.13 34,452.77 ------------------------------------------------------------------------------------------------------------------------------- Joshua Wilbanks 425410471 820 39 26,749.20 92.02 26,718.91 ------------------------------------------------------------------------------------------------------------------------------- William Whitley 415396378 823 35 26,521.97 90.84 26,492.33 ------------------------------------------------------------------------------------------------------------------------------- Alan Coulston 408338966 824 29 33,496.79 113.97 33,460.12 ------------------------------------------------------------------------------------------------------------------------------- Jerry Meyers 432906457 825 168 29,840.26 123.68 29,785.44 ------------------------------------------------------------------------------------------------------------------------------- Chris Browning 412179396 840 26 43,920.08 148.94 43,872.49 ------------------------------------------------------------------------------------------------------------------------------- Terence Freeman 464633572 841 21 22,155.85 76.05 22,130.93 ------------------------------------------------------------------------------------------------------------------------------- George Lipa 415760916 843 21 8,803.62 37.47 8,786.47 ------------------------------------------------------------------------------------------------------------------------------- Dusty Allen 462193912 901 71 30,392.88 100.58 30,362.44 ------------------------------------------------------------------------------------------------------------------------------- Sonya Devers 587433288 902 48 35,111.30 129.56 35,062.77 ------------------------------------------------------------------------------------------------------------------------------- Joey Devers 428573745 903 48 21,739.04 90.60 21,698.61 ------------------------------------------------------------------------------------------------------------------------------- Nicky Shaw 587353139 904 26 20,871.19 70.78 20,848.57 ------------------------------------------------------------------------------------------------------------------------------- Jason Hill 426354372 905 42 15,305.38 52.84 15,287.86 ------------------------------------------------------------------------------------------------------------------------------- Carl F Winkles 432476035 2208 32 10,454.41 35.69 10,442.85 ------------------------------------------------------------------------------------------------------------------------------- William Ray Clark 431330538 2209 32 13,919.85 47.52 13,904.45 ------------------------------------------------------------------------------------------------------------------------------- Bryant Adams 379668771 2222 35 35,649.20 122.09 35,609.38 ------------------------------------------------------------------------------------------------------------------------------- Gene Reynolds 417523228 2223 35 22,720.74 77.82 22,695.35 ------------------------------------------------------------------------------------------------------------------------------- Terrance Wilkins 415376252 2305 35 31,992.52 109.57 31,956.78 ------------------------------------------------------------------------------------------------------------------------------- Darryl Deason 401667020 2306 35 18,234.63 62.45 18,214.26 ------------------------------------------------------------------------------------------------------------------------------- Randy Hill 410152493 2307 35 23,048.89 78.94 23,023.14 ------------------------------------------------------------------------------------------------------------------------------- Terry Washington 427132061 2309 32 20,202.43 68.96 20,180.09 ------------------------------------------------------------------------------------------------------------------------------- Larry Rowsey 408043033 2400 18 25,482.50 85.68 25,455.63 ------------------------------------------------------------------------------------------------------------------------------- Torri Thomas 413276191 2401 20 26,379.83 88.89 26,351.82 ------------------------------------------------------------------------------------------------------------------------------- Danny Jones 410558919 2402 35 10,168.81 34.83 10,157.45 ------------------------------------------------------------------------------------------------------------------------------- Henry P Smith Iii 409377259 2403 32 18,827.77 64.27 18,806.95 ------------------------------------------------------------------------------------------------------------------------------- William Chapman 409068855 2404 18 25,482.50 85.68 25,455.63 ------------------------------------------------------------------------------------------------------------------------------- Brian Bently 402042818 2501 220 25,332.38 116.84 25,274.00 ------------------------------------------------------------------------------------------------------------------------------- |
Attachment to Annex C
-------------------------------------------------------------------------------------------------------------------------------
Jeffery Jones 410299127 2502 48 34,496.90 119.91 34,456.60
-------------------------------------------------------------------------------------------------------------------------------
Jimmy Brown 415947141 2503 47 21,838.54 91.02 21,797.92
-------------------------------------------------------------------------------------------------------------------------------
Chester Hastings 546899331 2504 125 31,267.64 120.54 31,219.26
-------------------------------------------------------------------------------------------------------------------------------
Evert S Dean 426413319 2506 38 30,067.55 103.33 30,033.61
-------------------------------------------------------------------------------------------------------------------------------
Jim Trussell 411115701 2507 25 25,497.98 86.37 25,470.45
-------------------------------------------------------------------------------------------------------------------------------
261416389 20000850 5 30,406.22 101.39 30,249.39
-------------------------------------------------------------------------------------------------------------------------------
251758234 20000851 5 28,747.06 95.76 28,599.28
-------------------------------------------------------------------------------------------------------------------------------
254336147 20000852 5 21,212.65 123.94 20,835.98
-------------------------------------------------------------------------------------------------------------------------------
255399822 20000854 5 31,423.18 233.90 30,612.53
-------------------------------------------------------------------------------------------------------------------------------
261622187 20000855 5 13,977.97 104.64 13,614.38
-------------------------------------------------------------------------------------------------------------------------------
266715967 20000856 5 21,417.48 79.47 21,266.58
-------------------------------------------------------------------------------------------------------------------------------
253339916 20000858 5 29,235.31 110.03 29,021.51
-------------------------------------------------------------------------------------------------------------------------------
260256297 20000859 5 44,930.06 160.41 44,645.12
-------------------------------------------------------------------------------------------------------------------------------
260829415 20000860 5 9,779.34 73.17 9,525.16
-------------------------------------------------------------------------------------------------------------------------------
417963111 20000862 5 43,676.43 144.46 43,457.08
-------------------------------------------------------------------------------------------------------------------------------
262532588 20000863 5 32,631.22 110.07 32,456.57
-------------------------------------------------------------------------------------------------------------------------------
261668079 20000864 5 30,047.09 113.25 29,826.52
-------------------------------------------------------------------------------------------------------------------------------
262479907 20000866 5 19,471.90 82.71 19,282.16
-------------------------------------------------------------------------------------------------------------------------------
417139994 20000867 5 28,575.54 110.17 28,353.38
-------------------------------------------------------------------------------------------------------------------------------
424927903 20000868 5 27,079.23 100.05 26,890.56
-------------------------------------------------------------------------------------------------------------------------------
418986646 20000869 5 29,072.39 99.90 28,907.58
-------------------------------------------------------------------------------------------------------------------------------
417920647 20000870 5 27,146.89 115.54 26,881.20
-------------------------------------------------------------------------------------------------------------------------------
417966621 20000871 5 22,011.28 84.85 21,840.23
-------------------------------------------------------------------------------------------------------------------------------
260905460 20000872 5 24,963.47 121.44 24,642.84
-------------------------------------------------------------------------------------------------------------------------------
419068515 20000873 5 13,546.93 101.34 13,194.92
-------------------------------------------------------------------------------------------------------------------------------
417022653 20000874 5 16,931.13 126.69 16,491.01
-------------------------------------------------------------------------------------------------------------------------------
542800500 20000876 5 32,303.97 130.82 32,021.32
-------------------------------------------------------------------------------------------------------------------------------
260196686 20000878 5 22,435.11 82.55 22,280.51
-------------------------------------------------------------------------------------------------------------------------------
256619175 20000879 5 23,450.02 78.11 23,329.49
-------------------------------------------------------------------------------------------------------------------------------
464293174 20000880 5 21,049.08 81.02 20,886.10
-------------------------------------------------------------------------------------------------------------------------------
259130841 20000881 5 35,129.16 119.78 34,934.71
-------------------------------------------------------------------------------------------------------------------------------
257111860 20000882 5 25,013.77 164.84 24,475.71
-------------------------------------------------------------------------------------------------------------------------------
256887880 20000883 5 31,731.12 126.11 31,465.48
-------------------------------------------------------------------------------------------------------------------------------
255686222 20000884 5 14,614.96 111.69 14,223.35
-------------------------------------------------------------------------------------------------------------------------------
260171473 20000885 5 21,457.87 163.96 20,883.01
-------------------------------------------------------------------------------------------------------------------------------
411176740 20000887 5 28,231.06 96.16 28,075.29
-------------------------------------------------------------------------------------------------------------------------------
255643817 20000888 5 20,965.02 159.46 20,407.05
-------------------------------------------------------------------------------------------------------------------------------
256808055 20000889 5 14,202.32 107.94 13,824.75
-------------------------------------------------------------------------------------------------------------------------------
253138867 20000892 5 50,163.26 178.86 49,846.31
-------------------------------------------------------------------------------------------------------------------------------
256475589 20000893 5 40,141.45 135.54 39,925.94
-------------------------------------------------------------------------------------------------------------------------------
423983421 20000894 5 38,168.43 129.86 37,958.56
-------------------------------------------------------------------------------------------------------------------------------
255089135 20000896 5 34,739.67 117.30 34,553.15
-------------------------------------------------------------------------------------------------------------------------------
259379929 20000898 5 29,750.24 122.85 29,478.00
-------------------------------------------------------------------------------------------------------------------------------
259907600 20000899 5 14,981.65 114.46 14,580.36
-------------------------------------------------------------------------------------------------------------------------------
258298411 20000900 5 14,190.59 109.01 13,807.52
-------------------------------------------------------------------------------------------------------------------------------
256980096 20000901 5 50,855.04 173.21 50,574.49
-------------------------------------------------------------------------------------------------------------------------------
255923854 20000902 5 48,895.64 164.06 48,638.34
-------------------------------------------------------------------------------------------------------------------------------
256339025 20000903 5 51,641.59 172.02 51,376.13
-------------------------------------------------------------------------------------------------------------------------------
253191496 20000904 5 40,985.79 141.33 40,750.98
-------------------------------------------------------------------------------------------------------------------------------
259236366 20000905 5 40,386.20 141.38 40,144.18
-------------------------------------------------------------------------------------------------------------------------------
|
Attachment to Annex C
-------------------------------------------------------------------------------------------------------------------------------
569720537 20000906 5 12,849.43 98.17 12,505.26
-------------------------------------------------------------------------------------------------------------------------------
257136398 20000908 5 42,471.56 152.99 42,195.39
-------------------------------------------------------------------------------------------------------------------------------
254866581 20000909 5 27,141.36 112.08 26,892.99
-------------------------------------------------------------------------------------------------------------------------------
254980306 20000910 5 36,764.16 160.26 36,385.32
-------------------------------------------------------------------------------------------------------------------------------
256197748 20000911 5 23,753.39 118.96 23,431.19
-------------------------------------------------------------------------------------------------------------------------------
258024384 20000912 5 31,301.10 108.68 31,118.03
-------------------------------------------------------------------------------------------------------------------------------
256199050 20000913 5 25,210.66 162.02 24,689.06
-------------------------------------------------------------------------------------------------------------------------------
259729965 20000914 5 20,511.93 156.73 19,962.43
-------------------------------------------------------------------------------------------------------------------------------
259023352 20000915 5 25,643.48 195.93 24,956.56
-------------------------------------------------------------------------------------------------------------------------------
253539542 20000916 5 35,184.93 117.20 35,004.08
-------------------------------------------------------------------------------------------------------------------------------
257061690 20000917 5 9,897.24 36.83 9,826.97
-------------------------------------------------------------------------------------------------------------------------------
258964358 20000919 5 21,430.33 154.04 20,904.98
-------------------------------------------------------------------------------------------------------------------------------
257061519 20000920 5 34,278.97 127.91 34,033.82
-------------------------------------------------------------------------------------------------------------------------------
258514456 20000922 5 44,853.69 149.72 44,621.57
-------------------------------------------------------------------------------------------------------------------------------
257849451 20000924 5 20,318.78 155.25 19,774.48
-------------------------------------------------------------------------------------------------------------------------------
256563470 20000925 5 15,652.79 119.58 15,233.57
-------------------------------------------------------------------------------------------------------------------------------
260983933 20000926 5 29,398.24 117.04 29,151.11
-------------------------------------------------------------------------------------------------------------------------------
123587932 20000927 5 44,671.96 152.66 44,422.97
-------------------------------------------------------------------------------------------------------------------------------
260704297 20000928 5 14,119.23 107.94 13,740.69
-------------------------------------------------------------------------------------------------------------------------------
260687875 20000929 5 40,893.85 234.00 40,192.48
-------------------------------------------------------------------------------------------------------------------------------
252377463 20000931 5 48,796.50 179.07 48,462.65
-------------------------------------------------------------------------------------------------------------------------------
265919525 20000933 5 54,600.00 180.42 54,326.64
-------------------------------------------------------------------------------------------------------------------------------
261678716 20000934 1 22,319.25 88.13 22,282.63
-------------------------------------------------------------------------------------------------------------------------------
591122484 20000935 5 31,053.22 168.66 30,565.98
-------------------------------------------------------------------------------------------------------------------------------
302505678 20000936 5 34,898.92 117.47 34,713.40
-------------------------------------------------------------------------------------------------------------------------------
314886418 20000937 5 30,762.22 127.98 30,475.95
-------------------------------------------------------------------------------------------------------------------------------
267430970 20000940 5 27,486.67 97.76 27,314.22
-------------------------------------------------------------------------------------------------------------------------------
267797213 20000942 3 23,409.56 106.51 23,251.73
-------------------------------------------------------------------------------------------------------------------------------
265616143 20000943 4 38,452.00 137.42 38,452.00
-------------------------------------------------------------------------------------------------------------------------------
20000943 4 38,452.00 137.42 37,964.17
-------------------------------------------------------------------------------------------------------------------------------
577647390 20000944 5 30,257.88 102.61 30,093.20
-------------------------------------------------------------------------------------------------------------------------------
20000946 1 39,589.51 187.86 39,493.01
-------------------------------------------------------------------------------------------------------------------------------
514641969 20000947 5 29,639.21 109.36 29,433.45
-------------------------------------------------------------------------------------------------------------------------------
229133984 20000948 5 45,536.36 165.10 45,234.90
-------------------------------------------------------------------------------------------------------------------------------
433432215 20000949 5 35,107.07 132.91 34,846.42
-------------------------------------------------------------------------------------------------------------------------------
258478420 20000950 5 5,693.07 26.75 5,624.70
-------------------------------------------------------------------------------------------------------------------------------
452044244 20000951 5 4,274.20 19.49 4,225.84
-------------------------------------------------------------------------------------------------------------------------------
266699568 20000952 5 53,936.56 181.74 53,648.88
-------------------------------------------------------------------------------------------------------------------------------
361522370 20000953 5 55,018.74 212.76 54,587.79
-------------------------------------------------------------------------------------------------------------------------------
590300223 20000954 5 53,230.00 175.89 52,963.52
-------------------------------------------------------------------------------------------------------------------------------
428396646 20000955 5 34,735.99 127.47 34,498.34
-------------------------------------------------------------------------------------------------------------------------------
420925528 20000957 5 32,915.45 115.78 32,715.42
-------------------------------------------------------------------------------------------------------------------------------
423988329 20000958 5 37,580.93 124.80 37,389.68
-------------------------------------------------------------------------------------------------------------------------------
435620444 20000959 5 18,038.67 77.53 17,858.33
-------------------------------------------------------------------------------------------------------------------------------
264838393 20000960 5 36,235.69 141.23 35,946.31
-------------------------------------------------------------------------------------------------------------------------------
109563142 20000963 5 36,509.35 127.81 36,290.55
-------------------------------------------------------------------------------------------------------------------------------
109561011 20000964 5 36,559.20 130.52 36,327.37
-------------------------------------------------------------------------------------------------------------------------------
264798380 20000965 5 68,812.42 227.83 68,465.67
-------------------------------------------------------------------------------------------------------------------------------
259924927 20000966 5 20,453.81 116.64 20,105.01
-------------------------------------------------------------------------------------------------------------------------------
261415115 20000968 5 38,926.50 132.01 38,714.63
-------------------------------------------------------------------------------------------------------------------------------
|
Attachment to Annex C
-------------------------------------------------------------------------------------------------------------------------------
587336238 20000969 5 57,560.41 194.99 57,248.18
-------------------------------------------------------------------------------------------------------------------------------
593448718 20000970 3 42,624.27 144.86 42,484.46
-------------------------------------------------------------------------------------------------------------------------------
593247648 20000972 5 45,972.64 159.43 45,704.71
-------------------------------------------------------------------------------------------------------------------------------
144724999 20000973 5 39,210.53 139.29 38,965.38
-------------------------------------------------------------------------------------------------------------------------------
267907743 20000974 5 58,999.79 197.96 58,689.32
-------------------------------------------------------------------------------------------------------------------------------
457591263 20000976 5 24,901.20 103.59 24,669.50
-------------------------------------------------------------------------------------------------------------------------------
194581898 20000977 5 30,227.29 119.54 29,977.22
-------------------------------------------------------------------------------------------------------------------------------
416804041 20000978 5 23,309.51 91.00 23,122.61
-------------------------------------------------------------------------------------------------------------------------------
270583987 20000979 5 21,264.63 125.56 20,880.42
-------------------------------------------------------------------------------------------------------------------------------
591542069 20000981 5 32,207.39 109.34 32,031.49
-------------------------------------------------------------------------------------------------------------------------------
261737383 20000982 5 36,832.48 129.56 36,608.65
-------------------------------------------------------------------------------------------------------------------------------
261411750 20000983 5 10,817.33 80.92 10,536.23
-------------------------------------------------------------------------------------------------------------------------------
257493469 20000984 5 42,555.00 151.73 42,286.13
-------------------------------------------------------------------------------------------------------------------------------
257980377 20000986 4 36,839.73 131.03 36,655.04
-------------------------------------------------------------------------------------------------------------------------------
253192030 20000987 5 33,906.42 115.49 33,719.34
-------------------------------------------------------------------------------------------------------------------------------
42621819 20000988 5 21,031.63 160.68 20,468.32
-------------------------------------------------------------------------------------------------------------------------------
253112080 20000989 5 31,388.21 109.11 31,203.98
-------------------------------------------------------------------------------------------------------------------------------
256472031 20000990 5 48,911.20 161.78 48,665.53
-------------------------------------------------------------------------------------------------------------------------------
253258575 20000991 5 18,127.41 138.52 17,641.74
-------------------------------------------------------------------------------------------------------------------------------
258906857 20000992 2 14,029.47 66.42 13,961.31
-------------------------------------------------------------------------------------------------------------------------------
254116789 20000993 5 15,257.87 53.74 15,164.79
-------------------------------------------------------------------------------------------------------------------------------
258596265 20000994 5 27,557.54 98.26 27,383.39
-------------------------------------------------------------------------------------------------------------------------------
221130952 20000995 5 15,589.44 52.31 15,507.39
-------------------------------------------------------------------------------------------------------------------------------
254313018 20000996 5 18,947.76 63.57 18,848.08
-------------------------------------------------------------------------------------------------------------------------------
254888901 20000997 5 51,943.95 177.51 51,654.42
-------------------------------------------------------------------------------------------------------------------------------
252134375 20000998 5 53,566.94 183.26 53,267.34
-------------------------------------------------------------------------------------------------------------------------------
254781695 20001000 5 18,809.55 142.28 18,312.90
-------------------------------------------------------------------------------------------------------------------------------
259042760 20001001 5 20,587.87 157.31 20,036.33
-------------------------------------------------------------------------------------------------------------------------------
258022648 20001002 5 29,822.37 107.85 29,626.32
-------------------------------------------------------------------------------------------------------------------------------
258701019 20001003 5 37,714.77 145.17 37,422.75
-------------------------------------------------------------------------------------------------------------------------------
257926266 20001004 5 29,320.67 222.85 28,541.16
-------------------------------------------------------------------------------------------------------------------------------
262952256 20001005 5 20,580.20 101.43 20,309.26
-------------------------------------------------------------------------------------------------------------------------------
264259984 20001006 5 17,975.11 133.79 17,511.43
-------------------------------------------------------------------------------------------------------------------------------
263338161 20001007 5 19,380.92 69.46 19,256.68
-------------------------------------------------------------------------------------------------------------------------------
264779569 20001009 5 17,769.83 117.60 17,385.10
-------------------------------------------------------------------------------------------------------------------------------
590861656 20001010 5 54,532.98 191.59 54,202.74
-------------------------------------------------------------------------------------------------------------------------------
247335342 20001011 5 72,612.11 247.86 72,208.79
-------------------------------------------------------------------------------------------------------------------------------
263210261 20001013 5 31,338.39 109.71 31,150.57
-------------------------------------------------------------------------------------------------------------------------------
264753536 20001014 5 50,712.77 176.90 50,412.03
-------------------------------------------------------------------------------------------------------------------------------
227949773 20001015 5 5,035.76 23.01 4,978.55
-------------------------------------------------------------------------------------------------------------------------------
249430873 20001221 3 36,040.00 119.09 35,931.99
-------------------------------------------------------------------------------------------------------------------------------
258835175 20001222 3 39,940.00 131.97 39,820.33
-------------------------------------------------------------------------------------------------------------------------------
255254513 20001226 5 31,938.14 105.64 31,777.72
-------------------------------------------------------------------------------------------------------------------------------
291768311 20001228 5 30,450.00 100.62 30,297.55
-------------------------------------------------------------------------------------------------------------------------------
267792486 20001229 5 37,060.00 122.46 36,874.46
-------------------------------------------------------------------------------------------------------------------------------
253272310 20001231 5 34,560.00 114.20 34,386.97
-------------------------------------------------------------------------------------------------------------------------------
592207621 20001232 5 20,629.42 68.23 20,525.83
-------------------------------------------------------------------------------------------------------------------------------
256357954 20001272 0 31,910.00 105.44 31,910.00
-------------------------------------------------------------------------------------------------------------------------------
418920450 20001020 5 32,787.80 140.64 32,461.40
-------------------------------------------------------------------------------------------------------------------------------
424316186 20001022 5 29,689.31 102.96 29,516.26
-------------------------------------------------------------------------------------------------------------------------------
|
Attachment to Annex C
-------------------------------------------------------------------------------------------------------------------------------
424232314 20001024 5 36,357.13 129.64 36,127.38
-------------------------------------------------------------------------------------------------------------------------------
419275950 20001025 5 32,923.51 113.14 32,736.84
-------------------------------------------------------------------------------------------------------------------------------
423800832 20001026 5 40,093.02 191.18 39,597.45
-------------------------------------------------------------------------------------------------------------------------------
421179334 20001028 5 37,172.97 123.45 36,983.77
-------------------------------------------------------------------------------------------------------------------------------
417111705 20001030 5 47,476.49 168.02 47,182.85
-------------------------------------------------------------------------------------------------------------------------------
422021988 20001032 5 21,966.54 102.75 21,705.04
-------------------------------------------------------------------------------------------------------------------------------
424806807 20001033 5 25,032.57 144.72 24,595.80
-------------------------------------------------------------------------------------------------------------------------------
419709985 20001034 5 39,125.32 169.51 38,727.39
-------------------------------------------------------------------------------------------------------------------------------
422868048 20001035 5 10,734.68 128.41 10,214.08
-------------------------------------------------------------------------------------------------------------------------------
587088348 20001036 5 3,793.83 19.99 3,737.40
-------------------------------------------------------------------------------------------------------------------------------
421784669 20001037 5 20,393.39 99.73 20,128.83
-------------------------------------------------------------------------------------------------------------------------------
416138274 20001038 5 28,168.78 137.39 27,805.18
-------------------------------------------------------------------------------------------------------------------------------
421210260 20001039 5 36,796.03 154.81 36,444.93
-------------------------------------------------------------------------------------------------------------------------------
428117566 20001040 5 41,942.89 140.73 41,722.18
-------------------------------------------------------------------------------------------------------------------------------
421132706 20001041 5 23,933.06 143.94 23,487.46
-------------------------------------------------------------------------------------------------------------------------------
427350088 20001042 5 34,752.86 123.45 34,535.61
-------------------------------------------------------------------------------------------------------------------------------
587534029 20001044 5 15,248.15 62.74 15,109.75
-------------------------------------------------------------------------------------------------------------------------------
461797749 20001045 5 49,861.60 174.55 49,562.80
-------------------------------------------------------------------------------------------------------------------------------
587422097 20001047 5 9,703.32 99.97 9,313.62
-------------------------------------------------------------------------------------------------------------------------------
427619436 20001049 5 37,375.33 134.81 37,131.41
-------------------------------------------------------------------------------------------------------------------------------
428572774 20001050 5 32,766.33 126.51 32,510.67
-------------------------------------------------------------------------------------------------------------------------------
427239306 20001052 5 25,014.72 86.35 24,870.94
-------------------------------------------------------------------------------------------------------------------------------
425434750 20001053 5 53,235.17 178.99 52,953.17
-------------------------------------------------------------------------------------------------------------------------------
426492291 20001054 5 40,665.86 136.73 40,450.45
-------------------------------------------------------------------------------------------------------------------------------
425353120 20001055 5 8,410.37 33.94 8,337.38
-------------------------------------------------------------------------------------------------------------------------------
425112954 20001056 5 47,800.56 160.72 47,547.34
-------------------------------------------------------------------------------------------------------------------------------
428191845 20001059 5 40,100.58 136.73 39,878.61
-------------------------------------------------------------------------------------------------------------------------------
427179111 20001060 5 22,574.70 93.05 22,368.99
-------------------------------------------------------------------------------------------------------------------------------
428516381 20001062 5 33,459.03 120.84 33,239.88
-------------------------------------------------------------------------------------------------------------------------------
421726352 20001063 5 31,427.18 107.16 31,253.18
-------------------------------------------------------------------------------------------------------------------------------
424046930 20001064 5 25,923.96 95.92 25,742.64
-------------------------------------------------------------------------------------------------------------------------------
463137961 20001066 5 47,517.40 172.29 47,202.79
-------------------------------------------------------------------------------------------------------------------------------
553358576 20001067 5 29,942.98 113.20 29,721.46
-------------------------------------------------------------------------------------------------------------------------------
421728829 20001068 5 36,652.20 134.68 36,400.55
-------------------------------------------------------------------------------------------------------------------------------
423198320 20001069 5 28,210.44 100.09 28,034.69
-------------------------------------------------------------------------------------------------------------------------------
421159792 20001070 5 43,631.26 147.80 43,394.61
-------------------------------------------------------------------------------------------------------------------------------
416133186 20001071 5 48,492.10 165.71 48,221.84
-------------------------------------------------------------------------------------------------------------------------------
424628502 20001074 5 2,690.16 43.98 2,500.43
-------------------------------------------------------------------------------------------------------------------------------
424154709 20001075 5 43,988.99 194.16 43,523.62
-------------------------------------------------------------------------------------------------------------------------------
418212680 20001077 5 45,715.30 158.54 45,448.86
-------------------------------------------------------------------------------------------------------------------------------
419317933 20001079 5 32,434.91 110.60 32,255.33
-------------------------------------------------------------------------------------------------------------------------------
419046416 20001080 5 29,456.00 125.37 29,167.70
-------------------------------------------------------------------------------------------------------------------------------
230923942 20001081 2 32,818.69 113.04 32,744.00
-------------------------------------------------------------------------------------------------------------------------------
419908600 20001082 5 23,026.08 89.74 22,842.22
-------------------------------------------------------------------------------------------------------------------------------
421903548 20001083 5 23,226.72 85.12 23,068.39
-------------------------------------------------------------------------------------------------------------------------------
421277553 20001085 5 35,449.33 119.32 35,260.90
-------------------------------------------------------------------------------------------------------------------------------
423907638 20001086 5 36,740.76 140.77 36,459.56
-------------------------------------------------------------------------------------------------------------------------------
419968932 20001093 5 33,372.75 155.63 32,977.85
-------------------------------------------------------------------------------------------------------------------------------
418089183 20001094 5 18,327.76 138.83 17,842.85
-------------------------------------------------------------------------------------------------------------------------------
418607150 20001096 5 26,165.79 96.82 25,982.76
-------------------------------------------------------------------------------------------------------------------------------
|
Attachment to Annex C
-------------------------------------------------------------------------------------------------------------------------------
424902645 20001097 5 49,299.97 228.44 48,723.96
-------------------------------------------------------------------------------------------------------------------------------
422134438 20001098 5 56,462.36 203.39 56,095.21
-------------------------------------------------------------------------------------------------------------------------------
184564360 20001100 5 52,548.80 203.22 52,137.15
-------------------------------------------------------------------------------------------------------------------------------
422886316 20001101 5 48,814.25 190.87 48,421.34
-------------------------------------------------------------------------------------------------------------------------------
416296658 20001103 5 28,469.92 116.99 28,212.27
-------------------------------------------------------------------------------------------------------------------------------
416928484 20001104 5 16,868.43 101.44 16,554.42
-------------------------------------------------------------------------------------------------------------------------------
419966105 20001107 5 44,750.36 174.70 44,391.56
-------------------------------------------------------------------------------------------------------------------------------
422904225 20001109 5 33,622.56 128.83 33,365.18
-------------------------------------------------------------------------------------------------------------------------------
422961949 20001110 5 45,967.92 176.67 45,613.34
-------------------------------------------------------------------------------------------------------------------------------
420902458 20001112 5 43,069.83 165.02 42,740.17
-------------------------------------------------------------------------------------------------------------------------------
405644277 20001113 5 32,311.69 124.95 32,058.61
-------------------------------------------------------------------------------------------------------------------------------
424089436 20001114 5 22,976.59 139.74 22,540.99
-------------------------------------------------------------------------------------------------------------------------------
421843175 20001115 5 35,384.17 118.72 35,197.99
-------------------------------------------------------------------------------------------------------------------------------
419587591 20001116 5 40,195.52 174.51 39,784.87
-------------------------------------------------------------------------------------------------------------------------------
424909704 20001118 5 37,362.04 128.54 37,149.46
-------------------------------------------------------------------------------------------------------------------------------
422905815 20001119 5 33,620.11 149.65 33,258.13
-------------------------------------------------------------------------------------------------------------------------------
426259934 20001122 5 45,246.69 152.30 45,006.16
-------------------------------------------------------------------------------------------------------------------------------
416661005 20001123 5 32,836.69 127.58 32,576.49
-------------------------------------------------------------------------------------------------------------------------------
416662199 20001124 5 11,476.22 90.60 11,154.16
-------------------------------------------------------------------------------------------------------------------------------
420215509 20001125 5 39,268.24 132.17 39,059.52
-------------------------------------------------------------------------------------------------------------------------------
424179298 20001126 5 40,732.24 170.72 40,346.86
-------------------------------------------------------------------------------------------------------------------------------
252477496 20001127 5 36,992.11 141.09 36,712.21
-------------------------------------------------------------------------------------------------------------------------------
418170159 20001128 5 40,119.82 166.90 39,746.52
-------------------------------------------------------------------------------------------------------------------------------
421063980 20001129 5 30,981.57 123.97 30,717.99
-------------------------------------------------------------------------------------------------------------------------------
283461052 20001130 5 37,610.07 139.94 37,343.10
-------------------------------------------------------------------------------------------------------------------------------
302785217 20001132 5 63,842.25 214.66 63,504.04
-------------------------------------------------------------------------------------------------------------------------------
56427652 20001133 5 56,379.82 189.57 56,081.14
-------------------------------------------------------------------------------------------------------------------------------
421987368 20001134 5 47,861.86 216.80 47,327.66
-------------------------------------------------------------------------------------------------------------------------------
420046330 20001135 5 53,881.31 180.98 53,596.81
-------------------------------------------------------------------------------------------------------------------------------
424904090 20001137 5 39,684.62 155.92 39,361.42
-------------------------------------------------------------------------------------------------------------------------------
416215701 20001138 5 28,878.05 102.20 28,699.44
-------------------------------------------------------------------------------------------------------------------------------
419904794 20001139 5 24,014.73 100.28 23,789.39
-------------------------------------------------------------------------------------------------------------------------------
420701727 20001140 5 18,800.25 64.10 18,696.20
-------------------------------------------------------------------------------------------------------------------------------
412413528 20001141 5 27,903.96 108.42 27,682.81
-------------------------------------------------------------------------------------------------------------------------------
424861021 20001142 5 40,875.63 139.38 40,649.33
-------------------------------------------------------------------------------------------------------------------------------
418505477 20001143 5 41,806.02 142.55 41,574.59
-------------------------------------------------------------------------------------------------------------------------------
423922901 20001144 5 20,937.17 130.32 20,525.27
-------------------------------------------------------------------------------------------------------------------------------
424848369 20001145 5 24,931.32 91.36 24,761.41
-------------------------------------------------------------------------------------------------------------------------------
408720180 20001148 5 30,662.95 138.29 30,323.75
-------------------------------------------------------------------------------------------------------------------------------
417118472 20001149 5 58,367.59 199.02 58,044.48
-------------------------------------------------------------------------------------------------------------------------------
417546746 20001150 5 16,281.17 67.60 16,130.32
-------------------------------------------------------------------------------------------------------------------------------
342561951 20001151 5 52,897.63 177.67 52,618.35
-------------------------------------------------------------------------------------------------------------------------------
425195877 20001153 5 58,599.32 200.47 58,271.62
-------------------------------------------------------------------------------------------------------------------------------
575291860 20001154 5 37,163.52 144.17 36,870.13
-------------------------------------------------------------------------------------------------------------------------------
420130313 20001155 5 38,772.72 132.21 38,558.07
-------------------------------------------------------------------------------------------------------------------------------
550119960 20001156 5 28,734.94 119.98 28,465.35
-------------------------------------------------------------------------------------------------------------------------------
422085070 20001157 5 39,203.54 135.18 38,978.96
-------------------------------------------------------------------------------------------------------------------------------
421270971 20001158 5 28,370.23 98.96 28,202.01
-------------------------------------------------------------------------------------------------------------------------------
423885654 20001159 5 1,706.27 60.35 1,422.92
-------------------------------------------------------------------------------------------------------------------------------
423338083 20001160 5 28,726.64 97.31 28,570.84
-------------------------------------------------------------------------------------------------------------------------------
|
Attachment to Annex C
------------------------------------------------------------------------------------------------------------------
418923861 20001161 5 33,961.14 122.02 33,741.89
------------------------------------------------------------------------------------------------------------------
424947094 20001162 5 35,166.61 136.63 34,887.95
------------------------------------------------------------------------------------------------------------------
265191983 20001163 5 28,422.67 98.01 28,259.83
------------------------------------------------------------------------------------------------------------------
416927756 20001164 5 37,915.55 140.49 37,649.37
------------------------------------------------------------------------------------------------------------------
127609396 20001165 5 40,531.96 156.21 40,217.15
------------------------------------------------------------------------------------------------------------------
416841534 20001167 5 39,365.93 152.00 39,058.73
------------------------------------------------------------------------------------------------------------------
419258145 20001168 5 37,303.23 150.87 36,977.81
------------------------------------------------------------------------------------------------------------------
417195675 20001169 5 28,498.46 125.78 28,197.01
------------------------------------------------------------------------------------------------------------------
422900655 20001170 5 42,046.59 173.95 41,660.22
------------------------------------------------------------------------------------------------------------------
423580003 20001171 5 38,812.27 141.09 38,553.47
------------------------------------------------------------------------------------------------------------------
263516518 20001172 5 32,539.92 124.87 32,289.88
------------------------------------------------------------------------------------------------------------------
417085864 20001173 5 41,149.50 175.13 40,746.80
------------------------------------------------------------------------------------------------------------------
421133339 20001175 5 22,167.80 172.13 21,560.15
------------------------------------------------------------------------------------------------------------------
417235596 20001176 5 25,130.46 91.00 25,031.21
------------------------------------------------------------------------------------------------------------------
417235596 20001176 5 30,031.21 2.54 29,951.38
------------------------------------------------------------------------------------------------------------------
418966729 20001177 5 38,958.99 131.97 38,747.70
------------------------------------------------------------------------------------------------------------------
423826374 20001179 5 43,402.20 155.34 43,125.02
------------------------------------------------------------------------------------------------------------------
418905900 20001180 5 39,756.73 133.39 39,547.55
------------------------------------------------------------------------------------------------------------------
256135210 20001181 5 53,438.50 180.25 53,152.53
------------------------------------------------------------------------------------------------------------------
418115846 20001184 5 34,030.73 155.53 33,643.97
------------------------------------------------------------------------------------------------------------------
420901287 20001186 5 38,890.42 141.75 38,629.22
------------------------------------------------------------------------------------------------------------------
419929188 20001187 5 42,729.62 143.67 42,503.26
------------------------------------------------------------------------------------------------------------------
422351772 20001188 5 37,928.32 138.43 37,775.26
------------------------------------------------------------------------------------------------------------------
422351772 20001188 5 44,571.88 147.28 44,482.94
------------------------------------------------------------------------------------------------------------------
416170794 20001190 5 55,950.66 216.71 55,510.68
------------------------------------------------------------------------------------------------------------------
419968773 20001191 5 28,704.12 105.77 28,505.56
------------------------------------------------------------------------------------------------------------------
417087046 20001192 5 33,361.56 113.63 33,177.50
------------------------------------------------------------------------------------------------------------------
418271092 20001193 5 28,346.93 99.71 28,174.68
------------------------------------------------------------------------------------------------------------------
416274983 20001195 5 25,846.80 164.75 25,318.85
------------------------------------------------------------------------------------------------------------------
420566624 20000000 42 23,804.20 140.86 20,019.17
------------------------------------------------------------------------------------------------------------------
423820769 20000001 41 8,563.78 50.93 8,312.42
------------------------------------------------------------------------------------------------------------------
423820769 20000001 41 41,837.42 107.88 36,410.75
------------------------------------------------------------------------------------------------------------------
223214607 20000002 42 22,737.04 135.20 19,092.85
------------------------------------------------------------------------------------------------------------------
417500379 20000003 42 27,723.15 164.40 23,299.54
------------------------------------------------------------------------------------------------------------------
418843059 20000004 42 19,775.74 117.63 16,604.50
------------------------------------------------------------------------------------------------------------------
420046341 20000005 42 25,249.96 86.67 23,998.93
------------------------------------------------------------------------------------------------------------------
419963317 20000007 42 19,746.56 117.45 16,580.24
------------------------------------------------------------------------------------------------------------------
424923292 20000008 42 37,789.36 206.87 32,518.25
------------------------------------------------------------------------------------------------------------------
340588376 20000009 42 15,790.56 93.92 13,258.57
------------------------------------------------------------------------------------------------------------------
420191502 20000010 42 21,673.90 129.01 18,194.31
------------------------------------------------------------------------------------------------------------------
422765386 20000011 41 35,420.91 111.91 30,857.06
------------------------------------------------------------------------------------------------------------------
422765386 20000011 41 24,754.87 146.15 24,036.91
------------------------------------------------------------------------------------------------------------------
212600053 20000012 42 25,359.62 150.85 21,292.61
------------------------------------------------------------------------------------------------------------------
419809701 20000013 42 22,862.35 135.98 19,196.51
------------------------------------------------------------------------------------------------------------------
417279251 20000014 42 29,839.35 178.44 25,012.41
------------------------------------------------------------------------------------------------------------------
416029228 20000016 42 39,092.00 136.80 37,039.87
------------------------------------------------------------------------------------------------------------------
420765334 20000017 42 18,938.51 112.66 15,901.07
------------------------------------------------------------------------------------------------------------------
420587775 20000018 42 16,387.28 97.46 13,760.06
------------------------------------------------------------------------------------------------------------------
420944388 20000019 42 26,694.64 112.09 24,470.74
------------------------------------------------------------------------------------------------------------------
423114364 20000022 50 69,131.00 228.43 66,993.42
------------------------------------------------------------------------------------------------------------------
|
Attachment to Annex C
------------------------------------------------------------------------------------------------------------------
423114364 20000022 50 53,895.55 181.41 52,729.48
------------------------------------------------------------------------------------------------------------------
421061075 20000023 42 42,253.23 164.95 39,282.45
------------------------------------------------------------------------------------------------------------------
416785055 20000024 42 33,012.20 196.37 27,717.98
------------------------------------------------------------------------------------------------------------------
417089007 20000025 42 34,718.75 152.29 31,539.76
------------------------------------------------------------------------------------------------------------------
423886435 20000026 42 24,361.37 144.90 20,455.00
------------------------------------------------------------------------------------------------------------------
421290883 20000027 42 37,563.96 127.25 35,777.16
------------------------------------------------------------------------------------------------------------------
417989652 20000028 42 28,876.28 130.51 26,062.75
------------------------------------------------------------------------------------------------------------------
423961079 20000029 20 22,409.53 84.31 21,743.12
------------------------------------------------------------------------------------------------------------------
258961829 20000030 42 24,691.13 146.88 20,731.11
------------------------------------------------------------------------------------------------------------------
421740136 20000031 42 20,423.28 121.47 17,148.66
------------------------------------------------------------------------------------------------------------------
416589728 20000032 42 28,100.20 167.15 23,593.81
------------------------------------------------------------------------------------------------------------------
421881699 20000033 22 24,041.83 142.99 0.00
------------------------------------------------------------------------------------------------------------------
420547978 20000034 42 17,305.58 102.94 14,530.31
------------------------------------------------------------------------------------------------------------------
20000035 42 27,423.71 176.00 24,882.98
------------------------------------------------------------------------------------------------------------------
423808669 20000035 42 15,306.34 91.03 14,167.44
------------------------------------------------------------------------------------------------------------------
420867259 20000036 42 13,786.77 82.01 12,760.58
------------------------------------------------------------------------------------------------------------------
420867259 20000036 42 22,080.00 141.50 20,038.97
------------------------------------------------------------------------------------------------------------------
255334836 20000037 42 25,249.75 85.35 24,056.84
------------------------------------------------------------------------------------------------------------------
424689981 20000038 42 39,222.16 132.87 37,356.35
------------------------------------------------------------------------------------------------------------------
252393788 20000039 42 43,564.07 146.02 41,560.38
------------------------------------------------------------------------------------------------------------------
417883921 20000040 42 43,344.43 243.29 37,033.76
------------------------------------------------------------------------------------------------------------------
420158427 20000041 42 47,744.76 196.10 572.54-
------------------------------------------------------------------------------------------------------------------
423482102 20000043 42 27,460.17 163.33 23,056.98
------------------------------------------------------------------------------------------------------------------
257664755 20000044 42 16,938.78 100.76 14,222.23
------------------------------------------------------------------------------------------------------------------
419665496 20000045 42 19,428.56 115.57 16,312.75
------------------------------------------------------------------------------------------------------------------
253046628 20000048 42 19,532.10 116.17 16,400.36
------------------------------------------------------------------------------------------------------------------
417588101 20000049 42 36,103.48 126.39 34,206.12
------------------------------------------------------------------------------------------------------------------
253278946 20000050 42 32,415.65 115.58 30,619.58
------------------------------------------------------------------------------------------------------------------
424945201 20000051 42 20,422.22 83.88 83.88-
------------------------------------------------------------------------------------------------------------------
258650338 20000053 42 18,004.59 76.93 460.79-
------------------------------------------------------------------------------------------------------------------
260211462 20000054 42 20,518.38 69.36 19,548.88
------------------------------------------------------------------------------------------------------------------
416849375 20000055 42 48,837.69 168.02 46,400.99
------------------------------------------------------------------------------------------------------------------
258686829 20000056 42 37,376.14 219.15 31,522.08
------------------------------------------------------------------------------------------------------------------
254026799 20000057 42 16,309.56 97.02 13,693.78
------------------------------------------------------------------------------------------------------------------
254966008 20000058 42 21,923.58 130.40 18,408.11
------------------------------------------------------------------------------------------------------------------
257351222 20000060 42 36,418.50 188.02 31,838.37
------------------------------------------------------------------------------------------------------------------
541904561 20000062 42 28,031.69 102.59 26,362.15
------------------------------------------------------------------------------------------------------------------
416946145 20000063 42 12,761.87 75.91 10,715.36
------------------------------------------------------------------------------------------------------------------
254697889 20000066 41 26,965.58 55.14 26,186.50
------------------------------------------------------------------------------------------------------------------
254697889 20000066 41 19,546.11 67.47 19,135.58
------------------------------------------------------------------------------------------------------------------
260596374 20000068 20 28,412.57 103.42 27,638.72
------------------------------------------------------------------------------------------------------------------
254020818 20000069 42 20,976.61 124.77 17,612.88
------------------------------------------------------------------------------------------------------------------
254845589 20000070 42 28,426.61 169.08 23,868.40
------------------------------------------------------------------------------------------------------------------
419213994 20000079 20 24,795.47 82.18 24,285.17
------------------------------------------------------------------------------------------------------------------
590051939 20000080 42 45,573.01 151.04 43,552.40
------------------------------------------------------------------------------------------------------------------
424218244 20000085 42 21,473.74 71.24 20,518.50
------------------------------------------------------------------------------------------------------------------
417138403 20000090 42 26,694.64 149.09 22,840.88
------------------------------------------------------------------------------------------------------------------
416949039 20000092 40 36,340.00 120.08 34,824.15
------------------------------------------------------------------------------------------------------------------
254512657 20000100 14 58,620.00 193.70 57,789.71
------------------------------------------------------------------------------------------------------------------
416024649 20000299 32 33,310.00 110.07 32,208.67
------------------------------------------------------------------------------------------------------------------
|
Attachment to Annex C
------------------------------------------------------------------------------------------------------------------
423114308 20000315 30 54,900.00 181.41 53,202.36
------------------------------------------------------------------------------------------------------------------
20000320 29 24,870.00 82.18 24,127.43
------------------------------------------------------------------------------------------------------------------
426339416 20000324 28 38,340.00 126.69 37,236.04
------------------------------------------------------------------------------------------------------------------
420842719 20000365 24 42,620.00 140.83 41,573.03
------------------------------------------------------------------------------------------------------------------
418155766 20000400 19 32,350.00 106.89 31,728.28
------------------------------------------------------------------------------------------------------------------
234178650 20000811 2 25,790.00 85.22 25,738.54
------------------------------------------------------------------------------------------------------------------
259597535 20001224 1 44,040.00 145.52 43,996.11
------------------------------------------------------------------------------------------------------------------
266675027 20000405 17 41,008.31 142.22 40,184.24
------------------------------------------------------------------------------------------------------------------
262908342 20000406 17 23,986.39 136.34 22,583.90
------------------------------------------------------------------------------------------------------------------
590528555 20000407 17 43,512.33 148.86 43,121.61
------------------------------------------------------------------------------------------------------------------
590528555 20000407 17 26,050.00 86.08 25,814.16
------------------------------------------------------------------------------------------------------------------
428119813 20000408 1 48,565.40 162.27 48,515.20
------------------------------------------------------------------------------------------------------------------
315429194 20000410 34 52,556.15 182.27 51,500.01
------------------------------------------------------------------------------------------------------------------
592096008 20000410 34 42,103.06 142.78 41,313.06
------------------------------------------------------------------------------------------------------------------
266645896 20000411 17 22,546.02 116.73 21,425.57
------------------------------------------------------------------------------------------------------------------
262257292 20000414 17 19,541.55 135.25 17,980.31
------------------------------------------------------------------------------------------------------------------
265040700 20000415 17 47,052.83 165.51 46,067.01
------------------------------------------------------------------------------------------------------------------
592507028 20000417 17 23,596.39 81.09 23,135.11
------------------------------------------------------------------------------------------------------------------
595380821 20000420 17 43,056.43 158.87 42,025.87
------------------------------------------------------------------------------------------------------------------
263887668 20000422 17 18,035.67 123.11 16,624.49
------------------------------------------------------------------------------------------------------------------
593099614 20000423 17 42,000.73 141.82 41,223.26
------------------------------------------------------------------------------------------------------------------
589182219 20000424 17 36,927.35 132.34 36,111.31
------------------------------------------------------------------------------------------------------------------
266814361 20000426 17 19,103.02 129.83 17,618.12
------------------------------------------------------------------------------------------------------------------
266043464 20000427 17 22,653.53 153.95 20,892.83
------------------------------------------------------------------------------------------------------------------
227589919 20000428 17 13,259.18 83.83 12,337.36
------------------------------------------------------------------------------------------------------------------
262972605 20000429 17 20,142.19 171.66 17,974.41
------------------------------------------------------------------------------------------------------------------
592426613 20000430 17 9,361.37 64.76 8,613.97
------------------------------------------------------------------------------------------------------------------
589224896 20000431 17 49,834.77 166.17 48,948.70
------------------------------------------------------------------------------------------------------------------
263674751 20000432 15 52,262.97 184.29 51,292.14
------------------------------------------------------------------------------------------------------------------
267084184 20000433 17 28,842.49 199.59 26,538.75
------------------------------------------------------------------------------------------------------------------
551702125 20000435 17 28,495.95 106.94 27,782.82
------------------------------------------------------------------------------------------------------------------
261847309 20000436 17 13,966.37 96.65 12,850.76
------------------------------------------------------------------------------------------------------------------
38281016 20000437 17 19,637.58 135.91 18,068.76
------------------------------------------------------------------------------------------------------------------
166484262 20000439 17 32,362.26 112.10 31,714.29
------------------------------------------------------------------------------------------------------------------
590146718 20000442 17 32,717.36 108.22 32,150.76
------------------------------------------------------------------------------------------------------------------
595264869 20000443 17 17,185.22 81.75 16,456.31
------------------------------------------------------------------------------------------------------------------
257825034 20000444 17 26,390.15 99.33 25,724.65
------------------------------------------------------------------------------------------------------------------
403522236 20000445 17 12,313.63 85.22 11,329.94
------------------------------------------------------------------------------------------------------------------
266608587 20000446 17 27,033.03 187.07 24,873.79
------------------------------------------------------------------------------------------------------------------
261638284 20000447 17 14,498.79 62.95 13,988.07
------------------------------------------------------------------------------------------------------------------
233982842 20000448 17 30,219.38 121.53 29,322.47
------------------------------------------------------------------------------------------------------------------
267858624 20000449 17 33,626.46 111.22 33,044.26
------------------------------------------------------------------------------------------------------------------
593287217 20000450 17 60,239.54 199.45 59,192.96
------------------------------------------------------------------------------------------------------------------
592644193 20000451 17 30,870.00 102.00 30,337.30
------------------------------------------------------------------------------------------------------------------
263499162 20000453 17 33,347.86 119.05 32,618.93
------------------------------------------------------------------------------------------------------------------
389482118 20000454 17 17,913.50 123.94 16,483.07
------------------------------------------------------------------------------------------------------------------
425252070 20000455 17 38,923.69 137.93 38,090.61
------------------------------------------------------------------------------------------------------------------
150485675 20000456 17 53,559.23 181.04 52,564.48
------------------------------------------------------------------------------------------------------------------
262794202 20000457 17 16,391.76 113.43 15,082.52
------------------------------------------------------------------------------------------------------------------
590037879 20000458 17 25,039.82 86.74 24,538.38
------------------------------------------------------------------------------------------------------------------
|
Attachment to Annex C
------------------------------------------------------------------------------------------------------------------
263980045 20000460 17 21,868.13 151.34 20,121.26
------------------------------------------------------------------------------------------------------------------
591525469 20000461 1 32,375.30 111.26 32,338.75
------------------------------------------------------------------------------------------------------------------
592260884 20000462 17 26,363.96 91.43 25,834.22
------------------------------------------------------------------------------------------------------------------
267838009 20000464 17 39,773.95 132.90 39,061.97
------------------------------------------------------------------------------------------------------------------
436986465 20000465 17 28,055.81 103.09 27,391.77
------------------------------------------------------------------------------------------------------------------
266549108 20000466 17 25,389.51 89.74 24,850.10
------------------------------------------------------------------------------------------------------------------
258552635 20000467 17 13,702.04 57.43 13,255.08
------------------------------------------------------------------------------------------------------------------
252330297 20000468 17 23,266.02 78.48 22,836.74
------------------------------------------------------------------------------------------------------------------
252330046 20000469 17 15,728.54 52.08 15,455.21
------------------------------------------------------------------------------------------------------------------
262962438 20000470 17 26,970.99 91.46 26,464.98
------------------------------------------------------------------------------------------------------------------
304644569 20000471 17 15,894.98 66.61 15,376.65
------------------------------------------------------------------------------------------------------------------
259251749 20000472 17 29,337.13 100.81 28,763.77
------------------------------------------------------------------------------------------------------------------
118446055 20000473 16 24,004.60 80.97 23,588.28
------------------------------------------------------------------------------------------------------------------
408820100 20000475 17 10,744.43 39.32 10,627.28
------------------------------------------------------------------------------------------------------------------
408820100 20000475 17 2,617.00 9.68 2,583.93
------------------------------------------------------------------------------------------------------------------
20000477 17 20,147.86 68.40 19,768.51
------------------------------------------------------------------------------------------------------------------
256455580 20000478 17 21,080.89 88.36 20,393.19
------------------------------------------------------------------------------------------------------------------
260905120 20000480 17 25,664.39 84.89 25,219.98
------------------------------------------------------------------------------------------------------------------
257315283 20000481 17 44,497.22 157.48 43,548.34
------------------------------------------------------------------------------------------------------------------
252413555 20000483 7 24,869.59 83.80 24,683.45
------------------------------------------------------------------------------------------------------------------
258533234 20000484 12 62,717.05 209.13 61,934.39
------------------------------------------------------------------------------------------------------------------
251230458 20000486 11 25,153.69 89.92 24,799.01
------------------------------------------------------------------------------------------------------------------
258021739 20000488 17 31,596.58 108.58 30,978.98
------------------------------------------------------------------------------------------------------------------
258332091 20000489 17 22,096.57 75.93 21,664.69
------------------------------------------------------------------------------------------------------------------
263699932 20000491 17 37,430.37 137.54 36,544.38
------------------------------------------------------------------------------------------------------------------
595180019 20000492 17 51,561.80 181.37 50,481.52
------------------------------------------------------------------------------------------------------------------
261293803 20000493 17 15,726.26 108.33 14,478.74
------------------------------------------------------------------------------------------------------------------
590204985 20000495 17 40,925.08 143.44 40,076.57
------------------------------------------------------------------------------------------------------------------
520115175 20000496 17 25,161.67 103.16 24,380.75
------------------------------------------------------------------------------------------------------------------
595242987 20000497 17 23,953.15 99.28 23,191.12
------------------------------------------------------------------------------------------------------------------
591663340 20000498 2 46,628.32 157.62 46,528.17
------------------------------------------------------------------------------------------------------------------
266355899 20000501 7 47,150.00 241.36 46,215.69
------------------------------------------------------------------------------------------------------------------
266351539 20000502 17 44,854.25 168.09 43,735.88
------------------------------------------------------------------------------------------------------------------
267254905 20000505 6 42,668.98 145.01 42,388.11
------------------------------------------------------------------------------------------------------------------
266688454 20000506 17 19,856.21 137.39 18,270.48
------------------------------------------------------------------------------------------------------------------
225906153 20000507 17 39,472.94 169.31 38,118.40
------------------------------------------------------------------------------------------------------------------
318401074 20000508 17 20,787.08 98.63 19,909.79
------------------------------------------------------------------------------------------------------------------
589160896 20000509 17 14,350.67 86.31 13,429.51
------------------------------------------------------------------------------------------------------------------
342463710 20000510 1 32,301.62 147.64 32,228.52
------------------------------------------------------------------------------------------------------------------
133484262 20000514 17 39,896.76 135.44 39,145.70
------------------------------------------------------------------------------------------------------------------
592942707 20000517 17 35,206.31 119.78 34,539.01
------------------------------------------------------------------------------------------------------------------
80624665 20000518 17 41,534.36 142.25 40,730.83
------------------------------------------------------------------------------------------------------------------
489401056 20000519 17 34,730.48 116.05 34,108.73
------------------------------------------------------------------------------------------------------------------
591208419 20000520 17 37,988.60 128.27 37,285.45
------------------------------------------------------------------------------------------------------------------
589222409 20000521 17 45,481.03 166.45 44,416.12
------------------------------------------------------------------------------------------------------------------
94383735 20000522 17 20,937.63 85.85 20,287.68
------------------------------------------------------------------------------------------------------------------
261657937 20000524 17 17,656.13 114.41 16,380.43
------------------------------------------------------------------------------------------------------------------
590685093 20000525 17 34,208.30 128.57 33,348.88
------------------------------------------------------------------------------------------------------------------
590567020 20000526 6 32,750.88 117.07 32,500.49
------------------------------------------------------------------------------------------------------------------
589097362 20000527 17 30,442.90 104.61 29,847.88
------------------------------------------------------------------------------------------------------------------
|
Attachment to Annex C
------------------------------------------------------------------------------------------------------------------
316383816 20000528 17 14,833.36 55.83 14,459.32
------------------------------------------------------------------------------------------------------------------
369901381 20000529 17 34,014.41 128.97 33,140.32
------------------------------------------------------------------------------------------------------------------
591034728 20000530 17 32,202.56 121.20 31,390.61
------------------------------------------------------------------------------------------------------------------
125527275 20000531 17 38,951.87 162.95 37,686.63
------------------------------------------------------------------------------------------------------------------
266882601 20000532 17 17,390.99 118.20 16,039.06
------------------------------------------------------------------------------------------------------------------
400968988 20000533 17 17,010.94 115.59 15,689.04
------------------------------------------------------------------------------------------------------------------
594337990 20000534 17 18,057.28 119.52 16,709.13
------------------------------------------------------------------------------------------------------------------
408045384 20000535 17 39,724.56 132.73 39,013.54
------------------------------------------------------------------------------------------------------------------
236299900 20000536 17 27,772.98 98.17 27,182.85
------------------------------------------------------------------------------------------------------------------
41703194 20000538 17 34,435.94 120.41 33,726.93
------------------------------------------------------------------------------------------------------------------
282582396 20000539 17 33,095.05 116.84 32,394.27
------------------------------------------------------------------------------------------------------------------
263907193 20000540 17 20,864.46 141.78 19,243.00
------------------------------------------------------------------------------------------------------------------
46326386 20000541 17 21,516.98 116.15 20,365.44
------------------------------------------------------------------------------------------------------------------
592128918 20000542 17 35,293.97 133.03 34,400.71
------------------------------------------------------------------------------------------------------------------
57467673 20000543 17 15,795.43 107.34 14,567.81
------------------------------------------------------------------------------------------------------------------
267699662 20000544 17 19,222.19 130.64 17,728.02
------------------------------------------------------------------------------------------------------------------
565352140 20000546 17 36,553.84 121.76 35,906.09
------------------------------------------------------------------------------------------------------------------
589077460 20000547 1 34,782.26 115.98 34,746.55
------------------------------------------------------------------------------------------------------------------
338562497 20000549 17 49,904.65 171.49 48,929.22
------------------------------------------------------------------------------------------------------------------
262894123 20000550 17 33,533.62 151.89 32,243.39
------------------------------------------------------------------------------------------------------------------
425334524 20000551 16 36,191.02 120.31 35,592.05
------------------------------------------------------------------------------------------------------------------
591055357 20000751 16 42,390.00 140.07 41,702.25
------------------------------------------------------------------------------------------------------------------
383862438 20000767 15 23,950.00 77.22 23,586.10
------------------------------------------------------------------------------------------------------------------
265838313 20000816 9 40,390.00 133.46 40,024.38
------------------------------------------------------------------------------------------------------------------
196563486 20000817 9 27,420.00 90.60 27,171.81
------------------------------------------------------------------------------------------------------------------
590647110 20000818 9 31,350.00 103.59 31,066.19
------------------------------------------------------------------------------------------------------------------
259042254 20000819 9 27,340.00 90.34 27,092.50
------------------------------------------------------------------------------------------------------------------
259254741 20000820 9 18,010.00 59.51 17,846.97
------------------------------------------------------------------------------------------------------------------
257479088 20000821 9 34,110.00 112.71 33,801.21
------------------------------------------------------------------------------------------------------------------
464727142 20000822 9 27,450.00 90.70 27,201.54
------------------------------------------------------------------------------------------------------------------
239577957 20000823 9 52,910.00 174.83 52,431.03
------------------------------------------------------------------------------------------------------------------
257353006 20000824 9 27,470.00 90.77 27,221.32
------------------------------------------------------------------------------------------------------------------
145706478 20000825 9 33,590.00 110.99 33,285.94
------------------------------------------------------------------------------------------------------------------
254372458 20000839 6 30,750.00 101.61 30,565.05
------------------------------------------------------------------------------------------------------------------
592050512 20000840 5 33,410.00 110.40 33,242.73
------------------------------------------------------------------------------------------------------------------
590225065 20000841 6 48,750.00 161.08 48,456.84
------------------------------------------------------------------------------------------------------------------
261958015 20001240 3 38,440.00 127.02 38,324.80
------------------------------------------------------------------------------------------------------------------
256319221 20001241 3 40,100.00 132.50 39,979.84
------------------------------------------------------------------------------------------------------------------
250558031 20001242 3 63,150.00 208.67 62,960.75
------------------------------------------------------------------------------------------------------------------
79486593 20001243 3 25,960.00 85.78 25,882.21
------------------------------------------------------------------------------------------------------------------
591346770 20001244 3 33,320.00 110.10 33,220.15
------------------------------------------------------------------------------------------------------------------
589096857 20000565 16 27,886.58 182.23 25,967.58
------------------------------------------------------------------------------------------------------------------
219502310 20000566 16 27,407.98 179.11 25,521.78
------------------------------------------------------------------------------------------------------------------
262517951 20000567 16 40,656.16 246.34 38,173.18
------------------------------------------------------------------------------------------------------------------
251410018 20000568 16 47,781.96 160.49 46,964.33
------------------------------------------------------------------------------------------------------------------
594128644 20000569 16 31,112.64 108.15 30,520.85
------------------------------------------------------------------------------------------------------------------
262916179 20000570 16 40,049.64 132.73 39,393.44
------------------------------------------------------------------------------------------------------------------
593144453 20000571 8 38,220.33 128.24 37,897.42
------------------------------------------------------------------------------------------------------------------
592900750 20000572 16 45,772.42 151.70 45,022.39
------------------------------------------------------------------------------------------------------------------
265716490 20000573 16 24,503.06 160.12 22,816.90
------------------------------------------------------------------------------------------------------------------
|
Attachment to Annex C
------------------------------------------------------------------------------------------------------------------
590206099 20000574 16 46,695.07 155.07 45,924.85
------------------------------------------------------------------------------------------------------------------
552707831 20000575 16 19,909.00 130.09 18,539.09
------------------------------------------------------------------------------------------------------------------
264494567 20000576 16 32,103.56 159.90 30,706.52
------------------------------------------------------------------------------------------------------------------
589874984 20000577 16 46,509.94 157.05 45,700.52
------------------------------------------------------------------------------------------------------------------
311701586 20000578 16 35,316.33 166.77 33,928.13
------------------------------------------------------------------------------------------------------------------
312707335 20000579 16 27,636.82 180.59 25,735.13
------------------------------------------------------------------------------------------------------------------
262112005 20000580 16 29,829.35 194.91 27,776.89
------------------------------------------------------------------------------------------------------------------
592230173 20000581 16 40,333.41 140.20 39,566.26
------------------------------------------------------------------------------------------------------------------
144501526 20000582 4 33,208.53 186.86 32,766.11
------------------------------------------------------------------------------------------------------------------
118508527 20000583 16 32,175.04 115.45 31,504.31
------------------------------------------------------------------------------------------------------------------
132668720 20000584 16 37,920.00 129.30 37,239.63
------------------------------------------------------------------------------------------------------------------
295688171 20000585 16 28,346.28 151.15 26,950.52
------------------------------------------------------------------------------------------------------------------
91603657 20000586 16 45,558.75 171.97 44,470.69
------------------------------------------------------------------------------------------------------------------
265653537 20000587 16 22,691.75 148.28 21,130.28
------------------------------------------------------------------------------------------------------------------
138527688 20000588 2 162.40 162.49 0.00
------------------------------------------------------------------------------------------------------------------
264291831 20000589 16 22,745.85 148.64 21,180.56
------------------------------------------------------------------------------------------------------------------
637726682 20000590 16 20,815.72 102.47 20,647.57
------------------------------------------------------------------------------------------------------------------
637726682 20000590 16 20,815.72 102.47 20,815.72
------------------------------------------------------------------------------------------------------------------
637726682 20000590 16 29,052.21 105.47 28,545.72
------------------------------------------------------------------------------------------------------------------
135348972 20000592 16 23,627.83 100.56 22,878.40
------------------------------------------------------------------------------------------------------------------
264199399 20000593 16 26,979.06 176.29 25,122.65
------------------------------------------------------------------------------------------------------------------
28561520 20000595 16 45,283.24 154.92 44,462.42
------------------------------------------------------------------------------------------------------------------
589168480 20000596 16 39,860.85 219.24 37,789.18
------------------------------------------------------------------------------------------------------------------
40660284 20000597 16 47,950.44 166.00 47,049.42
------------------------------------------------------------------------------------------------------------------
306763489 20000599 16 44,517.74 184.51 43,186.43
------------------------------------------------------------------------------------------------------------------
315808735 20000600 16 43,869.98 149.42 43,085.60
------------------------------------------------------------------------------------------------------------------
264377865 20000601 16 24,487.21 157.36 22,845.36
------------------------------------------------------------------------------------------------------------------
593789944 20000602 16 33,984.95 151.60 32,793.71
------------------------------------------------------------------------------------------------------------------
593010295 20000603 16 47,413.94 162.94 46,542.60
------------------------------------------------------------------------------------------------------------------
593010295 20000603 16 50,512.60 0.00 50,512.60
------------------------------------------------------------------------------------------------------------------
442825731 20000604 16 37,629.25 128.31 36,954.09
------------------------------------------------------------------------------------------------------------------
261957056 20000605 16 48,628.96 252.49 46,345.40
------------------------------------------------------------------------------------------------------------------
129389734 20000606 16 48,552.38 162.74 47,727.04
------------------------------------------------------------------------------------------------------------------
155748862 20000607 16 64,472.70 219.84 63,315.90
------------------------------------------------------------------------------------------------------------------
266773236 20000608 16 26,456.49 329.16 22,091.71
------------------------------------------------------------------------------------------------------------------
555853561 20000610 1 52,742.24 176.78 52,687.17
------------------------------------------------------------------------------------------------------------------
267550511 20000611 16 35,326.36 138.35 34,401.20
------------------------------------------------------------------------------------------------------------------
109609629 20000612 16 45,776.37 155.24 44,968.84
------------------------------------------------------------------------------------------------------------------
583399555 20000614 16 45,252.98 158.05 44,380.05
------------------------------------------------------------------------------------------------------------------
589768755 20000615 16 28,111.16 133.72 26,990.29
------------------------------------------------------------------------------------------------------------------
154621789 20000617 16 47,884.45 168.85 46,934.56
------------------------------------------------------------------------------------------------------------------
53561522 20000619 16 41,251.00 144.07 40,455.32
------------------------------------------------------------------------------------------------------------------
53588669 20000620 16 17,075.90 124.55 15,689.77
------------------------------------------------------------------------------------------------------------------
590329665 20000621 16 64,009.27 244.89 62,427.27
------------------------------------------------------------------------------------------------------------------
264774970 20000622 16 21,522.27 138.30 20,079.34
------------------------------------------------------------------------------------------------------------------
117341572 20000623 16 34,596.75 223.25 32,262.04
------------------------------------------------------------------------------------------------------------------
478726133 20000624 16 31,412.29 201.86 29,306.15
------------------------------------------------------------------------------------------------------------------
261270948 20000625 16 52,060.42 210.09 50,596.05
------------------------------------------------------------------------------------------------------------------
48507864 20000627 16 52,064.11 210.47 50,593.69
------------------------------------------------------------------------------------------------------------------
262686277 20000628 16 40,468.60 161.11 39,366.12
------------------------------------------------------------------------------------------------------------------
|
Attachment to Annex C
------------------------------------------------------------------------------------------------------------------
282829760 20000629 16 32,976.18 116.00 32,326.60
------------------------------------------------------------------------------------------------------------------
354344159 20000630 16 37,580.82 143.77 36,652.14
------------------------------------------------------------------------------------------------------------------
262797780 20000631 16 34,756.34 143.77 33,721.52
------------------------------------------------------------------------------------------------------------------
113440647 20000632 16 24,708.47 327.46 20,305.70
------------------------------------------------------------------------------------------------------------------
48509428 20000633 16 23,038.16 148.07 21,493.14
------------------------------------------------------------------------------------------------------------------
226177430 20000636 16 35,574.61 0.30 35,466.45
------------------------------------------------------------------------------------------------------------------
226177430 20000636 16 24,013.85 122.93 22,984.61
------------------------------------------------------------------------------------------------------------------
91448595 20000637 16 27,107.47 138.76 25,866.89
------------------------------------------------------------------------------------------------------------------
309862752 20000638 16 52,980.76 175.59 52,112.61
------------------------------------------------------------------------------------------------------------------
591335132 20000639 16 35,421.60 124.00 34,733.67
------------------------------------------------------------------------------------------------------------------
291545984 20000640 3 39,106.74 131.21 38,983.57
------------------------------------------------------------------------------------------------------------------
397465414 20000641 1 39,468.22 150.31 39,408.99
------------------------------------------------------------------------------------------------------------------
233765322 20000643 16 34,369.40 224.58 32,004.48
------------------------------------------------------------------------------------------------------------------
43625261 20000644 16 41,441.67 242.12 39,056.90
------------------------------------------------------------------------------------------------------------------
262591585 20000645 8 41,854.35 140.43 41,500.76
------------------------------------------------------------------------------------------------------------------
216923363 20000646 16 48,338.22 170.45 47,379.34
------------------------------------------------------------------------------------------------------------------
265210478 20000647 16 29,132.05 182.73 27,251.68
------------------------------------------------------------------------------------------------------------------
40561216 20000648 16 33,795.34 167.88 32,331.95
------------------------------------------------------------------------------------------------------------------
490568865 20000649 16 47,754.39 164.29 46,873.86
------------------------------------------------------------------------------------------------------------------
587966829 20000650 16 44,620.35 291.56 41,550.12
------------------------------------------------------------------------------------------------------------------
315784041 20000651 5 46,384.46 155.63 46,140.39
------------------------------------------------------------------------------------------------------------------
595364210 20000655 16 45,467.36 183.49 44,188.33
------------------------------------------------------------------------------------------------------------------
595364210 20000655 16 53,568.33 221.72 53,568.33
------------------------------------------------------------------------------------------------------------------
267693442 20000656 16 56,796.52 216.96 55,398.21
------------------------------------------------------------------------------------------------------------------
352381687 20000657 16 23,191.34 149.02 21,636.60
------------------------------------------------------------------------------------------------------------------
583157221 20000658 16 35,967.98 232.09 33,540.86
------------------------------------------------------------------------------------------------------------------
267835663 20000659 16 20,755.58 236.90 17,678.65
------------------------------------------------------------------------------------------------------------------
265534102 20000660 16 22,956.49 147.54 21,417.01
------------------------------------------------------------------------------------------------------------------
263692620 20000661 16 25,373.28 163.07 23,671.76
------------------------------------------------------------------------------------------------------------------
92561465 20000662 16 58,878.02 200.54 57,825.22
------------------------------------------------------------------------------------------------------------------
80667469 20000663 16 60,029.98 198.75 59,049.60
------------------------------------------------------------------------------------------------------------------
265375170 20000666 16 40,869.69 262.65 38,129.20
------------------------------------------------------------------------------------------------------------------
265933343 20000667 16 47,945.13 161.49 47,945.13
------------------------------------------------------------------------------------------------------------------
265933343 20000667 16 47,945.13 161.49 47,891.56
------------------------------------------------------------------------------------------------------------------
265933343 20000667 16 49,891.56 3.88 49,779.58
------------------------------------------------------------------------------------------------------------------
265933343 20000667 16 54,056.79 182.53 53,295.13
------------------------------------------------------------------------------------------------------------------
261821126 20000668 13 24,253.55 155.87 22,936.71
------------------------------------------------------------------------------------------------------------------
261804898 20000669 16 31,408.99 201.84 29,303.03
------------------------------------------------------------------------------------------------------------------
587563933 20000670 16 29,099.03 117.44 28,280.34
------------------------------------------------------------------------------------------------------------------
261270685 20000671 16 39,256.75 0.99 39,256.75
------------------------------------------------------------------------------------------------------------------
261270685 20000671 16 39,256.75 0.99 39,080.58
------------------------------------------------------------------------------------------------------------------
261270685 20000671 16 34,060.58 1.04 33,754.53
------------------------------------------------------------------------------------------------------------------
261270685 20000671 16 32,564.79 209.28 30,796.75
------------------------------------------------------------------------------------------------------------------
583290180 20000672 16 50,640.43 206.16 49,186.68
------------------------------------------------------------------------------------------------------------------
66561052 20000673 16 28,120.67 144.76 26,820.43
------------------------------------------------------------------------------------------------------------------
582297909 20000674 16 36,595.53 142.18 35,655.72
------------------------------------------------------------------------------------------------------------------
112529493 20000679 16 29,076.71 155.11 28,794.12
------------------------------------------------------------------------------------------------------------------
112529493 20000679 16 29,158.73 132.70 29,076.71
------------------------------------------------------------------------------------------------------------------
112529493 20000679 16 33,979.89 208.23 32,268.73
------------------------------------------------------------------------------------------------------------------
112529493 20000679 16 29,158.73 132.70 29,158.73
------------------------------------------------------------------------------------------------------------------
|
Attachment to Annex C
------------------------------------------------------------------------------------------------------------------
266839840 20000680 16 38,843.49 196.64 37,101.52
------------------------------------------------------------------------------------------------------------------
122543658 20000681 16 11,484.89 147.39 9,516.85
------------------------------------------------------------------------------------------------------------------
257722913 20000682 16 22,001.55 141.40 20,526.13
------------------------------------------------------------------------------------------------------------------
265776717 20000683 16 20,910.27 134.37 19,508.34
------------------------------------------------------------------------------------------------------------------
263234332 20000684 16 23,444.53 150.68 21,872.27
------------------------------------------------------------------------------------------------------------------
261715721 20000685 16 26,334.09 135.95 25,110.18
------------------------------------------------------------------------------------------------------------------
263415013 20000686 16 34,561.55 142.46 33,540.76
------------------------------------------------------------------------------------------------------------------
590539083 20000688 16 46,507.60 163.60 45,591.47
------------------------------------------------------------------------------------------------------------------
592618093 20000689 16 56,823.61 190.46 55,857.76
------------------------------------------------------------------------------------------------------------------
547133446 20000690 16 18,329.65 117.80 17,100.50
------------------------------------------------------------------------------------------------------------------
593360262 20000691 16 22,224.01 106.76 21,320.88
------------------------------------------------------------------------------------------------------------------
264956926 20000692 16 27,891.62 130.46 26,815.61
------------------------------------------------------------------------------------------------------------------
592530675 20000696 16 57,905.56 195.32 56,901.24
------------------------------------------------------------------------------------------------------------------
44500038 20000697 16 29,716.90 159.42 28,237.99
------------------------------------------------------------------------------------------------------------------
594379992 20000698 16 20,378.81 104.91 19,436.49
------------------------------------------------------------------------------------------------------------------
594379992 20000698 16 19,436.49 210.06 19,436.49
------------------------------------------------------------------------------------------------------------------
593519517 20000699 16 52,576.17 184.94 51,540.62
------------------------------------------------------------------------------------------------------------------
591209744 20000700 16 19,014.36 158.14 17,154.20
------------------------------------------------------------------------------------------------------------------
594791342 20000701 16 50,069.62 173.64 49,123.85
------------------------------------------------------------------------------------------------------------------
264953660 20000702 16 21,720.59 139.57 20,264.43
------------------------------------------------------------------------------------------------------------------
44747097 20000703 16 33,958.19 148.33 32,819.16
------------------------------------------------------------------------------------------------------------------
589859279 20000707 16 46,512.05 157.05 45,702.72
------------------------------------------------------------------------------------------------------------------
591017363 20000708 16 27,461.48 122.50 26,498.87
------------------------------------------------------------------------------------------------------------------
267873151 20000709 16 20,759.54 133.39 19,367.88
------------------------------------------------------------------------------------------------------------------
584722269 20000710 16 38,333.42 153.12 37,280.78
------------------------------------------------------------------------------------------------------------------
262350344 20000713 16 18,779.32 120.67 17,520.35
------------------------------------------------------------------------------------------------------------------
509764251 20000714 16 21,337.46 137.13 19,906.63
------------------------------------------------------------------------------------------------------------------
595867819 20000715 16 51,232.09 177.67 50,264.38
------------------------------------------------------------------------------------------------------------------
595867819 20000715 16 60,994.38 215.60 60,994.38
------------------------------------------------------------------------------------------------------------------
266253207 20000716 16 22,498.17 177.67 20,450.95
------------------------------------------------------------------------------------------------------------------
264191790 20000717 16 22,023.65 141.52 20,547.10
------------------------------------------------------------------------------------------------------------------
151648983 20000720 16 45,176.49 155.07 44,349.22
------------------------------------------------------------------------------------------------------------------
62546390 20000721 16 45,392.37 179.23 44,179.88
------------------------------------------------------------------------------------------------------------------
247219886 20000722 16 20,261.61 130.20 18,903.17
------------------------------------------------------------------------------------------------------------------
589220547 20000723 16 28,769.13 185.64 26,827.77
------------------------------------------------------------------------------------------------------------------
95405187 20000724 16 7,656.42 115.54 6,063.10
------------------------------------------------------------------------------------------------------------------
590619507 20000725 16 43,619.29 150.58 42,806.60
------------------------------------------------------------------------------------------------------------------
606685259 20000727 16 45,198.71 156.03 44,356.65
------------------------------------------------------------------------------------------------------------------
265517011 20000728 16 21,966.54 141.17 20,493.54
------------------------------------------------------------------------------------------------------------------
36406131 20000729 11 37,338.00 130.87 36,840.52
------------------------------------------------------------------------------------------------------------------
590514956 20000730 16 47,859.63 170.44 46,882.95
------------------------------------------------------------------------------------------------------------------
530718693 20000731 8 48,927.09 163.99 48,515.13
------------------------------------------------------------------------------------------------------------------
592479643 20000732 16 42,166.05 147.44 41,349.88
------------------------------------------------------------------------------------------------------------------
343348038 20000733 16 63,545.71 229.50 62,196.82
------------------------------------------------------------------------------------------------------------------
73640152 20000734 16 75,132.81 256.18 73,784.89
------------------------------------------------------------------------------------------------------------------
260087808 20000735 2 45,924.84 155.07 45,826.55
------------------------------------------------------------------------------------------------------------------
93308791 20000736 16 36,257.89 196.31 34,424.16
------------------------------------------------------------------------------------------------------------------
195582622 20000737 16 37,533.68 150.18 36,498.85
------------------------------------------------------------------------------------------------------------------
390468708 20000738 10 14,150.91 123.67 13,231.27
------------------------------------------------------------------------------------------------------------------
147600026 20000739 16 22,023.12 81.71 21,520.28
------------------------------------------------------------------------------------------------------------------
|
Attachment to Annex C
------------------------------------------------------------------------------------------------------------------
261040846 20000740 16 25,828.95 86.57 25,389.98
------------------------------------------------------------------------------------------------------------------
568525576 20000741 16 23,604.55 154.23 21,980.50
------------------------------------------------------------------------------------------------------------------
262479663 20000774 11 46,930.00 155.07 46,409.56
------------------------------------------------------------------------------------------------------------------
279682990 20000775 7 39,710.00 131.21 39,431.08
------------------------------------------------------------------------------------------------------------------
262650990 20000780 13 51,830.00 171.26 51,149.16
------------------------------------------------------------------------------------------------------------------
592589221 20000831 2 42,500.00 140.43 42,415.20
------------------------------------------------------------------------------------------------------------------
97748942 20000832 8 51,740.00 170.96 51,481.00
------------------------------------------------------------------------------------------------------------------
97748942 20000832 8 59,211.00 192.64 59,030.58
------------------------------------------------------------------------------------------------------------------
97748942 20000832 8 59,211.00 192.64 59,211.00
------------------------------------------------------------------------------------------------------------------
261579011 20000845 5 42,410.00 140.14 42,197.67
------------------------------------------------------------------------------------------------------------------
262599968 20001017 4 43,580.00 144.00 43,405.68
------------------------------------------------------------------------------------------------------------------
309622215 20001210 4 43,870.00 144.96 43,694.52
------------------------------------------------------------------------------------------------------------------
20000105 34 16,307.35 100.32 14,092.79
------------------------------------------------------------------------------------------------------------------
20000107 20 17,678.18 98.12 15,915.53
------------------------------------------------------------------------------------------------------------------
20000108 34 18,720.15 115.15 16,178.37
------------------------------------------------------------------------------------------------------------------
20000112 34 29,021.97 96.09 27,993.40
------------------------------------------------------------------------------------------------------------------
20000113 34 28,507.89 96.06 27,438.48
------------------------------------------------------------------------------------------------------------------
20000115 34 35,118.96 116.51 33,866.06
------------------------------------------------------------------------------------------------------------------
20000116 34 33,018.86 117.15 31,572.15
------------------------------------------------------------------------------------------------------------------
20000118 34 50,137.71 184.74 47,698.82
------------------------------------------------------------------------------------------------------------------
20000119 34 18,913.62 119.59 16,230.79
------------------------------------------------------------------------------------------------------------------
20000120 34 39,599.91 136.24 38,015.26
------------------------------------------------------------------------------------------------------------------
20000121 34 21,316.66 71.90 20,514.47
------------------------------------------------------------------------------------------------------------------
20000122 34 32,208.86 109.70 30,959.27
------------------------------------------------------------------------------------------------------------------
20000123 34 37,901.57 141.03 36,009.30
------------------------------------------------------------------------------------------------------------------
20000124 34 36,721.02 136.63 34,887.95
------------------------------------------------------------------------------------------------------------------
20000125 34 26,861.82 93.05 25,764.52
------------------------------------------------------------------------------------------------------------------
20000126 34 54,077.86 182.99 52,022.06
------------------------------------------------------------------------------------------------------------------
20000127 34 23,359.80 78.54 22,489.61
------------------------------------------------------------------------------------------------------------------
20000128 34 36,090.41 126.95 34,547.88
------------------------------------------------------------------------------------------------------------------
20000129 34 32,764.49 108.48 31,603.31
------------------------------------------------------------------------------------------------------------------
20000131 34 34,078.45 118.46 32,671.82
------------------------------------------------------------------------------------------------------------------
582593039 20000132 26 38,290.00 126.52 37,268.73
------------------------------------------------------------------------------------------------------------------
20000134 34 45,851.09 171.82 43,519.20
------------------------------------------------------------------------------------------------------------------
20000139 15 19,592.89 47.71 18,273.66
------------------------------------------------------------------------------------------------------------------
20000140 2 28,619.22 24.95 28,499.17
------------------------------------------------------------------------------------------------------------------
20000141 32 40,798.86 141.49 39,228.56
------------------------------------------------------------------------------------------------------------------
63604226 20000143 16 40,420.00 133.56 39,764.20
------------------------------------------------------------------------------------------------------------------
20000144 34 43,606.67 148.69 41,908.89
------------------------------------------------------------------------------------------------------------------
20000146 34 15,721.52 96.34 13,599.76
------------------------------------------------------------------------------------------------------------------
20000148 34 31,672.36 118.18 30,079.48
------------------------------------------------------------------------------------------------------------------
20000149 34 72,364.85 244.09 69,641.35
------------------------------------------------------------------------------------------------------------------
20000150 13 27,243.61 41.97 26,847.11
------------------------------------------------------------------------------------------------------------------
220382907 20000153 27 41,540.00 137.26 40,388.09
------------------------------------------------------------------------------------------------------------------
20000154 34 48,243.42 169.91 46,174.02
------------------------------------------------------------------------------------------------------------------
20000156 34 24,139.76 152.02 20,737.33
------------------------------------------------------------------------------------------------------------------
20000157 34 36,177.17 128.35 34,592.24
------------------------------------------------------------------------------------------------------------------
20000159 34 39,254.52 200.94 35,356.08
------------------------------------------------------------------------------------------------------------------
20000160 34 15,621.58 71.23 14,378.77
------------------------------------------------------------------------------------------------------------------
20000161 34 43,238.30 145.53 41,622.12
------------------------------------------------------------------------------------------------------------------
|
Attachment to Annex C
------------------------------------------------------------------------------------------------------------------
20000162 34 20,714.53 106.34 18,646.57
------------------------------------------------------------------------------------------------------------------
20000164 34 28,953.19 177.43 25,045.48
------------------------------------------------------------------------------------------------------------------
20000165 34 24,354.11 87.17 23,260.11
------------------------------------------------------------------------------------------------------------------
20000166 34 36,422.96 123.25 35,038.24
------------------------------------------------------------------------------------------------------------------
20000167 34 24,629.15 150.35 21,325.61
------------------------------------------------------------------------------------------------------------------
20000168 34 65,075.49 227.01 62,361.07
------------------------------------------------------------------------------------------------------------------
20000169 34 21,588.19 132.80 18,656.69
------------------------------------------------------------------------------------------------------------------
20000170 34 21,361.20 99.21 19,597.86
------------------------------------------------------------------------------------------------------------------
20000171 34 53,944.60 189.07 51,663.09
------------------------------------------------------------------------------------------------------------------
20000173 34 37,210.63 130.42 35,636.85
------------------------------------------------------------------------------------------------------------------
20000174 34 40,439.68 181.97 37,308.05
------------------------------------------------------------------------------------------------------------------
20000176 34 6,349.58 39.99 5,454.48
------------------------------------------------------------------------------------------------------------------
20000179 34 36,320.15 190.24 32,560.48
------------------------------------------------------------------------------------------------------------------
20000180 34 24,184.12 116.48 22,040.82
------------------------------------------------------------------------------------------------------------------
452810435 20000181 17 42,120.00 139.18 41,393.00
------------------------------------------------------------------------------------------------------------------
20000184 34 42,921.31 149.90 41,124.88
------------------------------------------------------------------------------------------------------------------
20000186 34 31,022.27 103.13 29,908.06
------------------------------------------------------------------------------------------------------------------
20000188 34 40,387.79 133.99 38,946.88
------------------------------------------------------------------------------------------------------------------
20000189 32 28,934.92 96.19 27,959.14
------------------------------------------------------------------------------------------------------------------
20000190 34 35,752.26 125.76 34,224.21
------------------------------------------------------------------------------------------------------------------
20000191 34 32,148.16 118.29 30,590.17
------------------------------------------------------------------------------------------------------------------
583187409 20000193 18 39,400.00 130.19 38,679.16
------------------------------------------------------------------------------------------------------------------
20000196 34 18,579.97 115.63 16,009.81
------------------------------------------------------------------------------------------------------------------
20000197 34 26,089.55 161.74 22,502.71
------------------------------------------------------------------------------------------------------------------
20000198 34 44,729.38 148.69 43,123.13
------------------------------------------------------------------------------------------------------------------
20000199 34 33,626.86 112.71 32,386.55
------------------------------------------------------------------------------------------------------------------
20000200 34 32,912.32 117.80 31,433.95
------------------------------------------------------------------------------------------------------------------
20000201 34 12,632.15 78.31 10,895.50
------------------------------------------------------------------------------------------------------------------
20000202 15 19,094.20 110.57 18,077.43
------------------------------------------------------------------------------------------------------------------
20000206 16 27,962.12 80.96 26,798.98
------------------------------------------------------------------------------------------------------------------
20000207 34 4,173.36 63.78 2,260.45
------------------------------------------------------------------------------------------------------------------
20000208 2 30,146.08 70.49 30,077.64
------------------------------------------------------------------------------------------------------------------
20000210 34 30,978.19 104.49 29,812.34
------------------------------------------------------------------------------------------------------------------
20000211 34 38,549.35 136.10 36,884.01
------------------------------------------------------------------------------------------------------------------
20000212 34 26,132.72 122.23 23,945.13
------------------------------------------------------------------------------------------------------------------
20000214 34 36,487.46 226.20 31,471.13
------------------------------------------------------------------------------------------------------------------
20000215 34 12,641.44 76.59 10,966.29
------------------------------------------------------------------------------------------------------------------
20000217 34 19,309.37 118.32 16,703.64
------------------------------------------------------------------------------------------------------------------
20000218 34 33,753.94 129.33 31,936.86
------------------------------------------------------------------------------------------------------------------
20000219 34 19,967.42 122.82 17,256.36
------------------------------------------------------------------------------------------------------------------
20000220 10 35,240.01 70.24 34,754.22
------------------------------------------------------------------------------------------------------------------
299448833 20000221 4 38,190.81 24.46 38,029.78
------------------------------------------------------------------------------------------------------------------
20000222 34 26,779.39 121.04 24,686.58
------------------------------------------------------------------------------------------------------------------
20000223 34 26,743.85 167.10 23,020.98
------------------------------------------------------------------------------------------------------------------
20000224 34 31,561.64 193.41 27,302.08
------------------------------------------------------------------------------------------------------------------
20000225 34 28,603.31 127.05 26,446.89
------------------------------------------------------------------------------------------------------------------
20000228 34 33,432.02 169.25 30,178.44
------------------------------------------------------------------------------------------------------------------
20000229 10 12,726.74 27.22 12,146.94
------------------------------------------------------------------------------------------------------------------
20000230 34 35,174.61 117.90 33,877.11
------------------------------------------------------------------------------------------------------------------
20000232 34 29,510.67 178.14 25,623.34
------------------------------------------------------------------------------------------------------------------
|
Attachment to Annex C
------------------------------------------------------------------------------------------------------------------
20000233 34 30,239.35 107.69 28,900.23
------------------------------------------------------------------------------------------------------------------
20000234 34 17,535.46 107.88 15,153.97
------------------------------------------------------------------------------------------------------------------
20000235 34 19,173.01 117.50 16,585.16
------------------------------------------------------------------------------------------------------------------
20000236 34 30,639.75 102.70 29,509.57
------------------------------------------------------------------------------------------------------------------
20000237 34 25,500.34 87.73 24,479.95
------------------------------------------------------------------------------------------------------------------
20000239 34 40,686.76 150.33 38,692.99
------------------------------------------------------------------------------------------------------------------
20000240 34 28,128.58 173.04 24,308.75
------------------------------------------------------------------------------------------------------------------
20000242 34 17,086.74 105.11 14,766.49
------------------------------------------------------------------------------------------------------------------
20000244 34 26,879.65 98.37 25,595.87
------------------------------------------------------------------------------------------------------------------
20000245 34 35,588.61 119.29 34,275.75
------------------------------------------------------------------------------------------------------------------
20000246 34 31,389.42 176.04 27,729.47
------------------------------------------------------------------------------------------------------------------
20000248 2 18,930.98 115.91 18,747.15
------------------------------------------------------------------------------------------------------------------
20000249 2 16,324.57 41.89 16,167.73
------------------------------------------------------------------------------------------------------------------
20000250 34 40,437.44 138.65 38,835.99
------------------------------------------------------------------------------------------------------------------
20000251 2 34,354.20 86.08 34,241.63
------------------------------------------------------------------------------------------------------------------
99387820 20000252 12 44,281.00 150.75 43,690.79
------------------------------------------------------------------------------------------------------------------
20000253 13 44,374.63 150.95 43,734.71
------------------------------------------------------------------------------------------------------------------
20000255 34 28,450.37 98.67 27,284.07
------------------------------------------------------------------------------------------------------------------
20000256 34 16,025.44 99.74 13,808.35
------------------------------------------------------------------------------------------------------------------
20000258 34 23,230.81 77.78 22,376.95
------------------------------------------------------------------------------------------------------------------
20000259 34 52,416.41 184.38 50,175.99
------------------------------------------------------------------------------------------------------------------
20000264 34 32,839.34 132.29 30,843.13
------------------------------------------------------------------------------------------------------------------
20000267 34 38,959.97 135.91 37,334.86
------------------------------------------------------------------------------------------------------------------
20000268 34 28,632.00 98.17 27,498.15
------------------------------------------------------------------------------------------------------------------
20000280 34 31,827.25 109.74 30,545.16
------------------------------------------------------------------------------------------------------------------
20000281 34 16,672.34 99.16 14,528.48
------------------------------------------------------------------------------------------------------------------
20000282 15 49,090.52 6.18 48,078.83
------------------------------------------------------------------------------------------------------------------
44568122 20000283 24 31,200.00 103.09 30,433.70
------------------------------------------------------------------------------------------------------------------
20000284 34 55,770.74 194.55 53,444.56
------------------------------------------------------------------------------------------------------------------
20000285 15 24,653.51 60.17 24,601.73
------------------------------------------------------------------------------------------------------------------
20000287 5 25,889.33 15.43 25,685.86
------------------------------------------------------------------------------------------------------------------
25326218 20000288 15 29,212.25 95.89 28,612.11
------------------------------------------------------------------------------------------------------------------
20000300 4 30,612.89 72.28 30,475.01
------------------------------------------------------------------------------------------------------------------
20000302 33 30,880.00 102.04 29,825.93
------------------------------------------------------------------------------------------------------------------
589896458 20000308 31 33,620.00 111.09 32,544.58
-------------------------------------------------------------------------------------------------------------------
264677228 20000316 29 34,560.00 114.20 33,528.09
-------------------------------------------------------------------------------------------------------------------
93480368 20000317 30 53,670.00 177.34 52,010.54
-------------------------------------------------------------------------------------------------------------------
591302541 20000325 28 39,490.00 130.49 38,352.91
-------------------------------------------------------------------------------------------------------------------
14682686 20000328 28 28,310.00 93.54 27,495.06
-------------------------------------------------------------------------------------------------------------------
584162800 20000342 25 26,200.00 86.57 25,528.90
-------------------------------------------------------------------------------------------------------------------
9402991 20000355 24 43,370.00 143.31 42,304.59
-------------------------------------------------------------------------------------------------------------------
590127047 20000377 19 28,780.00 95.10 28,223.53
-------------------------------------------------------------------------------------------------------------------
938227 20000379 19 30,560.00 100.98 29,969.13
-------------------------------------------------------------------------------------------------------------------
73640923 20000383 16 22,703.14 73.32 22,334.76
-------------------------------------------------------------------------------------------------------------------
20000390 9 26,050.00 86.08 25,814.16
-------------------------------------------------------------------------------------------------------------------
20000391 9 45,970.00 151.90 45,553.83
-------------------------------------------------------------------------------------------------------------------
279703331 20000395 19 46,700.00 154.31 45,797.09
-------------------------------------------------------------------------------------------------------------------
20000396 9 38,620.00 127.61 38,270.42
-------------------------------------------------------------------------------------------------------------------
264830145 20000559 12 21,840.00 72.17 21,575.44
-------------------------------------------------------------------------------------------------------------------
593308759 20000756 14 45,020.00 148.76 44,382.35
-------------------------------------------------------------------------------------------------------------------
|
Attachment to Annex C
-------------------------------------------------------------------------------------------------------------------
379647388 20000757 14 38,170.00 126.13 37,629.32
-------------------------------------------------------------------------------------------------------------------
400271390 20000760 15 38,200.00 126.22 37,619.71
-------------------------------------------------------------------------------------------------------------------
593379643 20000768 6 30,240.00 99.92 30,058.16
-------------------------------------------------------------------------------------------------------------------
352447124 20000773 12 33,320.00 110.10 32,916.41
-------------------------------------------------------------------------------------------------------------------
259061723 20000783 10 42,660.00 140.96 42,230.42
-------------------------------------------------------------------------------------------------------------------
581336965 20000784 10 27,910.00 92.22 27,628.97
-------------------------------------------------------------------------------------------------------------------
263295469 20000790 12 27,060.00 89.41 26,732.29
-------------------------------------------------------------------------------------------------------------------
584863539 20000791 11 33,230.00 109.80 32,861.50
-------------------------------------------------------------------------------------------------------------------
173448819 20000792 10 35,960.00 118.82 35,597.90
-------------------------------------------------------------------------------------------------------------------
261715302 20000802 9 35,410.00 117.01 35,089.40
-------------------------------------------------------------------------------------------------------------------
595185579 20000805 9 41,430.00 136.90 41,054.93
-------------------------------------------------------------------------------------------------------------------
283602886 20000828 4 42,170.00 139.34 42,001.32
-------------------------------------------------------------------------------------------------------------------
590032835 20001018 4 31,080.00 102.70 30,955.66
-------------------------------------------------------------------------------------------------------------------
590883186 20001019 3 41,820.00 138.19 41,694.67
-------------------------------------------------------------------------------------------------------------------
263658949 20001205 0 27,500.00 90.87 27,500.00
-------------------------------------------------------------------------------------------------------------------
222466501 20001206 3 39,970.00 132.07 39,850.23
-------------------------------------------------------------------------------------------------------------------
386704702 20001235 2 24,620.00 81.35 24,570.88
-------------------------------------------------------------------------------------------------------------------
589018471 20001245 1 47,860.00 158.14 47,812.31
-------------------------------------------------------------------------------------------------------------------
434594517 20001250 1 43,060.00 142.28 43,017.09
-------------------------------------------------------------------------------------------------------------------
590289833 20001255 0 20,440.00 67.54 20,440.00
-------------------------------------------------------------------------------------------------------------------
177603440 20001259 0 49,430.00 163.33 49,430.00
-------------------------------------------------------------------------------------------------------------------
264359461 20001265 0 31,440.00 103.89 31,440.00
-------------------------------------------------------------------------------------------------------------------
261478139 20001266 0 28,250.00 93.35 28,250.00
-------------------------------------------------------------------------------------------------------------------
580174594 20001267 0 28,640.00 94.64 28,640.00
-------------------------------------------------------------------------------------------------------------------
300660898 20001275 0 23,850.00 78.81 23,850.00
-------------------------------------------------------------------------------------------------------------------
392943743 20001276 0 54,640.00 180.55 54,640.00
-------------------------------------------------------------------------------------------------------------------
263615335 20001282 0 32,480.00 107.32 32,480.00
-------------------------------------------------------------------------------------------------------------------
593038019 20001300 0 36,080.00 119.22 36,080.00
-------------------------------------------------------------------------------------------------------------------
|
ANNEX D
to
PLEDGE AND SECURITY AGREEMENT
LIST OF LIMITED LIABILITY COMPANY INTERESTS
1. Flowers Foods, Inc.
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
Flowers Bakeries, LLC N/A N/A N/A 100% (iv)
Mrs. Smith's N/A N/A N/A 100% (iv)
Bakeries, LLC
Flowers Finance, LLC N/A N/A N/A 100% (iv)
|
2. Flowers Bakeries Brands, Inc.
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
3. Flowers Bakeries, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
Flowers Baking Co. of N/A N/A N/A 100% (iv)
Florida, LLC
Flowers Baking Co. of N/A N/A N/A 100% (iv)
Thomasville, LLC
Flowers Baking Co. of N/A N/A N/A 100% (iv)
Villa Rica, LLC
Flowers Baking Co. of N/A N/A N/A 100% (iv)
Opelika, LLC
Hardin's Bakery, LLC N/A N/A N/A 100% (iv)
Home Baking Company, N/A N/A N/A 100% (iv)
LLC
Huval Bakery, LLC N/A N/A N/A 100% (iv)
Flowers Baking Co. of N/A N/A N/A 100% (iv)
Jamestown, LLC
Franklin Baking N/A N/A N/A 100% (iv)
Company, LLC
Flowers Baking Co. of N/A N/A N/A 100% (iv)
Lynchburg, LLC
|
ANNEX D
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
Flowers Baking Co. of N/A N/A N/A 100% (iv)
Norfolk, LLC
Flowers Baking Co. of N/A N/A N/A 100% (iv)
Morristown, LLC
Schott's Bakery, LLC N/A N/A N/A 100% (iv)
Flowers Baking Co. of N/A N/A N/A 100% (iv)
West Virginia, LLC
Flowers Baking Co. of N/A N/A N/A 100% (iv)
Texas, LLC
Flowers Baking Co. of N/A N/A N/A 100% (iv)
Texarkana, LLC
Holsum Baking N/A N/A N/A 100% (iv)
Company, LLC
Shipley Baking N/A N/A N/A 100% (iv)
Company, LLC
Storck Baking N/A N/A N/A 100% (iv)
Company, LLC
Bailey Street Bakery, N/A N/A N/A 100% (iv)
LLC
Table Pride, LLC N/A N/A N/A 100% (iv)
Flowers Baking Co.of N/A N/A N/A 100% (iv)
Memphis, LLC
Hampton Roads Baking N/A N/A N/A 100% (iv)
Company, LLC
|
4. Mrs. Smith's Bakeries, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
European Bakers, LLC N/A N/A N/A 100% (iv)
Aunt Fanny's Bakery, N/A N/A N/A 100% (iv)
LLC
Dan-Co Bakery, LLC N/A N/A N/A 100% (iv)
|
ANNEX D
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
Mrs. Smith's Bakeries N/A N/A N/A 100% (iv)
Sales Support Group,
LLC
Mrs. Smith's Bakeries N/A N/A N/A 100% (iv)
Frozen Distributors,
LLC
Mrs. Smith's Bakeries N/A N/A N/A 100% (iv)
of Pennsylvania, LLC
Flowers Specialty N/A N/A N/A 100% (iv)
Foods of Montgomery,
LLC
Flowers Baking N/A N/A N/A 100% (iv)
Company of Fountain
Inn, LLC.
Mrs. Smith's Bakery N/A N/A N/A 100% (iv)
of London, LLC
Mrs. Smith's Bakery N/A N/A N/A 100% (iv)
of Stilwell, LLC
Mrs. Smith's Bakery N/A N/A N/A 100% (iv)
of Spartanburg, LLC
Mrs. Smith's Bakery N/A N/A N/A 100% (iv)
of Crossville, LLC
Mrs. Smith's Bakery N/A N/A N/A 100% (iv)
of Suwanee, LLC
|
5. Flowers Baking Co. of Florida, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
Flowers Baking Co. of N/A N/A N/A 100% (iv)
Miami, LLC
Flowers Baking Co. of N/A N/A N/A 100% (iv)
Jacksonville, LLC
Flowers Baking Co. of N/A N/A N/A 100% (iv)
Bradenton, LLC
|
ANNEX D
6. Flowers Baking Co. of Thomasville, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
7. Flowers Baking Co. of Villa Rica, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
8. Flowers Baking Co. of Opelika, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
9. Hardin's Bakery, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
10. Home Baking Company, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
11. Huval Bakery, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
Bunny Bread, LLC N/A N/A N/A 100% (iv)
|
12. Flowers Baking Co. of Jamestown, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
13. Franklin Baking Company, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
ANNEX D
14. Flowers Baking Co. of Lynchburg, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
15. Flowers Baking Co. of Norfolk, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
16. Flowers Baking Co. of Morristown, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
17. Schott's Bakery, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
18. Flowers Baking Co. of West Virginia, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
The Donut House, LLC N/A N/A N/A 100% (iv)
|
19. Flowers Baking Co. of Texas, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
Flowers Baking Co. of N/A N/A N/A 100% (iv)
Tyler, LLC
El Paso Baking Co., N/A N/A N/A 100% (iv)
LLC
San Antonio Baking N/A N/A N/A 100% (iv)
Co., LLC
Austin Baking Co., LLC N/A N/A N/A 100% (iv)
Corpus Christi Baking N/A N/A N/A 100% (iv)
Co., LLC
|
ANNEX D
20. Flowers Baking Co. of Texarkana, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
21. Holsum Baking Company, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
22. Shipley Baking Company, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
23. Storck Baking Company, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
24. Bailey Street Bakery, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
25. Table Pride, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
26. Flowers Baking Co. of Memphis, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
27. Hampton Roads Baking Company, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
ANNEX D
28. Flowers Baking Co. of Miami, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
29. Flowers Baking Co. of Jacksonville, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
30. Flowers Baking Co. of Bradenton, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
31. Bunny Bread, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
Flowers Baking Co. of N/A N/A N/A 100% (iv)
Baton Rouge, LLC
|
32. Flowers Baking Co. of Baton Rouge, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
33. The Donut House, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
34. Flowers Baking Co. of Tyler, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
ButterKrust Bakery, N/A N/A N/A 100% (iv)
LLC
|
ANNEX D
35. Butterkrust Bakery, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
36. El Paso Baking Co., LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
37. El Paso Baking Company de Mexico, S.A. de C.V.
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
38. San Antonio Baking Co., LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
39. Austin Baking Co., LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
40. Corpus Christi Baking Co., LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
41. European Bakers, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
42. Aunt Fanny's Bakery, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
ANNEX D
43. Dan-Co Bakery, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
Daniels Home Bakery N/A N/A N/A 100% (iv)
of North Carolina, LLC
|
44. Daniel's Home Bakery of North Carolina, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
45. Mrs. Smith's Bakeries Frozen Distributors, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
46. Mrs. Smith's Bakeries of Pennsylvania, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
47. Flowers Specialty Foods of Montgomery, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
48. Mrs. Smith's Bakery of Fountain Inn, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
49. Flowers Fresh Bakery Distributors, Inc.
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
ANNEX D
50. Mrs. Smith's Bakeries Sales Support Group, LLC
Name of Relevant Sub-clause of
Issuing Number Section 3.2(a) of the
Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement
----------- ------------- --------- --------------- ---------------- ----------------------
Mrs. Smith's Foil N/A N/A N/A 100% (iv)
Company, LLC
|
51. Mrs. Smith's Foil Company, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
52. Mrs. Smith's Bakery of London, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
53. Mrs. Smith's Brands, Inc.
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
54. Mrs. Smith's Bakery of Stilwell, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
55. Mrs. Smith's Bakery of Spartanburg, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
56. Mrs. Smith's Bakery of Crossville, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
57. Mrs. Smith's Bakery of Suwanee, LLC
Name of Relevant Sub-clause of Issuing Number Section 3.2(a) of the Corporation Type of Share of Shares Certificate No. Percentage Owned Pledge Agreement ----------- ------------- --------- --------------- ---------------- ---------------------- NONE. |
ANNEX E
to
PLEDGE AND SECURITY AGREEMENT
LIST OF PARTNERSHIP INTERESTS
1. Flowers Foods, Inc. NONE.
2. Flowers Bakeries Brands, Inc. NONE.
3. Flowers Bakeries, LLC NONE.
4. Mrs. Smith's Bakeries, LLC NONE.
5. Flowers Baking Co. of Florida, LLC NONE.
6. Flowers Baking Co. of Thomasville, LLC NONE.
7. Flowers Baking Co. of Villa Rica, LLC NONE.
8. Flowers Baking Co. of Opelika, LLC NONE.
9. Hardin's Bakery, LLC NONE.
10. Home Baking Company, LLC NONE.
11. Huval Bakery, LLC NONE.
12. Flowers Baking Co. of Jamestown, LLC NONE.
13. Franklin Baking Company, LLC
NONE.
Annex E
14. Flowers Baking Co. of Lynchburg, LLC NONE.
15. Flowers Baking Co. of Norfolk, LLC NONE.
16. Flowers Baking Co. of Morristown, LLC NONE.
17. Schott's Bakery, LLC NONE.
18. Flowers Baking Co. of West Virginia, LLC NONE.
19. Flowers Baking Co. of Texas, LLC NONE.
20. Flowers Baking Co. of Texasrkana, LLC NONE.
21. Holsum Baking Company, LLC NONE.
22. Shipley Baking Company, LLC NONE.
23. Storck Baking Company, LLC NONE.
24. Bailey Street Bakery, LLC NONE.
25. Table Pride, LLC NONE.
26. Flowers Baking Co. of Memphis, LLC NONE.
27. Hampton Roads Baking Company, LLC NONE.
28. Flowers Baking Co. of Miami, LLC NONE.
29. Flowers Baking Co. of Jacksonville, LLC
NONE.
Annex E
30. Flowers Baking Co. of Bradenton, LLC NONE.
31. Bunny Bread, LLC NONE.
32. Flowers Baking Co. of Baton Rouge, LLC NONE.
33. The Donut House, LLC NONE.
34. Flowers Baking Company of Tyler, LLC NONE.
35. Butterkrust Bakery, LLC NONE.
36. El Paso Baking Co., LLC NONE.
37. El Paso Baking Company de Mexico, S.A. de C.V.
NONE.
38. San Antonio Baking Co., LLC NONE.
39. Austin Baking Co., LLC NONE.
40. Corpus Christi Bank Co., LLC NONE.
41. Eurpoean Bakers, LLC NONE.
42. Aunt Fanny's Bakery, LLC NONE.
43. Dan-Co Baker, LLC NONE.
44. Daniel's Home Bakery of North Carolina, LLC NONE.
45. Mrs. Smith's Bakeries Frozen Distributors, LLC
NONE.
Annex E
46. Mrs. Smith's Bakeries of Pennsylvania, LLC NONE.
47. Flowers Specialty Foods of Montgomery, LLC NONE.
48. Flowers Baking Company of Fountain Inn, LLC NONE.
49. Flowers Fresh Bakery Distributors, Inc. NONE.
50. Mrs. Smith's Bakeries Sales Support Group, LLC NONE.
51. Mrs. Smith's Foil Company, LLC NONE.
52. Mrs. Smith's Bakery of London, LLC NONE.
53. Mrs. Smith's Brands, Inc. NONE.
54. Mrs. Smith's Bakery of Stilwell, LLC NONE.
55. Mrs. Smith's Bakery of Spartanburg, LLC NONE.
56. Mrs. Smith's Bakery of Crossville, LLC NONE.
57. Mrs. Smith's Bakery of Suwanee, LLC NONE.
58. Flowers Finance, LLC
NONE.
ANNEX F
to
PLEDGE AND SECURITY AGREEMENT
DISTRIBUTOR'S AGREEMENTS
SEE ATTACHED FORM OF
DISTRIBUTOR AGREEMENT AND
DISTRIBUTOR AGREEMENT TABLE
ANNEX G
to
PLEDGE AND SECURITY AGREEMENT
1. Flowers Foods, Inc.
Chief Executive Office: Record Location:
----------------------- ----------------
1919 Flowers Circle 1919 Flowers Circle
Thomasville, GA 31757 Thomasville, GA 31757
2. Flowers Bakeries Brands, Inc.
Chief Executive Office: Record Location:
----------------------- ----------------
1919 Flowers Circle 1919 Flowers Circle
Thomasville, GA 31757 Thomasville, GA 31757
3. Flowers Bakeries, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
1919 Flowers Circle 1919 Flowers Circle
Thomasville, GA 31757 Thomasville, GA 31757
4. Flowers Baking Co. of Florida, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
1919 Flowers Circle 1919 Flowers Circle
Thomasville, GA 31757 Thomasville, GA 31757
5. Flowers Baking Co. of Miami, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
17800 NW Miami Court 17800 NW Miami Court
Miami, FL 33169 Miami, FL 33169
6. Flowers Baking Co. of Jacksonville, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
2261 West 30th Street 2261 West 30th Street
Jacksonville, FL 32209 Jacksonville, FL 32209
7. Flowers Baking Co. of Bradenton, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
6490 Parkland Drive 6490 Parkland Drive
Bradenton, FL 34243 Sarasota, FL 34243
8. Flowers Baking Co. of Thomasville, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
300 Madison Street 300 Madison Street
Thomasville, GA 31792 Thomasville, GA 31792
9. Flowers Baking Co. of Villa Rica, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
134 Doyle McCain Drive 134 Doyle McCain Drive
Villa Rica, GA 30180 Villa Rica, GA 30180
|
Exhibit G
10. Flowers Baking Co. of Opelika, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
101 Simmons Street 101 Simmons Street
Opelika, AL 36801 Opelika, AL 36801
11. Hardin's Bakery, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
546 15th Street 546 15th Street
Tuscaloosa, AL 35403 Tuscaloosa, AL 35403
12. Home Baking Company, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
900 North 16th Street 900 North 16th Street
Birmingham, AL 35203 Birmingham, AL 35203
13. Huval Bakery, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
720 West Simcoe Street 720 West Simcoe Street
Lafayette, LA 70501 Lafayette, LA 70501
14. Bunny Bread, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
5646 Lewis Road 5646 Lewis Road
New Orleans, LA 70126 New Orleans, LA 70126
15. Flowers Baking Co. of Baton Rouge, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
1504 Florida Blvd. 1504 Florida Blvd.
Baton Rouge, LA 70802 Baton Rouge, LA 70802
16. Flowers Baking Co. of Jamestown, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
801 Main Street 801 Main Street
Jamestown, NC 27282 Jamestown, NC 27282
17. Franklin Baking Company, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
607 North Carolina Street 607 North Carolina Street
Goldsboro, NC 27530 Goldsboro, NC 27533
|
Exhibit G
18. Flowers Baking Co. of Lynchburg, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
1905 Hollins Mill Road 1905 Hollins Mill Road
Lynchburg, VA 24503 Lynchburg, VA 24503
19. Flowers Baking Co. of Norfolk, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
1925 Flowers Circle 1925 Flowers Circle
Thomasville, GA 31757 Thomasville, GA 31757
20. Flowers Baking Co. of Morristown, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
1725 West First North Street 1725 West First North Street
Morristown, TN 37814 Morristown, TN 37814
21. Schott's Bakery, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
3000 Washington Avenue 3000 Washington Avenue
Houston, TX 77007 Houston, TX 77007
22. Flowers Baking Co. of West Virginia, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
1188 Coal Heritage Road 1188 Coal Heritage Road
Bluefield, WV 24701 Bluefield, WV 24701
23. The Donut House, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
5040 McCorkle Avenue 5040 McCorkle Avenue
South Charleston, WV 31757 South Charleston, WV 31757
24. Flowers Baking Co. of Texas, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
1919 Flowers Circle 1919 Flowers Circle
Thomasville, GA 31757 Thomasville, GA 31757
25. Flowers Baking Company of Tyler, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
1200 W. Erwin Street 1200 W. Erwin Street
Tyler, TX 75702 Tyler, TX 75702
26. Butterkrust Bakery, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
6000 NE Loop 410 6000 NE Loop 410
San Antonio, TX 78218 San Antonio, TX 78218
|
Exhibit G
27. El Paso Baking Co., LLC
Chief Executive Office: Record Location:
----------------------- ----------------
301 North Dallas Street 301 North Dallas Street
El Paso, TX 79901 El Paso, TX 79901
28. El Paso Baking Company de Mexico, S.A. de C.V.
Chief Executive Office: Record Location:
----------------------- ----------------
301 North Dallas Street 301 North Dallas Street
El Paso, TX 79901 El Paso, TX 79901
29. San Antonio Baking Co., LLC
Chief Executive Office: Record Location:
----------------------- ----------------
1919 Flowers Circle 1919 Flowers Circle
Thomasville, GA 31757 Thomasville, GA 31757
30. Austin Baking Co., LLC
Chief Executive Office: Record Location:
----------------------- ----------------
1919 Flowers Circle 1919 Flowers Circle
Thomasville, GA 31757 Thomasville, GA 31757
31. Corpus Christi Baking Co., LLC.
Chief Executive Office: Record Location:
----------------------- ----------------
1919 Flowers Circle 1919 Flowers Circle
Thomasville, GA 31757 Thomasville, GA 31757
32. Flowers Baking Co. of Texarkana, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
7 Jim Walters Drive 7 Jim Walters Drive
Texarkana, AR 75504 Texarkana, AR 75504
33. Holsum Baking Company, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
220 Tennessee Street 220 Tennessee Street
Pine Bluff, Arkansas 71611 Pine Bluff, Arkansas 71611
34. Shipley Baking Company, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
73 South 6th Street 73 South 6th Street
Fort Smith, AR 72901 Fort Smith, AR 72901
35. Storck Baking Company, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
1919 Flowers Circle 1919 Flowers Circle
Thomasville, GA 31757 Thomasville, GA 31757
|
Exhibit G
36. Bailey Street Bakery, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
165 Bailey Street SW 165 Bailey Street SW
Atlanta, GA 30314 Atlanta, GA 30314
37. Table Pride, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
1940 Will Ross Court 1940 Will Ross Court
Chamblee, GA 30341 Chamblee, GA 30341
38. Flowers Baking Co. of Memphis, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
1029 South Florida Street 1029 South Florida Street
Memphis, TN 38106 Memphis, TN 38106
39. Hampton Roads Baking Company, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
1209 Corprew Avenue 1209 Corprew Avenue
Norfolk, VA 23504 Norfolk, VA 23504
40. Mrs. Smith's Bakeries, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
2855 Rolling Pin Lane, Suite A 2855 Rolling Pin Lane, Suite A
Suwanee, GA 30024 Suwanee, GA 30024
41. European Bakers, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
5055 South Royal Atlanta Drive 5055 South Royal Atlanta Drive
Tucker, GA 30084 Tucker, GA 30084
42. Aunt Fanny's Bakery, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
1039 Grant Street, SE 1039 Grant Street, SE
Atlanta, GA 30315 Atlanta, GA 30315
43. Dan-Co Bakery, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
301 Cash Memorial Drive 301 Cash Memorial Drive
Forest Park, GA 30297 Forest Park, GA 30297
44. Daniel's Home Bakery of North Carolina, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
701 Jones Street 701 Jones Street
Pembroke, NC 28372 Pembroke, NC 28372
|
Exhibit G
45. Mrs. Smith's Bakeries Sales Support Group, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
2855 Rolling Pin Lane, Suite A 2855 Rolling Pin Lane, Suite A
Suwanee, GA 30024 Suwanee, GA 30024
46. Mrs. Smith's Foil Company, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
255 South Street 255 South Street
Pottstown, PA 19464 Pottstown, PA 19464
47. Mrs. Smith's Bakeries Frozen Distributors, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
2855 Rolling Pin Lane, Suite A 2855 Rolling Pin Lane, Suite A
Suwanee, GA 30024 Suwanee, GA 30024
48. Mrs. Smith's Bakeries of Pennsylvania, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
2855 Rolling Pin Lane, Suite A 2855 Rolling Pin Lane, Suite A
Suwanee, GA 30024 Suwanee, GA 30024
49. Flowers Specialty Foods of Montgomery, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
140 Folmar Parkway 140 Folmar Parkway
Montgomery, AL 36105 Montgomery, AL 36105
50. Flowers Baking Company of Fountain Inn, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
2855 Rolling Pin Lane, Suite A 2855 Rolling Pin Lane, Suite A
Suwanee, GA 30024 Suwanee, GA 30024
51. Flowers Fresh Bakery Distributors, Inc.
Chief Executive Office: Record Location:
----------------------- ----------------
1411 Mountain Road 1411 Mountain Road
Andersonville, TN 37705 Andersonville, TN 37705
52. Mrs. Smith's Bakery of London, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
501 East Fourth Street 501 East Fourth Street
London, KY 40741 London, KY 40741
53. Mrs. Smith's Brands, Inc.
Chief Executive Office: Record Location:
----------------------- ----------------
2855 Rolling Pin Lane, Suite A 2855 Rolling Pin Lane, Suite A
Suwanee, GA 30024 Suwanee, GA 30024
|
Exhibit G
54. Mrs. Smith's Bakery of Spartanburg, LLC.
Chief Executive Office: Record Location:
----------------------- ----------------
7001 Asheville Highway 7001 Asheville Highway
Spartanburg, SC 29303 Spartanburg, SC 29303
55. Mrs. Smith's Bakery of Crossville, LLC.
Chief Executive Office: Record Location:
----------------------- ----------------
1067 North Main Street 1067 North Main Street
Crossville, TN 38555 Crossville, TN 38555
56. Mrs. Smith's Bakery of Stilwell, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
5 East Walnut Street 5 East Walnut Street
Stilwell, OK 74960 Stilwell, OK 74960
57. Mrs. Smith's Bakery of Suwanee, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
2900 Rolling Pin Lane, Suite B 2900 Rolling Pin Lane, Suite B
Suwanee, GA 30024 Suwanee, GA 30024
58. Flowers Finance, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
1919 Flowers Circle 1919 Flowers Circle
Thomasville, GA 31757 Thomasville, GA 31757
|
ANNEX H
to
PLEDGE AND SECURITY AGREEMENT
EXACT LEGAL NAME OF EACH PLEDGOR AND
STATE OF INCORPORATION/ORGANIZATION
PERCENTAGE
FEIN OWNED
---- -----
I. Flowers Foods, Inc. (GA) 58-2582379 Parent
-------------------
1. Flowers Finance, LLC (DE) Pending 100%
2. Flowers Bakeries, LLC (GA) 59-3483283 100%
i. Flowers Baking Co. of Florida, LLC (FL) 58-1301118 100%
1. Flowers Baking Co. of Miami, LLC (FL) 59-1758784 100%
2. Flowers Baking Co. of Jacksonville, LLC (FL) 59-1718773 100%
3. Flowers Baking Co. of Bradenton, LLC (FL) 58-1723981 100%
ii. Flowers Baking Co. of Thomasville, LLC (GA) 58-1330782 100%
iii. Flowers Baking Co. of Villa Rica, LLC (GA) 58-2109227 100%
iv. Flowers Baking Co. of Opelika, LLC (AL) 63-0752595 100%
1. Bailey Street Bakery, LLC (AL) 58-2272791 100%
v. Hardin's Bakery, LLC (AL) 63-0252356 100%
vi. Home Baking Company, LLC (AL) 63-0334970 100%
vii. Huval Bakery, LLC (LA) 59-1686698 100%
1. Bunny Bread, LLC (LA) 72-0500448 100%
a. Flowers Baking Co. of Baton Rouge, LLC (LA) 58-1740889 100%
viii. Flowers Baking Co. of Jamestown, LLC (NC) 58-1567728 100%
ix. Franklin Baking Company, LLC (NC) 56-0605051 100%
x. Flowers Baking Co. of Lynchburg, LLC (VA) 58-1309193 100%
xi. Flowers Baking Co. of Norfolk, LLC (VA) 58-1330779 100%
xii. Flowers Baking Co. of Morristown, LLC (TN) 58-1403615 100%
xiii. Schott's Bakery, LLC (TX) 74-0886850 100%
xiv. Flowers Baking Co. of West Virginia, LLC (WV) 55-0654747 100%
1. The Donut House, LLC (WV) 55-0517749 100%
xv. Flowers Baking Co. of Texas, LLC (TX) 58-1453104 100%
1. Flowers Baking Co. of Tyler, LLC (GA) 75-1786865 100%
a. Butterkrust Bakery, LLC (TX) 74-2720708 100%
2. El Paso Baking Co., LLC (TX) 74-2657988 100%
a. El Paso Baking Company de Mexico, S.A. de C.V. (MEXICO) 100%
3. San Antonio Baking Co., LLC (TX) 74-2830409 100%
4. Austin Baking Co., LLC (TX) 74-2830410 100%
5. Corpus Christi Baking Co., LLC. (TX) 74-2830414 100%
xvi. Flowers Baking Co. of Texarkana, LLC (AR) 71-0638493 100%
xvii. Holsum Baking Company, LLC (AR) 71-0209537 100%
xviii. Shipley Baking Company, LLC (AR) 71-0254043 100%
|
<
xix. Storck Baking Company, LLC (WV) 55-0745937 100%
xx. Table Pride, LLC (GA) 58-1846861 100%
xxi. Flowers Baking Co. of Memphis, LLC (TN) 62-1799669 100%
xxii. Hampton Roads Baking Company, LLC (VA) 58-2593937 100%
xxiii Flowers Bakeries Brands, Inc. (DE) 51-0407486 100%
3. Mrs. Smith's Bakeries, LLC (GA) 58-2392473 100%
a. European Bakers, LLC (GA) 58-0944858 100%
b. Aunt Fanny's Bakery, LLC (GA) 58-2168689 100%
c. Dan-Co Bakery, LLC (GA) 58-1989098 100%
i. Daniel's Home Bakery of North Carolina, LLC (NC) 58-2023526 100%
d. Mrs. Smith's Bakeries Sales Support Group, LLC (GA) 58-1846859 100%
i. Mrs. Smith's Foil Company, LLC (GA) 23-2947803 100%
e. Mrs. Smith's Bakeries Frozen Distributors, LLC (GA) 58-2125054 100%
f. Mrs. Smith's Bakeries of Pennsylvania, LLC (GA) 58-2236380 100%
g. Flowers Specialty Foods of Montgomery, LLC (AL) 63-0998333 100%
h. Flowers Baking Company of Fountain Inn, LLC (SC) 57-0641441 100%
i. Flowers Fresh Bakery Distributors, Inc. (TN) 62-1574151 100%
j. Mrs. Smith's Bakery of London, LLC (KY) 61-1027735 100%
k. Mrs. Smith's Brands, Inc. (SC) 57-1069445 100%
l. Mrs. Smith's Bakery of Stilwell, LLC (OK) 73-0962847 100%
m. Mrs. Smith's Bakery of Spartanburg, LLC. (SC) 57-0518564 100%
n. Mrs. Smith's Bakery of Crossville, LLC. (TN) 58-1333171 100%
o. Mrs. Smith's Bakery of Suwanee, LLC (GA) 58-2480300 100%
|
ANNEX I
to
PLEDGE AND SECURITY AGREEMENT
Form of Agreement Regarding Uncertificated Securities, Limited Liability Company Interests and Partnership Interests
AGREEMENT (as amended, modified or supplemented from time to time, this "Agreement"), dated as of _______ __, ____, among each of the undersigned pledgors (each a "Pledgor" and, collectively, the "Pledgors"), Bankers Trust Company, not in its individual capacity but solely as Collateral Agent (the "Pledgee"), and __________, as the issuer of the Uncertificated Securities, Limited Liability Company Interests and/or Partnership Interests (each as defined below) (the "Issuer").
WITNESSETH:
WHEREAS, each Pledgor and the Pledgee have entered into a Pledge and Security Agreement, dated as of _______ __, 2001 (as amended, amended and restated, modified and/or supplemented from time to time, the "Pledge Agreement"), under which, among other things, in order to secure the payment of the Obligations (as defined in the Pledge Agreement), each Pledgor will pledge to the Pledgee for the benefit of the Secured Creditors (as defined in the Pledge Agreement), and grant a security interest in favor of the Pledgee for the benefit of the Secured Creditors in, all of the right, title and interest of such Pledgor in and to any and all (1) "uncertificated securities" (as defined in Section 8-102(a)(18) of the Uniform Commercial Code, as adopted in the State of New York) ("Uncertificated Securities"), (2) Partnership Interests (as defined in the Pledge and Security Agreement) and (3) Limited Liability Company Interests (as defined in the Pledge and Security Agreement), in each case issued from time to time by the Issuer, whether now existing or hereafter from time to time acquired by such Pledgor (with all of such Uncertificated Securities, Partnership Interests and Limited Liability Company Interests being herein collectively called the "Issuer Pledged Interests"); and
WHEREAS, each Pledgor desires the Issuer to enter into this Agreement in order to perfect the security interest of the Pledgee under the Pledge and Security Agreement in the Issuer Pledged Interests, to vest in the Pledgee control of the Issuer Pledge Interests and to provide for the rights of the parties under this Agreement;
NOW THEREFORE, in consideration of the premises and the mutual promises and agreements contained herein, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Each Pledgor hereby irrevocably authorizes and directs the Issuer, and the Issuer hereby agrees, to comply with any and all instructions and orders originated by the Pledgee (and its successors and assigns) regarding any and all of the Issuer Pledged Interests without the further consent by the registered owner (including the respective Pledgor), and not to comply with any instructions or orders regarding any or all of the Issuer Pledged Interests originated by
Annex I
any person or entity other than the Pledgee (and its successors and assigns) or a court of competent jurisdiction.
2. The Issuer hereby certifies that (i) no notice of any security interest, lien or other encumbrance or claim affecting the Issuer Pledged Interests (other than the security interest of the Pledgee) has been received by it, and (ii) the security interest of the Pledgee in the Issuer Pledged Interests has been registered in the books and records of the Issuer.
3. The Issuer hereby represents and warrants that (i) the pledge by the Pledgors of, and the granting by the Pledgors of a security interest in, the Issuer Pledged Interests to the Pledgee, for the benefit of the Secured Creditors, does not violate the charter, by-laws, partnership agreement, membership agreement or any other agreement governing the Issuer or the Issuer Pledged Interests, and (ii) the Issuer Pledged Interests are fully paid and nonassessable.
4. All notices, statements of accounts, reports, prospectuses, financial statements and other communications to be sent to any Pledgor by the Issuer in respect of the Issuer will also be sent to the Pledgee at the following address:
Bankers Trust Company 130 Liberty Street New York, New York 10006 Attention: Scottye Lindsey Telephone No.: (212) 250-3964 Telecopier No.: (212) 250-7218
5. Until the Pledgee shall have delivered written notice to the Issuer that all of the Obligations have been paid in full and this Agreement is terminated, the Issuer will send any and all redemptions, distributions, interest or other payments in respect of the Issuer Pledged Interests from the Issuer for the account of the Pledgor only by wire transfers to such account as the Pledge shall instruct.
6. Except as expressly provided otherwise in Sections 4 and 5, all notices, instructions, orders and communications hereunder shall be sent or delivered by mail, telecopy or overnight courier service and all such notices and communications shall, when mailed, telecopied or sent by overnight courier, be effective when deposited in the mails or delivered to the overnight courier, prepaid and properly addressed for delivery on such or the next Business Day, or sent by telecopier, except that notices and communications to the Pledgee shall not be effective until received by the Pledgee. All notices and other communications shall be in writing and addressed as follows:
(a) if to any Pledgor, at:
Flowers Foods, Inc. 1919 Flowers Circle Thomasville, Georgia 31757 Attention: Kirk Tolbert Tel.: (912) 227-2278 Fax: (912) 225-5435
Annex I
(b) if to the Pledgee, at:
Bankers Trust Company 130 Liberty Street New York, New York 10006 Attention: Scottye Lindsey Tel: (212) 250-3964 Fax: (212) 250-7218
(c) if to the Issuer, at:
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder. As used in this
Section 6, "Business Day" means any day other than a Saturday, Sunday, or other
day in which banks in New York are authorized to remain closed.
7. This Agreement shall be binding upon the successors and assigns of each Pledgor and the Issuer and shall inure to the benefit of and be enforceable by the Pledgee and its successors and assigns. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which shall constitute one instrument. In the event that any provision of this Agreement shall prove to be invalid or unenforceable, such provision shall be deemed to be severable from the other provisions of this Agreement which shall remain binding on all parties hereto. None of the terms and conditions of this Agreement may be changed, waived, modified or varied in any manner whatsoever except in writing signed by the Pledgee, the Issuer and any Pledgor which at such time owns any Issuer Pledged Interests.
8. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its principles of conflict of laws.
IN WITNESS WHEREOF, each Pledgor, the Pledgee and the Issuer have caused this Agreement to be executed by their duly elected officers duly authorized as of the date first above written.
Annex I
[ ],
as a Pledgor
By_______________________________
Name:
Title:
BANKERS TRUST COMPANY,
not in its individual capacity but solely as
Collateral Agent and Pledgee
By_____________________________
Name:
Title:
[ ],
the Issuer
By_______________________________
Name:
Title:
EXHIBIT I
SECURITY AGREEMENT
among
FLOWERS FOODS, INC.,
CERTAIN SUBSIDIARIES OF FLOWERS FOODS, INC.
and
BANKERS TRUST COMPANY,
as COLLATERAL AGENT
TABLE OF CONTENTS
ARTICLE I SECURITY INTERESTS.................................................................................. 2
1.1 Grant of Security Interests......................................................................... 2
1.2 Power of Attorney................................................................................... 2
ARTICLE II GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS................................................... 3
2.1 Necessary Filings................................................................................... 3
2.2 No Liens............................................................................................ 3
2.3 Other Financing Statements.......................................................................... 3
2.4 Chief Executive Office; Record Locations; Exact Legal Name; State of
Incorporation/Organization....................................................................... 3
2.5 Location of Inventory and Equipment................................................................. 4
2.6 Recourse............................................................................................ 5
2.7 Trade Names; New Trade Name......................................................................... 5
ARTICLE III SPECIAL PROVISIONS CONCERNING RECEIVABLES;
CONTRACT RIGHTS; INSTRUMENTS; CHATTEL PAPER...................................................... 6
3.1 Additional Representations and Warranties........................................................... 6
3.2 Maintenance of Records.............................................................................. 6
3.3 Direction to Account Debtors; Contracting Parties; etc.............................................. 6
3.4 Modification of Terms; etc.......................................................................... 7
3.5 Collection.......................................................................................... 7
3.6 Assignors Remain Liable Under Receivables........................................................... 7
3.7 Assignors Remain Liable Under Contracts............................................................. 8
ARTICLE IV SPECIAL PROVISIONS CONCERNING TRADEMARKS............................................................ 8
4.1 Additional Representations and Warranties........................................................... 8
4.2 Infringements....................................................................................... 8
4.3 Preservation of Marks............................................................................... 9
4.4 Maintenance of Registration......................................................................... 9
4.5 Future Registered Marks............................................................................. 9
4.6 Remedies............................................................................................ 9
ARTICLE V SPECIAL PROVISIONS CONCERNING
PATENTS, COPYRIGHTS AND TRADE SECRETS........................................................... 10
5.1 Additional Representations and Warranties.......................................................... 10
5.2 Infringements...................................................................................... 10
5.3 Maintenance of Patents or Copyright................................................................ 10
5.4 Prosecution of Patent Applications................................................................. 10
5.5 Other Patents and Copyrights....................................................................... 11
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5.6 Remedies........................................................................................... 11
ARTICLE VI PROVISIONS CONCERNING ALL COLLATERAL............................................................... 11
6.1 Protection of Collateral Agent's Security.......................................................... 11
6.2 Warehouse Receipts Non-Negotiable.................................................................. 12
6.3 Further Actions.................................................................................... 12
6.4 Financing Statements............................................................................... 12
ARTICLE VII REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT....................................................... 12
7.1 Remedies; Obtaining the Collateral Upon Default.................................................... 12
7.2 Remedies; Disposition of the Collateral............................................................ 14
7.3 Waiver of Claims................................................................................... 14
7.4 Application of Proceeds............................................................................ 15
7.5 Remedies Cumulative................................................................................ 17
7.6 Discontinuance of Proceedings...................................................................... 18
ARTICLE VIII INDEMNITY........................................................................................... 18
8.1 Indemnity.......................................................................................... 18
8.2 Indemnity Obligations Secured by Collateral; Survival.............................................. 19
ARTICLE IX DEFINITIONS........................................................................................ 19
ARTICLE X MISCELLANEOUS...................................................................................... 25
10.1 Notice............................................................................................. 25
10.2 Waiver; Amendment.................................................................................. 26
10.3 Obligations Absolute............................................................................... 26
10.4 Successors and Assigns............................................................................. 26
10.5 Headings Descriptive............................................................................... 27
10.6 Governing Law...................................................................................... 27
10.7 Assignor's Duties.................................................................................. 27
10.8 Termination; Release............................................................................... 27
10.9 Counterparts....................................................................................... 28
10.10 Severability....................................................................................... 28
10.11 The Collateral Agent............................................................................... 28
10.12 Benefit of Agreement............................................................................... 28
10.13 Additional Assignors............................................................................... 28
10.14 Release of Guarantors.............................................................................. 29
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ANNEX A Schedule of Chief Executive Offices/Record Locations
ANNEX B Schedule of Exact Legal Name of Each Assignor and State of
Incorporation/Organization
ANNEX C Schedule of Inventory and Equipment Location
ANNEX D Schedule of Trade and Fictitious Names
ANNEX E Schedule of Marks and Applications
ANNEX F Schedule of Patents and Applications
ANNEX G Schedule of Copyrights and Applications
ANNEX H Grant of Security Interest in United States Trademarks
ANNEX I Grant of Security Interest in United States Patents
ANNEX J Grant of Security Interest in United States Copyrights
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EXHIBIT I
SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of March 26, 2001, made by each of the undersigned assignors (each an "Assignor" and, together with any other entity that becomes an assignor hereunder pursuant to Section 10.13 hereof, the "Assignors") in favor of Bankers Trust Company, as Collateral Agent (together with any successor collateral agent, the "Collateral Agent"), for the benefit of the Secured Creditors (as defined below). Except as otherwise defined herein, capitalized terms used herein and defined in the Credit Agreement (as defined below) shall be used herein as so defined.
W I T N E S S E T H :
WHEREAS, Flowers Foods, Inc. (the "Borrower"), various lenders from time to time party thereto (the "Lenders"), SunTrust Bank, as Syndication Agent (in such capacity, the "Syndication Agent") and Bankers Trust Company, as Administrative Agent (in such capacity, and together with any successor administrative agent, the "Administrative Agent" and, together with the Collateral Agent, the Syndication Agent, the Lenders, each Issuing Lender and their respective successors and assigns, being herein called the "Lender Creditors"), have entered into a Credit Agreement, dated as of March 26, 2001, providing for the making of Loans to the Borrower and the issuance of, and participation in, Letters of Credit for the account of the Borrower, all as contemplated therein (as used herein, the term "Credit Agreement" means the Credit Agreement described above in this paragraph, as the same may be amended, modified, extended, renewed, restated or supplemented from time to time);
WHEREAS, the Borrower may from time to time be party to (or guaranty the obligations of one or more of its Subsidiaries under) one or more Interest Rate Protection Agreements with one or more Lender Creditors or an affiliate of a Lender Creditor (each such Lender Creditor or affiliate, even if the respective Lender Creditor subsequently ceases to be a Lender under the Credit Agreement for any reason, together with such Lender Creditor's or affiliate's successors and assigns, collectively, the "Interest Rate Protection Creditors" and, together with the Lender Creditors, the Secured Creditors);
WHEREAS, pursuant to the Subsidiaries Guaranty, the Subsidiary
Guarantors have jointly and severally guaranteed to the Lender Creditors and the
Interest Rate Protection Creditors the payment when due of all obligations and
liabilities of the Borrower under or with respect to (x) the Credit Documents
(as used herein, the term "Credit Documents" shall have the meaning provided in
the Credit Agreement and shall include any documentation executed and delivered
in connection with any replacement or refinancing of the Credit Agreement) and
(y) each Interest Rate Protection Agreement with one or more Interest Rate
Protection Creditors;
WHEREAS, it is a condition precedent to the extensions of credit under the Credit Agreement that each Assignor shall have executed and delivered to the Collateral Agent this Agreement; and
Exhibit I
WHEREAS, each Assignor desires to execute this Agreement to satisfy the conditions described in the immediately preceding paragraph;
NOW, THEREFORE, in consideration of the benefits accruing to each Assignor, the receipt and sufficiency of which are hereby acknowledged, each Assignor hereby makes the following representations and warranties to the Collateral Agent for the benefit of the Secured Creditors and hereby covenants and agrees with the Collateral Agent for the benefit of the Secured Creditors as follows:
ARTICLE I
SECURITY INTERESTS
1.1 Grant of Security Interests. (a) As security for the prompt
and complete payment and performance when due of all of its Obligations, each
Assignor does hereby assign and transfer unto the Collateral Agent, and does
hereby pledge and grant to the Collateral Agent for the benefit of the Secured
Creditors, a continuing security interest in, all of the right, title and
interest of such Assignor in, to and under all of the following, whether now
existing or hereafter from time to time acquired: (i) each and every Receivable,
(ii) all Contracts, together with all Contract Rights arising thereunder, (iii)
all Inventory, (iv) all Equipment, (v) all Marks, together with the
registrations and right to all renewals thereof, and the goodwill of the
business of such Assignor symbolized by the Marks, (vi) all Patents and
Copyrights, (vii) all computer programs of such Assignor and all intellectual
property rights therein and all other proprietary information of such Assignor,
including, but not limited to, Trade Secret Rights, (viii) all software
licensing rights, (ix) all other Goods, General Intangibles, Investment
Property, Permits, Chattel Paper, Documents, Instruments and other assets, (x)
the Cash Collateral Account and all monies, securities, instruments and other
investments deposited or required to be deposited in such Cash Collateral
Account, and (xi) all Proceeds and products of any and all of the foregoing (all
of the above, collectively, the "Collateral"); provided that, notwithstanding
the foregoing or anything contained herein to the contrary, "Collateral" shall
specifically exclude the Excluded Assets.
(b) The security interest of the Collateral Agent under this Agreement extends to all Collateral of the kind which is the subject of this Agreement which any Assignor may acquire at any time during the term of this Agreement.
1.2 Power of Attorney. Each Assignor hereby constitutes and appoints the Collateral Agent its true and lawful attorney, irrevocably, with full power after the occurrence of and during the continuance of an Event of Default (in the name of such Assignor or otherwise) to act, require, demand, receive, compound and give acquittance for any and all monies and claims for monies due or to become due to such Assignor under or arising out of the Collateral, to endorse any checks or other instruments or orders in connection therewith and to file any claims or take any action or institute any proceedings which the Collateral Agent may deem to be necessary or advisable to protect the interests of the Secured Creditors, which appointment as attorney is coupled with an interest.
Exhibit I
ARTICLE II
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Assignor represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
2.1 Necessary Filings. All filings, registrations and recordings necessary or appropriate to create, preserve and perfect the security interest granted by such Assignor to the Collateral Agent hereby in respect of the Collateral have been accomplished (or within 10 days after the Initial Borrowing Date will be accomplished) and the security interest granted to the Collateral Agent pursuant to this Agreement in and to the Collateral creates a perfected security interest therein (subject only to completion of filings and registrations which will be accomplished within 10 days of the Initial Borrowing Date) prior to the rights of all other Persons therein and subject to no other Liens (other than Permitted Liens) and is entitled to all the rights, priorities and benefits afforded by the UCC or other relevant law as enacted in any relevant jurisdiction to perfected security interests, in each case to the extent that the Collateral consists of the type of property in which a security interest may be perfected by filing a financing statement under the UCC, or by an appropriate filing in the United States Patent and Trademark Office or in the United States Copyright Office.
2.2 No Liens. Such Assignor is, and as to Collateral acquired by it from time to time after the date hereof such Assignor will be, the owner of all Collateral free from any Lien, security interest, encumbrance or other right, title or interest of any Person (other than Permitted Liens), and such Assignor shall defend the Collateral against all other claims and demands of all Persons at any time claiming the same or any interest therein adverse to the Collateral Agent.
2.3 Other Financing Statements. As of the date hereof, there is no financing statement (or similar statement or instrument of registration under the law of any jurisdiction) covering or purporting to cover any interest of any kind in the Collateral (other than financing statements or other registrations, filings or notations of liens filed in respect of Permitted Liens and financing statements being terminated in connection with the Transaction so long as such financing statements are in fact terminated within ten (10) days after the Initial Borrowing Date), and so long as the Termination Date has not occurred, such Assignor will not execute or authorize to be filed in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except financing statements or other registrations, filings or notations of liens filed or to be filed in respect of and covering the security interests granted hereby by such Assignor or in connection with Permitted Liens.
2.4 Chief Executive Office; Record Locations; Exact Legal Name; State of Incorporation/Organization. (a) The chief executive office of such Assignor is located at the address indicated on Annex A hereto for such Assignor. Such Assignor will not move its chief executive office except to such new location as such Assignor may establish in accordance with the last sentence of this Section 2.4. The originals of all documents evidencing all Receivables
Exhibit I
and Contract Rights of such Assignor and the only original books of account and records of such Assignor relating thereto are, and will continue to be, kept at such chief executive office, at one or more of the other locations set forth on Annex A hereto or at such new locations as such Assignor may establish in accordance with the penultimate sentence of this Section 2.4. All Receivables and Contract Rights of such Assignor are, and will continue to be, maintained at, and controlled and directed (including, without limitation, for general accounting purposes) from, the office locations described above or such new location established in accordance with the last sentence of this Section 2.4. No Assignor shall establish new locations for such offices until (i) it shall have given to the Collateral Agent not less than 15 days' prior written notice of its intention to do so, providing a complete address for such new location and providing such other information in connection therewith as the Collateral Agent may reasonably request, and (ii) with respect to such new location, it shall have taken all action reasonably satisfactory to the Collateral Agent necessary to maintain the security interest of the Collateral Agent in the Collateral intended to be granted hereby at all times fully perfected and in full force and effect. Promptly after establishing a new location for such offices in accordance with the immediately preceding sentence, the respective Assignor shall deliver to the Collateral Agent a supplement to Annex A hereto so as to cause such Annex A hereto to be complete and accurate.
(b) The exact legal name of each Assignor, and the state of incorporation or organization, as the case may be, of each Assignor is as specified in Annex B hereto. Such Assignor will not change its name or establish a new state of incorporation or organization until (i) it shall have given to the Collateral Agent not less than 15 days' prior written notice of its intention so to do, clearly describing such new name and/or jurisdiction of organization and providing such other information in connection therewith as the Collateral Agent may reasonably request and (ii) with respect to such new name and/or jurisdiction of organization, it shall have taken all action, reasonably satisfactory to the Collateral Agent, necessary to maintain the security interest of the Collateral Agent in the Collateral intended to be granted hereby at all times fully perfected and in full force and effect. Promptly after establishing a new name and/or jurisdiction of organization in accordance with the immediately preceding sentence, the respective Assignor shall deliver to the Collateral Agent a supplement to Annex B hereto so as to cause such Annex B hereto to be complete and accurate.
2.5 Location of Inventory and Equipment. All Collateral consisting of Inventory and Equipment held on the date hereof by each Assignor (other than motor vehicles) is located at one of the locations shown on Annex C hereto for such Assignor. Each Assignor agrees that all Inventory and Equipment now held or subsequently acquired by it (other than motor vehicles) shall be kept at (or shall be in transport to) any one of the locations shown on Annex C hereto, or such new location as such Assignor may establish in accordance with the following sentence of this Section 2.5 until, in the case of Collateral constituting Inventory, such Collateral is transported to any of such Assignor's customers. Any Assignor may establish a new location for Inventory and Equipment only if (i) it shall have given to the Collateral Agent not less than 15 days' prior written notice of its intention so to do, providing a complete address for such new location and providing such other information in connection therewith as the Collateral Agent may request and (ii) with respect to such new location, it shall have taken all action reasonably satisfactory to the Collateral Agent necessary to maintain the security interest of the Collateral
Exhibit I
Agent in the Collateral intended to be granted hereby at all times fully
perfected and in full force and effect. Promptly after establishing a new
location for such Inventory and Equipment in accordance with the immediately
preceding sentence, the respective Assignor shall deliver to the Collateral
Agent a supplement to Annex C hereto so as to cause such Annex C hereto to be
complete and accurate. Notwithstanding anything to the contrary above in this
Section 2.5, (i) to the extent that any movement of Inventory and/or Equipment
to a location not shown on Annex C hereto but which is located in a jurisdiction
within which all filings and recordings necessary to perfect and maintain the
security interest of the Collateral Agent in such Inventory and/or Equipment
have been made, the Assignors shall be permitted, in lieu of the procedures set
forth in the second sentence of this Section 2.5, to provide a quarterly
Collateral location update (which update shall be in the form required by
Section 8.01(f) of the Credit Agreement and shall otherwise be required to be
delivered in accordance with Section 8.01(f) of the Credit Agreement),
whereafter all applicable Assignors shall promptly take all action, if any,
deemed reasonably necessary by the Collateral Agent to maintain the security
interest of the Collateral Agent in all such Inventory and/or Equipment located
at such new location, (ii) no Assignor shall be deemed to have made any
misrepresentation or otherwise defaulted in any obligation pursuant to this
Section 2.5 as a result of any failure of in-store Inventory (or Inventory in
transit to stores) produced by such Assignor at a location otherwise satisfying
the requirements of this Section 2.5 (and any related in-store Equipment (or
Equipment in transit to stores) relating to such Inventory) to be located at a
location complying with this Section 2.5 and (iii) no Assignor shall be deemed
to have made any misrepresentation or otherwise defaulted in any obligation
pursuant to this Section 2.5 as a result of any failure of any other Inventory
or Equipment to be located at a location complying with this Section 2.5, so
long as the aggregate fair market value of all such Inventory and Equipment
subject to this clause (iii) shall not at any time exceed $10,000,000.
2.6 Recourse. This Agreement is made with full recourse to each Assignor (including, without limitation, with full recourse to all assets of such Assignor) and pursuant to and upon all the warranties, representations, covenants and agreements on the part of such Assignor contained herein, in the other Secured Debt Agreements and otherwise in writing in connection herewith or therewith.
2.7 Trade Names; New Trade Name. No Assignor has or operates in any jurisdiction under, or in the preceding five years has had or has operated in any jurisdiction under, any trade names, fictitious names or other names except its legal name as listed on Annex B hereto and such other trade or fictitious names as are listed on Annex D hereto for such Assignor. No Assignor shall assume or operate in any jurisdiction under any trade, fictitious or other name except those names listed on Annex D hereto for such Assignor unless it shall have given to the Collateral Agent not less than 15 days' prior written notice of its intention so to do, clearly describing such new name and the jurisdictions in which such new name shall be used and shall have taken all action reasonably requested by the Collateral Agent necessary to maintain the security interest of the Collateral Agent in the Collateral intended to be granted hereby at all times fully perfected and in full force and effect.
Exhibit I
ARTICLE III
SPECIAL PROVISIONS CONCERNING RECEIVABLES;
CONTRACT RIGHTS; INSTRUMENTS; CHATTEL PAPER
3.1 Additional Representations and Warranties. As of the time when each of its Receivables arises, each Assignor shall be deemed to have represented and warranted that such Receivable, and all records, papers and documents relating thereto (if any) are in all material respects what they purport to be, and that all papers and documents (if any) relating thereto (i) will, to the knowledge of such Assignor, represent the genuine, legal, valid and binding obligation of the account debtor, enforceable against such account debtor in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors' rights and by equitable principles (regardless of whether enforcement is sought in equity or at law) evidencing indebtedness unpaid and owed by the respective account debtor arising out of the performance of labor or services or the sale or lease and delivery of the merchandise listed therein, or both, (ii) will be the only original writings evidencing and embodying such obligation of the account debtor named therein (other than copies created for general accounting purposes), and (iii) will be in compliance and will conform in all material respects with all applicable federal, state and local laws and applicable laws of any relevant foreign jurisdiction applicable to such Assignor.
3.2 Maintenance of Records. Each Assignor will keep and maintain at its own cost and expense records of its Receivables and Contracts that are accurate in all material respects, including, but not limited to, originals of all documentation (including each Contract) with respect thereto, records of all payments received, all credits granted thereon, all merchandise returned and all other dealings therewith, and such Assignor will make the same available on such Assignor's premises to the Collateral Agent for inspection, at such Assignor's own cost and expense, at any and all times during normal business hours upon prior written notice to such Assignor. Upon the occurrence and during the continuance of an Event of Default and if the Collateral Agent so directs, such Assignor shall legend, in form and manner satisfactory to the Collateral Agent, the Receivables and the Contracts, as well as books, records and documents (if any) of such Assignor evidencing or pertaining to such Receivables and Contracts with an appropriate reference to the fact that such Receivables and Contracts have been assigned to the Collateral Agent and that the Collateral Agent has a security interest therein.
3.3 Direction to Account Debtors; Contracting Parties; etc. Upon the occurrence and during the continuance of an Event of Default, if the Collateral Agent so directs any Assignor, such Assignor agrees (x) to cause all payments on account of the Receivables and Contracts to be made directly to the Cash Collateral Account, (y) that the Collateral Agent may, at its option, directly notify the obligors with respect to any Receivables and/or under any Contracts to make payments with respect thereto as provided in the preceding clause (x), and (z) that the Collateral Agent may enforce collection of any such Receivables and Contracts and may adjust, settle or compromise the amount of payment thereof, in the same manner and to the same extent as such Assignor. Without notice to or assent by any Assignor, the Collateral Agent may
Exhibit I
apply any or all amounts then in, or thereafter deposited in, the Cash
Collateral Account which application shall be effected in the manner provided in
Section 7.4 of this Agreement. The costs and expenses (including reasonable
attorneys' fees) of collection, whether incurred by an Assignor or the
Collateral Agent, shall be borne by the relevant Assignor. The Collateral Agent
shall deliver a copy of each notice referred to in the preceding clause (y) to
the relevant Assignor, provided, that the failure by the Collateral Agent to so
notify such Assignor shall not affect the effectiveness of such notice or the
other rights of the Collateral Agent created by this Section 3.3.
3.4 Modification of Terms; etc. Except in accordance with such Assignor's ordinary course of business and consistent with reasonable business judgment, no Assignor shall rescind or cancel any indebtedness evidenced by any Receivable or under any Contract, or modify any term thereof or make any adjustment with respect thereto, or extend or renew the same, or compromise or settle any material dispute, claim, suit or legal proceeding relating thereto, or sell any Receivable or Contract, or interest therein, without the prior written consent of the Collateral Agent. No Assignor will do anything to impair the rights of the Collateral Agent in the Receivables or Contracts.
3.5 Collection. Each Assignor shall endeavor in accordance with reasonable business practices to cause to be collected from the account debtor named in each of its Receivables or obligor under any Contract, as and when due (including, without limitation, amounts which are delinquent, such amounts to be collected in accordance with generally accepted lawful collection procedures) any and all amounts owing under or on account of such Receivable or Contract, and apply forthwith upon receipt thereof all such amounts as are so collected to the outstanding balance of such Receivable or under such Contract, except as otherwise directed by the Collateral Agent after the occurrence and during the continuation of an Event of Default, any Assignor may allow in the ordinary course of business as adjustments to amounts owing under its Receivables and Contracts (i) an extension or renewal of the time or times of payment, or settlement for less than the total unpaid balance, which such Assignor finds appropriate in accordance with reasonable business judgment and (ii) a refund or credit due as a result of returned or damaged merchandise or improperly performed services or for other reasons which such Assignor finds appropriate in accordance with reasonable business judgment. The costs and expenses (including, without limitation, reasonable attorneys' fees) of collection, whether incurred by an Assignor or the Collateral Agent, shall be borne by the relevant Assignor.
3.6 Assignors Remain Liable Under Receivables. Anything herein to the contrary notwithstanding, the Assignors shall remain liable under each of the Receivables to observe and perform all of the conditions and obligations to be observed and performed by it thereunder, all in accordance with the terms of any agreement giving rise to such Receivables. Neither the Collateral Agent nor any other Secured Creditor shall have any obligation or liability under any Receivable (or any agreement giving rise thereto) by reason of or arising out of this Agreement or the receipt by the Collateral Agent or any other Secured Creditor of any payment relating to such Receivable pursuant hereto, nor shall the Collateral Agent or any other Secured Creditor be obligated in any manner to perform any of the obligations of any Assignor under or pursuant to any Receivable (or any agreement giving rise thereto), to make any payment, to make any inquiry as to the nature or the sufficiency of any payment received by them or as to the
Exhibit I
sufficiency of any performance by any party under any Receivable (or any agreement giving rise thereto), to present or file any claim, to take any action to enforce any performance or to collect the payment of any amounts which may have been assigned to them or to which they may be entitled at any time or times.
3.7 Assignors Remain Liable Under Contracts. Anything herein to the contrary notwithstanding, the Assignors shall remain liable under each of the Contracts to observe and perform all of the conditions and obligations to be observed and performed by them thereunder, all in accordance with and pursuant to the terms and provisions of each Contract. Neither the Collateral Agent nor any other Secured Creditor shall have any obligation or liability under any Contract by reason of or arising out of this Agreement or the receipt by the Collateral Agent or any other Secured Creditor of any payment relating to such contract pursuant hereto, nor shall the Collateral Agent or any other Secured Creditor be obligated in any manner to perform any of the obligations of any Assignor under or pursuant to any Contract, to make any payment, to make any inquiry as to the nature or the sufficiency of any performance by any party under any Contract, to present or file any claim, to take any action to enforce any performance or to collect the payment of any amounts which may have been assigned to them or to which they may be entitled at any time or times.
ARTICLE IV
SPECIAL PROVISIONS CONCERNING TRADEMARKS
4.1 Additional Representations and Warranties. Each Assignor represents and warrants that it is the true and lawful owner of or otherwise has the right to use the registered Marks listed in Annex E hereto for such Assignor and that said listed Marks include all United States marks and applications for United States marks registered in the United States Patent and Trademark Office that such Assignor owns or uses in connection with its business as of the date hereof. Each Assignor represents and warrants that it owns, is licensed to use or otherwise has the right to use, all Marks that it uses. Each Assignor further warrants that it has no knowledge of any third party claim that any aspect of such Assignor's present or contemplated business operations infringes or will infringe any trademark, service mark or trade name other than as could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Each Assignor represents and warrants that it is the true and lawful owner of or otherwise has the right to use all U.S. trademark registrations and applications listed in Annex E hereto and that said registrations are valid, subsisting, have not been cancelled and that such Assignor is not aware of any third-party claim that any of said registrations is invalid or unenforceable, or is not aware that there is any reason that any of said registrations is invalid or unenforceable, or is not aware that there is any reason that any of said applications will not pass to registration other than as could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Each Assignor hereby grants to the Collateral Agent an absolute power of attorney to sign, upon the occurrence and during the continuance of an Event of Default, any document which may be required by the United States Patent and Trademark Office in order to effect an absolute assignment of all right, title and interest in each Mark, and record the same.
Exhibit I
4.2 Infringements. Each Assignor agrees, promptly upon learning thereof, to notify the Collateral Agent in writing of the name and address of, and to furnish such pertinent information that may be available with respect to, any party who such Assignor believes is infringing or diluting or otherwise violating any of such Assignor's rights in and to any Mark, or with respect to any party claiming that such Assignor's use of any Mark violates in any material respect any property right of that party. Each Assignor further agrees to prosecute in accordance with reasonable business practices any Person infringing any Mark in any manner that could reasonably be expected to have a Material Adverse Effect.
4.3 Preservation of Marks. Each Assignor agrees to take all such actions as are necessary to preserve its Marks (other than Marks determined by such Assignor, in the exercise of its reasonable business judgment, to be no longer useful or advantageous to the ongoing conduct of its business) as trademarks or service marks under the laws of the United States.
4.4 Maintenance of Registration. Each Assignor shall, at its own expense, diligently process all documents required to maintain trademark registrations, including but not limited to affidavits of use and applications for renewals of registration in the United States Patent and Trademark Office for all of its significant registered Marks (other than Marks determined by such Assignor, in the exercise of its reasonable business judgment, to be no longer useful or advantageous to the ongoing conduct of its business), and shall pay all fees and disbursements in connection therewith and shall not abandon any such filing of affidavit of use or any such application of renewal prior to the exhaustion of all administrative and judicial remedies without prior written consent of the Collateral Agent.
4.5 Future Registered Marks. If any Mark registration is issued hereafter to any Assignor as a result of any application now or hereafter pending before the United States Patent and Trademark Office, within 30 days of receipt of such certificate, such Assignor shall deliver to the Collateral Agent a copy of such certificate, and an assignment for security in such Mark, to the Collateral Agent and at the expense of such Assignor, confirming the assignment for security in such Mark to the Collateral Agent hereunder, the form of such security to be substantially in the form of Annex H hereto, or in such other form as may be reasonably satisfactory to the Collateral Agent.
4.6 Remedies. If an Event of Default shall occur and be continuing, the Collateral Agent may, by written notice to the relevant Assignor, take any or all of the following actions: (i) declare the entire right, title and interest of such Assignor in and to each of the Marks, together with all trademark rights and rights of protection to the same, vested in the Collateral Agent for the benefit of the Secured Creditors, in which event such rights, title and interest shall immediately vest in the Collateral Agent for the benefit of the Secured Creditors, and the Collateral Agent shall be entitled to exercise the power of attorney referred to in Section 4.1 hereof to execute, cause to be acknowledged and notarized and record said absolute assignment with the applicable agency; (ii) take and use or sell the Marks and the goodwill of such Assignor's business symbolized by the Marks and the right to carry on the business and use the assets of such Assignor in connection with which the Marks have been used; and (iii) direct such Assignor to refrain, in which event such Assignor shall refrain, from using the Marks in any
Exhibit I
manner whatsoever, directly or indirectly, and such Assignor shall execute such further documents that the Collateral Agent may reasonably request to further confirm this and to transfer ownership of the Marks and registrations and any pending trademark application in the United States Patent and Trademark Office to the Collateral Agent.
ARTICLE V
SPECIAL PROVISIONS CONCERNING
PATENTS, COPYRIGHTS AND TRADE SECRETS
5.1 Additional Representations and Warranties. Each Assignor
represents and warrants that it is the true and lawful owner of all rights in
(i) all Trade Secrets and proprietary information necessary to operate the
business of the Assignor (the "Trade Secret Rights"), (ii) the Patents listed in
Annex F hereto for such Assignor and that said Patents include all the United
States patents and applications for United States patents that such Assignor
owns as of the date hereof and (iii) the Copyrights listed in Annex G hereto for
such Assignor and that said Copyrights constitute all the United States
copyrights registered with the United States Copyright Office and applications
to United States copyrights that such Assignor owns as of the date hereof. Each
Assignor further warrants that it has no knowledge of any third party claim that
any aspect of such Assignor's present or contemplated business operations
infringes or will infringe any patent or such Assignor has misappropriated any
trade secret or proprietary information which, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect. Each
Assignor hereby grants to the Collateral Agent an absolute power of attorney to
sign, upon the occurrence and during the continuance of any Event of Default,
any document which may be required by the United States Patent and Trademark
Office in order to effect an absolute assignment of all right, title and
interest in each Patent, and to record the same.
5.2 Infringements. Each Assignor agrees, promptly upon learning thereof, to furnish the Collateral Agent in writing with all pertinent information available to such Assignor with respect to any infringement, contributing infringement or active inducement to infringe in any Patent or Copyright or to any claim that the practice of any Patent or use of any Copyright violates any property right of a third party, or with respect to any misappropriation of any Trade Secret Right or any claim that practice of any Trade Secret Right violates any property right of a third party in any manner which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. Each Assignor further agrees, absent direction of the Collateral Agent to the contrary, to diligently prosecute any Person infringing any Patent or Copyright or any Person misappropriating any Trade Secret Right in accordance with such Assignor's reasonable business judgment.
5.3 Maintenance of Patents or Copyright. At its own expense, each Assignor shall make timely payment of all post-issuance fees required pursuant to 35 U.S.C. ss. 41 to maintain in force its rights under each Patent or Copyright (other than Patents and Copyrights determined by such Assignor, in the exercise of its reasonable business judgment, to be no longer useful or advantageous to the ongoing conduct of its business), absent prior written consent of the Collateral Agent.
Exhibit I
5.4 Prosecution of Patent Applications. At its own expense, each Assignor shall diligently prosecute all significant applications for (i) United States Patents listed in Annex F hereto (other than Patents determined by such Assignor, in the exercise of its reasonable business judgment, to be no longer useful or advantageous to the ongoing conduct of its business) and (ii) Copyrights listed on Annex G hereto (other than Copyrights determined by such Assignor, in the exercise of its reasonable business judgment, to be no longer useful or advantageous to the ongoing conduct of its business), in each case for such Assignor and shall not abandon any such application prior to exhaustion of all administrative and judicial remedies, absent written consent of the Collateral Agent.
5.5 Other Patents and Copyrights. Within 30 days of the acquisition or issuance of a United States Patent, registration of a Copyright, or acquisition of a registered Copyright, or of filing of an application for a United States Patent or Copyright, the relevant Assignor shall deliver to the Collateral Agent a copy of said Copyright or certificate or registration of, or application therefor, said Patents, as the case may be, with an assignment for security as to such Patent or Copyright, as the case may be, to the Collateral Agent and at the expense of such Assignor, confirming the assignment for security, the form of such assignment for security to be substantially in the form of Annex I or J hereto, as appropriate, or in such other form as may be reasonably satisfactory to the Collateral Agent.
5.6 Remedies. If an Event of Default shall occur and be continuing, the Collateral Agent may by written notice to the relevant Assignor, take any or all of the following actions: (i) declare the entire right, title, and interest of such Assignor in each of the Patents and Copyrights vested in the Collateral Agent for the benefit of the Secured Creditors, in which event such right, title, and interest shall immediately vest in the Collateral Agent for the benefit of the Secured Creditors, in which case the Collateral Agent shall be entitled to exercise the power of attorney referred to in Section 5.1 hereof to execute, cause to be acknowledged and notarized and to record said absolute assignment with the applicable agency; (ii) take and practice or sell the Patents and Copyrights; and (iii) direct such Assignor to refrain, in which event such Assignor shall refrain, from practicing the Patents and using the Copyrights directly or indirectly, and such Assignor shall execute such further documents as the Collateral Agent may reasonably request further to confirm this and to transfer ownership of the Patents and Copyrights to the Collateral Agent for the benefit of the Secured Creditors.
ARTICLE VI
PROVISIONS CONCERNING ALL COLLATERAL
6.1 Protection of Collateral Agent's Security. Each Assignor will at all times keep its Inventory and Equipment constituting Collateral insured in favor of the Collateral Agent, at such Assignor's own expense to the extent and in the manner provided in the Credit Agreement. The Collateral Agent shall, at the time any proceeds of such insurance are distributed to the Secured Creditors, apply such proceeds in accordance with Section 7.4 hereof (or, to the extent any such proceeds are held by the Collateral Agent pursuant to a cash collateral arrangement entered into pursuant to the terms of the Credit Agreement, the Collateral Agent
Exhibit I
shall deliver such proceeds to the applicable Assignor for the purpose of replacing or restoring the Collateral with respect to which such proceeds were received or reinvesting such proceeds in Eligible Assets or apply such proceeds in accordance with Section 7.4 hereof, in each case in accordance with the terms of the Credit Agreement and such cash collateral arrangement). Each Assignor assumes all liability and responsibility in connection with the Collateral acquired by it and the liability of such Assignor to pay the Obligations shall in no way be affected or diminished by reason of the fact that such Collateral may be lost, destroyed, stolen, damaged or for any reason whatsoever unavailable to such Assignor.
6.2 Warehouse Receipts Non-Negotiable. Each Assignor agrees that if any warehouse receipt or receipt in the nature of a warehouse receipt is issued with respect to any material portion of its Inventory, such Assignor shall request that such warehouse receipt or receipt in the nature thereof shall not be "negotiable" (as such term is used in Section 7-104 of the Uniform Commercial Code as in effect in any relevant jurisdiction or under other relevant law).
6.3 Further Actions. Each Assignor will, at its own expense and upon the request of the Collateral Agent, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from time to time such lists, descriptions and designations of its Collateral, warehouse receipts, receipts in the nature of warehouse receipts, bills of lading, documents of title, vouchers, invoices, schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, certificates, reports and other assurances or instruments and take such further steps relating to the Collateral and other property or rights covered by the security interest hereby granted, which the Collateral Agent deems reasonably appropriate or advisable to perfect, preserve or protect its security interest in the Collateral.
6.4 Financing Statements. Each Assignor agrees to execute and deliver to the Collateral Agent such financing statements, in form reasonably acceptable to the Collateral Agent, as the Collateral Agent may from time to time reasonably request or as are necessary or desirable in the opinion of the Collateral Agent to establish and maintain a valid, enforceable, first priority perfected security interest in the Collateral as provided herein and the other rights and security contemplated hereby all in accordance with the UCC as enacted in any and all relevant jurisdictions or any other relevant law. Each Assignor will pay any applicable filing fees, recordation taxes and related expenses relating to its Collateral. Each Assignor hereby authorizes the Collateral Agent to file any such financing statements without the signature of such Assignor where permitted by law.
ARTICLE VII
REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT
7.1 Remedies; Obtaining the Collateral Upon Default. Each Assignor agrees that, if any Event of Default shall have occurred and be continuing, then and in every such case, the Collateral Agent, in addition to any rights now or hereafter existing under applicable law, shall
Exhibit I
have all rights as a secured creditor under any UCC, and such additional rights and remedies to which a secured creditor is entitled under the laws in effect, in all relevant jurisdictions and may:
(i) personally, or by agents or attorneys, immediately take possession of the Collateral or any part thereof, from such Assignor or any other Person who then has possession of any part thereof with or without notice or process of law, and for that purpose may enter upon such Assignor's premises where any of the Collateral is located and remove the same and use in connection with such removal any and all services, supplies, aids and other facilities of such Assignor;
(ii) instruct the obligor or obligors on any agreement, instrument or other obligation (including, without limitation, the Receivables and the Contracts) constituting the Collateral to make any payment required by the terms of such agreement, instrument or other obligation directly to the Collateral Agent and may exercise any and all remedies of such Assignor in respect of such Collateral;
(iii) withdraw all monies, securities and instruments in the Cash Collateral Account for application to the Obligations in accordance with Section 7.4 hereof;
(iv) sell, assign or otherwise liquidate any or all of the Collateral or any part thereof in accordance with Section 7.2 hereof, or direct the relevant Assignor to sell, assign or otherwise liquidate any or all of the Collateral or any part thereof, and, in each case, take possession of the proceeds of any such sale or liquidation;
(v) take possession of the Collateral or any part thereof, by directing the relevant Assignor in writing to deliver the same to the Collateral Agent at any place or places designated by the Collateral Agent, in which event such Assignor shall at its own expense:
(x) forthwith cause the same to be moved to the place or places so designated by the Collateral Agent and there delivered to the Collateral Agent;
(y) store and keep any Collateral so delivered to the Collateral Agent at such place or places pending further action by the Collateral Agent as provided in Section 7.2 hereof; and
(z) while the Collateral shall be so stored and kept, provide such guards and maintenance services as shall be necessary to protect the same and to preserve and maintain them in good condition; and
(vi) license or sublicense, whether on an exclusive or nonexclusive basis, any Marks, Patents or Copyrights included in the Collateral for such term and on such conditions and in such manner as the Collateral Agent shall in its sole judgment determine;
it being understood that each Assignor's obligation so to deliver the Collateral is of the essence of this Agreement and that, accordingly, upon application to a court of equity having jurisdiction, the Collateral Agent shall be entitled to a decree requiring specific performance by such Assignor
Exhibit I
of said obligation. By accepting the benefits of this Agreement, the Secured Creditors agree that this Agreement may be enforced only by the action of the Collateral Agent acting upon the instructions of the Required Secured Creditors and that no other Secured Creditor shall have any right individually to seek to enforce this Agreement or to realize upon the security to be granted hereby, it being understood and agreed that such rights and remedies may be exercised by the Collateral Agent for the benefit of the Secured Creditors upon the terms of this Agreement and the other Security Documents.
7.2 Remedies; Disposition of the Collateral. If any Event of Default shall have occurred and be continuing, then any Collateral repossessed by the Collateral Agent under or pursuant to Section 7.1 hereof and any other Collateral whether or not so repossessed by the Collateral Agent, may be sold, assigned, leased or otherwise disposed of under one or more contracts or as an entirety, and without the necessity of gathering at the place of sale the property to be sold, and in general in such manner, at such time or times, at such place or places and on such terms as the Collateral Agent may, in compliance with any mandatory requirements of applicable law, determine to be commercially reasonable. Any of the Collateral may be sold, leased or otherwise disposed of, in the condition in which the same existed when taken by the Collateral Agent or after any overhaul or repair at the expense of the relevant Assignor which the Collateral Agent shall determine to be commercially reasonable. Any such disposition which shall be a private sale or other private proceedings permitted by such requirements shall be made upon not less than 10 days' prior written notice to the relevant Assignor specifying the time at which such disposition is to be made and the intended sale price or other consideration therefor, and shall be subject, for the 10 days after the giving of such notice, to the right of the relevant Assignor or any nominee of such Assignor to acquire the Collateral involved at a price or for such other consideration at least equal to the intended sale price or other consideration so specified. Any such disposition which shall be a public sale permitted by such requirements shall be made upon not less than 10 days' prior written notice to the relevant Assignor specifying the time and place of such sale and, in the absence of applicable requirements of law, shall be by public auction (which may, at the Collateral Agent's option, be subject to reserve), after publication of notice of such auction (where required by applicable law) not less than 10 days prior thereto. The Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the sale may be so adjourned. To the extent permitted by any such requirement of law, the Collateral Agent may bid for and become the purchaser of the Collateral or any item thereof, offered for sale in accordance with this Section without accountability to the relevant Assignor. If, under mandatory requirements of applicable law, the Collateral Agent shall be required to make disposition of the Collateral within a period of time which does not permit the giving of notice to the relevant Assignor as hereinabove specified, the Collateral Agent need give such Assignor only such notice of disposition as shall be reasonably practicable in view of such mandatory requirements of applicable law. Each Assignor agrees to do or cause to be done all such other acts and things as may be reasonably necessary to make such sale or sales of all or any portion of the Collateral valid and binding and in compliance with any and all applicable laws, regulations, orders, writs, injunctions, decrees or awards of any and all courts, arbitrators or governmental
Exhibit I
instrumentalities, domestic or foreign, having jurisdiction over any such sale or sales, all at such Assignor's expense.
7.3 Waiver of Claims. Except as otherwise provided in this Agreement, EACH ASSIGNOR HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, NOTICE AND JUDICIAL HEARING IN CONNECTION WITH THE COLLATERAL AGENT'S TAKING POSSESSION OR THE COLLATERAL AGENT'S DISPOSITION OF ANY OF THE COLLATERAL, INCLUDING, WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING FOR ANY PREJUDGEMENT REMEDY OR REMEDIES, and each Assignor hereby further waives, to the extent permitted by law:
(i) all damages occasioned by such taking of possession except any damages which are the direct result of the Collateral Agent's gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision);
(ii) all other requirements as to the time, place and terms of sale or other requirements with respect to the enforcement of the Collateral Agent's rights hereunder; and
(iii) all rights of redemption, appraisal, valuation, stay, extension or moratorium now or hereafter in force under any applicable law in order to prevent or delay the enforcement of this Agreement or the absolute sale of the Collateral or any portion thereof, and each Assignor, for itself and all who may claim under it, insofar as it or they now or hereafter lawfully may, hereby waives the benefit of all such laws.
Any sale of, or the grant of options to purchase, or any other realization upon, any Collateral shall operate to divest all right, title, interest, claim and demand, either at law or in equity, of the relevant Assignor therein and thereto, and shall be a perpetual bar both at law and in equity against such Assignor and against any and all Persons claiming or attempting to claim the Collateral so sold, optioned or realized upon, or any part thereof, from, through and under such Assignor.
7.4 Application of Proceeds. (a) All monies collected by the Collateral Agent upon any sale or other disposition of the Collateral of each Assignor, together with all other monies received by the Collateral Agent hereunder (except to the extent released in accordance with the applicable provisions of this Agreement or to the extent such monies are held in one or more of the Cash Collateral Accounts pending the application thereof in accordance with the requirements of this Agreement or any permitted release thereof in accordance with the provisions of this Agreement or the Credit Agreement), shall be applied as follows:
(i) first, to the payment of all amounts owing the Collateral Agent of the type described in clauses (iii) and (iv) of the definition of "Obligations";
(ii) second, to the extent proceeds remain after the application pursuant to the preceding clause (i), an amount equal to the outstanding Primary Obligations shall be paid to the
Exhibit I
Secured Creditors as provided in Section 7.4(e) hereof, with each Secured Creditor receiving an amount equal to such outstanding Primary Obligations or, if the proceeds are insufficient to pay in full all such Primary Obligations, its Pro Rata Share of the amount remaining to be distributed;
(iii) third, to the extent proceeds remain after the application pursuant to the preceding clauses (i) and (ii), an amount equal to the outstanding Secondary Obligations shall be paid to the Secured Creditors as provided in Section 7.4(e) hereof, with each Secured Creditor receiving an amount equal to its outstanding Secondary Obligations or, if the proceeds are insufficient to pay in full all such Secondary Obligations, its Pro Rata Share of the amount remaining to be distributed; and
(iv) fourth, to the extent proceeds remain after the application pursuant to the preceding clauses (i) through (iii), inclusive, and following the termination of this Agreement pursuant to Section 10.8(a) hereof, to the relevant Assignor or to whomever may be lawfully entitled to receive such surplus.
(b) For purposes of this Agreement (x) "Pro Rata Share" shall mean, when calculating a Secured Creditor's portion of any distribution or amount, that amount (expressed as a percentage) equal to a fraction the numerator of which is the then unpaid amount of such Secured Creditor's Primary Obligations or Secondary Obligations, as the case may be, and the denominator of which is the then outstanding amount of all Primary Obligations or Secondary Obligations, as the case may be, (y) "Primary Obligations" shall mean (i) in the case of the Credit Document Obligations, all principal of, and interest on, all Loans, all Unpaid Drawings and all Fees and (ii) in the case of the Interest Rate Protection Obligations, all amounts due under such Interest Rate Protection Agreements Interest Rate Protection (other than indemnities, fees (including, without limitation, attorneys' fees) and similar obligations and liabilities) and (z) "Secondary Obligations" shall mean all Obligations other than Primary Obligations.
(c) When payments to Secured Creditors are based upon their
respective Pro Rata Shares, the amounts received by such Secured Creditors
hereunder shall be applied (for purposes of making determinations under this
Section 7.4 only) (i) first, to their Primary Obligations and (ii) second, to
their Secondary Obligations. If any payment to any Secured Creditor of its Pro
Rata Share of any distribution would result in overpayment to such Secured
Creditor, such excess amount shall instead be distributed in respect of the
unpaid Primary Obligations or Secondary Obligations, as the case may be, of the
other Secured Creditors, with each Secured Creditor whose Primary Obligations or
Secondary Obligations, as the case may be, have not been paid in full to receive
an amount equal to such excess amount multiplied by a fraction the numerator of
which is the unpaid Primary Obligations or Secondary Obligations, as the case
may be, of such Secured Creditor and the denominator of which is the unpaid
Primary Obligations or Secondary Obligations, as the case may be, of all Secured
Creditors entitled to such distribution.
(d) Each of the Secured Creditors, by their acceptance of the benefits hereof, agrees and acknowledges that if the Lender Creditors are to receive a distribution on account of undrawn amounts with respect to Letters of Credit issued under the Credit Agreement (which
Exhibit I
shall only occur after all outstanding Loans and Unpaid Drawings with respect to such Letters of Credit have been paid in full), such amounts shall be paid to the Administrative Agent under the Credit Agreement and held by it, for the equal and ratable benefit of the Lender Creditors, as cash security for the repayment of Obligations owing to the Lender Creditors as such. If any amounts are held as cash security pursuant to the immediately preceding sentence, then upon the termination of all outstanding Letters of Credit, and after the application of all such cash security to the repayment of all Obligations owing to the Lender Creditors after giving effect to the termination of all such Letters of Credit, if there remains any excess cash, such excess cash shall be returned by the Administrative Agent to the Collateral Agent for distribution in accordance with Section 7.4(a) hereof.
(e) All payments required to be made hereunder shall be made (x) if to the Lender Creditors, to the Administrative Agent under the Credit Agreement for the account of the Lender Creditors, and (y) if to the Interest Rate Protection Creditors, to the trustee, paying agent or other similar representative (each a "Representative") for the Interest Rate Protection Creditors or, in the absence of such a Representative, directly to the Interest Rate Protection Creditors.
(f) For purposes of applying payments received in accordance with
this Section 7.4, the Collateral Agent shall be entitled to rely upon (i) the
Administrative Agent under the Credit Agreement and (ii) the Representative for
the Interest Rate Protection Creditors or, in the absence of such a
Representative, upon the Interest Rate Protection Creditors for a determination
(which the Administrative Agent, each Representative for any Interest Rate
Protection Creditors and the Secured Creditors agree (or shall agree) to provide
upon request of the Collateral Agent) of the outstanding Primary Obligations and
Secondary Obligations owed to the Lender Creditors or the Interest Rate
Protection Creditors, as the case may be. Unless it has actual knowledge
(including by way of written notice from a Lender Creditor or an Interest Rate
Protection Creditor) to the contrary, the Administrative Agent and each
Representative, in furnishing information pursuant to the preceding sentence,
and the Collateral Agent, in acting hereunder, shall be entitled to assume that
no Secondary Obligations are outstanding. Unless it has actual knowledge
(including by way of written notice from an Interest Rate Protection Creditor)
to the contrary, the Collateral Agent, in acting hereunder, shall be entitled to
assume that no Interest Rate Protection Agreements are in existence.
(g) It is understood that the Assignors shall remain jointly and severally liable to the extent of any deficiency between the amount of the proceeds of the Collateral assigned by it hereunder and the aggregate amount of the Obligations of such Assignor.
7.5 Remedies Cumulative. Each and every right, power and remedy hereby specifically given to the Collateral Agent shall be in addition to every other right, power and remedy specifically given under this Agreement, the other Secured Debt Agreements or now or hereafter existing at law, in equity or by statute and each and every right, power and remedy whether specifically herein given or otherwise existing may be exercised from time to time or simultaneously and as often and in such order as may be deemed expedient by the Collateral Agent. All such rights, powers and remedies shall be cumulative and the exercise or the
Exhibit I
beginning of the exercise of one shall not be deemed a waiver of the right to exercise any other or others. No delay or omission of the Collateral Agent in the exercise of any such right, power or remedy and no renewal or extension of any of the Obligations shall impair any such right, power or remedy or shall be construed to be a waiver of any Default or Event of Default or an acquiescence therein. No notice to or demand on any Assignor in any case shall entitle it to any other or further notice or demand in similar or other circumstances or constitute a waiver of any of the rights of the Collateral Agent to any other or further action in any circumstances without notice or demand. In the event that the Collateral Agent shall bring any suit to enforce any of its rights hereunder and shall be entitled to judgment, then in such suit the Collateral Agent may recover reasonable expenses, including reasonable attorneys' fees, and the amounts thereof shall be included in such judgment.
7.6 Discontinuance of Proceedings. In case the Collateral Agent shall have instituted any proceeding to enforce any right, power or remedy under this Agreement by foreclosure, sale, entry or otherwise, and such proceeding shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Collateral Agent, then and in every such case the relevant Assignor, the Collateral Agent and each holder of any of the Obligations shall be restored to their former positions and rights hereunder with respect to the Collateral subject to the security interest created under this Agreement, and all rights, remedies and powers of the Collateral Agent shall continue as if no such proceeding had been instituted.
ARTICLE VIII
INDEMNITY
8.1 Indemnity. (a) Each Assignor jointly and severally agrees to indemnify, reimburse and hold harmless (i) the Collateral Agent and the Administrative Agent for any and all reasonable out-of-pocket costs and expenses (including, without limitation, the reasonable fees and expenses of counsel to the Administrative Agent and the Collateral Agent) in connection with the administration of this Agreement and the documents and instruments referred to herein and any amendment, waiver or consent relating hereto or thereto, and (ii) the Collateral Agent, each other Secured Creditor and their respective successors, permitted assigns, employees, agents and servants (hereinafter in this Section 8.1 referred to individually as "Indemnitee," and collectively as "Indemnitees") harmless from any and all liabilities, obligations, damages, injuries, penalties, claims, demands, actions, suits, judgments and any and all costs, expenses or disbursements (including reasonable attorneys' fees and expenses) (for the purposes of this Section 8.1 the foregoing are collectively called "expenses") of whatsoever kind and nature imposed on, asserted against or incurred by any of the Indemnitees in any way relating to or arising out of this Agreement, any other Secured Debt Agreement or any other document executed in connection herewith or therewith or in any other way connected with the transactions contemplated hereby or thereby or the enforcement of any of the terms of, or the preservation of any rights under any thereof, or in any way relating to or arising out of the manufacture, ownership, ordering, purchase, delivery, control, acceptance, lease, financing, possession, operation, condition, sale, return or other disposition, or use of the Collateral (including, without limitation, latent or other defects, whether or not discoverable), the violation of the laws of any
Exhibit I
country, state or other governmental body or unit, any tort (including, without limitation, claims arising or imposed under the doctrine of strict liability, or for or on account of injury to or the death of any Person (including any Indemnitee), or property damage), or contract claim; provided that no Indemnitee shall be indemnified pursuant to this Section 8.1(a) for losses, damages or liabilities to the extent caused by the gross negligence or willful misconduct of such Indemnitee (as determined by a court of competent jurisdiction in a final and non-appealable decision). Each Assignor agrees that upon written notice by any Indemnitee of the assertion of such a liability, obligation, damage, injury, penalty, claim, demand, action, suit or judgment, the relevant Assignor shall assume full responsibility for the defense thereof. Each Indemnitee agrees to use its best efforts to promptly notify the relevant Assignor of any such assertion of which such Indemnitee has knowledge.
(b) Without limiting the application of Section 8.1(a) hereof, each Assignor agrees, jointly and severally, to pay, or reimburse the Collateral Agent for any and all reasonable fees, costs and expenses of whatever kind or nature incurred in connection with the creation, preservation or protection of the Collateral Agent's Liens on, and security interest in, the Collateral, including, without limitation, all fees and taxes in connection with the recording or filing of instruments and documents in public offices, payment or discharge of any taxes or Liens upon or in respect of the Collateral, premiums for insurance with respect to the Collateral and all other fees, costs and expenses in connection with protecting, maintaining or preserving the Collateral and the Collateral Agent's interest therein, whether through judicial proceedings or otherwise, or in defending or prosecuting any actions, suits or proceedings arising out of or relating to the Collateral.
(c) Without limiting the application of Section 8.1(a) or (b) hereof, each Assignor agrees, jointly and severally, to pay, indemnify and hold each Indemnitee harmless from and against any loss, costs, damages and expenses which such Indemnitee may suffer, expend or incur in consequence of or growing out of any misrepresentation by any Assignor in this Agreement, any other Secured Debt Agreement or in any writing contemplated by or made or delivered pursuant to or in connection with this Agreement or any other Secured Debt Agreement.
(d) If and to the extent that the obligations of any Assignor under this Section 8.1 are unenforceable for any reason, such Assignor hereby agrees to make the maximum contribution to the payment and satisfaction of such obligations which is permissible under applicable law.
8.2 Indemnity Obligations Secured by Collateral; Survival. Any amounts paid by any Indemnitee as to which such Indemnitee has the right to reimbursement shall constitute Obligations secured by the Collateral. The indemnity obligations of each Assignor contained in this Article VIII shall continue in full force and effect notwithstanding the full payment of all of the other Obligations and notwithstanding the full payment of all the Notes issued under the Credit Agreement, the termination of all Interest Rate Protection Agreements and all Letters of Credit and the payment of all other Obligations and notwithstanding the discharge thereof but shall not thereafter be secured by any security interest granted hereby.
Exhibit I
ARTICLE IX
DEFINITIONS
Unless otherwise defined herein, all capitalized terms used herein and defined in the Credit Agreement shall be used herein as therein defined. Such definitions shall be equally applicable to the singular and plural forms of the terms defined.
"Administrative Agent" shall have the meaning provided in the recitals of this Agreement.
"Agreement" shall mean this Security Agreement as the same may be modified, supplemented, restated and/or amended from time to time in accordance with its terms.
"Aircraft Lease" means that certain Aircraft Lease Agreement, dated as of March 2, 2000, by and between General Electric Capital Corporation and Flower Foods, Inc., successor to Flowers Industries, Inc., as in effect on March 26, 2001.
"Assignor" shall have the meaning provided in the first paragraph of this Agreement.
"Borrower" shall have the meaning provided in the recitals of this Agreement.
"Cash Collateral Account" shall mean a cash collateral account maintained with, and in the sole dominion and control of, the Collateral Agent for the benefit of the Secured Creditors.
"Chattel Paper" shall have the meaning provided in the Uniform Commercial Code as in effect on the date hereof in the State of New York.
"Class" shall have the meaning provided in Section 10.2 of this Agreement.
"Collateral" shall have the meaning provided in Section 1.1(a) of this Agreement.
"Collateral Agent" shall have the meaning provided in the first paragraph of this Agreement.
"Contract Rights" shall mean all rights of any Assignor under each Contract, including, without limitation, (i) any and all rights to receive and demand payments under any or all Contracts, (ii) any and all rights to receive and compel performance under any or all Contracts and (iii) any and all other rights, interests and claims now existing or in the future arising in connection with any or all Contracts.
"Contracts" shall mean all contracts between any Assignor and one or more additional parties (including, without limitation, any Interest Rate Protection Agreements or Other Hedging Agreements and any partnership agreements, joint venture agreements and limited liability company agreements).
Exhibit I
"Copyrights" shall mean any United States or foreign copyright now or hereafter owned by any Assignor, including any registrations of any Copyrights, in the United States Copyright Office or any foreign equivalent office, as well as any application for a copyright registration now or hereafter made with the United States Copyright Office or any foreign equivalent office by any Assignor.
"Credit Agreement" shall have the meaning provided in the recitals of this Agreement.
"Credit Document Obligations" shall have the meaning provided in the definition of "Obligations" in this Article IX.
"Default" shall mean any event which, with notice or lapse of time, or both, would constitute an Event of Default.
"Distributor" means a Person or Persons (other than the Borrower and its Subsidiaries) party to a Distributor's Agreement pursuant to which such Person or Persons agree to distribute the Borrower's and its Subsidiaries' products in a specified geographic area.
"Distributor Loans" shall mean any loan advanced to one or more Distributors by the Borrower or any of the Subsidiaries or otherwise payable to the Borrower or any of its Subsidiaries regardless of whether the Borrower or such Subsidiary originally advanced such loan.
"Distributor Note" shall mean any promissory note executed by a Distributor and evidencing Distributor Loans.
"Distributor's Agreements" means the contractual arrangements between the Borrower or any of its Subsidiaries with their respective distributors, whereby such distributors agree to distribute the Borrower's and its Subsidiaries' products in a specified geographic area and the Borrower and/or its Subsidiaries agree to provide such distributors with products and other services, including certain proprietary administrative services.
"Documentation Agent" shall have the meaning provided in the recitals of this Agreement.
"Documents" shall have the meaning provided in the Uniform Commercial Code as in effect on the date hereof in the State of New York.
"Equipment" shall mean any "equipment," as such term is defined in the Uniform Commercial Code as in effect on the date hereof in the State of New York, now or hereafter owned by any Assignor and, in any event, shall include, but shall not be limited to, all machinery, equipment, furnishings, fixtures and vehicles now or hereafter owned by any Assignor and any and all additions, substitutions and replacements of any of the foregoing, wherever located, together with all attachments, components, parts, equipment and accessories installed thereon or affixed thereto.
Exhibit I
"Event of Default" shall mean (i) any "Event of Default" under, and as defined in, the Credit Agreement or, if the related Obligations are secured hereunder at such time, the Amended Distributor Note Documents or (ii) any payment default under any Interest Rate Protection Agreement continuing after any applicable grace period.
"Excluded Assets" shall mean and include (i) the "Equipment" as defined in the Lease Program Documents to the extent, and for so long as, such Lease Program Documents prohibit the granting (other than to the lessor) of a security interest therein; (ii) the "Aircraft" as defined in the Aircraft Lease to the extent, and for so long as, such Aircraft Lease prohibits the granting (other than to the lessor) of a security interest therein; (iii) any assets subject to the Liens described on Schedule V to the Credit Agreement, to the extent, and for so long as, the underlying security and lease documents prohibit the granting of a security interest therein; (iv) any Contract (other than any Distributor's Agreement) to the extent that, and for so long as, the terms thereof prohibit (after giving effect to any approvals or waivers) the assignment of, or granting a security interest in, such Contract (it being understood and agreed, however, that notwithstanding the foregoing, all rights to payment for money due or to become due pursuant to any such excluded contract shall be subject to the security interests created by this Agreement); (v) the Excluded Mexico Assets; and (vi) Margin Stock from time to time owned by any Assignor, so long as the aggregate fair market value thereof does not at any time exceed $1,000,000 and all such Margin Stock is acquired by the Borrower and its Subsidiaries in accordance with the terms of the Credit Agreement (including, without limitation, Sections 7.08, 8.14 and 9.05 thereof).
"General Intangibles" shall have the meaning provided in the Uniform Commercial Code as in effect on the date hereof in the State of New York (and shall include all partnership interests and all limited liability company and membership interests).
"Goods" shall have the meaning provided in the Uniform Commercial Code as in effect on the date hereof in the State of New York.
"Governmental Authorizations" shall mean all licenses, certificates, registrations and authorizations issued by any governmental entity (domestic and foreign) necessary to operate any Assignor's business.
"Indemnitee" shall have the meaning provided in Section 8.1 of this Agreement.
"Instrument" shall have the meaning provided in the Uniform Commercial Code as in effect on the date hereof in the State of New York.
"Interest Rate Protection Agreement" shall mean any interest rate swap agreement, interest rate cap agreement, interest collar agreement, interest rate hedging agreement, interest rate floor agreement or other similar agreement or arrangement.
"Interest Rate Protection Creditors" shall have the meaning provided in the recitals of this Agreement.
Exhibit I
"Interest Rate Protection Obligations" shall have the meaning provided in the definition of "Obligations" in this Article IX.
"Inventory" shall mean merchandise, inventory and goods, and all additions, substitutions and replacements thereof, wherever located, together with all goods, supplies, incidentals, packaging materials, labels, materials and any other items used or usable in manufacturing, processing, packaging or shipping same, in all stages of production -- from raw materials through work-in-process to finished goods -- and all products and proceeds of whatever sort and wherever located and any portion thereof which may be returned, rejected, reclaimed or repossessed by the Collateral Agent from any Assignor's customers, and shall specifically include all "inventory" as such term is defined in the Uniform Commercial Code as in effect on the date hereof in the State of New York, now or hereafter owned by any Assignor.
"Investment Property" shall have the meaning provided in the Uniform Commercial Code as in effect on the date hereof in the State of New York.
"Lender Creditors" shall have the meaning provided in the recitals of this Agreement.
"Lenders" shall have the meaning provided in the recitals of this Agreement.
"Liens" shall mean any security interest, mortgage, pledge, lien, claim, charge, encumbrance, title retention agreement, lessor's interest in a capitalized lease or analogous instrument, in, of, or on any Assignor's property.
"Marks" shall mean all right, title and interest in and to any trademarks, service marks and trade names now held or hereafter acquired by any Assignor, including any registration or application for registration of any trademarks and service marks now held or hereafter acquired by an Assignor, which are registered in the United States Patent and Trademark Office or in any equivalent foreign office; as well as any unregistered marks used by any Assignor and any trade dress including logos, designs, company names, business names, fictitious business names and other business identifiers used by any Assignor.
"Obligations" shall mean:
(i) the full and prompt payment when due (whether at the stated maturity, by acceleration or otherwise) of all obligations (including obligations which, but for the automatic stay under Section 362(a) of the Bankruptcy Code, would become due) and liabilities (including, without limitation, indemnities, Fees and interest (including, without limitation, all interest that accrues after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency, reorganization or similar proceeding of any Assignor at the rate provided for in the respective documentation, whether or not a claim for post-petition interest is allowed in any such proceeding) thereon) owing by such Assignor to the Lender Creditors, now existing or hereafter incurred under, arising out of or in connection with the Credit Agreement and the other Credit Documents to which it is at any time a party (including, without limitation, all such obligations and liabilities of such Assignor under the Subsidiaries Guaranty) and the due per-
Exhibit I
formance and compliance by such Assignor with the terms of each such Credit Document (all such obligations and liabilities under this clause (i) being herein collectively called the "Credit Document Obligations");
(ii) the full and prompt payment when due (whether at the stated maturity, by acceleration or otherwise) of all obligations (including obligations which, but for the automatic stay under Section 362(a) of the Bankruptcy Code, would become due) and liabilities (including, without limitation, all interest that accrues after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency, reorganization or similar proceeding of any Assignor at the rate provided for in the respective documentation, whether or not a claim for post-petition interest is allowed in any such proceeding) owing by such Assignor to the Interest Rate Protection Creditors, now existing or hereafter incurred under, arising out of or in connection with any Interest Rate Protection Agreement (including, without limitation, all such obligations and liabilities of such Assignor under the Subsidiaries Guaranty) and the due performance and compliance by such Assignor with the terms of each such Interest Rate Protection Agreement (all such obligations and liabilities under this clause (ii) being herein collectively called the "Interest Rate Protection Obligations");
(iii) any and all sums advanced by the Collateral Agent in order to preserve the Collateral or preserve its security interest in the Collateral;
(iv) in the event of any proceeding for the collection or enforcement of any indebtedness, obligations, or liabilities referred to in clauses (i) through (iii) above, following the occurrence and during the continuance of an Event of Default, the reasonable expenses of retaking, holding, preparing for sale or lease, selling or otherwise disposing of or realizing on the Collateral, or of any exercise by the Collateral Agent of its rights hereunder, together with reasonable attorneys' fees and court costs; and
(v) all amounts paid by any Indemnitee as to which such Indemnitee has the right to reimbursement under Section 8.1 of this Agreement; it being acknowledged and agreed that the "Obligations" shall include extensions of credit of the types described above, whether outstanding on the date of this Agreement or extended from time to time after the date of this Agreement.
"Patents" shall mean any patent to which any Assignor now or hereafter has right, title and interest therein, and any divisions, continuations (including, but not limited to, continuations-in-parts) and improvements thereof, as well as any application for a patent now or hereafter made by any Assignor.
"Permits" shall mean, to the extent permitted to be assigned by the terms thereof or by applicable law, all licenses, permits, rights, orders, variances, franchises or authorizations (including Governmental Authorizations) of or from any governmental authority or agency.
"Proceeds" shall have the meaning provided in the Uniform Commercial Code as in effect in the State of New York on the date hereof or under other relevant law and, in any event, shall include, but not be limited to, (i) any and all proceeds of any insurance, indemnity,
Exhibit I
warranty or guaranty payable to the Collateral Agent or any Assignor from time to time with respect to any of the Collateral, (ii) any and all payments (in any form whatsoever) made or due and payable to any Assignor from time to time in connection with any requisition, confiscation, condemnation, seizure or forfeiture of all or any part of the Collateral by any governmental authority (or any person acting under color of governmental authority) and (iii) any and all other amounts from time to time paid or payable under or in connection with any of the Collateral.
"Receivables" shall mean any "account" as such term is defined in the Uniform Commercial Code as in effect on the date hereof in the State of New York, now or hereafter owned by any Assignor and, in any event, shall include, but shall not be limited to, all of such Assignor's rights to payment for goods sold or leased or services performed by such Assignor, whether now in existence or arising from time to time hereafter, including, without limitation, rights evidenced by an account, note, contract, security agreement, chattel paper, or other evidence of indebtedness or security, together with (a) all security pledged, assigned, hypothecated or granted to or held by such Assignor to secure the foregoing, (b) all of any Assignor's right, title and interest in and to any goods, the sale of which gave rise thereto, (c) all guarantees, endorsements and indemnifications on, or of, any of the foregoing, (d) all powers of attorney for the execution of any evidence of indebtedness or security or other writing in connection therewith, (e) all books, records, ledger cards, and invoices relating thereto, (f) all evidences of the filing of financing statements and other statements and the registration of other instruments in connection therewith and amendments thereto, notices to other creditors or secured parties, and certificates from filing or other registration officers, (g) all credit information, reports and memoranda relating thereto and (h) all other writings related in any way to the foregoing.
"Required Lenders" has the meaning given such term in the Credit Agreement.
"Representatives" shall have the meaning provided in Section 7.4(e) of this Agreement.
"Required Secured Creditors" shall mean (i) the Required Lenders (or,
to the extent required by Section 13.12 of the Credit Agreement, each of the
Lenders) under the Credit Agreement so long as any Credit Document Obligations
remain outstanding and (ii) in any situation not covered by the preceding clause
(i), the holders of a majority of the outstanding principal amount of the
Interest Rate Protection Obligations.
"Requisite Creditors" shall have the meaning provided in Section 10.2 of this Agreement.
"Secured Creditors" shall have the meaning provided in the recitals of this Agreement.
"Secured Debt Agreements" shall mean and include this Agreement, the Credit Agreement, any other Credit Documents, and any Interest Rate Protection Agreement.
Exhibit I
"Termination Date" shall have the meaning provided in Section 10.8 of this Agreement.
"Trade Secrets" means any secretly held existing engineering and other data, information, production procedures and other know-how relating to the design, manufacture, assembly, installation, use, operation, marketing, sale and servicing of any products or business of an Assignor worldwide whether written or not written.
"Trade Secret Rights" shall have the meaning provided in Section 5.1 of this Agreement.
"UCC" shall mean the Uniform Commercial Code as in effect from time to time in the relevant jurisdiction.
"United States" and "U.S." shall each mean the United States of America.
ARTICLE X
MISCELLANEOUS
10.1 Notice. Except as otherwise specified herein, all notices, requests, demands or other communications to or upon the respective parties hereto shall be deemed to have been duly given or made when delivered to the party to which such notice, request, demand or other communication is required or permitted to be given or made under this Agreement, addressed as follows:
(a) if to any Assignor, at:
c/o Flowers Foods, Inc. 1919 Flowers Circle Thomasville, Georgia 31757 Attention: Kirk Tolbert Telephone No.: (912) 227-2278 Telecopier No.: (912) 225-5435
(b) if to the Collateral Agent, at:
Bankers Trust Company 130 Liberty Street New York, New York 10006 Attention: Scottye Lindsey Telephone No.: (212) 250-3964 Telecopier No.: (212) 250-7218
(c) if to any Lender Creditor (other than the Collateral Agent),
(x) to the Administrative Agent, at the address of the Administrative Agent
specified in the Credit
Exhibit I
Agreement or (y) at such address as such Lender Creditor shall have specified in the Credit Agreement;
(d) if to any Interest Rate Protection Creditor, at such address as such Interest Rate Protection Creditor shall have specified in writing to the Borrower and the Collateral Agent; or at such other address as shall have been furnished in writing by any Person described above to the party required to give notice hereunder.
10.2 Waiver; Amendment. Except as contemplated in Section 10.13 hereof, none of the terms and conditions of this Agreement may be changed, waived, discharged or terminated in any manner whatsoever except in writing duly signed by each Assignor directly effected thereby and the Collateral Agent (with the written consent of the Required Secured Creditors); provided, however, that any change, waiver, modification or variance affecting the rights and benefits of a single Class of Secured Creditors (and not all Secured Creditors in a like or similar manner) shall require the written consent of the Requisite Creditors of such affected Class. For the purpose of this Agreement, the term "Class" shall mean each class of Secured Creditors, i.e., whether (x) the Lender Creditors as holders of the Credit Document Obligations or (y) the Interest Rate Protection Creditors as the holders of the Interest Rate Protection Obligations. For the purpose of this Agreement, the term "Requisite Creditors" of any Class shall mean each of (x) with respect to the Credit Document Obligations, the Required Lenders and (y) with respect to the Interest Rate Protection Obligations, the holders of at least a majority of all obligations outstanding from time to time under the respective Interest Rate Protection Agreements.
10.3 Obligations Absolute. The obligations of each Assignor hereunder shall remain in full force and effect without regard to, and shall not be impaired by, (a) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or the like of such Assignor; (b) any exercise or non-exercise, or any waiver of, any right, remedy, power or privilege under or in respect of this Agreement or any other Secured Debt Agreement; or (c) any amendment to or modification of any Secured Debt Agreement or any security for any of the Obligations; whether or not such Assignor shall have notice or knowledge of any of the foregoing.
10.4 Successors and Assigns. This Agreement shall be binding upon each Assignor and its successors and assigns (although no Assignor may assign its rights and obligations hereunder except in accordance with the provisions of the Secured Debt Agreements) and shall inure to the benefit of the Collateral Agent and the Secured Creditors and their respective successors and assigns. All agreements, statements, representations and warranties made by each Assignor herein or in any certificate or other instrument delivered by such Assignor or on its behalf under this Agreement shall be considered to have been relied upon by the Secured Creditors and shall survive the execution and delivery of this Agreement and the other Secured Debt Agreements regardless of any investigation made by the Secured Creditors or on their behalf.
Exhibit I
10.5 Headings Descriptive. The headings of the several sections of this Agreement are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Agreement.
10.6 Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
10.7 Assignor's Duties. It is expressly agreed, anything herein contained to the contrary notwithstanding, that each Assignor shall remain liable to perform all of the obligations, if any, assumed by it with respect to the Collateral and the Collateral Agent shall not have any obligations or liabilities with respect to any Collateral by reason of or arising out of this Agreement, nor shall the Collateral Agent be required or obligated in any manner to perform or fulfill any of the obligations of any Assignor under or with respect to any Collateral.
10.8 Termination; Release. (a) After the Termination Date, this Agreement shall terminate (provided that all indemnities set forth herein including, without limitation, in Section 8.1 hereof shall survive such termination) and the Collateral Agent, at the request and expense of the respective Assignor, will promptly execute and deliver to such Assignor a proper instrument or instruments (including Uniform Commercial Code termination statements on form UCC-3) acknowledging the satisfaction and termination of this Agreement, will terminate such control agreements or similar agreements with respect to the Collateral as may then exist, and will duly assign, transfer and deliver to such Assignor (without recourse and without any representation or warranty) such of the Collateral as may be in the possession of the Collateral Agent and as has not theretofore been sold or otherwise applied or released pursuant to this Agreement. As used in this Agreement, "Termination Date" shall mean the date upon which the total commitments to provide extensions of credit under all Secured Debt Agreements have terminated and all Loans have been repaid in full, all Letters of Credit have been terminated, all extensions of credit pursuant to any Interest Rate Protection Agreements have been repaid in full and all Obligations (other than arising from indemnities for which no request has been made) have been paid in full.
(b) So long as no Trigger Event has occurred and is continuing, in the event that any part of the Collateral is sold or otherwise disposed of in connection with a sale or disposition permitted by the Credit Agreement (other than a sale to any Assignor or a Subsidiary thereof) or otherwise released at the direction of the Required Secured Creditors and the proceeds of such sale or disposition (or from such release) are applied in accordance with the provisions of the Credit Agreement, to the extent required to be so applied, such Collateral will be sold free and clear of the Liens created by this Agreement and the Collateral Agent, at the request and expense of the relevant Assignor, will duly assign, transfer and deliver to such Assignor (without recourse and without any representation or warranty) such of the Collateral as is then being (or has been) so sold or released and as may be in the possession of the Collateral Agent and has not theretofore been released pursuant to this Agreement and, to the extent requested by such
Exhibit I
Assignor, deliver, at such Assignor's expense, appropriate UCC termination statements and instruments of satisfaction, discharge and or reconveyance, as the case may be.
(c) At any time that an Assignor desires that the Collateral Agent take any action to acknowledge or give effect to any release of Collateral pursuant to the foregoing Section 10.8(a) or (b), such Assignor shall deliver to the Collateral Agent a certificate signed by a principal executive officer of such Assignor stating that the release of the respective Collateral is permitted pursuant to Section 10.8(a) or (b) hereof, and the Collateral Agent shall be entitled (but not required) to conclusively rely thereon. If reasonably requested by the Collateral Agent (although the Collateral Agent shall have no obligation to make any such request), the relevant Assignor shall furnish appropriate legal opinions (from counsel reasonably acceptable to the Collateral Agent) to the effect set forth in the immediately preceding sentence.
10.9 Counterparts. This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. A set of counterparts executed by all the parties hereto shall be lodged with each Assignor and the Collateral Agent.
10.10 Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
10.11 The Collateral Agent. The Collateral Agent will hold in accordance with this Agreement all items of the Collateral at any time received under this Agreement. It is expressly understood and agreed that the obligations of the Collateral Agent as holder of the Collateral and interests therein and with respect to the disposition thereof, and otherwise under this Agreement, are only those expressly set forth in this Agreement and in Section 12 of the Credit Agreement. The Collateral Agent shall act hereunder and thereunder on the terms and conditions set forth herein and in Section 12 of the Credit Agreement.
10.12 Benefit of Agreement. This Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of and be enforceable by each of the parties hereto and its successors and assigns.
10.13 Additional Assignors. It is understood and agreed that any Subsidiary of the Borrower that is required to execute a counterpart of this Agreement after the date hereof pursuant to the Credit Agreement shall become an Assignor hereunder by (x) executing a counterpart hereof and/or a Subsidiary assumption agreement, in each case in form and substance satisfactory to the Collateral Agent, (y) delivering supplements to Annexes A through G hereto as are necessary to cause such Annexes to be complete and accurate with respect to such additional Assignor on such date and (z) taking all actions as specified in this Agreement as would have been taken by such Assignor had it been an original party to this Agreement, in each case with all documents required above to be delivered to the Collateral Agent and with all
Exhibit I
documents and actions required to be taken above to be taken to the reasonable satisfaction of the Collateral Agent.
10.14 Release of Guarantors. In the event any Assignor which is a Subsidiary of the Borrower is released from its obligations pursuant to the Subsidiaries Guaranty, such Assignor (so long as not the Borrower) shall be released from this Agreement and this Agreement shall, as to such Assignor only, have no further force or effect.
* * *
Exhibit I
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered by their duly authorized officers as of the date first above written.
FLOWERS FOODS, INC.,
as an Assignor
By: /s/ Thomas B. Jones, Jr. --------------------------------------- Title: Treasurer |
FLOWERS BAKERIES BRANDS, INC.
FLOWERS FINANCE, LLC
FLOWERS BAKERIES, LLC
FLOWERS BAKING CO. OF FLORIDA, LLC
FLOWERS BAKING CO. OF MIAMI, LLC
FLOWERS BAKING CO. OF JACKSONVILLE, LLC
FLOWERS BAKING CO. OF BRADENTON, LLC
FLOWERS BAKING CO. OF THOMASVILLE, LLC
FLOWERS BAKING CO. OF VILLA RICA, LLC
FLOWERS BAKING CO. OF OPELIKA, LLC
HARDIN'S BAKERY, LLC
HOME BAKING COMPANY, LLC
HUVAL BAKERY, LLC
BUNNY BREAD, LLC
FLOWERS BAKING CO. OF BATON ROUGE, LLC
FLOWERS BAKING CO. OF JAMESTOWN, LLC
FRANKLIN BAKING COMPANY, LLC
FLOWERS BAKING CO. OF LYNCHBURG, LLC
FLOWERS BAKING CO. OF NORFOLK, LLC
FLOWERS BAKING CO. OF MORRISTOWN, LLC
SCHOTT'S BAKERY, LLC
FLOWERS BAKING CO. OF WEST VIRGINIA, LLC
THE DONUT HOUSE, LLC
FLOWERS BAKING CO. OF TEXAS, LLC
FLOWERS BAKING CO. OF TYLER, LLC
BUTTERKRUST BAKERY, LLC
EL PASO BAKING CO., LLC
By: /s/ Thomas B. Jones, Jr. --------------------------------- Title: Authorized Representative |
SAN ANTONIO BAKING CO., LLC
AUSTIN BAKING CO., LLC
CORPUS CHRISTI BAKING CO., LLC
FLOWERS BAKING CO. OF TEXARKANA, LLC
HOLSUM BAKING COMPANY, LLC
SHIPLEY BAKING COMPANY, LLC
STORCK BAKING COMPANY, LLC
BAILEY STREET BAKERY, LLC
TABLE PRIDE, LLC
FLOWERS BAKING CO. OF MEMPHIS, LLC
HAMPTON ROADS BAKING COMPANY, LLC
MRS. SMITH'S BAKERIES, LLC
EUROPEAN BAKERS, LLC
AUNT FANNY'S BAKERY, LLC
DAN-CO BAKERY, LLC
DANIEL'S HOME BAKERY OF NORTH CAROLINA, LLC
MRS. SMITH'S BAKERIES SALES SUPPORT GROUP, LLC
MRS. SMITH'S FOIL COMPANY, LLC
MRS. SMITH'S BAKERIES FROZEN DISTRIBUTORS, LLC
MRS. SMITH'S BAKERIES OF PENNSYLVANIA, LLC
FLOWERS SPECIALTY FOODS OF MONTGOMERY, LLC
FLOWERS BAKING COMPANY OF FOUNTAIN INN, LLC
FLOWERS FRESH BAKERY DISTRIBUTORS, INC.
MRS. SMITH'S BAKERY OF LONDON, LLC
MRS. SMITH'S BRANDS, INC.
MRS. SMITH'S BAKERY OF STILWELL, LLC
MRS. SMITH'S BAKERY OF SPARTANBURG, LLC
MRS. SMITH'S BAKERY OF CROSSVILLE, LLC
MRS. SMITH'S BAKERY OF SUWANEE, LLC
By: /s/ Thomas B. Jones, Jr. ------------------------------ Title: Authorized Representative |
Accepted and Agreed to:
BANKERS TRUST COMPANY,
as Collateral Agent
By: /s/ Scottye D. Lindsey --------------------------- Title: Vice President |
ANNEX A
SCHEDULE OF CHIEF EXECUTIVE OFFICES AND RECORD LOCATIONS
1. FLOWERS FOODS, INC.
Chief Executive Office: Record Location:
----------------------- ----------------
1919 Flowers Circle 1919 Flowers Circle
Thomasville, GA 31757 Thomasville, GA 31757
2. FLOWERS BAKERIES BRANDS, INC.
Chief Executive Office: Record Location:
----------------------- ----------------
1919 Flowers Circle 1919 Flowers Circle
Thomasville, GA 31757 Thomasville, GA 31757
3. FLOWERS BAKERIES, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
1919 Flowers Circle 1919 Flowers Circle
Thomasville, GA 31757 Thomasville, GA 31757
4. FLOWERS BAKING CO. OF FLORIDA, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
1919 Flowers Circle 1919 Flowers Circle
Thomasville, GA 31757 Thomasville, GA 31757
5. FLOWERS BAKING CO. OF MIAMI, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
17800 NW Miami Court 17800 NW Miami Court
Miami, FL 33169 Miami, FL 33169
6. FLOWERS BAKING CO. OF JACKSONVILLE, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
2261 West 30th Street 2261 West 30th Street
Jacksonville, FL 32209 Jacksonville, FL 32209
7. FLOWERS BAKING CO. OF BRADENTON, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
6490 Parkland Drive 6490 Parkland Drive
Bradenton, FL 34243 Sarasota, FL 34243
8. FLOWERS BAKING CO. OF THOMASVILLE, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
300 Madison Street 300 Madison Street
Thomasville, GA 31792 Thomasville, GA 31792
9. FLOWERS BAKING CO. OF VILLA RICA, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
134 Doyle McCain Drive 134 Doyle McCain Drive
Villa Rica, GA 30180 Villa Rica, GA 30180
|
10. FLOWERS BAKING CO. OF OPELIKA, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
101 Simmons Street 101 Simmons Street
Opelika, AL 36801 Opelika, AL 36801
11. HARDIN'S BAKERY, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
546 15th Street 546 15th Street
Tuscaloosa, AL 35403 Tuscaloosa, AL 35403
12. HOME BAKING COMPANY, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
900 North 16th Street 900 North 16th Street
Birmingham, AL 35203 Birmingham, AL 35203
13. HUVAL BAKERY, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
720 West Simcoe Street 720 West Simcoe Street
Lafayette, LA 70501 Lafayette, LA 70501
14. BUNNY BREAD, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
5646 Lewis Road 5646 Lewis Road
New Orleans, LA 70126 New Orleans, LA 70126
15. FLOWERS BAKING CO. OF BATON ROUGE, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
1504 Florida Blvd. 1504 Florida Blvd.
Baton Rouge, LA 70802 Baton Rouge, LA 70802
16. FLOWERS BAKING CO. OF JAMESTOWN, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
801 Main Street 801 Main Street
Jamestown, NC 27282 Jamestown, NC 27282
17. FRANKLIN BAKING COMPANY, LLC
Chief Executive Office: Office Location: Plant Location
----------------------- ---------------- --------------
607 North Carolina Street 607 North Carolina Street 500 W. Grantham St.
Goldsboro, NC 27530 Goldsboro, NC 27533 Kinston, NC 27530
18. FLOWERS BAKING CO. OF LYNCHBURG, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
1905 Hollins Mill Road 1905 Hollins Mill Road
Lynchburg, VA 24503 Lynchburg, VA 24503
|
19. FLOWERS BAKING CO. OF NORFOLK, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
1925 Flowers Circle 1925 Flowers Circle
Thomasville, GA 31757 Thomasville, GA 31757
20. FLOWERS BAKING CO. OF MORRISTOWN, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
1725 West First North Street 1725 West First North Street
Morristown, TN 37814 Morristown, TN 37814
21. SCHOTT'S BAKERY, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
3000 Washington Avenue 3000 Washington Avenue
Houston, TX 77007 Houston, TX 77007
22. FLOWERS BAKING CO. OF WEST VIRGINIA, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
1188 Coal Heritage Road 1188 Coal Heritage Road
Bluefield, WV 24701 Bluefield, WV 24701
23. THE DONUT HOUSE, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
5040 McCorkle Avenue 5040 McCorkle Avenue
South Charleston, WV 31757 South Charleston, WV 31757
24. FLOWERS BAKING CO. OF TEXAS, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
1919 Flowers Circle 1919 Flowers Circle
Thomasville, GA 31757 Thomasville, GA 31757
25. FLOWERS BAKING CO. OF TYLER, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
1200 W. Erwin Street 1200 W. Erwin Street
Tyler, TX 75702 Tyler, TX 75702
26. BUTTERKRUST BAKERY, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
6000 NE Loop 410 6000 NE Loop 410
San Antonio, TX 78218 San Antonio, TX 78218
27. EL PASO BAKING CO., LLC
Chief Executive Office: Record Location:
----------------------- ----------------
301 North Dallas Street 301 North Dallas Street
El Paso, TX 79901 El Paso, TX 79901
|
28. EL PASO BAKING COMPANY DE MEXICO, S.A. DE C.V.
Chief Executive Office: Record Location:
----------------------- ----------------
301 North Dallas Street 301 North Dallas Street
El Paso, TX 79901 El Paso, TX 79901
29. SAN ANTONIO BAKING CO., LLC
Chief Executive Office: Record Location:
----------------------- ----------------
1919 Flowers Circle 1919 Flowers Circle
Thomasville, GA 31757 Thomasville, GA 31757
30. AUSTIN BAKING CO., LLC
Chief Executive Office: Record Location:
----------------------- ----------------
1919 Flowers Circle 1919 Flowers Circle
Thomasville, GA 31757 Thomasville, GA 31757
31. CORPUS CHRISTI BAKING CO., LLC.
Chief Executive Office: Record Location:
----------------------- ----------------
1919 Flowers Circle 1919 Flowers Circle
Thomasville, GA 31757 Thomasville, GA 31757
32. FLOWERS BAKING CO. OF TEXARKANA, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
7 Jim Walters Drive 7 Jim Walters Drive
Texarkana, AR 71854 Texarkana, AR 71854
33. HOLSUM BAKING COMPANY, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
220 Tennessee Street 220 Tennessee Street
Pine Bluff, Arkansas 71611 Pine Bluff, Arkansas 71611
34. SHIPLEY BAKING COMPANY, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
73 South 6th Street 73 South 6th Street
Fort Smith, AR 72901 Fort Smith, AR 72901
35. STORCK BAKING COMPANY, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
1919 Flowers Circle 1919 Flowers Circle
Thomasville, GA 31757 Thomasville, GA 31757
36. BAILEY STREET BAKERY, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
165 Bailey Street SW 165 Bailey Street SW
Atlanta, GA 30314 Atlanta, GA 30314
|
37. TABLE PRIDE, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
1940 Will Ross Court 1940 Will Ross Court
Chamblee, GA 30341 Chamblee, GA 30341
38. FLOWERS BAKING CO. OF MEMPHIS, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
1029 South Florida Street 1029 South Florida Street
Memphis, TN 38106 Memphis, TN 38106
39. HAMPTON ROADS BAKING COMPANY, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
1209 Corprew Avenue 1209 Corprew Avenue
Norfolk, VA 23504 Norfolk, VA 23504
40. MRS. SMITH'S BAKERIES, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
2855 Rolling Pin Lane, Suite A 2855 Rolling Pin Lane, Suite A
Suwanee, GA 30024 Suwanee, GA 30024
41. EUROPEAN BAKERS, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
5055 South Royal Atlanta Drive 5055 South Royal Atlanta Drive
Tucker, GA 30084 Tucker, GA 30084
42. AUNT FANNY'S BAKERY, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
1039 Grant Street, SE 1039 Grant Street, SE
Atlanta, GA 30315 Atlanta, GA 30315
43. DAN-CO BAKERY, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
301 Cash Memorial Drive 301 Cash Memorial Drive
Forest Park, GA 30297 Forest Park, GA 30297
44. DANIEL'S HOME BAKERY OF NORTH CAROLINA,
LLC
Chief Executive Office: Record Location:
----------------------- ----------------
701 Jones Street 701 Jones Street
Pembroke, NC 28372 Pembroke, NC 28372
45. MRS. SMITH'S BAKERIES SALES SUPPORT GROUP,
LLC
Chief Executive Office: Record Location:
----------------------- ----------------
2855 Rolling Pin Lane, Suite A 2855 Rolling Pin Lane, Suite A
Suwanee, GA 30024 Suwanee, GA 30024
|
46. MRS. SMITH'S FOIL COMPANY, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
255 South Street 255 South Street
Pottstown, PA 19464 Pottstown, PA 19464
47. MRS. SMITH'S BAKERIES FROZEN DISTRIBUTORS, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
2855 Rolling Pin Lane, Suite A 2855 Rolling Pin Lane, Suite A
Suwanee, GA 30024 Suwanee, GA 30024
48. MRS. SMITH'S BAKERIES OF PENNSYLVANIA, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
2855 Rolling Pin Lane, Suite A 2855 Rolling Pin Lane, Suite A
Suwanee, GA 30024 Suwanee, GA 30024
49. FLOWERS SPECIALTY FOODS OF MONTGOMERY, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
140 Folmar Parkway 140 Folmar Parkway
Montgomery, AL 36105 Montgomery, AL 36105
50. FLOWERS BAKING COMPANY OF FOUNTAIN INN, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
2855 Rolling Pin Lane, Suite A 2855 Rolling Pin Lane, Suite A
Suwanee, GA 30024 Suwanee, GA 30024
51. FLOWERS FRESH BAKERY DISTRIBUTORS, INC.
Chief Executive Office: Record Location:
----------------------- ----------------
1411 Mountain Road 1411 Mountain Road
Andersonville, TN 37705 Andersonville, TN 37705
52. MRS. SMITH'S BAKERY OF LONDON, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
501 East Fourth Street 501 East Fourth Street
London, KY 40741 London, KY 40741
53. MRS. SMITH'S BRANDS, INC.
Chief Executive Office: Record Location:
----------------------- ----------------
2855 Rolling Pin Lane, Suite A 2855 Rolling Pin Lane, Suite A
Suwanee, GA 30024 Suwanee, GA 30024
54. MRS. SMITH'S BAKERY OF SPARTANBURG, LLC.
Chief Executive Office: Record Location:
----------------------- ----------------
7001 Asheville Highway 7001 Asheville Highway
Spartanburg, SC 29303 Spartanburg, SC 29303
|
55. MRS. SMITH'S BAKERY OF CROSSVILLE, LLC.
Chief Executive Office: Record Location:
----------------------- ----------------
1067 North Main Street 1067 North Main Street
Crossville, TN 38555 Crossville, TN 38555
56. MRS. SMITH'S BAKERY OF STILWELL, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
5 East Walnut Street 5 East Walnut Street
Stilwell, OK 74960 Stilwell, OK 74960
57. MRS. SMITH'S BAKERY OF SUWANEE, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
2900 Rolling Pin Lane, Suite B 2900 Rolling Pin Lane, Suite B
Suwanee, GA 30024 Suwanee, GA 30024
58. FLOWERS FINANCE, LLC
Chief Executive Office: Record Location:
----------------------- ----------------
1919 Flowers Circle 1919 Flowers Circle
Thomasville, GA 31757 Thomasville, GA 31757
|
Exhibit B
EXACT LEGAL NAME OF EACH PLEDGOR AND
STATE OF INCORPORATION/ORGANIZATION
I. Flowers Foods, Inc. (GA) 58-2582379 Parent
-------------------
1. Flowers Finance, LLC (DE) 51-0407746 100%
2. Flowers Bakeries, LLC (GA) 59-3483283 100%
i. Flowers Baking Co. of Florida, LLC (FL) 58-1301118 100%
1. Flowers Baking Co. of Miami, LLC (FL) 59-1758784 100%
2. Flowers Baking Co. of Jacksonville, LLC (FL) 59-1718773 100%
3. Flowers Baking Co. of Bradenton, LLC (FL) 58-1723981 100%
ii. Flowers Baking Co. of Thomasville, LLC (GA) 58-1330782 100%
iii. Flowers Baking Co. of Villa Rica, LLC (GA) 58-2109227 100%
iv. Flowers Baking Co. of Opelika, LLC (AL) 63-0752595 100%
1. Bailey Street Bakery, LLC (AL) 58-2272791 100%
v. Hardin's Bakery, LLC (AL) 63-0252356 100%
vi. Home Baking Company, LLC (AL) 63-0334970 100%
vii. Huval Bakery, LLC (LA) 59-1686698 100%
1. Bunny Bread, LLC (LA) 72-0500448 100%
a. Flowers Baking Co. of Baton Rouge, LLC (LA) 58-1740889 100%
viii. Flowers Baking Co. of Jamestown, LLC (NC) 58-1567728 100%
ix. Franklin Baking Company, LLC (NC) 56-0605051 100%
x. Flowers Baking Co. of Lynchburg, LLC (VA) 58-1309193 100%
xi. Flowers Baking Co. of Norfolk, LLC (VA) 58-1330779 100%
xii. Flowers Baking Co. of Morristown, LLC (TN) 58-1403615 100%
xiii. Schott's Bakery, LLC (TX) 74-0886850 100%
xiv. Flowers Baking Co. of West Virginia, LLC (WV) 55-0654747 100%
1. The Donut House, LLC (WV) 55-0517749 100%
xv. Flowers Baking Co. of Texas, LLC (TX) 58-1453104 100%
1. Flowers Baking Co. of Tyler, LLC (GA) 75-1786865 100%
a. Butterkrust Bakery, LLC (TX) 74-2720708 100%
2. El Paso Baking Co., LLC (TX) 74-2657988 100%
a. El Paso Baking Company de Mexico, S.A. de C.V. (MEXICO) 100%
3. San Antonio Baking Co., LLC (TX) 74-2830409 100%
4. Austin Baking Co., LLC (TX) 74-2830410 100%
5. Corpus Christi Baking Co., LLC. (TX) 74-2830414 100%
xvi. Flowers Baking Co. of Texarkana, LLC (AR) 71-0638493 100%
xvii. Holsum Baking Company, LLC (AR) 71-0209537 100%
xviii. Shipley Baking Company, LLC (AR) 71-0254043 100%
xix. Storck Baking Company, LLC (WV) 55-0745937 100%
xx. Table Pride, LLC (GA) 58-1846861 100%
xxi. Flowers Baking Co. of Memphis, LLC (TN) 62-1799669 100%
|
Exhibit B
xxii. Hampton Roads Baking Company, LLC (VA) 58-2593937 100%
xxiii. Flowers Bakeries Brands, Inc. (DE) 51-0407486 100%
3. Mrs. Smith's Bakeries, LLC (GA) 58-2392473 100%
a. European Bakers, LLC (GA) 58-0944858 100%
b. Aunt Fanny's Bakery, LLC (GA) 58-2168689 100%
c. Dan-Co Bakery, LLC (GA) 58-1989098 100%
i. Daniel's Home Bakery of North Carolina, LLC (NC) 58-2023526 100%
d. Mrs. Smith's Bakeries Sales Support Group, LLC (GA) 58-1846859 100%
i. Mrs. Smith's Foil Company, LLC (GA) 23-2947803 100%
e. Mrs. Smith's Bakeries Frozen Distributors, LLC (GA) 58-2125054 100%
f. Mrs. Smith's Bakeries of Pennsylvania, LLC (GA) 58-2236380 100%
g. Flowers Specialty Foods of Montgomery, LLC (AL) 63-0998333 100%
h. Flowers Baking Company of Fountain Inn, LLC (SC) 57-0641441 100%
i. Flowers Fresh Bakery Distributors, Inc. (TN) 62-1574151 100%
j. Mrs. Smith's Bakery of London, LLC (KY) 61-1027735 100%
k. Mrs. Smith's Brands, Inc. (SC) 57-1069445 100%
l. Mrs. Smith's Bakery of Stilwell, LLC (OK) 73-0962847 100%
m. Mrs. Smith's Bakery of Spartanburg, LLC. (SC) 57-0518564 100%
n. Mrs. Smith's Bakery of Crossville, LLC. (TN) 58-1333171 100%
o. Mrs. Smith's Bakery of Suwanee, LLC (GA) 58-2480300 100%
|
ANNEX C
SCHEDULE OF INVENTORY AND EQUIPMENT LOCATIONS
FLOWERS FOODS, INC.
1919 Flowers Circle, Thomasville, GA 31757 Thomas County Airport, Thomasville, GA 31757 Ashley Street, Thomasville, GA 31792
FLOWERS FINANCE, LLC
NONE.
FLOWERS BAKERIES, LLC AND ITS SUBSIDIARIES
FBC OF THOMASVILLE - 0101 FLOWERS BAKING COMPANY OF THOMASVILLE, LLC
1. Tallahassee Warehouse/#4652 Thrift Store, 3385 South Monroe Street,
Tallahassee, FL 32301
2. Carrabelle Warehouse, 409 Avenue A South ( Highway 67), Carrabelle, FL 32322
3. Panama City Warehouse/Thrift Store #4631, 1512 West 23rd Street , Panama
City, FL 32405
4. Port St. Joe Warehouse, 205 Ponderosa Drive, Port St. Joe, FL 32456
5. Bainbridge Warehouse, 1507 Pierce Street, Bainbridge, GA 31717
6. Quincy Warehouse/ #4628 Thrift Store, 321 West Jefferson Street, Quincy, FL
32351
7. Blountstown Warehouse, 634 South Main Street, Blountstown, FL 32424
8. Dothan Warehouse/Thrift Store #4614, 1735 Ross Clark Circle, Dothan, AL 36301
9. Blakely Warehouse, Howell Avenue, Blakely, GA 31723
10. Daleville Warehouse, 1111 South Daleville Avenue, Daleville, AL 36322
11. Cottondale Warehouse, East Broad Street, Cottondale, FL 32431
12. Thomasville Warehouse, 119 Lester Street, Thomasville, GA 31792
13. Moultrie Warehouse, 124 Sunset Circle, Moultrie, GA 31768
14. Valdosta Warehouse, 110 Hemlock Street, Valdosta, GA 31601
15. Perry FL Warehouse, 1218 Wright Street, Perry, FL 32347
16. Albany Warehouse, 106 Sunbeam Lane, Albany, GA 31706
17. Cordele Warehouse, 167 Rockhouse Road, Cordele, GA 31015
18. Perry GA Warehouse/Thrift Store #4608, 500 Courtney Hodges Blvd., Perry, GA
31069
19. Americus Warehouse, Old Dawson Road Highway 19 South, Dawson, GA 31709
20. Tifton Warehouse, 411 Omega Road, Tifton, GA 31794
21. Douglas Warehouse, Pope Drive, Douglas, GA 31533
22. Macon Warehouse/Thrift Store #4611, 2267 Anthony Road, Macon, GA 31206
23. Pelham Warehouse, 135 Carroll Street, Pelham, GA 31799
24. Madison, FL Warehouse, U.S. 90 West Section 21 Country Club Road, Madison,
FL 32340
25. Dublin Warehouse, 106 Nathaniel Drive, Dublin, GA 31021
26. Ft. Walton Warehouse, 638 Anchors Street, Ft. Walton, FL 32548
27. Pensacola Warehouse, 9201 North Davis Highway, Pensacola, FL 32514
28. Mossy Head Warehouse, 496 West Highway 90, Mossy Head, FL 32434
29. Panama City Beach Warehouse, 501 B. Enterprise Drive, Panama City Beach, FL
32407
30. Andalusia Warehouse/ Thrift Store #4685, 1110 Sanford Road Highway 84 East,
Andalusia, AL 36420
31. Brewton Warehouse, 707 Highway 31, Brewton, AL 36426
Exhibit C
32. Pensacola #2 Warehouse, 8804-B Grow Road, Pensacola, FL 32514
33. Milton Thrift Store # 4689, 6559 Suite B, Highway 90, Milton, FL 32570
34. Albany #4664 Thrift Store, 130 North Magnolia Street, Albany, GA 31706
35. Albany #4665 Thrift Store, 1720 East Broad Street, Albany, GA 31705
36. Americus #4602 Thrift Store, 406 Tripp Street, Americus, GA 31709
37. Cordele #4612 Thrift Store, 904 E. 16th Avenue, Cordele, GA 31015
38. Douglas #4660 Thrift Store, 1421 West Baker Highway, Douglas, GA 31533
39. Dublin #4695 Thrift Store, 1632 Veterans Blvd. Oaks 111, Dublin, GA 31027
40. Ft. Walton # 4680 Thrift Store, 310 Eglin Parkway, Ft. Walton, FL 32548
41. Lynn Haven #4618 Thrift Store, 2400 South Highway 77, Lynn Haven, FL 32444
42. Macon # 4607 Thrift Store, 2017 Millerfield Road, Macon, GA 31205
43. Moultrie #4605 Thrift Store, 905 1st Avenue, Moultrie, GA 31768
44. Ozark #4613 Thrift Store, 805 East Andrews Avenue, Ozark, AL 36360
45. Pensacola #4690 Thrift Store, 3107 West Michigan Avenue, Pensacola, FL 32581
46. Pensacola #4691 Thrift Store, East Nine Mile Road, Pensacola, FL 32581
47. Pensacola # 4693 Thrift Store, 9257 Davis. Road North, Pensacola, FL 32581
48. Springfield # 4619 Thrift Store, 3205 East Bus. 98, Springfield, FL 32401
49. Tallahassee #4623 Thrift Store, 2420 Pensacola Avenue, Tallahassee, FL 32301
50. Thomasville # 4651 Thrift Store, 236 South Madison Street, Thomasville, GA
31792
51. Tifton #4671 Thrift Store, 724 W. 2nd Street, Tifton, GA 31793
52. Valdosta #4672 Thrift Store, 2124 Bemis Road, Valdosta, GA 31601
TUSCALOOSA 0104 HARDIN'S BAKERY, LLC
1. 5 Points West Thrift Store, 1564 Bessemer Road, Birmingham, AL 35208
2. Alabaster Thrift Store, 222 2nd Street SW, Alabaster, AL 35007
3. Arlington Road Thrift Store, 6525 Memphis-Arlington Road Suite 101, Memphis,
TN 38119
4. Athens Warehouse & Thrift Store, 1104 Annie Ruth Jamar, Athens, AL. 35611
5. Batesville Warehouse, 27837 Highway 6, Sardis, MS 38666
6. Brent Warehouse, Highway 25 South, Brent, AL 35034
7. Centerpoint Thrift Store, 1629 Centerpoint, Centerpoint, AL 35215
8. Columbus Warehouse, 2168 Highway 69 South, Columbus, MS 39702
9. Columbus Thrift Store, 126 Alabama Street, Columbus, MS 39701
10. Corinth Warehouse, 3006 Highway 72 West, Corinth, MS 38834
11. Corinth Thrift Store, 3002 Highway 72 West, Corinth, MS 38834
12. Cullman Warehouse & Thrift Store, 2020 W. Main Street, Cullman, AL 35055
13. Decatur Warehouse & Thrift Store, 2310 Old Moulton Road, Decatur, AL 35602
14. Demopolis Warehouse, S Industrial Park, Sect. A, Bldg. 1, Lot J, Demopolis,
AL 36732
15. Fayette Thrift Store, 217 2nd Street NE Lane Shopping Center, Fayette, AL
35555
16. Fayette Warehouse, Old Tuscaloosa Highway, Fayette, AL 35555
17. Florence Warehouse &Thrift Store, 3608 Cloverdale Road, Florence, AL 35630
18. Gardendale Thrift Store, 1060 Main, Gardendale, AL 35071
19. Greensboro Thrift Store, 3201 10th Avenue, Tuscaloosa, AL 35401
20. Grove Hill Warehouse, 199C South Jackson Street, Grove Hill, AL 36451
21. Haleyville Warehouse, 2415 11th Avenue, Haleyville, AL 35565
Exhibit C
22. Hamilton Warehouse, Highway 78 South, Hamilton, AL 35570
23. Horn Lake Thrift Store, 3342 Goodman Road West, Horn Lake, MS 38637
24. Houston Warehouse, 108 Malcolm Street, Houston, MS 38851
25. Huntsville Warehouse & Thrift Store, 2516 C Sparkman Drive, Huntsville, AL.
35810
26. Huntsville Thrift Store, 7920 Charlotte Drive, Huntsville, AL. 35802
27. Jackson TN Warehouse, 123 Ragland Road, Jackson, TN 38301
28. Jasper Thrift Store, 58 East 19th Street, Jasper, AL 35501
29. Jasper Warehouse & Thrift Store, 5501 Highway 78 East, Jasper, AL 35501
30. Summer Avenue Thrift Store, 4770 Summer Avenue, Memphis, TN 38119
31. Stage Road Thrift Store, 5771 Stage Road, Bartlett, TN 38134
32. Thomas Road Warehouse, 1910 Thomas Road, Memphis, TN 38134
33. Meridian Thrift Store, 3400 8th Street, Meridian, MS 39301
34. Meridian Warehouse, 2633 Sellers Drive, Meridian, MS 39301
35. Moody Thrift Store, 2841 & 2843 Moody Parkway, Moody, AL 35004
36. Monroeville Warehouse, 3924 South Alabama (Highway 21 South), Monroeville,
AL 36461
37. Northport Thrift Store, 1101 Lurleen Wallace Blvd. North, Northport, AL
35476
38. Olive Branch Thrift Store, 5220 Hacks Cross Road Unit A (1), Olive Branch,
MS 38654
39. Olive Branch Thrift Store, 5940 Goodman Road, Olive Branch, MS 38654
40. Oxford Warehouse, 1103-A Jackson Avenue, Oxford, MS 38655
41. Pelham Warehouse & Thrift Store, 2880 Pelham Parkway (Highway 31), Pelham,
AL 35214
42. Philadelphia Warehouse, 101 Street Francis Drive, Philadelphia, MS 39350
43. Phil Campbell Warehouse, 527 Railroad Street, Phil Campbell, AL 35581
44. Reform Warehouse, P.O. Box 118, Reform, AL 35481
45. Sheffield Thrift Store, 1700 Darby Drive, Florence, AL 35630
46. Starkville Warehouse, 507 Lincoln Green, Starkville, MS 39759
47. Sylacauga Warehouse & Thrift Store, 507 West Park Street, Sylacauga, AL
35150
48. Trinity Road Thrift Store, 7865 Trinity Road Suite 110, Memphis, TN 38119
49. Talladega Warehouse & Thrift Store, Rt. 1 highway 21, Talladega, AL 35160
50. Tuscaloosa Warehouse & Thrift Store, 827 Mimosa Park Road, Tuscaloosa, AL
35405
51. Houston Warehouse, 108 Malcolm Street, Houston, MS 38851
52. Bessemer Warehouse & Thrift Store, 150 Highway 150, Bessemer, AL 35020
53. Finley Warehouse & Thrift Store, 413 Old Finley Avenue, Birmingham, AL 35204
54. Trussville Warehouse & Thrift Store, 1151 Old Gadsden Highway, Trussville,
AL 35173
55. Tupelo Warehouse & Thrift Store, 846 Cliff Gookin Blvd., Tupelo, MS 38801
FBC OF OPELIKA - 0105 FLOWERS BAKING COMPANY OF OPELIKA, LLC
1. Columbus Thrift Store, 3705 Weems Road, Columbus, GA 31909
2. Phenix City Thrift Store, 3760 B Opelika Road, Phenix City, AL 36867
3. Opelika Thrift Store, 1503 Second Avenue, Opelika, AL 36801
4. Montgomery Thrift Store & Warehouse, 4323 Norman Bridge Road, Montgomery, AL
36105
5. Montgomery Thrift Store, 1401 Federal Drive, Montgomery, AL 36107
6. Columbus Thrift Store, 1403-A Warmsprings Road, Columbus, GA 31904
7. Selma Thrift Store & Warehouse, 2909 Citizen Parkway, Selma, AL 36701
8. Montgomery Thrift Store, 447 North Eastern Blvd., Montgomery, AL 36110
Exhibit C
9. LaGrange Thrift Store & Warehouse, 523 New Franklin Road, LaGrange, GA 30240 10. Thrift Store & Warehouse, 3601 20th Avenue, Valley, AL 36854 11. Thomaston Warehouse, 86 Atwater Road, Thomaston, GA 30286 12. Roanoke Warehouse, Chestnut Street, Roanoke, AL 36274 13. Alex City Warehouse, Highway 22, Route 4, Alex City, AL 35010 14. Manchester Warehouse, 11/2 Truitt Street, Manchester, GA 31816 15. Clanton Warehouse, Newport Avenue, Clanton, AL 35045 16. Greenville Warehouse, 402 Conecuh Street, Greenville, AL 36037 17. Troy Warehouse, 16B South 3 Notch Street, Troy, AL 36081 18. Georgetown Warehouse, Highway 82 East, Georgetown, GA 31754 19. Phenix City Warehouse, 6 Budweiser Drive, Phenix City, AL 36867 20. Tallassee Warehouse, Route 5 1729 Gilmer Street, Tallassee, AL 36078
FBC OF MORRISTOWN, INC. - 0107 FLOWERS BAKING COMPANY OF MORRISTOWN, LLC
1. Flowers Baking Co. of Morristown, 1725 West First North Street, Morristown,
TN 37814
2. Morristown/Flowers Discount Bakery Store, 6716 West Andrew Johnson Highway,
Talbott, TN 37877
3. Flowers Discount Bakery Store, 942 Emory Road, Powell, TN 37849
4. Flowers Discount Bakery Store, 366 E. Tennessee Avenue, Oak Ridge, TN 37830
5. Clinton Highway/Flowers Discount Bakery Store, 7111 Clinton Highway, Powell,
TN 37849
6. Winona/Flowers Discount Bakery Store, 109 Winona Avenue, Knoxville, TN 37917
7. Flowers Discount Bakery Store, East Stone Drive, Kingsport, TN 37660
8. Gray/Flowers Discount Bakery Store, Suncrest Drive, US Highway 75, Gray, TN
37615
9. Flowers Discount Bakery Store, 2191 Clinton Highway, Powell, TN 37849
JACKSONVILLE - #0110 FLOWERS BAKING COMPANY OF JACKSONVILLE, LLC
1. Phillips Highway Warehouse & Thrift Store, 3510 Phillips Highway,
Jacksonville, FL 32207
2. US 1 Warehouse & Thrift Store, 5511 United States Highway 1, Jacksonville, FL
32209
3. Blanding Warehouse & Thrift Store, 6800 Blanding Blvd., Jacksonville, FL
32244
4. Brunswick Warehouse & Thrift Store, 6060 New Jesup Highway, Brunswick, GA
31520
5. Chiefland Warehouse, 128 NW 3rd Avenue, Chiefland, FL 32626
6. Cocoa Warehouse & Thrift Store, 1850 West King Street, Cocoa, FL 32926
7. Deland Warehouse & Thrift Store, 315 Spring Glen Avenue, Deland, FL 32720
8. Gainesville Warehouse & Thrift Store, 3800 N Main Street, Gainesville, FL
32605
9. Hardeeville Warehouse, 110 Highway 17 North, Hardeeville, SC 29927
10. Hazelhurst Warehouse, 508 South Williams Street, Hazelhurst, GA 31539
11. Holly Hill Warehouse & Thrift Store, 2001 Nova Road, Holly Hill, FL 32117
12. Jesup Warehouse, 282 NW Broad Street, Jesup, GA 31545
13. Lake City Warehouse & Thrift Store, 504 North 1st Street, Lake City, FL
32055
14. Live Oak Warehouse & Thrift Store, 113 NW Duval Street, Live Oak, FL 32060
15. Melbourne Warehouse & Thrift Store, 3088 Harbour City Blvd., Melbourne, FL
32935
16. Ocala Warehouse & Thrift Store, 6285 SW Highway 200, Ocala, FL 34476
17. Palatka Warehouse & Thrift Store, 109 South Palm Avenue, Palatka, FL 32177
Exhibit C
18. Savannah Warehouse, 28 Westgate Blvd., Savannah, GA 31405
19. Starke Warehouse & Thrift Store, 208 E Brownlee Street, Starke, FL 32091
20. Statesboro Warehouse, 31 North Zetterower Avenue, Statesboro, GA 30458
21. St. Augustine Warehouse & Thrift Store, 407 State Road 207, St. Augustine,
FL 32095
22. Vidalia Warehouse & Thrift Store, 200 E North Street, Vidalia, GA 30474
23. Waycross Warehouse, 1600 Reynolds Street, Waycross, GA 31501
24. Statesboro Thrift Store, 300-F East Main Street, Statesboro, GA 30458
25. Palm Bay Thrift Store, 6050 South Babcock Street, Palm Bay, FL 32909
26. Titusvile Thrift Store, 175 Park Avenue, Titusville, FL 32796
27. New Smyrna Beach Thrift Store, 1551 South Dixie Freeway, New Smyrna Beach,
FL 32168
28. Mayport Thrift Store, 1193 Mayport Road, Atlantic Beach, FL 32233
29. Ocala Thrift Store #1, 1032 SW 1st Avenue, Ocala, FL 34474
30. Edgewood Thrift Store, 950 North Edgewood Avenue, Jacksonville, FL 32205
FLOWERS OF MIAMI - # 112 FLOWERS BAKING COMPANY OF MIAMI, LLC
1. Miami Thrift Store, 17800 NW Miami Court, Miami, FL 33169
2. Hialeah Thrift Store, 3151 East 10th Avenue, Hialeah, FL 33013
3. Perrine Thrift Store, 18555 SW 109th Avenue, Miami, FL 33157
4. Pembroke Thrift Store, 3260 West Pembroke Road, Pembroke Pines, FL 33023
5. Taft Street Thrift Store, 7230 Taft Street, Hollywood, FL 33024
6. Opalocka Thrift Store, 122 West 27th Street, Hialeah, Fl 33010
7. Griffin Road Thrift Store, 3322 Griffin Road, Ft. Lauderdale, FL 33312
8 .Plantation Thrift Store, 701 South State Road 7, Plantation, FL 33317
9. Centerport Thrift Store, 171 SS 6th Street, Pompano Beach, Fl 33060
10. West Palm Beach Thrift Store, 2708 N Australian Avenue, West Palm Beach, FL
33407
11. Belle Glade Thrift Store, 101 NW 16th Street, Belle Glade, FL 33430
12. Port St. Lucie Thrift Store, 6599 S Us Highway 1, Port St Lucie, FL 34952
13. Riviera Beach Thrift Store, 150 N Congress Avenue, Riviera Beach, FL 33404
14. Belle Glade Warehouse, 101 NW 16th Street, Belle Glade, FL 33430
15. Okeechobee Warehouse, 220 SW 7th Street, Okeechobee, FL 34974
16. Riviera Warehouse, 1350 Congress Avenue, Riviera, FL 33407
17. Boynton Warehouse, 4927 Park Ridge Blvd., Boynton, FL 33426
18. Vero Beach Warehouse, 3215 Aviation Blvd., Vero Beach, FL 32960
19. Pt St. Lucie Warehouse , 6599 Us 1, Port St. Lucie, FL 34982
20. Centerport Warehouse, 2941 Center Port Circle, Pompano, FL 33064
21. Sawgrass Warehouse, 14321 NW 4th Street, Sunrise, FL 33325
22. Pembroke Warehouse, 3260 W Pembroke Road, Pembroke, FL 33023
23. Bakery Miami, 17800 NW Miami Court, Miami, FL 33169
24. Sweetwater Warehouse, 2681 NW 104 Court, Miami, FL 33165
25. Perrine Warehouse, 18555 SW 109th Avenue, Perrine, FL 33157
26. Key West Warehouse, 161 US 1 Rockland Key, Key West, FL 33040
27. Marathon Warehouse, 10701 6th Avenue Gulf, Marathon, FL 33040
28. Tavernier Warehouse, Overseas Highway - Ace Hardware, Tavernier, FL 33070
29. Opalocka Warehouse, 2700 NW 122 Street, Opa Locka, FL 33054
Exhibit C
VILLA RICA, INC. - #0113 FLOWERS BAKING COMPANY OF VILLA RICA LLC
1. Flowers Baking Company of Villa Rica, Inc., 134 Doyle McClain Drive, Villa
Rica, GA 30180
2. Cartersville Thrift Store, 240 S Tennessee Street, Cartersville, GA 30120
3. Athens Warehouse, 1455 N Chase St, Athens, GA 30601
4. Athens Thrift Store, 1455 N Chase St, Athens, GA 30601
5. Monroe Warehouse, 1556 S Broad St, Monroe, GA 30655
6. Atlanta Warehouse, 165 Bailey Street SW, Atlanta, GA 30314
7. Atlanta Thrift Store, 165 Northside Drive, Atlanta, GA 30314
8. Griffin Warehouse/Thrift Store, 1639 Zebulon Road, Griffin, GA 30224
9. Lithonia Warehouse/Thrift Store, 2601 Stone Mt. Lithonia, Lithonia, GA 30058
10. Marietta Warehouse, 146 Powers Ferry Road, Marietta, GA 30067
11 .Marietta Thrift Store, 146 Powers Ferry Road, Marietta, GA 30067
12. Riverdale Warehouse/Thrift Store, 6866 Highway 85, Riverdale, GA 30274
13. Gainesville (Oakwood) Warehouse/Thrift Store, Rt 11 Oakwood Road,
Gainesville, GA 30501
14. Cornelia Warehouse/Thrift Store, 1 Lee Street, Cornelia, GA 30531
15. Douglasville Warehouse, 5906 Bankhead Highway (Highway 78), Douglasville, GA
30134
16. Douglasville Thrift Store, 5906 Bankhead Highway (Highway 78), Douglasville,
GA 30134
17. Douglasville Thrift Store (Highway 5), 7420 Douglas Avenue, Douglasville, GA
30135
18. Clayton Warehouse, N Main Street, Clayton, GA 30525
19. Forest Park Thrift Store, 4764 Jonesboro Road, Forest Park, GA 30297
20. Royston Warehouse, 761 Cook Street, Royston, GA 30662
21. Blue Ridge Warehouse/Thrift Store, 1750 Appalachian Highway, Blue Ridge, GA
30513
22. Madison Warehouse, 1030 Sulgrave Dr., Madison, GA 30650
23. Athens Thrift Street (Hawthorne), 210 Hawthorne Street, Athens, GA 30601
24. Stockbridge Thrift Store, 6041 N Highway 42, Bldg E, Stockbridge, GA 30281
25. Martinez Thrift Store, 4015 C-1 Washington Road, Martinez, GA 30907
26. Newnan Warehouse, 204 Pine Road, Newnan, GA 30263
27. Monroe Warehouse/Thrift Store, 1503 S Broad Street, Monroe, GA 30655
28. Augusta Thrift Store (Peach Orchard), 3240 Peach Orchard Road, Augusta, GA
30906
29. Canton Thrift Store, 3036 Marietta Highway, Canton, GA 30114
30. Loganville Thrift Store, 741 Highway 78, Loganville, GA 30052
31. Madison Thrift Store, 1400 Eatonton Road Suite 800, Madison, GA 30650
32. Covington Thrift Store, 6165 Highway 278, Covington, GA 30014
33. Union City Thrift Store, 6851 Shannon Parkway, Union City, GA 30291
34. East Point Thrift Store, 2879 East Point Street, East Point, GA 30344
35. Woodstock Warehouse, 4920 Canton Road, Woodstock, GA 30188
36. Woodstock Thrift Store, 4920 Canton Road, Woodstock, GA 30188
37. Carrollton Warehouse, 298 Barnes Drive, Carrollton, GA 30117
38. Carrollton Thrift Store, 500 Newnan Road, Carrollton, GA 30117
39. Gadsden Warehouse/Thrift Store, 1605 West Grand Avenue, Gadsden, AL 35904
40. Fayetteville Warehouse/Thrift Store, 4510 Thorton Taylor Parkway,
Fayetteville, TN 37334
41. Nashville Thrift Store, 4714 Nolensville Road, Nashville, TN 37210
42. Goodlettsville Warehouse/Thrift Store, 159 Gleaves Street, Goodlettsville,
TN 37070
Exhibit C
43. Shelbyville Thrift Store, 400 Belmont Avenue, Shelbyville, TN 37160
44. Boaz Warehouse/Thrift Store, Highway 431 N, Rt. 5 Box 17, Boaz, AL 35957
45. Oneonta Warehouse/Thrift Store, 213 Second Street, Oneonta, AL 35121
46. Anniston (Saks) Warehouse/Thrift Store, 1426 North Highway. 431 North,
Anniston, AL 36206
47. Gadsden Thrift Store, 1006 E. Broad, Gadsden, AL 35903 47. Rome
Warehouse/Thrift Store, 1906 North Broad Street, Rome, GA 30161
48. Dalton Warehouse, 4523 Cleveland Highway, Cohutta, GA 30710
49. Ft. Payne Warehouse, 2437 Green Hill Blvd., FT Payne, AL 35967
50. Greenbrier Thrift Store, 1300 Greenbrier Road, Oxford, AL 36206
51. Arab Warehouse/Thrift Store, 532-6th Avenue NW, Arab, AL 35016
52. Cedartown Thrift Store, 115 East Avenue, Cedartown, GA 30125
53. Hixson Thrift Store, 5741 Highway 153, Suite G, Hixson, TN 37343
54. Chattanooga Warehouse/Thrift Store, 6214 Bonny Oaks Drive, Chattanooga, TN
37416
55. Ooltewah Thrift Store, 5619 Ooltewah Ringgold, Suite A, Ooltewah, TN 37363
56. Clarksville Warehouse/Thrift Store, 2545 Madison Street, Clarksville, TN
37040
57. Royston Thrift Store, 523 Church Street, Royston, GA 30662
58. Augusta Warehouse, 3307 Commerce Drive, Augusta, GA 30909
59. Villa Rica Thrift Store, 369 West Bankhead Highway, Villa Rica, GA 30180
60. Murfreesboro Warehouse, 840 Esther Lane, Murfreesboro, TN 37129
61. Bowling Green Thrift Store, 870 Fairview Avenue, Williamsburg Square,
Bowling Green, KY 42103
62. Murfreesboro Thrift Store, 1811 Memorial Blvd., Murfreesboro, TN 37129
63. Rome Thrift Store, 2158 Shorter Avenue, Rome, GA 30160
64. Scottsboro Warehouse/Thrift Store, 805 East Willow Street, Scottsboro, AL
35768
65. Nashville Warehouse (Fessler's Lane), Woodycrest Avenue, Nashville, TN 37210
66. Bowling Green Warehouse/Thrift Store, 130 Ambassador Drive, Bowling Green,
KY 42103
67. Lilburn Warehouse/Thrift Store, 116 Harmony Grove Road, Lilburn, GA 30047
LAFAYETTE - #114 HUVAL BAKERY, LLC
1. Evangeline Maid Thrift Store, 821 Cameron Street, Lafayette, LA 70501 2. Evangeline Maid Thrift Store, 1403 Moss Street, Lafayette, LA 70501 3. Evangeline Maid Warehouse, 137 Evans Lane, Lafayette, LA 70501 4. Evangeline Maid Warehouse & Thrift Store, 233 Rue DeBelier, Scott, LA 70583 5. Evangeline Maid Thrift Store, 1800 Memorial Highway, Abbeville, LA 70510 6. Evangeline Maid Thrift Store, 710 Admiral Doyle Drive, New Iberia, LA 70560 7. Evangeline Maid Warehouse & Thrift Store, 320 Bobcat, Eunice, LA 70535 8. Evangeline Maid Warehouse, 1102 Highway 3185, Thibodaux, LA 70301 9. Evangeline Maid Thrift Store, 1713 Canal Street, Thibodaux, LA 70301 10. Evangeline Maid Warehouse, 3655 West Main Street, Gray, LA 70359 11. Evangeline Maid Thrift Store, 1099 Highway 311, Houma, LA 70360 12. Evangeline Maid Thrift Store, 1601 Grand Caillou Road, Houma, LA 70360 13. Evangeline Maid Warehouse, 3245 Highway 70, Morgan City, LA 70380 14. Evangeline Maid Thrift Store, 744 Marguerite Street, Morgan City, LA 70380 15. Evangeline Maid Warehouse, 2304 Kirkman Street, Lake Charles, LA 70601
Exhibit C
16. Evangeline Maid Thrift Store, 2525 Kirkman, Lake Charles, LA 70601
17. Evangeline Maid Warehouse & Thrift Store, 3105 Maplewood Drive, Sulphur, LA
70663
18. Bunny Bread Warehouse & Thrift Store, 512 E First Street, DeRidder, LA 70634
19. Bunny Bread Warehouse & Thrift Store, 1404 England Drive, Alexandria, LA
71301
20. Bunny Bread Thrift Store, 1709 East Texas Avenue, Alexandria, LA 71304
21. Bunny Bread Thrift Store, 2818 Highway 28 East, Pineville, LA 71360
22. Bunny Bread Warehouse, 110 Payne Street, Natchitoches, LA 71457
NEW ORLEANS - 115 BUNNY BREAD, LLC
1. Baker Warehouse, 13214 Plank Road, Baker, LA 70714 2. Baton Rouge Warehouse, 8921 Buzbee Drive, Baton Rouge, LA 70807 3. Maplewood Thrift Store, 5550 Maplewood Street, Baton Rouge, LA 70812 4. Slidell Warehouse/Thrift Store, 1451 Highway 190 West, Slidell, LA 70460 5. Harahan Warehouse, 9401 Jefferson Highway, Harahan , LA 70123 6. Chalmette Thrift Store, 6600 W. Judge Perez Drive, Chalmette, LA 70043 7. Gretna Warehouse/Thrift Store, 618 Commerce Street, Gretna, LA 70056 8. Gulfport Warehouse, 14373 Creosote Road Bldg B, Gulfport, MS 35903 9. Gulfport Thrift Store, 738 East Pass Road, Gulfprt, MS 39501 10. Mobile I Warehouse, 4370 Rangeline Park Drive, Mobile, AL 36608 11. Mobile II Warehouse, 11133 Old Highway 31, Spanish Fort, AL 36527 12. Springhill Thrift Store, 3201 Springhill Avenue, Mobile, AL 36604 13. Azalea Thrift Store, 751 Azalea Road, Mobile, AL 36693
PINE BLUFF #117 HOLSUM BAKING COMPANY, LLC
1. Holsum Baking Company, 220 Tennessee Street, Pine Bluff, AR 71611
HOUSTON - 0118 SCHOTT'S BAKERY, LLC
1. Aldine Warehouse, 14333 Inter Drive West, Houston, TX 77032 2. Baytown Warehouse & Thrift Store, 2800 N Alexander, Baytown, TX 77520 3. Beaumont Warehouse, 4845 Ward, Beaumont, TX 77705 4. Conroe Warehouse & Thrift Store, 450 N Loop 336 East, Conroe, TX 77301 5. Cripple Creek Warehouse, 4900 Cripple Creek, South Houston, TX 77034 6. Dover Warehouse, 12127 Dover Street, Houston, TX 77031 7. Huntsville Warehouse, 1784 Highway 19, Huntsville, TX 77340 8. Jasper Warehouse, Highway 77, Japser, TX 75951 9. Livingston Warehouse, Highway 190, Livingston, TX 77351 10. Northwoods Warehouse, 12225A FM529, Houston, TX 77041 11. Orange Warehouse, 2001 MacArthur, Orange, TX 77630 12. Texas City Warehouse & Thrift Store, 3410 5th Avenue, Texas City, TX 77570 13. West Columbia Warehouse, 11 Street & Jefferson, West Columbia, TX 77486 14. Washington Thrift Store, 3000 Washington Avenue, Houston, TX 77007 15. Livingston Thrift Store, 330 Pan American Drive, Livingston, TX 77351
Exhibit C
JAMESTOWN - #120 FLOWERS BAKING COMPANY OF JAMESTOWN, LLC
1. Albemarle Distribution Center, 300 South Broome Street, Albemarle, NC 28001
2. Anderson Distribution Center, 1435 Pearman Dairy Road, Anderson SC 29622
3. Asheboro Distribution Center, 1454 North Fayetteville Street, Asheboro, NC
27203
4. Asheville Distribution Center, 1370 Tunnell Road, Asheville, NC 28805
5. Burlington Distribution Center/Thrift Store, 2635 North, Church Street,
Burlington, NC 27215
6. Columbia Distribution Center, 1125 Walter Price Blvd., Cayce, SC 29033
7. Concord Distribution Center/Thrift Store, 2800 Highway., 299 South, Concord,
NC 28027
8. Durham Distribution Center/Thrift Store, 1511 East Club Road, Durham. NC
27704
9. Florence Distribution Center, 1725 South Irby, Florence, SC 29505
10. Gastonia Distribution Center/Thrift Store, 2602 Bessemer City Road,
Gastonia, NC 28134
11. Greensboro Distribution Center, 228 Highway 68 South, Greensboro, NC 27409
12. Greenville Distribution Center, 8110 Whitehorse Road, Greenville, SC 29611
13. Henderson Distribution Center, 454 Dabney Drive, Henderson, NC 27536
14. Hickory Distribution Center/Thrift Store, 348 Lenoir Rhyne Blvd., Hickory,
NC 28602
15. Indian Trail Distribution Center, 290 Unionville Road, Indian Trail, NC
28709
16. Laurens Distribution Center, 764 East Main Street, Laurens, SC 29360
17. Lexington Distribution Center, West 5th Avenue, Lexington, NC 27292
18. Marion Distribution Center, 1095 Sugarhill Road, Marion, NC 28752
19. Myrtle Beach Distribution Center, 1519 Executive Drive, Myrtle Beach, SC
29577
20. Orangeburg Distribution Center, 3709 Magnolia Street, Orangeburg, SC 29115
21. Reidsville Distribution Center, Lawndale Drive, Reidsville, SC 27320
21. Rock Hill Distribution Center/Thrift Store, 928 Heckle Blvd., Rock Hill, SC
29730
22. Rockingham Distribution Center, 611 Mill Road, Rockingham, NC 28379
23. Roxboro Distribution Center, 1027 Henry Street, Roxboro, SC 27573
24. Salisbury Distribution Center, 200 East Council Street, Salisbury, NC 28144
25. Sanford Distribution Center, 607 Bragg Street, Sanford, NC 28403
26. Seneca Distribution Center, 701 South Oak Street, Seneca, SC 29678
27. Spartanburg Distribution Center, 185 Southport Road, Spartanburg, SC 29301
28. Statesville Distribution Center/Thrift Store, 243 North Center Street,
Statesvillle, SC 28677
29. Summerville Distribution Center, 120 Varnfiled Drive, Charleston, SC 29483
30. Sumter Distribution Center, 2640 Warehouse Blvd., Sumter, SC 291150
31. Sylva Distribution Center, East Sylva Shopping Center, Sylva, SC 28779
32. Wilkesboro Distribution Center, Rt. 2 Box 226, Wilkesboro, NC 28659
33. Winston-Salem Distribution Center, 1018 Supply Road, Rural Hall, NC 27104
34. Jamestown Thrift Store, 1100 Greensboro Road, High Point, NC 27260
35. High Point Thrift Store, 1332 South Main Street, High Point , NC 27260
36. Asheboro Thrift Store, 2355 North Fayetteville Road, Asheboro, NC 27203
37. Greensboro Thrift Store, 2609 E. Randleman Road,Greensboro, NC 27406
38. Burlington Thrift Store, 1605 Maple Avenue, Burlington, NC 27217
39. Sanford Thrift Store, 708 E. Main Street, Sanford, NC 27330
40. Durham Thrift Store, 2419 Guess Road, Durham, NC 27705
41. Hamlet Thrift Store, 812 E, Hamlet Avenue, Hamlet , NC 28379
Exhibit C
42. Greensboro Thrift Store, 1227 4th Street, Greensboro, NC 27405
43. Salisbury Thrift Store, 1405 North Main Street, Salisbury, NC 28144
44. Salisbury Thrift Store, 510 South Main Street, Salisbury, NC 28144
45. Winston Salem Thrift Store, 501 Peters Creek Parkway, Winston-Salem , NC
27101
46. Winston Salem Thrift Store, 3914 Country Club Road, Winston-Salem, NC 27104
47. Lexington Thrift Store, 18960 Old Winston Road, Lexington, NC 27292
48. Indian Trail Thrift Store, 290 Unionville Indian Trail, Indian Trail, NC
28709
49. Wilkesboro Thrift Store, 802 Moravian Street, Wlikesboro, NC 28659
50. Asheville Thrift Store, Highway 70 Box 1370, Asheville, NC 28804
51. Flowers Baking Co., Jamestown. 801 W. Main Street, Jaemstown, NC 27282
LYNCHBURG - 0124 FLOWERS BAKING COMPANY OF LYNCHBURG, LLC
1. Flowers Baking Co., 1905 Hollins Mill Road, Lynchburg, VA 24503
2. 1276 S Boston Road, Danville, VA 24540
3. 1201 Campbell Avenue, Lynchburg, VA 24501
4. 611 W. Market Street, Harrisonburg, VA 22801
5. 417 Washington Street, Altavista, VA 24517
6. 2016 South Main Street, Farmville, VA 23901
7. 8121 Timberlake, Lynchburg, VA 24502
8. I 64 Douthat Park Road, Clifton Forge, VA 24422
9. 2541-2555 Mechanicsville Turnpike, Mechanicsville, VA 23111
10. 3319 Oaklawn Blvd., Hopewell, VA 23860
11. 1020 Piney Forest Road, Danville, VA 24540
12. Rt. 5 Box 303 Le-High Highway, Lexington, VA 24450
13. 4908 Government Road, Richmond, VA 23231
14. 5696 Hull Street, Richmond, VA 23224
15. 60 Charles Street, Harrisonburg, VA 22802
16. 2213 W Main Street, Waynesboro, VA 22980
17. 2120 Lakeside Drive, Lynchburg, VA 24501
18. 206 Carlton Road, Charlottesville, VA 22902
19. 3221 Boulevard, Colonial Heights, VA 23834
20. 360 Greenbriar Drive, Charlottesville, VA 22901
21. Oak Drive, Madison Heights, VA 24572
22. 1901 Hollins Mill Road, Lynchburg, VA 24503
23. 523 Shenandoah Avenue, Roanoke, VA 24016
24. 307 E Atlantic Street, Emporia, VA 23847
25. 1013 Olde Williams Road, Fredericksburg, VA 22401
26. 3721Mechanicsville Turnpike, Mechanicsville, VA 23111
27. 733 E. Second Street, Chase City, VA 23924
28. 2502 Melrose, Roanoke, VA 24017
29. 512 Chalmers Street, South Boston, VA 24592
30. 111 Virginia Avenue, Collinsville, VA 24078
31. 825 Orange Street, Bedford, VA 24523
32. 309 Lavinder Street, Martinsville, VA 24112
Exhibit C
33. 350 Greenville Avenue, Staunton, VA 24401
34. 1207 Jamison Road, Roanoke, VA 24013
35. 632 SOUTH Main Street, Danville, VA 24541
36. 4221 Williamson Road, Roanoke, VA 24012
37. Highway 350, Warsaw VA 22572
38. Highway 1(in Farm House), Jefferson Davis Highway, Fredericksburg, VA 22401
39. 3118 Williamsburg Road, Richmond, VA 23231
DONUT HOUSE - 0135 THE DONUT HOUSE, LLC
1. Main Bakery, 5040 MacCorkle Avenue SW, South Charleston, WV 25309 2. Allied Warehouse, 910 Pennsylvania Avenue, Charleston, WV 25302
BLUEFIELD- 0139 FLOWERS BAKING COMPANY OF WEST VIRGINIA, LLC
1. Ashland Warehouse and Thrift Store, 3306 Winchester Avenue, Ashland, KY 41101
2. Beckley Warehouse and Thrift Store, 311 Stanford Road, Beckley, WV 25801
3. Crab Orchard Thrift Store, Robert C. Byrd Drive, Beckley, WV 15827
4. Big Stone Gap Warehouse, Route 23 (5 miles South of Big Stone Gap), Big Stone
Gap, VA 24219
5. Bluefield Avenue Thrift Store, 1302 Bluefield Avenue, Bluefield, WV 24701
6. Main Bakery & Thrift Store, Coal Heritage Road, Bluefield, WV 24701
7. Bridgeport Thrift Store, 450 East Main Street, Bridgeport, WV 26633
8. Buchanon Thrift Store, Route 6, Box 115, Buckhannon, WV 26201
9. Bigley Avenue Thrift Store, 1007 Bigley Avenue, Charleston, WV 25312
10. Kanawha City Warehouse & Thrift Store, 7400 MacCorkle Avenue S.E..
Charleston, WV 25015
11. Clarksburg Warehouse & Thrift Store, 1201 South Chestnut Street, Clarksburg,
WV 26301
12. Elkins Warehouse & Thrift Store, 200 11th Street & Cole Avenue, Elkins, WV
26241
13. Fairmont Thrift Store, 805 Morgantown, Avenue, Fairmont, WV 26554
14. Fairmont Warehouse, Indiana Avenue, Fairmont, WV 26554
15. Gallipolis Warehouse, 101 Jackson Pike, Gallipolis, OH 45631
16. Gassaway Warehouse, 298 Harold Road, Gassaway, WV 26601
17. Harlan Warehouse, Beside Baxter, KY Post Office, Harlan, KY 40831
18. Hazard Warehouse, Highway 80 West, Combs, KY 41729
19. Keen Mountain Warehouse, Route 460, Keen Mountain, VA 24624
20. Marion Warehouse, 527 South Main Street, Marion, VA 24354
21. Parkersburg Warehouse, 150 Blizzard Drive, Parkersburg, WV 26101
22. 7th Street Thrift Store, 7th Street, Parkersburg, WV 26101
23. Pikeville Thrift Store, 3216 Suite 1, Chloe Road, Pikeville, KY 41501
24. Portsmouth Warehouse & Thrift Store, 1008 Scott Street. Portsmouth, OH 45662
25. Prestonsburg Warehouse & Thrift Store, 333 Main Street, W. Prestonsburg, KY
41668
26. Princeton Thrift Store, 129 Brick Street. Princeton, WV 24740
27. Radford Warehouse & Thrift Store, Route 1124, Radford, VA 24142
28. Rainelle Warehouse, Route 60, McCross, Rainelle, WV 25962
29. Summersville Warehouse, 604 Arbuckle Road, Summersville, WV 26651
30. Williamson Warehouse, 1729 3rd Avenue, Williamson, WV 25661
Exhibit C
FBC OF BRADENTON - 0140 FLOWERS BAKING COMPANY OF BRADENTON, LLC
1. Tampa West-Warehouse, 5036 Tampa West Blvd., Tampa, Fl 33634
2. Tampa East-Warehouse, 8203 Adamo Blvd.,, Tampa, FL 33619
3. Zephyrhills-Warehouse, 4826 Airport Road,, Zephyrhills, FL 33541
4. Lakeland-Warehouse, 2043 Draneield, Lakeland, FL 33811
5. Winter Haven-Warehouse, 301 Commerce Court SW, Winter Haven, FL 33880
6. Sebring-Warehouse, -Thrift Store, 5200 US 27 North, Sebring, FL 33870
7. Hudson-Warehouse,-Thrift Store, 9633 SR 52, Hudson, FL 34667
8. Palm Harbor-Warehouse,-Thrift Store, 37490 US 19, Palm Haror, FL 34684
9. Joe's Creek-Warehouse, 4200 28th Street North, Saint Petersburg, FL 33713
10. Belcher Road-Warehouse, 7555 124 th Avenue North, Clearwater, FL 33755
11. Manasota-Warehouse, 6476 Parkland Drive, Sarasota, FL 34243
12. Port Charlotte Warehouse,-Thrift Store, 23240 Batshore Drive, Charlotte
Harbor, FL 33950
13. Fort Myers-Warehouse,-Thrift Store, 13200 Metro Parkway, Forth Myers, FL
33907
14. Naples Warehouse,-Thrift Store, 170 Commercial Blvd., Naples, FL 33990
15. Lake Mary Warehouse,-Thrift Store, 4106 Orlando Drive, Sanford, FL 32771
16. Leesburg-Warehouse,-Thrift Store, 2402 West Main Street, Leesburg, FL 34748
17. Inverness-Warehouse, -Thrift Store, 2401 Highway 44 West, Inverness, FL
32652
18. Clemson-Warehouse, 3156 Clemson Road, Orlando, FL 32808
19. Kissimmee-Warehouse,-Thrift Store, 2895 Michigan Avenue, Kissimmee, FL 34741
20. Winter Park_Warehouse,-Thrift Store, 6800 Hanging Moss Road, Winter Park, FL
32807
21. Bayshore-Thrift Store, 4750 Bayline Drive, North Fort Myers, FL 33917
22. North Port-Thrift Store, 13655 Tamiami Trail, North Port, FL 34287
23. Bradenton Bakery-Thrift Store, 6490 Parkland Drive, Sarasota, FL 34243
24. Bradenton-Thrift Store, 3611 1St Street East, Unit 601, Bradenton, FL 34208
25. 54th Avenue-Thrift Store, 6443 54th Avenue North, Pinellas, FL 33709
26. Holiday-Thrift Store, 2922 Grand Blvd., Holiday, FL 34689
27. Zephyrhills-Thrift Store, 5536 Gall Blvd., Zephyrhills, FL 33541
28. Eustis-Thrift Store, 2400 Bay Street, Eustis, FL 32726
29. Waters-Thrift Store, 901 W. Waters, Tampa, FL 33618
30. Brandon-Thrift Store, 101 South Beverly Drive, Brandon, FL 33511
31. Plant City-Thrift Store, 115 Prosser Drive, Plant City, FL 33566
32. Lakeland-Thrift Store, 1615 East Edgewood Drive, Lakeland, FL 33801
33. Winter Haven-Thrift Store, 3092 Havendale Blvd., Winter Haven, FL 33881
34. Hiawassee-Thrift Store, 2507 Hiawassee Road, Orlando, FL 32818
35. Casselberry-Thrift Store, 2631 South Highway 17/92, Casselberry, FL 32707
TEXARKANA #145 FLOWERS BAKING COMPANY OF TEXARKANA, LLC
1. #7 Jim Walter Drive, Texarkana, AR 71854
Exhibit C
BATON ROUGE - 0149 FLOWERS BAKING COMPANY OF BATON ROUGE, LLC
1. Beaumont Street, 1682 Beaumont Street, Baton Rouge, LA 70806
2. Hammond, 2370 Wardline Road, Hammond, LA 70404
3. Covington, Highway. 190 South (Mandeville Highway), Covington, LA 70433
4. L & A Road, 1800 L & A Road, Metairie, LA 70001
5. Townsend, 7448 Townsend Place, New Orleans, LA 70126
6. Westwego, 1219 Avenue H., Westwego, LA 70094
7. O'Neal Lane, 330 O'Neal Lane, Baton Rouge, LA 70816
8. McComb , 605 Avenue C, McComb, MS 39648
9. Natchez, 277 Highland Blvd., Natchez, MS 39120
10. Jackson, 4635 Highway. 80 East, Pearl, MS 39208
11. Hattiesburg, 5075 Highway 42, Hattiesburg, MS 39401
12. Greenville, Mississippi, Highway 82 East, Greenville, MS 38701
13. Baton Rouge Sunbeam Discount, 330 O'Neal Lane, Baton Rouge, LA 70819
14. Baton Rouge Sunbeam Discount, 2225 Florida Blvd., Denham Springs, LA 70726
15. Sunbeam Discount Bakery Store, 44009 Stein Road, Hammond, LA 70403
16. Sunbeam Discount Bakery Store, 1906 Collins Blvd., Suite 1, Covington LA
70433
17. Sunbeam Discount Bakery Store, 157 Highway 61-South #11, Natchez, MS 39120
18. Sunbeam Discount Bakery Store, 1401 Aston Avenue, McComb, MS 39648
19. Sunbeam Discount Bakery Store, 4360 Washington Avenue, New Orleans, LA 70125
20. Sunbeam Discount Bakery Store, 6735 St. Claude Avenue, Arabi, LA 70043
21. Sunbeam Discount Bakery Store, 7520 Westbank Expressway, Marrero, LA 70072
22. Sunbeam Discount Bakery Store, 1627 & 29 Williams Blvd., Kenner, LA 70062
23. Bunny Bread, 4635 Highway. 80 East, Pearl, MS 39208
24. Bunny Bread, 203 Highway. 51, Ridgeland, MS 39157
25. Bunny Bread, 5075 Highway 42, Hattiesburg, MS 39402
26. Sunbeam Discount Bakery Store, 2972 Florida Blvd., Baton Rouge, LA 70802
EL PASO BAKING CO. #152 EL PASO BAKING COMPANY, LLC
1. El Paso Baking Co. Inc., 301 North Dallas Street, El Paso TX 79901 2. Eagle Thrift Store, & Warehouse, 450 Eagle Drive, El Paso, TX 79912 3. Zaragosa Thrift Store & Warehouse, 1530 Zaragoza Drive, El Paso, TX 79936 4. Yandell Thrift Store, 2430 E Yandell, El Paso, TX 79901 5. Las Cruces Thrift Store, & Warehouse, 601 W Amador, Las Cruces, NM 88001 6. Peralta Thrift Store, & Warehouse, 2472 Bosque Farms, Peralta, NM 87042 7. Albuquerque Warehouse, 4944 Jefferson NE, Albuquerque, NM 87109 8. Alamogordo Warehouse, 2401 Lawrence, Alamogordo, NM 88310 9. Carlsbad Warehouse, 304 S 6th Street Unit 8318, Carlsbad, NM 88220 10. Clovis Warehouse, 2122 N Ross Street, Clovis, NM 88101 11. Deming Warehouse, 1010 South Diamond Unit 310, Deming, NM 88030 12. Espanola Warehouse, Highway 68 Bldg 950-G, Espanola, NM 87533 13. Lordsburg Warehouse, 100 Main Street, Lordsburg, NM 88045 14. Santa Fe Warehouse, 2859 Cooks Road Unit C, Santa Fe, NM 87501 15. Silver City Warehouse, 4028 Highway 90 South, Silver City, NM 88061 16. Taos Warehouse, Bertha Road, Taos, NM 87521
Exhibit C
17. T or C Warehouse, 800 North Cedar Unit 3, T or C, NM 87901 18. Roswell Warehouse, 5703 S Main Street, Unit D53 & E03, Roswell, NM 88201 19. Ft. Stockton Warehouse, 1509 West 11th B, Fort Stockton, TX 79735 20. Marfa Warehouse, 200 Block North Russell, Marfa, TX 79843 21. Van Horn Warehouse, West 2nd Street, Van Horn, TX 79855
BAILEY STREET BAKERY (MIDTOWN) - 0180
1. Midtown Bakery Inc., 165 Bailey Street, Atlanta, GA 30314
GOLDSBORO - #181 FRANKLIN BAKING COMPANY - #181
1. Goldsboro Thrift Store & Warehouse, 500W Grantham Street, Goldsboro, NC 27530
2. Kinston Thrift Store & Warehouse, Route 8 Box 148, Kinston, NC 28501
3. New Bern Thrift Store & Warehouse, 2002 Oaks Road, New Bern, NC 28560
4. Jacksonville Thrift Store & Warehouse, 805 Richlands Highway, Jacksonville,
NC 28540
5. Wilmington Thrift Store & Warehouse, 2115 Castle Street, Wilmington, NC 28403
6. Morehead Thrift Store & Warehouse, 118 Industrial Drive, Morehead City, NC
28557
7. Greenville Thrift Store & Warehouse, 1107 Myrtle Avenue, Greenville, NC 27834
8. Rocky Mt. Thrift Store & Warehouse, 2917 South Church Street, Rocky Mount, NC
27801
9. Windsor Thrift Store & Warehouse, 436 US 13 Bypass, Windsor, NC 27983
10. Fayetteville Thrift Store & Warehouse, 2407 Hope Mills Road, Fayetteville,
NC 28304
11. Dunn Thrift Store & Warehouse, 500 North McKay Avenue, Dunn, NC 28334
12. Raleigh Thrift Store & Warehouse, 1404 Bloodworth Street, Raleigh, NC 27610
13. Whiteville Thrift Store & Warehouse, 701 By-Pass Powell Road, Whiteville, NC
28473
14. Manteo Thrift Store & Warehouse, Highway 264/64 Manns Harbor, Manns Harbor,
NC 27954
15. Raleigh Spring Forest T.S. & Warehouse, 3618 Spring Forest Road, Raleigh, NC
27610
16. Washington Thrift Store & Warehouse, Rt. 4 Box 290, Washington, NC 27889
17. Lumberton Thrift Store & Warehouse, Highway 24 East, Lumberton, NC 28358
18. Clinton Thrift Store & Warehouse, Highway 701 - Hobbton Highway, Clinton ,
NC 28329
19. Kinston(Dainty Maid) Thrift Store, 2006 N Queen Street, Kinston, NC 28504
20. Murfreesboro Thrift Store & Warehouse, Highway 258, Murfreesboro, NC 27844
21. Wilmington Thrift Store, 1055 South College Street, Wilmington, NC 28403
22. Kecoughtan Thrift Store, 3760 Kecoughtan Road, Hampton, VA 23669
23. Plaza Thrift Store & Warehouse, 120 South Plaza Trail, Virginia Beach, VA
23452
24. Pembroke Thrift Store, 601 East Pembroke Avenue, Hampton, VA 23669
25. Indian River T.S. & Warehouse, 6001 E. Indian River Road, Virginia Beach, VA
23464
26. Portsmouth Thrift Store & Warehouse, 3500 Airline Road, Portsmouth, VA 23701
27. Great Bridge T.S. & Warehouse, 800 South Battlefield Blvd., Chesapeake, VA
23320
28. Suffolk Thrift Store, 1160 Proctor Street, Suffolk, VA 23434
29. Whitemarsh T.S. & Warehouse,4872 George Washington Highway, Whitemarsh, VA
23061
30. Denbigh Thrift Store & Warehouse, 14440 Old Courthouse Road, Denbigh, VA
23606
Exhibit C
BIRMINGHAM - #0182 HOME BAKING COMPANY - #0182
1. 900 16th Street North, Birmingham, Alabama 35203
MEMPHIS #183 FLOWERS BAKING COMPANY OF MEMPHIS, LLC
1. FBC of Memphis, 1029 South Florida Street, Memphis , TN 38106 2. Parkway Distribution Center, 157 South Parkway East, Memphis, TN 38106
SAN ANTONIO #170, BUTTERKRUST BAKERY INC. #170
1. Thrift Store 4601, 66 El Paso Street, San Antonio, TX 78204 2. Thrift Store 4602, 1823 South Zarzamora, San Antonio, TX 78207 3. Thrift Store 4603, 2332 North St. Mary's Street, San Antonio, TX 78212 4. Thrift Store 4605, 1221 Pat Booker Road, San Antonio, TX 78148 5. Thrift Store 4606, 1128 Bandera Road, San Antonio, TX 78228 6. Thrift Store 4607, 2622 Goliad, San Antonio, TX 78223 7. Thrift Store 4609, 131 Old Highway 90 West, San Antonio, TX 78237 8. Thrift Store 4610, 5401 South Flores, San Antonio, TX 78214 9. Thrift Store 4615, 1923 Rigsby, San Antonio, TX 78210 10. Thrift Store 4657 & Warehouse, 507 Priest, Killeen, TX 76541 11. Thrift Store 4624, 416 North Washington, Beeville, TX 78102 12. Thrift Store 4621, 1725 East Main, Alice, TX 78332 13. Thrift Store 4622, 2201 North Laurent, Victoria, TX 77901 14. Thrift Store 4620, 2815 Leopard, Corpus Christ, TX 78408 15. Thrift Store 4626 & Warehouse, 2001 Ayers, Corpus Christ, TX 78404 16. Thrift Store 4651, 5812 Airport Blvd., Austin, TX 78752 17. Thrift Store 4659 & Warehouse, 522 Linda Lane, San Marcos, TX 78666 18. Thrift Store 4611 & Warehouse, 102 Schreiner, Kerrville, TX 78028 19. Thrift Store 4612 & Warehouse, 201 North Grove, Uvalde, TX 78801 20. Thrift Store 4616, 800 Business 35 #100, New Braunfels, TX 78130 21. Thrift Store 4614, 1742 E. Main Street, Eagle Pass, TX 78852 22. Thrift Store 4634 & Warehouse, 3012 North First, Abilene, TX 79601 23. Thrift Store 4633, 3534 Sherwood, San Angelo, TX 76901 24. Thrift Store 4627 & Warehouse, 2025 W. Highway 77, San Benito, TX 78586 25. Thrift Store 4628 & Warehouse, 2901 North Arkansas, Laredo, TX 78041 26. Thrift Store 4623 & Warehouse, 117 E. Ferguson, Pharr, TX 78755 27. Thrift Store 4654, 1005 South Coulter, Bryan, TX 77807 28. Alice Warehouse, 900 Avenue C, Alice TX, 78332 29. Austin Warehouse, 12301 North Lamar, Austin, TX 78753 30. Big Spring Warehouse, 1009 West Fourth Street, Big Spring, TX 79720 31. Brenham Warehouse, 2314 Market Street, Brenham, TX 77833 32. Brownwood Warehouse, 825 West Commerce, Brownwood, TX 76801 33. Bryan Warehouse, 305 East Dodge, Bryan, TX 77807 34. Burnet Warehouse, 410 Silver, Burnet, TX 78611 35. Devine Warehouse, 310 South Teel, Devine, TX 78016 36. Eagle Pass Warehouse, 1727 Main Street, Eagle Pass, TX 78852
Exhibit C
37. Giddings Warehouse, 784 North Burleson, Giddings, TX 78666 38. Gonzales Warehouse, Rt. 5 Box 9, Gonzales, TX 78629 39. New Braunfels Warehouse, 203 Lucinda, New Braunfels, TX 78130 40. Modessa Warehouse, 11601 County Road, 125, Odessa, TX 79702 41. Pleasanton Warehouse, 214 West Street, Pleasanton, TX 78064 42. Rio Grande City Warehouse, 1201 W. Main, Rio Grande City, TX 78582 43. Rockdale Warehouse, 1106 W. Cameron, Rockdale, TX 76567 44. San Angelo Warehouse, 816 Warehouse Road, San Angelo, TX 76904 45. Laredo Street Warehouse, 802 South Laredo, San Antonio, TX 78204 46. San Saba Warehouse, 706 North High, San Saba, TX 76877 47. Schulenburg Warehouse, 402 Bucek, Schulenburg, TX 78956 48. Temple Warehouse, 2923 W. Avenue K, Temple, TX 76502 49. Victoria Warehouse, 1304 Ben Jordan, Victoria, TX 77901 50. Bastrop Warehouse, 290 Industrial, Bastrop, TX 78602 51. Del Rio Warehouse, 1108 E. Gibbs, Del Rio, TX 78840 52. Main Location, 6000 NE. Loop 410, San Antonio, TX 78218
EXHIBIT C
MRS. SMITH'S BAKERIES AND ITS SUBSIDIARIES
1. MRS. SMITH'S BRANDS, INC. NONE.
2. EUROPEAN BAKERS, LLC
5055 South Royal Atlanta Dr., Tucker, GA 30084 Dekalb
5087-E South Royal Atlanta Dr., Tucker, GA 30084 Dekalb - CLOSED
3. AUNT FANNY'S BAKERY, LLC
1039 Grant Street, Atlanta, GA 30315 Fulton
4. DAN-CO BAKERY, LLC
301 Monty Ind. Blvd., Forest Park, GA 30297 Clayton
309 Cash Memorial Blvd., Forest Park, GA 30297 Clayton
5. DANIEL'S HOME BAKERY OF NORTH CAROLINA, LLC
701 S. Jones Street, Pembroke, NC 28372 Robeson
12600 Airport Road, Maxton, NC 28364
6. MRS. SMITH'S SALES SUPPORT GROUP, LLC
2855 Rolling Pin Lane, Suwanee, GA 30024
2825 Rolling Pin Lane, Suwanee, GA 30024
3100 BRECKINRIDGE BLVD., DULUTH, GA - CLOSED
145 N. JONATHAN BLVD., CHASKA, MN - CLOSED
7. MRS. SMITH'S FOIL CO., LLC
|
255 South Street, Pottstown, PA 19464 Montgomery
8. MRS. SMITH'S BAKERIES FROZEN DISTRIBUTORS, LLC
2900 Rolling Pin Lane, Suite A, Suwanee, GA 30024
9. MRS. SMITH'S BAKERIES OF PENNSYLVANIA, LLC
Cherry & Charlotte Street, Pottstown, PA 19464 - CLOSED
Fricks Lock Road & Sanatoga Road, Pottstown, PA 19464 - CLOSED
10. FLOWERS SPECIALTY FOODS OF MONTGOMERY, LLC
140 Folmar Parkway, Hope Hull, AL 36105
1286 Hardwick Street, Montgomery, AL 36108
1305 Wilbanks Street, Montgomery, AL 36108
11. FLOWERS BAKING COMPANY OF FOUNTAIN INN, LLC
1405 South Main Street, Fountain Inn, SC 29644 - SOLD
South Main Street, Fountain Inn, SC 29644 - SOLD
12. FLOWERS FRESH BAKERY DISTRIBUTORS, INC.
1411 Mt. Road, Andersonville, TN 37705
13. MRS. SMITH'S BAKERY OF LONDON, LLC
501 4th Avenue, London, KY 40741
Corner Locust & E. 4th Avenue, London, KY 40741 Laurel
EXHIBIT C
Hilltop North 25, London, KY 40741 Laurel
Tobacco Rd-Lon Tob Mkt. Bldg. 4, London, KY 40741 Laurel
14. FLOWERS BAKING COMPANY OF SPARTANBURG, LLC
7001 Asheville Highway, Spartanburg, SC 29303
3101 North Blackstock Road, Spartanburg, SC 29301
7002 Asheville Highway, Spartanburg, SC 29303
3301 Industrial Drive, Simpsonville, SC 29644
7101 Ashville Highway, Spartanburg, SC 29303
308 South Main Street, Fountain Inn, SC 29644
Case Street, Fountain Inn, SC 29681
15. FLOWERS BAKING COMPANY OF CROSSVILLE, LLC
1601 North Main Street, Crossville, TN 38555
68 South, Crossville, TN 38555
1601 North Main, Crossville, TN 38555
75 Baker Lane, Crossville, TN 38555
16. MRS. SMITH'S BAKERY OF STILWELL, LLC
5 East Walnut Street, Stilwell, OK 74960
Oklahoma Street, Stilwell, OK 74960
Highway 59 (North Grainery), Stilwell, OK 74960
17. MRS. SMITH'S BAKERIES, LLC
5315 Oakbrook Parkway, Norcross, GA 30093 Gwinnett
2855 Rolling Pin Lane, Suwanee, GA 30024 Gwinnett
300 Lake Hazeltine Drive, Chaska, MN 55318
18. MRS. SMITH'S BAKERY OF SUWANEE, LLC
2900 Rolling Pin Lane, Suite B, Suwanee, GA 30024
OFF-SITE INVENTORY LOCATIONS FOR
MRS. SMITH'S BAKERIES, LLC AND ITS SUBSIDIARIES
1000 South Oklahoma St., Stilwell, OK 74960
4124 24th Avenue, Forest Grove, OR 97116
1440 Silverton Road, Woodburn, OR 97071
6032 Joyfield Street, Frankfort, MI 49635
23303 N.E. Sandy Blvd., Troutdale, OR 97060
1151 S. Griswold, Hart, MI 49420
7916 West Bellevue Road, Atwater, CA 95301
2525 Ewald Avenue S. E., Salem, OR 97302
9501 S.E. McLughlini Blvd., Portland, OR 97269-2052
P.O. Box 268, Walcott, NY 14590
P.O. Box 549, Fayetteville, AR 72702
233 Winter Road, Franklin, ME 04634
EXHIBIT C
2966 Highland Blvd., Hudsonville, MI 49426
3815 Marion Street, Albany, OR 97321
7161 N. West Bay Shore Drive, Omena, MI 49674
5625 West 12000 South, Payson, UT 84651
1440 Salem Industrial Way, Salem, OR 97303
3122 Stahlbush Island Road, Corvallis, OR 97333-2709
4000 W. Military Highway, McAllen, TX 78501
6800 South Ware Road, McAllen, TX 78501
P.O. Box 177, Middleport, NY 14105
P.O. Box 247, Highway 31 East, Corsicana, TX 75151
2864 Eagandale Blvd., Eagan, MN 55121
P.O. Box 22052, 9501 S.E. McLughlin Blvd., Portland, OR 97269-2052
P.O. Box 312, 8424 W. 47th Street, Lyons, IL 60534-1760
13033 Artic Circle, Santa Fe Springs, CA 90670-5580
3300 East park Row Drive, Arlington, TX 76010
200 King Mill, McDonough, GA 30253
17400 E. Sacramento Street, Portland, OR 97230
1400 South 35th Street, P.O. Box 416, Galesburg, MI 49053
200 Railhead Road, Ft. Worth, TX 76106
16500 E. Truman Road, Independence, MO 64051
121 Roseway Drive, Thomasville, TN 37167
1740 Westgate Parkway, Atlanta, GA 30336
755 E. 1700 South Street, Clearfield, UT 84016-0441
1411 Mountain Road, Andersonville, TN 38000
2864 Eagandale Blvd., Eagan, MI 55121
7150 Ambassador Drive West, Fogelsville, PA 18051
6150 Xavier Drive S.W., Atlanta, GA 30336
1301 S. Keystone Avenue, Indianapolis, IN 46203
1845 Westgate Parkway, Atlanta, GA 30336
3691 Weston Road, Weston, Ontario, CANADA
17400 N.E. Sacramento Street, Portland, OR 97230
975 S. Caron Road, Rochelle, IL 61068
200 Railhead Road, Ft. Worth, TX 76106
1331 Civil War Road, Carthage, MO 64836
3320 S. Arlington Avenue , Indianapolis, IN 46203
1619 Antioch Church Road, Piedmont, SC 29673
1067 N. Main Street, Crossville, TN 38557
215 Industrial Park Road, Cartersville, GA 30121
1331 Civil War Road, Carthage, MO 64836
1740 Westgate Parkway, Atlanta, GA 30336
755 E. 1700 South Street, Clearfield, UT 84016-0441
1000 South Oklahoma, Stilwell, OK 74960
4300 Pleasantdale Road, Atlanta, GA 30340-3584
9507 McLoughlin, Portland, OR 97201
601 Twin Rail Drive, Minooka, IL 60447
EXHIBIT C
5150 Pulaski, Dallas, TX 75247
13033 Arctic Circle, Santa Fe Springs, CA 90670
7132 Ruppsville Road, Allentown, PA 18106
One Civil War Road, Carthage, MO 64836
533 Laney-Walker Blvd., Augusta, GA 30901-3013
200 King Mill Road, McDonough, GA 30253
3521 Deforest Circle, Mira Loma, CA 91752
125 Threet Industrial Blvd., Smyrna, TN 37167
2088 Geneva Drive, Geneva, IL 60134
2707 N. Mead, Wichita, KS 67219
5055 S. Royal Atlanta Drive, Tucker, GA 30084
301 Cash Memorial Blvd., Forest Park, GA 30297
701 Jones Street, Pembroke, NC 28372
733 Old Main Road, Pembroke, NC 28372
P.O. Box 3524, Spartanburg, SC 29304
P.O. Box 5657, Greenville, SC 29606
P.O. Box 458, Simpsonville, SC 29681
21435 N.W. Cherry Lane, Hillsboro, OR 97124-6630
2555 Chantilly Drive, Atlanta, GA 30324-3789
75 Baker Lane, Crossville, TN 38555
P.O. Box 1773, London, KY 40741-1773
21435 N.W. Cherry Lane, Hillsboro, OR 97124-6630
23303 N.E. Sandy Blvd., Fairview, OR 97024
P.O. Box 60000, San Francisco, CA 94160-3306
P.O. Box 77, Breinigsville, PA 18031-0077
4730 W. Shelby Road, P.O. Box 116, Shelby, MI 49455
603 Joyfield Road, Frankfort, MI 49635
P.O. Box 172, San Antonio, TX 78291-0172
P.O. Box 891, Watsonville, CA 95077
P.O. Box 2066, Eugene, OR 97402
2401 Blue Springs Road S., Cleveland, TN 37311
129 Zenker Road, Lexington, SC 29072
1460 Lakes Parkway, Lawrenceville, GA 30043
1246 Main Avenue S.E., Hickory, NC 28603
5857 Collections Center Drive, Chicago, IL 60693
39 Pearce Industrial Road, Shelbyville, KY 40066
806 Penn Avenue, Sinking Spring, PA 19608
7401 S. 78th Avenue, Bridgeview, IL 60455
2 Superior Drive, Rome, GA 30161
411 E. Carroll Street, Tullahoma, TN 37388
5853 E. Ponce de Leon Ave., Stone Mountain, GA 30083
110 E. 10th Avenue, Kansas City, MO 64116
2000 Jabco Court, Unit A, Lithonia, GA 30058
5216 Pelham Road, Greenville, SC 29615
681 Piney Ridge Road, Forest City, NC 28043
EXHIBIT C
21925 Industrial Blvd., Rogers, NC 55374
1600 Mountain Industrial Blvd., Stone Mountain, GA 30083
414 E. 14th Avenue, Kansas City, MO 64116
1333 Belfast Avenue, Columbus, GA 31904
1500 Industrial Blvd., Madison, GA 30650
1475 Erie, Kansas City, MO 64116
West Avenue, Wolcott, NY 14590
Thorsen Road, Ellsworth, ME 04605
ANNEX D
LIST OF TRADE AND FICTITIOUS NAMES
NONE
ANNEX E
LIST OF MARKS AND APPLICATIONS
NONE
ANNEX F
LIST OF PATENTS AND APPLICATIONS
NONE
Annex G
to
SECURITY AGREEMENT
LIST OF COPYRIGHTS AND APPLICATIONS
NONE
Annex H
to
SECURITY AGREEMENT
GRANT OF SECURITY INTEREST
IN UNITED STATES TRADEMARKS
FOR GOOD AND VALUABLE CONSIDERATION, receipt and sufficiency of which are hereby acknowledged, [Name of Grantor], a __________ corporation (the "Grantor") with principal offices at ____________________________, hereby assigns and grants to Bankers Trust Company, as Collateral Agent, with principal offices at 130 Liberty Street, New York, New York 10006 (the "Grantee"), a security interest in (i) all of the Grantor's right, title and interest in and to the United States trademarks, trademark registrations and trademark applications (the "Marks") set forth on Schedule A attached hereto, (ii) all Proceeds (as such term is defined in the Security Agreement referred to below) and products of the Marks, (iii) the goodwill of the businesses with which the Marks are associated and (iv) all causes of action arising prior to or after the date hereof for infringement of any of the Marks or unfair competition regarding the same.
THIS GRANT is made to secure the satisfactory performance and payment of all the Obligations of the Grantor, as such term is defined in the Security Agreement among the Grantor, the other assignors from time to time party thereto and the Grantee, dated as of March 26, 2001 (as amended from time to time, the "Security Agreement"). Upon the occurrence of the Termination Date (as defined in the Security Agreement), the Grantee shall, upon such satisfaction, execute, acknowledge, and deliver to the Grantor an instrument in writing releasing the security interest in the Marks acquired under this Grant.
This Grant has been granted in conjunction with the security interest granted to the Grantee under the Security Agreement. The rights and remedies of the Grantee with respect to the security interest granted herein are as set forth in the Security Agreement, all terms and provisions of which are incorporated herein by reference. In the event that any provisions of this Grant are deemed to conflict with the Security Agreement, the provisions of the Security Agreement shall govern.
* * *
ANNEX H
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the ____ day of _________, ____.
[NAME OF GRANTOR], Grantor
Title:
BANKERS TRUST COMPANY,
as Collateral Agent, Grantee
Title:
STATE OF __________ )
) ss.:
COUNTY OF __________ )
|
On this ____ day of _________, ____, before me personally came ________ _________________ who, being by me duly sworn, did state as follows: that [s]he is _______________ of [Name of Grantor], that [s]he is authorized to execute the foregoing Grant on behalf of said corporation and that [s]he did so by authority of the Board of Directors of said corporation.
Notary Public
STATE OF __________ )
) ss.:
COUNTY OF __________ )
|
On this ____ day of _________, ____, before me personally came ________ _________________ who, being by me duly sworn, did state as follows: that [s]he is _______________ of Bankers Trust Company that [s]he is authorized to execute the foregoing Grant on behalf of said corporation and that [s]he did so by authority of the Board of Directors of said corporation.
SCHEDULE A
MARK REG. NO. REG. DATE ---- -------- --------- |
ANNEX I
to
SECURITY AGREEMENT
GRANT OF SECURITY INTEREST
IN UNITED STATES PATENTS
FOR GOOD AND VALUABLE CONSIDERATION, receipt and sufficiency
of which are hereby acknowledged, [Name of Grantor], a __________ corporation
(the "Grantor") with principal offices at ____________________________, hereby
assigns and grants to Bankers Trust Company, as Collateral Agent, with principal
offices at 130 Liberty Street, New York, New York 10006 (the "Grantee"), a
security interest in (i) all of the Grantor's right, title and interest in and
to the United States patents and pending patent applications (the "Patents") set
forth on Schedule A attached hereto, (ii) all Proceeds (as such term is defined
in the Security Agreement referred to below) and products of the Patents, and
(iii) all causes of action arising prior to or after the date hereof for
infringement of any of the Patents or unfair competition regarding the same.
THIS GRANT is made to secure the satisfactory performance and payment of all the Obligations of the Grantor, as such term is defined in the Security Agreement among the Grantor, the other assignors from time to time party thereto and the Grantee, dated as of March 26, 2001 (as amended from time to time, the "Security Agreement"). Upon the occurrence of the Termination Date (as defined in the Security Agreement), the Grantee shall, upon such satisfaction, execute, acknowledge, and deliver to the Grantor an instrument in writing releasing the security interest in the Patents acquired under this Grant.
This Grant has been granted in conjunction with the security interest granted to the Grantee under the Security Agreement. The rights and remedies of the Grantee with respect to the security interest granted herein are as set forth in the Security Agreement, all terms and provisions of which are incorporated herein by reference. In the event that any provisions of this Grant are deemed to conflict with the Security Agreement, the provisions of the Security Agreement shall govern.
* * *
Annex I
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the ____ day of _________, ____.
[NAME OF GRANTOR], Grantor
Title:
BANKERS TRUST COMPANY,
as Collateral Agent, Grantee
Title:
STATE OF __________ )
) ss.:
COUNTY OF __________ )
|
On this ____ day of _________, ____, before me personally came
________ _________________ who, being by me duly sworn, did state as follows:
that [s]he is _______________ of [Name of Grantor], that [s]he is authorized to
execute the foregoing Grant on behalf of said corporation and that [s]he did so
by authority of the Board of Directors of said corporation.
Notary Public
STATE OF __________ )
) ss.:
COUNTY OF __________ )
|
On this ____ day of _________, ____, before me personally came
________ _____________________ who, being by me duly sworn, did state as
follows: that [s]he is __________________ of Bankers Trust Company that [s]he is
authorized to execute the foregoing Grant on behalf of said corporation and that
[s]he did so by authority of the Board of Directors of said corporation.
SCHEDULE A
PATENT PATENT NO. ISSUE DATE ------ ---------- ---------- |
ANNEX J
to
SECURITY AGREEMENT
GRANT OF SECURITY INTEREST
IN UNITED STATES COPYRIGHTS
WHEREAS, [Name of Grantor], a _______________ corporation (the "Grantor"), having its chief executive office at , , is the owner of all right, title and interest in and to the United States copyrights and associated United States copyright registrations and applications for registration set forth in Schedule A attached hereto;
WHEREAS, BANKERS TRUST COMPANY, as Collateral Agent, having its principal offices at 130 Liberty Street, New York, New York 10006 (the "Grantee"), desires to acquire a security interest in said copyrights and copyright registrations and applications therefor; and
WHEREAS, the Grantor is willing to assign to the Grantee, and to grant to the Grantee a security interest in and lien upon the copyrights and copyright registrations and applications therefor described above.
NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, and subject to the terms and conditions of the Security Agreement, dated as of March 26, 2001, made by the Grantor, the other assignors from time to time party thereto and the Grantee (as amended from time to time, the "Security Agreement"), the Grantor hereby assigns to the Grantee as collateral security, and grants to the Grantee a security interest in, and lien upon all of Grantor's right, title and interest in and to Grantor's copyrights and copyright registrations and applications therefor more particularly set forth on Schedule A attached hereto (the "Copyrights"), together with (i) all Proceeds (as such term is defined in the Security Agreement) of the Copyrights, and (ii) all causes of action arising prior to or after the date hereof for infringement of any Copyright.
This Grant of Security Interest is made to secure the satisfactory performance and payment of all the Obligations (as such term is defined in the Security Agreement) of the Grantor and shall be effective as of the date of the Security Agreement. Upon the occurrence of the Termination Date (as defined in the Security Agreement), the Grantee shall, upon such satisfaction, execute, acknowledge, and deliver to Grantor an instrument in writing releasing the security interest in the copyrights acquired under this Grant of Security Interest.
This Grant has been granted in conjunction with the security interest granted to the Grantee under the Security Agreement. The rights and remedies of the Grantee with respect to the security interest granted herein are as set forth in the Security Agreement, all terms and provisions of which are incorporated herein by reference. In the event that any provisions of this Grant are deemed to conflict with the Security Agreement, the provisions of the Security Agreement shall govern.
Annex J
Executed at __________, __________, the __ day of _________, ____.
[NAME OF GRANTOR], as Grantor
Title:
BANKERS TRUST COMPANY, as
Collateral Agent, Grantee
Title:
STATE OF __________ )
) ss.:
COUNTY OF __________ )
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On this __ day of _________, ____, before me personally came ___________ _______________, who being duly sworn, did depose and say that [s]he is ___________________ of [Name of Grantor], that [s]he is authorized to execute the foregoing Grant on behalf of said corporation and that [s]he did so by authority of the Board of Directors of said corporation.
STATE OF __________ )
) ss.:
COUNTY OF __________ )
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On this ____ day of _________, ____, before me personally came
________ _____________________ who, being by me duly sworn, did state as
follows: that [s]he is __________________ of Bankers Trust Company that [s]he is
authorized to execute the foregoing Grant on behalf of said corporation and that
[s]he did so by authority of the Board of Directors of said corporation.
SCHEDULE A
U.S. COPYRIGHTS
REGISTRATION PUBLICATION
NUMBERS DATE COPYRIGHT TITLE
---------------- ------------------- ----------------
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Exhibit J
SOLVENCY CERTIFICATE
I, the undersigned, the Chief Financial Officer of Flowers Foods, Inc., a Georgia corporation (the "Company"), do hereby certify in such capacity and on behalf of the Company that:
1. This Certificate is furnished to the Agents and each of the Lenders pursuant to Section 5.15(i) of the Credit Agreement, dated as of March 26, 2001, among the Company, the lenders party thereto from time to time (the "Lenders"), SunTrust Bank, as Syndication Agent, and Bankers Trust Company, as Administrative Agent (such Credit Agreement, as in effect on the date of this Certificate, being herein called the "Credit Agreement"). Unless otherwise defined herein, capitalized terms used in this Certificate shall have the meanings set forth in the Credit Agreement.
2. For purposes of this Certificate, the terms below shall have the following definitions:
(a) "Fair Value"
The amount at which the assets, in their entirety, of each of the Company on a stand-alone basis, the Company and its Subsidiaries taken as a whole, Flower Industries, Inc., a Georgia Corporation ("Flowers Industries") on a stand-alone basis, and Flower Industries and its Subsidiaries taken as a whole, would change hands between a willing buyer and a willing seller, within a commercially reasonable period of time, each having reasonable knowledge of the relevant facts, with neither being under any compulsion to act.
(b) "Present Fair Salable Value"
The amount that could be obtained by an independent willing seller from an independent willing buyer if the assets of each of the Company on a stand-alone basis, the Company and its Subsidiaries taken as a whole, Flower Industries on a stand-alone basis, and Flower Industries and its Subsidiaries taken as a whole, are sold with reasonable promptness under normal selling conditions in a current market.
(c) "New Financing"
The Indebtedness incurred or to be incurred by the Company and its Subsidiaries and Flowers Industries and its Subsidiaries under the Documents and all other financing contemplated by the Documents (including, without limitation, the Credit Documents), in each case after giving effect to the Transaction and all financing contemplated therewith.
Exhibit J
(d) "Stated Liabilities"
The recorded liabilities that would be recorded in accordance with generally accepted accounting principles ("GAAP") of the Company on a stand-alone basis, of the Company and its Subsidiaries taken as a whole, of Flowers Industries on a stand-alone basis, and of Flowers Industries and its Subsidiaries taken as a whole, as of the date hereof after giving effect to Transaction, determined in accordance with GAAP consistently applied, together with the amount of all New Financing.
(e) "Identified Contingent Liabilities"
The maximum estimated amount of liabilities reasonably likely to result from pending litigation, asserted claims and assessments, guaranties, uninsured risks and other contingent liabilities of each of the Company on a stand-alone basis, the Company and its Subsidiaries taken as a whole, Flowers Industries on a stand-alone basis, and Flowers Industries and its Subsidiaries taken as a whole, after giving effect to the Transaction, as identified and explained in terms of their nature and estimated magnitude by responsible officers of the Company or any of its Subsidiaries or Flowers Industries or any of its Subsidiaries or that have been identified as such by an officer of the Company or any of its Subsidiaries or Flowers Industries or any of its Subsidiaries.
(f) "Will be able to pay its Stated Liabilities and Identified Contingent Liabilities, as they mature"
For the period from the date hereof through the stated maturity of all the New Financing, each of the Company on a stand-alone basis, the Company and its Subsidiaries taken as a whole, Flowers Industries on a stand-alone basis, and Flowers Industries and its Subsidiaries taken as a whole, will have sufficient assets and cash flow to pay its Stated Liabilities and Identified Contingent Liabilities as those liabilities mature or otherwise become payable.
(g) "Does not have Unreasonably Small Capital"
For the period from the date hereof through the stated maturity of all the New Financing, each of the Company on a stand-alone basis, the Company and its Subsidiaries taken as a whole, Flowers Industries on a stand-alone basis, and Flowers Industries and its Subsidiaries taken as a whole, after consummation of the Transaction and all Indebtedness being incurred or assumed and Liens created by the Company and its Subsidiaries and Flowers Industries and its Subsidiaries in connection therewith, is a going concern and has sufficient capital to ensure that it will continue to be a going concern for such period and to remain a going concern.
Exhibit J
3. For purposes of this Certificate, I, other officers of the Company and its Subsidiaries under my direction and supervision, or other officers of Flowers Industries and its Subsidiaries have performed the following procedures as of and for the periods set forth below.
(a) I have reviewed the financial statements (including the pro forma financial statements) referred to in Section 7.05 of the Credit Agreement.
(b) I have made inquiries of certain officials of the Company and its Subsidiaries and Flowers Industries and its Subsidiaries who have responsibility for financial and accounting matters regarding the existence and amount of Identified Contingent Liabilities associated with the respective businesses of the Company and its Subsidiaries and Flowers Industries and its Subsidiaries.
(c) I have knowledge of and have reviewed to my satisfaction the Credit Documents and the other Documents, and the respective Schedules and Exhibits thereto.
(d) With respect to Identified Contingent Liabilities, I:
1. inquired of certain officials of the Company and its Subsidiaries and Flowers Industries and its Subsidiaries who have responsibility for legal, financial and accounting matters as to the existence and estimated liability with respect to all contingent liabilities known to them; and
2. confirmed with officers of the Company and its Subsidiaries and Flowers Industries and its Subsidiaries that, to the best of such officers' knowledge, all appropriate items were included in Identified Contingent Liabilities and the amounts relating thereto were the maximum estimated amount of liabilities reasonably likely to result therefrom as of the date hereof.
(e) I have examined the Projections which have been delivered to the Lenders and considered the effect thereon of any changes since the date of the preparation thereof on the results projected therein. After such review, I hereby certify that in my opinion the Projections are reasonable and the Projections support the conclusions contained in paragraph 4 below.
(f) I have made inquiries of certain officers of the Company and its Subsidiaries and Flowers Industries and its Subsidiaries who have responsibility for financial reporting and accounting matters regarding whether they were aware of any events or conditions that, as of the date hereof, would cause either the Company on a stand-alone basis, the Company and its Subsidiaries taken as a whole, Flowers Industries on a stand-alone basis, or Flowers Industries and its Subsidiaries taken as a whole, in each case after giving effect to the Transaction and the related financing transactions (including the incurrence of the New Financing), to (i) have assets with a Fair Value or Present Fair Salable Value that are less than the sum of Stated Liabilities and Identified Contingent Liabilities; (ii) have Unreasonably Small Capital; or (iii) not be able to pay its Stated
Exhibit J
Liabilities and Identified Contingent Liabilities as they mature or otherwise become payable.
4. Based on and subject to the foregoing, I, in my capacity as the chief financial officer of the Company, hereby certify on behalf of the Company that, (x) after giving effect to the Transaction and the related financing transactions (including the incurrence of the New Financing), it is my informed opinion that (i) the Fair Value and Present Fair Salable Value of the assets of each of the Company on a stand-alone basis, the Company and its Subsidiaries taken as a whole, Flowers Industries on a stand-alone basis, and Flowers Industries and its Subsidiaries taken as a whole, exceed its Stated Liabilities and Identified Contingent Liabilities; (ii) neither the Company on a stand-alone basis, the Company and its Subsidiaries taken as a whole, Flowers Industries on a stand-alone basis, nor Flowers Industries and its Subsidiaries taken as a whole, has Unreasonably Small Capital; and (iii) each of the Company on a stand-alone basis, the Company and its Subsidiaries taken as a whole, Flowers Industries on a stand-alone basis, and Flowers Industries and its Subsidiaries taken as a whole, will be able to pay its Stated Liabilities and Identified Contingent Liabilities, as they mature or otherwise become payable and (y) after giving effect to the Transaction, it is my informed opinion that immediately prior to the Spin-off and giving effect to the Spin-off and the Flowers Industries Merger (i) the Fair Value and Present Fair Salable Value of the assets of each of Flowers Industries on a stand-alone basis, and Flowers Industries and its Subsidiaries taken as a whole, exceed its Stated Liabilities and Identified Contingent Liabilities; (ii) neither Flowers Industries on a stand-alone basis, nor Flowers Industries and its Subsidiaries taken as a whole, has Unreasonably Small Capital; and (iii) each of Flowers Industries on a stand-alone basis, and Flowers Industries and its Subsidiaries taken as a whole, will be able to pay its Stated Liabilities and Identified Contingent Liabilities, as they mature or otherwise become payable.
* * *
Exhibit J
IN WITNESS WHEREOF, I have hereto set my hand this ___ day of ______, ______.
FLOWERS FOODS, INC.
By________________________________
Name:
Title:
Exhibit K
ASSIGNMENT AND ASSUMPTION AGREEMENT
DATE: ________ __, ____
Reference is made to the Credit Agreement described in Item 2 of Annex I annexed hereto (as such Credit Agreement may hereafter be amended, modified or supplemented from time to time, the "Credit Agreement"). Unless defined in Annex I attached hereto, terms defined in the Credit Agreement are used herein as therein defined. _____________ (the "Assignor") and ______________ (the "Assignee") hereby agree as follows:
1. The Assignor hereby sells and assigns to the Assignee without recourse and without representation or warranty (other than as expressly provided herein), and the Assignee hereby purchases and assumes from the Assignor, that interest in and to all of the Assignor's rights and obligations under the Credit Agreement as of the date hereof which represents the percentage interest specified in Item 4 of Annex I (the "Assigned Share") of all of the outstanding rights and obligations under the Credit Agreement relating to the facilities listed in Item 4 of Annex I, including, without limitation, (x) in the case of any assignment of outstanding A Term Loans, all rights and obligations with respect to the Assigned Share of such A Term Loans, (y) in the case of any assignment of outstanding B Term Loans, all rights and obligations with respect to the Assigned Share of such B Term Loans and (z) in the case of any assignment of all or any portion of the Total Revolving Loan Commitment, all rights and obligations with respect to the Assigned Share of such Total Revolving Loan Commitment and of any outstanding Revolving Loans, Swingline Loans and Letters of Credit.
2. The Assignor (i) represents and warrants that it is the legal and beneficial owner of the interest being assigned by it hereunder and that such interest is free and clear of any adverse claims; (ii) makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Credit Agreement or the other Credit Documents or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement or the other Credit Documents or any other instrument or document furnished pursuant thereto; and (iii) makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or any of its Subsidiaries or the performance or observance by the Borrower or any of its Subsidiaries of any of their respective obligations under the Credit Agreement or the other Credit Documents or any other instrument or document furnished pursuant thereto.
3. The Assignee (i) confirms that it is an Eligible Transferee, (ii) confirms that it has received a copy of the Credit Agreement and the other Credit Documents, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption Agreement; (iii) agrees that it will, independently and without reliance upon the Administrative Agent, the Assignor or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iv) appoints and
Exhibit K
authorizes the Administrative Agent and the Collateral Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Credit Documents as are delegated to the Administrative Agent and the Collateral Agent by the terms thereof, together with such powers as are reasonably incidental thereto; [and] (v) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender [; and (vi) attaches the Forms and/or Certificate described in Section 13.04(b) of the Credit Agreement.]1
4. Following the execution of this Assignment and Assumption Agreement by the Assignor and the Assignee, an executed original hereof (together with all attachments) will be delivered to the Administrative Agent. The effective date of this Assignment and Assumption Agreement shall be the date of execution hereof by the Assignor and the Assignee, the receipt of the consent of the Administrative Agent, the Borrower and each Issuing Lender to the extent required by the Credit Agreement, receipt by the Administrative Agent of the assignment fee referred to in Section 13.04(b) of the Credit Agreement, and the recordation by the Administrative Agent of the assignment effected hereby in the Register, unless otherwise specified in Item 5 of Annex I (the "Settlement Date").
5. Upon the delivery of a fully executed original hereof to the Administrative Agent, as of the Settlement Date, (i) the Assignee shall be a party to the Credit Agreement and, to the extent provided in this Assignment and Assumption Agreement, have the rights and obligations of a Lender thereunder and under the other Credit Documents and (ii) the Assignor shall, to the extent provided in this Assignment and Assumption Agreement, relinquish its rights and be released from its obligations under the Credit Agreement and the other Credit Documents.
6. It is agreed that upon the effectiveness hereof, the Assignee shall be entitled to (w) all interest on the Assigned Share of the Loans at the rates specified in Item 6 of Annex I hereto, (x) all Commitment Commission (if applicable) on the Assigned Share of the Total Revolving Loan Commitment at the rate specified in Item 7 of Annex I hereto and (y) all Letter of Credit Fees (if applicable) on the Assignee's participation in all Letters of Credit at the rate specified in Item 8 of Annex I hereto, which, in each case, accrue on and after the Settlement Date, such interest and, if applicable, Commitment Commission and Letter of Credit Fees, to be paid by the Administrative Agent directly to the Assignee. It is further agreed that all payments of principal made on the Assigned Share of the Loans which occur on and after the Settlement Date will be paid directly by the Administrative Agent to the Assignee. Upon the Settlement Date, the Assignee shall pay to the Assignor an amount specified by the Assignor in writing which represents the Assigned Share of the principal amount of the respective Loans made by the Assignor pursuant to the Credit Agreement which are outstanding on the Settlement Date, net of any closing costs, and which are being assigned hereunder. The Assignor and the Assignee shall
Exhibit K
make all appropriate adjustments in payments under the Credit Agreement for periods prior to the Settlement Date directly between themselves.
7. THIS ASSIGNMENT AND ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Assumption Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written, such execution also being made on Annex I hereto.
[NAME OF ASSIGNOR],
as Assignor
By____________________________
Name:
Title:
[NAME OF ASSIGNEE],
as Assignee
By____________________________
Name:
Title:
Exhibit K
[Acknowledged and Agreed:
BANKERS TRUST COMPANY, as Administrative Agent
By____________________________
Name:
Title:]2
[BANKERS TRUST COMPANY, as Swingline Lender
By____________________________
Name:
Title:
[LETTER OF CREDIT ISSUER]
By____________________________
Name:
Title:]3
[FLOWERS FOODS, INC.
By____________________________
Name:
Title:]4
3 Insert only if assignment of any portion of the Total Revolving Loan Commitment is being made pursuant to Section 13.04(b)(y) of the Credit Agreement.
4 Insert only if assignment is being made pursuant to Section 13.04(b)(y) of the Credit Agreement, so long as no Specified Default is then in existence.
ANNEX I
ANNEX FOR ASSIGNMENT AND ASSUMPTION AGREEMENT
1. The Borrower: Flowers Foods, Inc. (the "Borrower").
2. Name and Date of Credit Agreement:
Credit Agreement, dated as of March 26, 2001, among the Borrower, the lenders from time to time party thereto, SunTrust Bank, as Syndication Agent, and Bankers Trust Company, as Administrative Agent (as amended, restated, modified and/or supplemented from time to time, the "Credit Agreement").
3. Date of Assignment Agreement:
4. Amounts (as of date of item #3 above):
Outstanding Outstanding Amount of
Principal of Principal of Revolving
A Term Loans B Term Loans Loan Commitment
a. Aggregate Amount for all Lenders
$________ $________ $________
b. Assigned Share ________% ________% ________%
c. Amount of Assigned Share $_________ $_________ $_________
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5. Settlement Date:
6. Rate of Interest to the Assignee: As set forth in Section 1.08 of the Credit Agreement.1
7. Commitment Commission to the Assignee: As set forth in Section 3.01(a) of the Credit Agreement.2
2 Insert "Not Applicable" in lieu of text if no portion of the Total Revolving Loan Commitment is being assigned. Otherwise the Borrower and the Administrative Agent shall, following recordation of such assignment by the Administrative Agent on the Register, direct the entire amount of the applicable Commitment Commission to the Assignee at the rate set forth in the appropriate clause of Section 3.01(a) of the Credit Agreement.
ANNEX I
8. Letter of Credit
Fee to the Assignee: As set forth in Section 3.01(b) of the
Credit Agreement (unless otherwise agreed to
by the Assignor and the Assignee).3
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9. Notice: ASSIGNEE:
-------------------
Attention:
Telephone:
Telecopier:
Reference:
Payment Instructions: ASSIGNEE:
-------------------
-------------------
-------------------
-------------------
Attention:
Reference:
Accepted and Agreed:
[NAME OF ASSIGNEE] [NAME OF ASSIGNOR]
By____________________ By_______________________
Name: Name:
Title: Title:
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3 Insert "Not Applicable" in lieu of text if no portion of the Total Revolving Loan Commitment is being assigned. Otherwise the Borrower and the Administrative Agent shall, following recordation of such assignment by the Administrative Agent on the Register, direct the entire amount of the Letter of Credit Fee to the Assignee at the rate set forth in Section 3.01(b) of the Credit Agreement.
Exhibit 10.6
DEBENTURE TENDER AGREEMENT
DEBENTURE TENDER AGREEMENT (this "Agreement"), dated as of March 12, 2001, by and among Flowers Industries, Inc., a Georgia corporation (the "Company"), Flowers Foods, Inc., a Georgia corporation and wholly-owned subsidiary of the Company ("Flowers Foods"), and each of the other parties listed on the signature pages hereto (each a "Holder" and collectively, the "Holders").
W I T N E S S E T H
WHEREAS, pursuant to that certain Indenture, dated as of April 27, 1998 (the "Indenture"), between the Company and SunTrust Bank (formerly known as SunTrust Bank, Atlanta), as Trustee (the "Trustee"), the Company issued $200,000,000 in aggregate principal amount of its 7.15% Debentures due 2028 (the "Debentures");
WHEREAS, each Holder Beneficially Owns (as hereinafter defined) the aggregate principal amount of Debentures set forth opposite such Holder's name on the signature pages hereto;
WHEREAS, as soon as practicable following the execution of this Agreement, the Company intends to commence an offer to purchase any and all of the issued and outstanding Debentures (as such tender offer may hereafter be amended from time to time, the "Offer"); and
WHEREAS, as an inducement and a condition to its willingness to commence the Offer, and incur the obligations thereunder, the Company has requested that the Holders agree, and, subject to the terms hereof, each Holder does hereby agree, to tender the aggregate principal amount of Debentures Beneficially Owned by such Holder as set forth opposite such Holder's name on the signature pages hereto, together with any Debentures acquired by the Holder after the date hereof and prior to the expiration of the Offer.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises, representations, warranties, covenants and agreements set forth herein, and intending to be legally bound hereby, the parties hereto agree as follows:
1. Certain Definitions. For purposes of this Agreement, except as otherwise expressly provided or unless the context clearly requires otherwise:
"Beneficially Own" or "Beneficial Ownership" shall mean, with respect to any securities, having "beneficial ownership" of such securities (as determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended), including pursuant to any agreement, arrangement or understanding, whether or not in writing.
"Business Day" shall have the meaning attributed thereto in the Indenture.
"Designated Purchase Rate" shall mean 2.20% over the yield to maturity on the Reference Security based upon the bid price of the Reference Security as of 12:00 p.m., New York City time, on the Pricing Date, as displayed on page PX8 of the Bloomberg Government
Pricing Monitor (the "Bloomberg Page"), or, if such bid price is not so available, another comparable recognized quotation source.
"Expiration Date" shall mean 10:00 a.m., New York City time, on March 26, 2001, or 10:00 a.m., New York City time, on such later date and time to which the Offer is extended in compliance with the terms hereof.
"Litigation" shall mean the action filed on February 5, 2001 by the Company and Flowers Foods in the Superior Court of Fulton County, Georgia bearing the style Flowers Industries, Inc. and Flowers Foods, Inc., Petitioners vs. SunTrust Bank, as Trustee under Agreement, Respondent, Civil Action No. 2001 CV 33653.
"Person" shall mean a natural person, corporation, partnership, joint venture, association, trust, limited liability company, business trust, joint stock company, unincorporated organization or other entity.
"Pricing Date" shall mean March 22, 2001, or the second Business Day immediately preceding the Expiration Date if the Offer is extended to a date later than March 28, 2001, in compliance with the terms hereof.
"Reference Security" shall mean the 6-1/4% U.S. Treasury Bond due May 15, 2030.
"Requisite Holders" shall mean Persons that Beneficially Own at least One Hundred Twenty Million Dollars ($120,000,000) of the outstanding principal amount of the Debentures.
"Spinoff Transaction" shall mean the spinoff of the outstanding shares of the common stock of Flowers Foods by the Company to the Company's shareholders, as described in Flowers Foods' Information Statement dated as of February 9, 2001.
"Stated Purchase Price" shall mean an amount per $1,000 in principal amount of Debentures, as of the Pricing Date, equal to the sum of the present values of the remaining scheduled payments of principal and interest on $1,000 in principal amount of Debentures (exclusive of interest accrued to such date) discounted to such date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Designated Purchase Rate; provided, however, that in no event shall the Stated Purchase Price exceed $935 or be less than $915 per $1,000 in principal amount of Debentures.
"Transfer" shall mean, with respect to a security, the sale, transfer, pledge, hypothecation, encumbrance, assignment or disposition of such security or the Beneficial Ownership thereof, the offer to make such a sale, transfer or other disposition, and the entering into of any option, agreement, arrangement or understanding, whether or not in writing, to effect any of the foregoing. As a verb, "Transfer" shall have a correlative meaning.
2. Restrictions. Until the termination of this Agreement in accordance with its terms, each of the Holders agrees not to, directly or indirectly, (a) except as provided in Section 4 hereof, Transfer any of such Holder's Debentures to any Person, grant any proxies or powers of attorney or enter into any voting agreement, understanding or arrangement with respect to such Holder's Debentures, or (b) take any action that would make any representation or warranty of
the Holder herein untrue or incorrect or would result in a breach by the Holder of any of its obligations under this Agreement.
3. The Offer. The Company shall commence the Offer on or before March 16, 2001.
(a) Pursuant to the Offer, the Company will offer to purchase for cash any and all of the outstanding Debentures at a purchase price per $1,000 in principal amount of Debentures equal to the Stated Purchase Price, plus accrued and unpaid interest thereon to the date of payment, net to the seller in cash (the "Offer Price"). The Offer will be made by the Company pursuant to an Offer to Purchase and related Letter of Transmittal consistent with the terms hereof and otherwise reasonably satisfactory to counsel for the Holders in all respects, drafts of which will be provided to counsel for the Holders for prior review and comment.
(b) The Offer will expire on the Expiration Date. The Company will not terminate or withdraw the Offer (other than (i) as permitted under this Agreement, (ii) in the event that a Holder has breached its obligations under Section 4 hereof or (iii) if the General Condition has not been satisfied as of the Expiration Date) or amend the terms and conditions of the Offer without the consent of the Holders; provided, however, that the Company shall have the right to, and shall, extend the Expiration Date to such later date and time as is necessary for the Spinoff Condition (as defined below) to be satisfied, but in no event to a date and time that is later than the date and time as of which the Spinoff Transaction is to be effective.
(c) The Company's obligation to accept for purchase Debentures validly tendered pursuant to the Offer is conditioned (collectively, the "Offer Conditions") only upon (i) there being validly tendered and not withdrawn not less than One Hundred Twenty Million Dollars ($120,000,000) in aggregate principal amount of the outstanding Debentures (the "Minimum Tender Condition"), (ii) the consummation of the Spinoff Transaction (the "Spinoff Condition"), and (iii) satisfaction of the General Condition described on Annex A hereto. So long as the Offer Conditions have been satisfied on the Expiration Date, the Company agrees to accept for purchase all Debentures validly tendered pursuant to the Offer by 5:00 p.m. New York City time, on the same Business Day as the Expiration Date. The Company reserves the right to waive any one or more of the Offer Conditions. The Company expressly reserves the right, in its sole discretion, to terminate the Offer if any of the Offer Conditions have not been satisfied on or prior to 5:00 p.m., New York City time, on April 9, 2001 and have not been waived by the Company. Any Debentures that are not tendered and accepted pursuant to the Offer, including if the Offer is terminated, withdrawn or not consummated on the Expiration Date, will remain outstanding as obligations of the Company.
4. Tender of Debentures. Each Holder hereby agrees to validly tender or cause to be validly tendered, pursuant to and in accordance with the terms of the Offer, within five Business Days after the Company commences the Offer (but in no event later than 5:00 p.m., New York City time, on March 22, 2001), all of such Holder's Debentures (including any Debentures acquired by such Holder after the date the Offer is commenced). Each Holder also agrees not to withdraw its Debentures tendered in accordance with the preceding sentence unless (i) the Company has not accepted for payment all Debentures tendered pursuant to the Offer by 5:00
p.m., New York City time, on the same Business Day as the Expiration Date or
(ii) an "Event of Default" has occurred, and is continuing, under the Indenture.
5. Dismissal of Litigation. Immediately following the execution and delivery of this Agreement, the Company and Flowers Foods will take all necessary actions to dismiss the Litigation with prejudice.
6. Release of Claims. The Company, Flowers Foods and the Holders hereby agree as follows:
(a) The Holders, by and through their authorized agents,
for themselves and their subsidiaries, directors, officers, shareholders,
successors, and assigns, each does hereby release, remise, discharge and forever
acquit the Company and Flowers Foods, their officers, directors, trustees,
shareholders, policyholders, subsidiaries, parents, affiliated companies,
employees, agents, attorneys, successors, and transferees, from any and all
claims for injunctive relief or damages, rights, lawsuits, actions and causes of
action, fixed or contingent, liquidated or unliquidated, of every kind and
nature, sounding in tort or contract, or arising out of any statute or other
law, and demands of every kind and character whatsoever, including, but not
limited to, claims for injunctive relief and damages, expenses, lost profits,
attorneys' fees, punitive damages, penalties and/or other potential legal or
equitable relief related to the Debentures arising prior to the date hereof
(other than obligations or liabilities (i) arising under this Agreement or (ii)
in respect of principal, interest or other amounts payable under the Indenture
or the Debentures).
(b) The Company and Flowers Foods, by and through their authorized agents, for themselves and their subsidiaries, directors, officers, shareholders, successors, and assigns, each does hereby release, remise, discharge and forever acquit the Holders, their officers, directors, trustees, shareholders, policyholders, subsidiaries, parents, affiliated companies, employees, agents, attorneys, successors, and transferees, from any and all claims for injunctive relief or damages, rights, lawsuits, actions and causes of action, fixed or contingent, liquidated or unliquidated, of every kind and nature, sounding in tort or contract, or arising out of any statute or other law, and demands of every kind and character whatsoever, including, but not limited to, claims for injunctive relief and damages, expenses, lost profits, attorneys' fees, punitive damages, penalties and/or other potential legal or equitable relief related to the Debentures (other than obligations or liabilities arising under this Agreement).
7. Certain Actions. During the period commencing on the date hereof and continuing until the earlier of the date the Company (a) purchases all Debentures properly tendered and not withdrawn pursuant to the Offer or (b) terminates the Offer in compliance with the terms hereof, each Holder, the Company and Flowers Foods, in its respective capacity, shall (i) support each of the actions contemplated by this Agreement and any actions required in furtherance thereof and (ii) not take or support any action or agreement that (A) would result in a breach of any covenant, representation or warranty or any other obligations or agreement of the respective parties under the Indenture or the respective parties under this Agreement or (B) would impede, interfere with, delay, postpone, or adversely affect the Offer, or any other transaction contemplated by this Agreement, or (C) is intended to impede, interfere with, delay, postpone, discourage or materially adversely affect the Offer or any other transaction contemplated by this Agreement. No Holder, the Company or Flowers Foods in its capacity as
such shall enter into any agreement, arrangement or understanding with any Person the effect of which would be inconsistent or violative of the provisions and agreements contained in this Section 7.
8. Representations and Warranties of the Holders. Each Holder, severally but not jointly, represents and warrants to the Company and Flowers Foods as follows:
(a) Such Holder Beneficially Owns the aggregate principal amount of Debentures set forth opposite such Holder's name on the signature page hereto and such Holder will pass to the Company good and marketable title and Beneficial Ownership to the Debentures free and clear of any claims, security interests, liens and encumbrances whatsoever.
(b) Such Holder has the legal power, authority and capacity to execute and deliver this Agreement and perform its obligations hereunder. The execution and delivery by such Holder of this Agreement and the performance by such Holder of its obligations hereunder have been duly and validly authorized and no further actions or proceedings on the part of such Holder are necessary to authorize the execution, delivery or performance of this Agreement or the consummation of the transactions contemplated hereby.
(c) This Agreement constitutes the legal, valid and binding agreement of such Holder enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting creditors' rights generally or by the principles governing the availability of equitable remedies.
(d) This Agreement covers all of such Holder's Debentures. As of the date hereof, such Holder Beneficially Owns the aggregate principal amount of Debentures set forth on the signature page hereto.
(e) This Agreement and the execution and delivery hereof by the Holder does not, and the consummation of the transactions contemplated hereby will not, (i) result in a violation of or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration) under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, license, agreement or other instrument or obligation to which such Holder is a party or by which any of its property or assets may be bound, or (ii) violate any order, writ, injunction, decree, statute, rule or regulation applicable to such Holder or any of its properties or assets.
9. Representations and Warranties of the Company and Flowers Foods. The Company and Flowers Foods, severally and not jointly, represent and warrant to each Holder as follows:
(a) The Company and Flowers Foods each has the corporate power and authority to execute and deliver this Agreement and perform its obligations hereunder. The execution and delivery by the Company and Flowers Foods of this Agreement and the performance by the Company and Flowers Foods of its obligations hereunder have been duly and validly authorized and no further actions or proceedings on the part of the Company and Flowers Foods are necessary to authorize the execution, delivery or performance of this Agreement or the consummation of the transactions contemplated hereby.
(b) This Agreement constitutes the legal, valid and binding agreement of the Company and Flowers Foods enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting creditors' rights generally or by the principles governing the availability of equitable remedies.
(c) This Agreement and the execution and delivery hereof by the Company and Flowers Foods do not, and the consummation of the transactions contemplated hereby (including, without limitation, the Offer) will not, (i) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration) under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, license, agreement or other instrument or obligation to which the Company or Flowers Foods is a party or by which any of its property or assets may be bound, or (ii) violate any order, writ, injunction, decree, statute, rule or regulation applicable to the Company or Flowers Foods or any of its properties or assets.
(d) The Agreement and Plan of Restructuring and Merger (the "Merger Agreement") dated as of October 26, 2000, by and among the Company, Kellogg Company ("Kellogg") and Kansas Merger Subsidiary, Inc. ("Kansas") is in full force and effect. The Company is in compliance, in all material respects, with the terms of the Merger Agreement, and, to the best knowledge of the Company and Flowers Foods, Kellogg and Kansas are in compliance, in all material respects, with the terms of the Merger Agreement.
(e) The Distribution Agreement (the "Distribution Agreement") between the Company and Flowers Foods, dated as of October 26, 2000, is in full force and effect. The Company and Flowers Foods each is in compliance, in all material respects, with the terms of the Distribution Agreement.
(f) There are no proceedings pending, or, to the knowledge of the Company or Flowers Foods, threatened or contemplated for the dissolution or liquidation of the Company or Flowers Foods or seeking relief in respect of the Company or Flowers Foods or any of their respective assets or properties under any federal or state bankruptcy, insolvency, receivership or similar law.
(g) In the event that the Offer is not consummated in compliance with the terms hereof, neither the Company nor Flowers Foods will assert or take any action to cause any Person other than the Company to be the primary obligor of the Debentures.
10. Payment of Legal Fees and Expenses. Flowers Foods hereby agrees to pay (a) the administrative fees of the Trustee incurred pursuant to the Indenture and (b) the legal fees and expenses reasonably incurred by the ad hoc committee of Holders and the Trustee and payable to Bingham Dana LLP, King & Spalding and Nelson, Mullins, Riley & Scarborough, LLP (the "Law Firms") that relate to (i) this Agreement, (ii) the Spinoff Transaction, (iii) the Litigation (including the Company's pre-Litigation request that the Trustee execute a supplemental indenture), solely to the extent that such fees and expenses were incurred on or prior to the date of this Agreement or (iv) the Offer; provided, however, that payment under this Section shall only be made following the presentation to Flowers Foods of detailed billing statements from the Law Firms. The Holders represent that as of the date hereof, such fees do not, in the aggregate,
exceed $400,000. Flowers Foods agrees to pay all amounts payable under this
Section upon the earliest of (i) acceptance of Debentures tendered pursuant to
the Offer, (ii) the closing of the Spinoff Transaction and (iii) April 9, 2001
(so long as no Holder has breached the Agreement in any material respect and
such breach has resulted in the failure of any of the Offer Conditions to be
satisfied).
11. Termination. This Agreement shall terminate upon the earliest to occur of (a) the purchase by the Company of all Debentures properly tendered pursuant to the Offer and not withdrawn, (b) the termination or withdrawal of the Offer in accordance with the terms hereof, and (c) April 9, 2001, if the Offer Conditions have not been satisfied on such date. The provisions of Sections 5, 6, 8, 9, and 10 hereof shall survive the termination of this Agreement.
12. Specific Performance. The parties hereto acknowledge and agree that if any of the provisions of this Agreement were not performed by the Holders in accordance with their specific terms or were otherwise breached, the Company would not have an adequate remedy at law and would be irreparably harmed and that the damages therefor would be difficult to determine. It is accordingly agreed that the Company shall be entitled to injunctive relief to prevent breaches of this Agreement by any Holder and to specifically enforce the terms and provisions hereof.
13. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if hand delivered in person or delivered by next-day courier, transmitted by facsimile or mailed by registered or certified mail, postage prepaid, return receipt requested, as follows:
(a) If to the Company or to Flowers Foods, to:
Flowers Industries, Inc. 1919 Flowers Circle Thomasville, Georgia 31757 Attention: Secretary and General Counsel Fax: (912) 225-3825
or
Flowers Foods, Inc. 1919 Flowers Circle Thomasville, Georgia 31757 Attention: Secretary and General Counsel Fax: (912) 225-3825
with a copy to:
Jones, Day, Reavis & Pogue
3500 SunTrust Plaza
303 Peachtree Street, NE
Atlanta, Georgia 30308
Attention: Lizanne Thomas, Esq.
Fax: (404) 581-8330
(b) If to the Holders, to the respective addresses set forth on the signature page hereto, with a copy to:
Bingham Dana LLP 399 Park Avenue New York, New York 10022 Attention: Neil W. Townsend, Esq.
Fax: (212) 752-5378
or to such other address as the person to whom notice is given may have previously furnished to the other parties in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt.
14. Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other parties. This Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
15. Amendments. This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written agreement executed by the parties hereto.
16. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without regard to its conflicts of law rules.
17. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by telecopier shall be as effective as delivery of a manually executed counterpart.
18. Effect of Headings. The headings herein are for reference purposes only and shall not in any way affect the meaning or interpretation hereof.
19. Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto and supersedes all prior agreements and understandings, oral or written, among the parties hereto with respect to the subject matter hereof.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
In Witness whereof, this Agreement has been duly executed and delivered by the parties hereto on the date first above written.
FLOWERS INDUSTRIES, INC.
By: /s/ G. Anthony Campbell
---------------------------------------
Name: G. Anthony Campbell
-------------------------------------
Title: Secretary and General Counsel
------------------------------------
|
FLOWERS FOODS, INC.
By: /s/ G. Anthony Campbell
---------------------------------------
Name: G. Anthony Campbell
-------------------------------------
Title: Secretary and General Counsel
------------------------------------
|
HOLDERS
Principal Amount of
Debentures Beneficially
Name Owned
---- ---------------------------
TEACHERS INSURANCE AND
ANNUITY ASSOCIATION OF
AMERICA $30,000,000.00
By: /s/ Helen M. Armbrust
------------------------------------
Name: Helen M. Armbrust
Title: Managing Director
Address: 730 Third Avenue
New York, New York 10017
Attention: Ava Mao
Securities Division
|
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY $[______________________]
HOLDERS
Principal Amount of
Debentures Beneficially
Name Owned
TEACHERS INSURANCE AND
ANNUITY ASSOCIATION OF
AMERICA $[____________________]
|
THE NORTHWESTERN MUTUAL LIFE $17,000,000
INSURANCE COMPANY
By: /s/ Mark G. Doll
------------------------------------
Name: Mark G. Doll
Title: Senior Vice President--
Public Markets
Address: 720 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
|
BLACKROCK FINANCIAL MANAGEMENT , INC. $[16,500,000.00] By: /s/ Scott Amero ---------------------------------------- |
Name: Scott Amero
Title: Managing Director
Address: 345 Park Avenue
----------------------------------
New York, NY 10154
----------------------------------
----------------------------------
|
PROVIDENT LIFE AND
CASUALTY INSURANCE COMPANY $[________________]
THE PAUL REVERE LIFE $[________________]
INSURANCE COMPANY
BLACKROCK FINANCIAL $[_____________]
MANAGEMENT, INC.
PROVIDENT LIFE AND
CASUALTY INSURANCE COMPANY $5,000,000.00
By: Provident Investment Management, LLC
Its: Agent
By: /s/ Sue Gray
----------------------------------------
Name: Sue Gray
Title: Vice President
Address: 1 Fountain Square
Chattanooga, Tennessee 37402
|
THE PAUL REVERE LIFE $10,500,000.00
INSURANCE COMPANY
By: Provident Investment Management, LLC
Its: Agent
By: /s/ Sue Gray
----------------------------------------
Name: Sue Gray
Title: Vice President
Address: 1 Fountain Square
Chattanooga, Tennessee 37402
|
UNUM LIFE INSURANCE COMPANY OF AMERICA $17,000,000.00
By: Provident Investment Management, LLC
Its: Agent
By: /s/ Sue Gray
----------------------------------------
Name: Sue Gray
Title: Vice President
Address: 1 Fountain Square
Chattanooga, Tennessee 37402
|
GUARDIAN INSURANCE &
ANNUITY CO., INC. $[_____________]
UNUM LIFE INSURANCE COMPANY OF
ANNUITY CO., INC. $[_____________]
By: /s/ Howard Chin $[3,000,000.00]
----------------------------------------
Name: Howard Chin
Title: Vice President
Address:
-----------------------------------
7 Hanover Square
-----------------------------------
New York, NY 10004
-----------------------------------
|
CONSECO CAPITAL MANAGEMENT
IN ITS CAPACITY AS INVESTMENT
ADVISOR FOR THE FOLLOWING $[4,000,000]
BENEFICIAL HOLDERS:
BANKERS NATIONAL LIFE INSURANCE
COMPANY ($3,000,000)
WABASH LIFE INSURANCE COMPANY
($1,000,000)
By: /s/ Karen R. Wright
---------------------------------------
Name: Karen R. Wright
Title: 2VP, Portfolio Manager
Address: 11825 N. Pennsylvania St.
----------------------------------
Carmel, IN 46032
----------------------------------
|
CANADA LIFE INSURANCE COMPANY
OF AMERICA $[_____________]
CONSECO CAPITAL MANAGEMENT
IN ITS CAPACITY AS INVESTMENT
ADVISOR FOR THE FOLLOWING $[______________]
BENEFICIAL HOLDERS:
BANKERS NATIONAL LIFE INSURANCE
COMPANY ($3,000,000)
WABASH LIFE INSURANCE COMPANY
($1,000,000)
CANADA LIFE INSURANCE COMPANY
OF AMERICA
By: /s/ C. Paul English
---------------------------------------
Name: C. Paul English
Title: Assistant Treasurer
Address: 330 University Ave.
Toronto, Ontario M5G 1R8
Canada
|
GE FINANCIAL ASSURANCE
$[24,750,000]
By: /s/ Michael Cheung
---------------------------------------
Name: Michael Cheung
Title: Investment Officer
Address: 601 Union Street--Suite 1300
Seattle, WA 98101
|
CANADA LIFE ASSURANCE COMPANY
$[_________________]
TOTAL PRINCIPAL AMOUNT OF DEBENTURES: $[__________________] TOTAL PERCENTAGE OF OUTSTANDING DEBENTURES: [__________________] |
GE FINANCIAL ASSURANCE
$[__________________]
CANADA LIFE ASSURANCE COMPANY
By: /s/ C. Paul English
---------------------------------------
Name: C. Paul English
Title: Associate Treasurer
Address: 330 University Ave,
Toronto, Ontario M5G 1R8
Canada
|
TOTAL PRINCIPAL AMOUNT OF DEBENTURES: $[_________________] TOTAL PERCENTAGE OF OUTSTANDING DEBENTURES $[_________________] |
EXHIBIT 21
SUBSIDIARIES OF
FLOWERS FOODS, INC.
NAME OF SUBSIDIARY JURISDICTION OF INCORPORATION OR ORGANIZATION
------------------ ---------------------------------------------
Flowers Finance, LLC Delaware
Flowers Bakeries, LLC Georgia
Flowers Bakeries Brands, Inc. Delaware
Flowers Baking Co. of Opelika, LLC Alabama
Hardin's Bakery, LLC Alabama
Bailey Street Bakery, LLC Alabama
Home Baking Company, LLC Alabama
Flowers Baking Co. of Texarkana, LLC Arkansas
Holsum Baking Company, LLC Arkansas
Shipley Baking Company, LLC Arkansas
Flowers Baking Co. of Florida, LLC Florida
Flowers Baking Co. of Miami, LLC Florida
Flowers Baking Co. of Jacksonville, LLC Florida
Flowers Baking Co. of Bradenton, LLC Florida
Flowers Baking Co. of Thomasville, LLC Georgia
Flowers Baking Co. of Villa Rica, LLC Georgia
Flowers Baking Co. of Tyler, LLC Georgia
Table Pride, LLC Georgia
Huval Bakery, LLC Louisiana
Bunny Bread, LLC Louisiana
Flowers Baking Co. of Baton Rouge, LLC Louisiana
Flowers Baking Co. of Jamestown, LLC North Carolina
|
Franklin Baking Company, LLC North Carolina Flowers Baking Co. of Memphis, LLC Tennessee Flowers Baking Co. of Morristown, LLC Tennessee Schott's Bakery, LLC Texas Flowers Baking Co. of Texas, LLC Texas Butterkrust Bakery, LLC Texas El Paso Baking Co., LLC Texas El Paso Baking Company de Mexico, S.A. de C.V. Mexico San Antonio Baking Co., LLC Texas Austin Baking Co., LLC Texas Corpus Christi Baking Co., LLC Texas Hampton Roads Baking Company, LLC Virginia Flowers Baking Co. of Norfolk, LLC Virginia Flowers Baking Co. of Lynchburg, LLC Virginia Flowers Baking Co. of West Virginia, LLC West Virginia The Donut House, LLC West Virginia Storck Baking Company, LLC West Virginia Mrs. Smith's Bakeries, LLC Georgia Flowers Specialty Foods of Montgomery, LLC Alabama Mrs. Smith's Bakeries Sales Support Group, LLC Georgia Dan-co Bakery, LLC Georgia Mrs. Smith's Bakeries Frozen Distributors, LLC Georgia European Bakers, LLC Georgia |
Mrs. Smith's Foil Company, LLC Georgia Mrs. Smith's Bakery of Suwanee, LLC Georgia Aunt Fanny's Bakery, LLC Georgia Mrs. Smith's Bakeries of Pennsylvania, Inc. Georgia Mrs. Smith's Bakery of London, LLC Kentucky Daniel's Home Bakery of North Carolina, LLC North Carolina Mrs. Smith's Bakery of Stilwell, LLC Oklahoma Flowers Baking Company of Fountain Inn, LLC South Carolina Mrs. Smith's Bakery of Spartanburg, LLC South Carolina Mrs. Smith's Brands, Inc. South Carolina Mrs. Smith's Bakery of Crossville, LLC Tennessee Flowers Fresh Bakery Distributors, Inc. Tennessee |