|
|
|
|
|
(Mark One)
|
|
x
|
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
For the three months ended March 31, 2019
|
|
OR
|
|
o
|
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
For the transition period from to
|
Delaware
(State or other jurisdiction of incorporation or organization) |
47‑4168492
(I.R.S. Employer Identification No.) |
1 East Armour Boulevard
Kansas City, MO (Address of principal executive offices) |
64111
(Zip Code) |
Large accelerated filer
x
|
Accelerated
filer
o
|
Non‑accelerated
filer
o
|
Smaller reporting company
o
|
Emerging growth company
o
|
Title of each Class
|
Ticker Symbol
|
Name of each exchange on which registered
|
Class A Common Stock, Par Value of $0.0001 per share
|
TWNK
|
NASDAQ Capital Market
|
Warrants, each exercisable for a half share of Class A Common Stock
|
TWNKW
|
NASDAQ Capital Market
|
|
|
Page
|
Item 1.
|
|
|
|
Consolidated Balance Sheets
(Unaudited)
|
|
|
Consolidated Statements of Operations
(Unaudited)
|
|
|
Consolidated Statements of Comprehensive Income
(Unaudited)
|
|
|
Consolidated Statements of Stockholders’ Equity
(Unaudited)
|
|
|
Consolidated Statements of Cash Flows
(Unaudited)
|
|
|
Notes to Consolidated Financial Statements
(Unaudited)
|
|
Item 2.
|
||
Item 3.
|
||
Item 4.
|
||
Item 1.
|
||
Item 1A.
|
||
Item 2.
|
||
Item 3.
|
||
Item 4.
|
||
Item 5.
|
||
Item 6.
|
|
March 31,
|
|
|
December 31,
|
||||
ASSETS
|
2019
|
|
|
2018
|
||||
|
|
|
|
|
||||
Current assets:
|
|
|
|
|
||||
Cash and cash equivalents
|
$
|
160,483
|
|
|
|
$
|
146,377
|
|
Accounts receivable, net
|
129,231
|
|
|
|
105,679
|
|
||
Inventories
|
43,158
|
|
|
|
38,580
|
|
||
Prepaids and other current assets
|
5,695
|
|
|
|
8,806
|
|
||
Total current assets
|
338,567
|
|
|
|
299,442
|
|
||
Property and equipment, net
|
221,636
|
|
|
|
220,349
|
|
||
Intangible assets, net
|
1,895,231
|
|
|
|
1,901,215
|
|
||
Goodwill
|
575,645
|
|
|
|
575,645
|
|
||
Other assets, net
|
12,761
|
|
|
|
14,062
|
|
||
Total assets
|
$
|
3,043,840
|
|
|
|
$
|
3,010,713
|
|
|
|
|
|
|
||||
LIABILITIES AND STOCKHOLDERS’ EQUITY
|
|
|
|
|
||||
|
|
|
|
|
||||
Current liabilities:
|
|
|
|
|
||||
Long-term debt and lease obligations payable within one year
|
$
|
13,243
|
|
|
|
$
|
11,268
|
|
Tax receivable agreement payments payable within one year
|
3,700
|
|
|
|
4,400
|
|
||
Accounts payable
|
74,648
|
|
|
|
65,288
|
|
||
Customer trade allowances
|
44,114
|
|
|
|
42,010
|
|
||
Accrued expenses and other current liabilities
|
18,950
|
|
|
|
18,137
|
|
||
Total current liabilities
|
154,655
|
|
|
|
141,103
|
|
||
Long-term debt and lease obligations
|
974,440
|
|
|
|
976,736
|
|
||
Tax receivable agreement
|
63,145
|
|
|
|
64,663
|
|
||
Deferred tax liability
|
275,238
|
|
|
|
277,954
|
|
||
Total liabilities
|
1,467,478
|
|
|
|
1,460,456
|
|
||
|
|
|
|
|
||||
Commitments and Contingencies (Note 10)
|
|
|
|
|
||||
|
|
|
|
|
||||
Class A common stock, $0.0001 par value, 200,000,000 shares authorized,100,046,442 and 100,046,392 shares issued and outstanding at March 31, 2019 and December 31, 2018, respectively
|
10
|
|
|
|
10
|
|
||
Class B common stock, $0.0001 par value, 50,000,000 shares authorized, 30,255,184 shares issued and outstanding at March 31, 2019 and December 31, 2018
|
3
|
|
|
|
3
|
|
||
Additional paid in capital
|
927,570
|
|
|
|
925,902
|
|
||
Accumulated other comprehensive income
|
1,307
|
|
|
|
2,523
|
|
||
Retained earnings
|
292,491
|
|
|
|
271,365
|
|
||
Stockholders’ equity
|
1,221,381
|
|
|
|
1,199,803
|
|
||
Non-controlling interest
|
354,981
|
|
|
|
350,454
|
|
||
Total liabilities and stockholders’ equity
|
$
|
3,043,840
|
|
|
|
$
|
3,010,713
|
|
|
Three Months Ended
|
|||||||
|
March 31, 2019
|
|
|
March 31, 2018
|
||||
|
|
|
|
|
||||
Net revenue
|
$
|
222,738
|
|
|
|
$
|
208,743
|
|
Cost of goods sold
|
147,550
|
|
|
|
137,502
|
|
||
Gross profit
|
75,188
|
|
|
|
71,241
|
|
||
Operating costs and expenses:
|
|
|
|
|
||||
Advertising and marketing
|
8,863
|
|
|
|
8,870
|
|
||
Selling expense
|
8,520
|
|
|
|
7,387
|
|
||
General and administrative
|
17,471
|
|
|
|
14,562
|
|
||
Amortization of customer relationships
|
5,985
|
|
|
|
5,994
|
|
||
Other operating expense (income)
|
(1,761
|
)
|
|
|
1,556
|
|
||
Total operating costs and expenses
|
39,078
|
|
|
|
38,369
|
|
||
Operating income
|
36,110
|
|
|
|
32,872
|
|
||
Other expense (income):
|
|
|
|
|
||||
Interest expense, net
|
10,236
|
|
|
|
9,340
|
|
||
Gain on buyout of tax receivable agreement
|
—
|
|
|
|
(12,372
|
)
|
||
Other expense
|
440
|
|
|
|
83
|
|
||
Total other expense (income)
|
10,676
|
|
|
|
(2,949
|
)
|
||
Income before income taxes
|
25,434
|
|
|
|
35,821
|
|
||
Income tax expense (benefit)
|
(1,178
|
)
|
|
|
6,519
|
|
||
Net income
|
26,612
|
|
|
|
29,302
|
|
||
Less: Net income attributable to the non-controlling interest
|
5,486
|
|
|
|
5,461
|
|
||
Net income attributable to Class A stockholders
|
$
|
21,126
|
|
|
|
$
|
23,841
|
|
|
|
|
|
|
||||
Earnings per Class A share:
|
|
|
|
|
||||
Basic
|
$
|
0.21
|
|
|
|
$
|
0.24
|
|
Diluted
|
$
|
0.21
|
|
|
|
$
|
0.23
|
|
Weighted-average shares outstanding:
|
|
|
|
|
||||
Basic
|
100,085,141
|
|
|
|
99,895,075
|
|
||
Diluted
|
100,777,609
|
|
|
|
105,041,015
|
|
|
Three Months Ended
|
||||||
|
March 31, 2019
|
|
March 31, 2018
|
||||
|
|
|
|
||||
Net income
|
$
|
26,612
|
|
|
$
|
29,302
|
|
Other comprehensive income (loss):
|
|
|
|
||||
Unrealized gain (loss) on interest rate swap contract designated as a cash flow hedge
|
(2,165
|
)
|
|
3,739
|
|
||
Tax benefit (expense)
|
447
|
|
|
(787
|
)
|
||
Comprehensive income
|
24,894
|
|
|
32,254
|
|
||
Less: Comprehensive income attributed to non-controlling interest
|
4,984
|
|
|
6,331
|
|
||
Comprehensive income attributed to Class A stockholders
|
$
|
19,910
|
|
|
$
|
25,923
|
|
|
Class A Voting
Common Stock |
|
Class B Voting
Common Stock |
|
Additional
Paid-in Capital |
|
Accumulated
Other Comprehensive Income
|
|
Retained
Earnings |
|
Total
Stockholders’ Equity |
|
Non-controlling
Interest |
||||||||||||||||||||
|
Shares
|
|
Amount
|
|
Shares
|
|
Amount
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||
Balance–December 31, 2017
|
99,791,245
|
|
|
$
|
10
|
|
|
30,319,564
|
|
|
$
|
3
|
|
|
$
|
920,723
|
|
|
$
|
1,318
|
|
|
$
|
208,279
|
|
|
$
|
1,130,333
|
|
|
$
|
342,240
|
|
Comprehensive income
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
2,082
|
|
|
23,841
|
|
|
25,923
|
|
|
6,331
|
|
|||||||
Share-based compensation, including income taxes of $98
|
59,989
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
1,721
|
|
|
—
|
|
|
—
|
|
|
1,721
|
|
|
—
|
|
|||||||
Adoption of new accounting standards, net of income taxes of $83
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
7
|
|
|
191
|
|
|
198
|
|
|
85
|
|
|||||||
Exchanges
|
64,380
|
|
|
—
|
|
|
(64,380
|
)
|
|
—
|
|
|
1,033
|
|
|
—
|
|
|
—
|
|
|
1,033
|
|
|
(1,033
|
)
|
|||||||
Distributions
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(4,153
|
)
|
|||||||
Payment of taxes for employee stock awards
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(407
|
)
|
|
—
|
|
|
—
|
|
|
(407
|
)
|
|
—
|
|
|||||||
Tax receivable agreement arising from exchanges, net of income taxes of $50
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(350
|
)
|
|
—
|
|
|
—
|
|
|
(350
|
)
|
|
—
|
|
|||||||
Balance–March 31, 2018
|
99,915,614
|
|
|
$
|
10
|
|
|
30,255,184
|
|
|
$
|
3
|
|
|
$
|
922,720
|
|
|
$
|
3,407
|
|
|
$
|
232,311
|
|
|
$
|
1,158,451
|
|
|
$
|
343,470
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||
Balance–December 31, 2018
|
100,046,392
|
|
|
$
|
10
|
|
|
30,255,184
|
|
|
$
|
3
|
|
|
$
|
925,902
|
|
|
$
|
2,523
|
|
|
$
|
271,365
|
|
|
$
|
1,199,803
|
|
|
$
|
350,454
|
|
Comprehensive income (loss)
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(1,216
|
)
|
|
21,126
|
|
|
19,910
|
|
|
4,984
|
|
|||||||
Share-based compensation, net of income taxes of $613
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
1,668
|
|
|
—
|
|
|
—
|
|
|
1,668
|
|
|
—
|
|
|||||||
Distributions
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(457
|
)
|
|||||||
Exercise of public warrants
|
50
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|||||||
Balance–March 31, 2019
|
100,046,442
|
|
|
$
|
10
|
|
|
30,255,184
|
|
|
$
|
3
|
|
|
$
|
927,570
|
|
|
$
|
1,307
|
|
|
$
|
292,491
|
|
|
$
|
1,221,381
|
|
|
$
|
354,981
|
|
|
|
|
Three Months Ended
|
||||||
|
|
|
March 31, 2019
|
|
March 31, 2018
|
||||
Operating activities
|
|
|
|
||||||
|
Net income
|
$
|
26,612
|
|
|
$
|
29,302
|
|
|
|
Depreciation and amortization
|
10,878
|
|
|
10,091
|
|
|||
|
Impairment of property and equipment
|
—
|
|
|
1,417
|
|
|||
|
Debt premium amortization
|
(228
|
)
|
|
(271
|
)
|
|||
|
Tax receivable agreement remeasurement and gain on buyout
|
(1,761
|
)
|
|
(12,372
|
)
|
|||
|
Share-based compensation
|
2,281
|
|
|
1,623
|
|
|||
|
Deferred taxes
|
(2,882
|
)
|
|
4,786
|
|
|||
|
Change in operating assets and liabilities, net of acquisitions:
|
|
|
|
|||||
|
|
Accounts receivable
|
(23,552
|
)
|
|
(11,437
|
)
|
||
|
|
Inventories
|
(4,578
|
)
|
|
2,006
|
|
||
|
|
Prepaids and other current assets
|
2,917
|
|
|
2,055
|
|
||
|
|
Accounts payable and accrued expenses
|
16,594
|
|
|
11,560
|
|
||
|
|
Customer trade allowances
|
2,104
|
|
|
(438
|
)
|
||
|
Net cash provided by operating activities
|
28,385
|
|
|
38,322
|
|
|||
|
|
|
|
||||||
Investing activities
|
|
|
|
||||||
|
Purchases of property and equipment
|
(9,493
|
)
|
|
(8,019
|
)
|
|||
|
Acquisition of business
|
—
|
|
|
(23,910
|
)
|
|||
|
Acquisition and development of software assets
|
(1,342
|
)
|
|
(558
|
)
|
|||
|
Net cash used in investing activities
|
(10,835
|
)
|
|
(32,487
|
)
|
|||
|
|
|
|
||||||
Financing activities
|
|
|
|
||||||
|
Repayments of long-term debt and lease obligations
|
(2,530
|
)
|
|
(2,526
|
)
|
|||
|
Distributions to non-controlling interest
|
(457
|
)
|
|
(4,153
|
)
|
|||
|
Tax payments related to issuance of shares to employees
|
—
|
|
|
(407
|
)
|
|||
|
Payments on tax receivable agreement
|
(457
|
)
|
|
(34,000
|
)
|
|||
|
Net cash used in financing activities
|
(3,444
|
)
|
|
(41,086
|
)
|
|||
Net increase (decrease) in cash and cash equivalents
|
14,106
|
|
|
(35,251
|
)
|
||||
Cash and cash equivalents at beginning of period
|
146,377
|
|
|
135,701
|
|
||||
Cash and cash equivalents at end of period
|
$
|
160,483
|
|
|
$
|
100,450
|
|
Supplemental Disclosures of Cash Flow Information:
|
|
|
|
||||||
Cash paid during the period for:
|
|
|
|
||||||
|
Interest
|
$
|
11,087
|
|
|
$
|
9,942
|
|
|
|
Net taxes paid (refunded)
|
$
|
(10
|
)
|
|
$
|
507
|
|
|
Supplemental disclosure of non-cash investing:
|
|
|
|
||||||
|
Accrued capital expenditures
|
$
|
1,436
|
|
|
$
|
642
|
|
(In thousands)
|
March 31,
2019 |
|
December 31,
2018 |
||||
|
|
|
|
||||
Ingredients and packaging
|
$
|
18,064
|
|
|
$
|
18,865
|
|
Finished goods
|
21,428
|
|
|
16,446
|
|
||
Inventory in transit to customers
|
3,666
|
|
|
3,269
|
|
||
|
$
|
43,158
|
|
|
$
|
38,580
|
|
|
Three Months Ended
|
||||
(% of Consolidated Net Revenues)
|
March 31,
2019 |
|
March 31,
2018 |
||
|
|
|
|
||
Sweet Baked Goods
|
23.5
|
%
|
|
21.3
|
%
|
In-Store Bakery
|
0.6
|
%
|
|
0.6
|
%
|
Total
|
24.1
|
%
|
|
21.9
|
%
|
(In thousands)
|
Three Months
Ended March 31,
2019
|
||
Amortization of right of use asset, financing lease
|
$
|
44
|
|
Interest, financing lease
|
7
|
|
|
Operating lease expense
|
641
|
|
|
Short-term lease expense
|
400
|
|
|
Variable lease expense
|
188
|
|
|
|
$
|
1,280
|
|
(In thousands)
|
March 31,
2019
|
|
|
December 31,
2018
|
||||
|
|
|
|
|
||||
Land and buildings
|
$
|
42,698
|
|
|
|
$
|
47,418
|
|
Right of use assets, financing
|
1,570
|
|
|
|
—
|
|
||
Right of use assets, operating
|
8,155
|
|
|
|
—
|
|
||
Machinery and equipment
|
203,320
|
|
|
|
194,830
|
|
||
Construction in progress
|
3,794
|
|
|
|
6,059
|
|
||
|
259,537
|
|
|
|
248,307
|
|
||
Less accumulated depreciation and amortization
|
(37,901
|
)
|
|
|
(27,958
|
)
|
||
|
$
|
221,636
|
|
|
|
$
|
220,349
|
|
|
Three Months Ended
|
||||||
(In thousands)
|
March 31, 2019
|
|
March 31, 2018
|
||||
|
|
|
|
||||
Net revenue:
|
|
|
|
||||
Sweet Baked Goods
|
$
|
212,879
|
|
|
$
|
199,293
|
|
In-Store Bakery
|
9,859
|
|
|
9,450
|
|
||
Net revenue
|
$
|
222,738
|
|
|
$
|
208,743
|
|
|
|
|
|
||||
Depreciation and amortization:
|
|
|
|
||||
Sweet Baked Goods
|
$
|
10,180
|
|
|
$
|
9,394
|
|
In-Store Bakery
|
698
|
|
|
697
|
|
||
Depreciation and amortization
|
$
|
10,878
|
|
|
$
|
10,091
|
|
|
|
|
|
||||
Gross profit:
|
|
|
|
||||
Sweet Baked Goods
|
$
|
73,145
|
|
|
$
|
69,438
|
|
In-Store Bakery
|
2,043
|
|
|
1,803
|
|
||
Gross profit
|
$
|
75,188
|
|
|
$
|
71,241
|
|
|
|
|
|
||||
Capital expenditures (1):
|
|
|
|
||||
Sweet Baked Goods
|
$
|
4,262
|
|
|
$
|
9,165
|
|
In-Store Bakery
|
152
|
|
|
54
|
|
||
Capital expenditures
|
$
|
4,414
|
|
|
$
|
9,219
|
|
(1)
|
Capital expenditures consists of purchases of property and equipment and acquisition and development of software assets paid in cash or acquired through accounts payable during the
three months ended March 31,
2019
and
2018
. From December 31, 2018 to March 31,
2019
, capital expenditures in accounts payable decreased by
$6.4 million
. From December 31, 2017 to March 31, 2018 capital expenditures in accounts payable increased by
$0.6 million
.
|
(In thousands)
|
March 31,
2019 |
|
|
December 31,
2018 |
||||
|
|
|
|
|
||||
Total segment assets:
|
|
|
|
|
||||
Sweet Baked Goods
|
$
|
2,957,355
|
|
|
|
$
|
2,924,333
|
|
In-Store Bakery
|
86,485
|
|
|
|
86,380
|
|
||
Total segment assets
|
$
|
3,043,840
|
|
|
|
$
|
3,010,713
|
|
(In thousands)
|
March 31,
2019
|
|
December 31,
2018
|
||||
|
|
|
|
||||
Intangible assets with indefinite lives (Trademarks and Trade Names)
|
$
|
1,410,497
|
|
|
$
|
1,410,497
|
|
Intangible assets with definite lives (Customer Relationships)
|
543,149
|
|
|
543,120
|
|
||
Less accumulated amortization (Customer Relationships)
|
(57,815
|
)
|
|
(51,802
|
)
|
||
Less accumulated impairment charges (Trademarks and Trade Names)
|
(600
|
)
|
|
(600
|
)
|
||
Intangible assets, net
|
$
|
1,895,231
|
|
|
$
|
1,901,215
|
|
(In thousands)
|
March 31,
2019
|
|
|
December 31,
2018
|
||||
|
|
|
|
|
||||
Incentive compensation
|
$
|
5,155
|
|
|
|
$
|
3,261
|
|
Accrued interest
|
4,983
|
|
|
|
4,849
|
|
||
Payroll, vacation and other compensation
|
4,374
|
|
|
|
6,104
|
|
||
Workers compensation reserve
|
2,252
|
|
|
|
1,866
|
|
||
Self-insurance reserves
|
1,718
|
|
|
|
1,646
|
|
||
Current income taxes payable
|
468
|
|
|
|
411
|
|
||
|
$
|
18,950
|
|
|
|
$
|
18,137
|
|
(In thousands)
|
March 31,
2019
|
|
|
December 31,
2018 |
||||
Third Term Loan (4.9% as of March 31, 2019)
|
|
|
|
|
||||
Principal
|
$
|
981,340
|
|
|
|
$
|
983,825
|
|
Unamortized debt premium and issuance costs
|
3,510
|
|
|
|
3,778
|
|
||
Total Third Term Loan
|
984,850
|
|
|
|
987,603
|
|
||
Financing lease obligations
|
359
|
|
|
|
401
|
|
||
Operating lease obligations
|
2,474
|
|
|
|
—
|
|
||
Total debt and lease obligations
|
987,683
|
|
|
|
988,004
|
|
||
Less: Current portion of long term debt and lease obligations
|
(13,243
|
)
|
|
|
(11,268
|
)
|
||
Long-term portion
|
974,440
|
|
|
|
976,736
|
|
|
|
Three Months Ended
|
||||||
|
|
March 31, 2019
|
|
March 31, 2018
|
||||
Numerator:
|
|
|
|
|
||||
Net income attributable to Class A stockholders (in thousands)
|
|
$
|
21,126
|
|
|
$
|
23,841
|
|
Denominator:
|
|
|
|
|
||||
Weighted-average Class A shares outstanding - basic
|
|
100,085,141
|
|
|
99,895,075
|
|
||
Dilutive effect of warrants
|
|
421,297
|
|
|
5,048,437
|
|
||
Dilutive effect of restricted stock units
|
|
271,171
|
|
|
97,503
|
|
||
Weighted-average shares outstanding - diluted
|
|
100,777,609
|
|
|
105,041,015
|
|
||
|
|
|
|
|
||||
Net income per Class A share - basic
|
|
$
|
0.21
|
|
|
$
|
0.24
|
|
|
|
|
|
|
||||
Net income per Class A share - diluted
|
|
$
|
0.21
|
|
|
$
|
0.23
|
|
|
Three Months Ended
|
||||||
(
In thousands, except per share data
)
|
March 31,
2019
|
|
March 31,
2018
|
||||
Net revenue
|
$
|
222,738
|
|
|
$
|
208,743
|
|
Gross profit
|
75,188
|
|
|
71,241
|
|
||
As a % of net revenue
|
33.8
|
%
|
|
34.1
|
%
|
||
Operating costs and expenses
|
$
|
39,078
|
|
|
$
|
38,369
|
|
Operating income
|
36,110
|
|
|
32,872
|
|
||
As a % of net revenue
|
16.2
|
%
|
|
15.7
|
%
|
||
Other expense (income)
|
$
|
10,676
|
|
|
$
|
(2,949
|
)
|
Income tax expense (benefit)
|
(1,178
|
)
|
|
6,519
|
|
||
Net income
|
26,612
|
|
|
29,302
|
|
||
Net income attributable to Class A stockholders
|
$
|
21,126
|
|
|
$
|
23,841
|
|
|
|
|
|
||||
Earnings per Class A share:
|
|
|
|
||||
Basic
|
$
|
0.21
|
|
|
$
|
0.24
|
|
Diluted
|
$
|
0.21
|
|
|
$
|
0.23
|
|
Unaudited Segment Financial Data
|
Three Months Ended
|
||||||
(In thousands)
|
March 31, 2019
|
|
March 31, 2018
|
||||
|
|
|
|
||||
Net revenue:
|
|
|
|
||||
Sweet Baked Goods
|
$
|
212,879
|
|
|
$
|
199,293
|
|
In-Store Bakery
|
9,859
|
|
|
9,450
|
|
||
Net revenue
|
$
|
222,738
|
|
|
$
|
208,743
|
|
|
|
|
|
|
|
||
Gross profit:
|
|
|
|
||||
Sweet Baked Goods
|
$
|
73,145
|
|
|
$
|
69,438
|
|
In-Store Bakery
|
2,043
|
|
|
1,803
|
|
||
Gross profit
|
$
|
75,188
|
|
|
$
|
71,241
|
|
|
|
|
|
|
|
Item 4.
|
Controls and Procedures
|
Exhibit No.
|
|
Description
|
|
|
|
|
|
|
|
|
|
|
|
|
10.1
|
|
|
|
|
|
|
|
|
|
10.2
|
|
|
|
|
|
|
|
|
|
10.3
|
|
|
|
|
|
|
|
|
|
10.4
|
|
|
|
|
|
|
|
|
|
10.5
|
|
|
|
|
|
|
|
|
|
10.6
|
|
|
|
|
|
|
|
|
|
31.1
|
|
|
|
|
|
|
|
|
|
31.2
|
|
|
|
|
|
|
|
|
|
32.1
|
|
|
|
|
|
|
|
|
|
32.2
|
|
|
|
|
|
|
|
|
|
101.INS
|
|
XBRL Instance Document
|
|
|
|
|
|
|
|
101.SCH
|
|
XBRL Taxonomy Extension Schema Document
|
|
|
|
|
|
|
|
101.CAL
|
|
XBRL Taxonomy Extension Calculation Linkbase Document
|
|
|
|
|
|
|
|
101.DEF
|
|
XBRL Taxonomy Extension Definition Linkbase Document
|
|
|
|
|
|
|
|
101.LAB
|
|
XBRL Taxonomy Extension Label Linkbase Document
|
|
|
|
|
|
|
|
101.PRE
|
|
XBRL Taxonomy Extension Presentation Linkbase Document
|
|
|
|
|
|
|
|
HOSTESS BRANDS, INC.
|
|
|
|
By
|
/s/ Thomas Peterson
|
|
Thomas Peterson
Executive Vice President, Chief Financial Officer
|
Granted to:
|
|
Date of Grant:
|
|
Number of RSUs:
|
|
Vesting Commencement Date:
|
|
Vesting Schedule:
|
|
Right to Shares
|
The award of RSUs represents your right to receive, and the Company’s obligation to deliver, one share of Common Stock (a “Share”) per RSU, subject to the terms and conditions of this Agreement, the Plan and the Cover Sheet.
|
Vesting
|
The RSUs awarded to you will vest in accordance with the schedule set forth in the Cover Sheet.
All unvested RSUs will cease vesting and will be forfeited as of the date your employment with the Company and its Subsidiaries has terminated for any reason.
|
Delivery; Settlement
|
A number of Shares equal to the number of the RSUs that vest on each Vesting Date will be delivered as soon as practicable and within 60 days following the applicable Vesting Date, and upon such delivery, you shall have no further rights with respect to those RSUs.
|
Change of Control
|
Notwithstanding the foregoing:
(A) if there occurs a Change of Control, and this Award does not continue or is not assumed by an acquiror on a substantially equivalent basis, then all RSUs that have not yet vested shall vest immediately prior to the Change of Control; and
(B) if there occurs a Change of Control, and this Award continues or is assumed by an acquiror on a substantially equivalent basis, and your employment is terminated by the Company or an acquiror without Cause or otherwise under circumstances entitling you to severance under the Company’s or acquiror’s severance plan within 12 months following the Change of Control, then all RSUs that have not yet vested shall vest immediately on your date of termination.
A number of Shares equal to the number of the RSUs that vest in accordance with the preceding clauses (A) and (B) shall be delivered as soon as practicable and within 60 days following the applicable vesting date described above, and upon such delivery, you shall have no further rights with respect to those RSUs.
|
Termination
|
Should your employment with the Company and its Subsidiaries terminate for any reason except in connection with a Change of Control as described above, all of your RSUs then unvested and outstanding will terminate, and you will no longer have any rights in respect of such RSUs.
|
Termination for Cause or Breach of any Continuing Obligation; Recoupment
|
If your employment is terminated for Cause or if you breach any restrictive covenant under this Agreement or any other agreement between you and the Company or its Subsidiaries, the RSUs, whether or not vested, will immediately terminate.
In addition, if at any time within one year after the date on which you receive payment in respect of the RSUs (whether in the form of cash or Shares), (a) your employment is terminated for Cause or (b) after termination of your employment for any reason, the Committee determines in its discretion either that (i) during your period of employment, you engaged in an act or omission that would have warranted termination of your employment for Cause, or (ii) after termination of your employment, you engaged in conduct that violated any continuing obligation or duty in respect of the Company or any Subsidiary (including any breach of any restrictive covenant under this Agreement or any other agreement between you and the Company or any Subsidiary), then, subject to applicable law, upon notice from the Company, you shall repay to the Company any cash or Shares you received pursuant to the RSUs, or if you disposed of any such Shares, the Fair Market Value of such Shares as of the date of disposition.
Nothing in this Agreement shall limit the Company’s right of recoupment pursuant to Section 13 of the Plan, including recoupment of payments pursuant to the Company’s compensation recovery, “clawback” or similar policy, as may be in effect from time to time.
|
Taxes
|
You are solely responsible for the satisfaction of all taxes and penalties that may arise in connection with the award or settlement of the RSUs. At the time of taxation, the Company shall have the right to deduct from other compensation, or to withhold Shares in an amount equal to the federal (including FICA), state, local and foreign taxes and other amounts as may be required by law to be withheld with respect to the RSUs. If Shares are withheld, the value of the Shares withheld may not exceed the minimum applicable tax withholding amount (except as otherwise determined by the Committee in its sole discretion). By accepting this Award, you expressly consent to the withholding of Shares or other amounts payable to you.
|
Restrictions on Resale and Settlement
|
By signing this Agreement, you agree not to sell any Shares received upon settlement of RSUs at a time when applicable laws, regulations or Company policies prohibit a sale. The Company’s obligation to deliver Shares upon settlement of the RSUs shall be subject to applicable laws, rules and regulations and also to such approvals by governmental agencies as may be deemed appropriate to comply with relevant securities laws and regulations, and the Company will not permit the issuance of Shares at a time when such issuance would violate any law, rule, regulation or Company policy, as determined by the Company.
Any Shares issued hereunder, and any cash proceeds realized from the sale of such Shares will be subject to all share retention, trading, and other policies that may be implemented by the Committee or the Board from time to time.
|
Transfer of RSUs
|
You cannot transfer or assign your RSUs. For instance, you may not sell RSUs or use them as security for a loan. If you attempt to do any of these things, your Award will immediately become invalid.
Regardless of any marital property settlement agreement, the Company or a securities broker, as applicable, is not obligated to recognize your former spouse’s interest in your right to RSUs in any way.
|
Remedies Applicable to Restrictive Covenants
|
You acknowledge, agree and represent that the type and periods of restrictions imposed in this Agreement are fair and reasonable, and that such restrictions are intended solely to protect the legitimate interests of the Company and its Subsidiaries, rather than to prevent you from earning a livelihood. You further acknowledge and agree that the business of the Company and its Subsidiaries is highly competitive and that the Company’s and its Subsidiaries’ confidential information and proprietary materials have been developed by the Company and its Subsidiaries at significant expense and effort, and that the restrictions contained in this Agreement are reasonable and necessary to protect the legitimate business interests of the Company and its Subsidiaries. You represent and agree that: (i) you have reviewed and understand the covenants set forth in this Agreement, (ii) you are fully aware of your obligations hereunder, including, without limitation, the length of time, scope and geographic coverage of these covenants, (iii) the length of time, scope and geographic coverage of these covenants is reasonable and (iv) you are receiving valuable and sufficient consideration for your covenants under this Agreement, including without limitation your covenants not to compete and not to solicit.
You acknowledge and agree that each of the covenants in this Agreement has a unique, very substantial and immeasurable value to the Company and its Subsidiaries, that such covenants will not in any way impair your ability to earn a living and that you have sufficient assets and skills to earn a living while such covenants remain in force and that, as a result of the foregoing, in the event that you breach such covenants, monetary damages would be an insufficient remedy for the Company and its Subsidiaries and equitable enforcement of the covenants would be proper. You therefore agree that the Company, in addition to any other remedies available to it, including under this Agreement and pursuant to Section 13 of the Plan, will be entitled to preliminary and permanent injunctive relief in aid of arbitration in the event of any breach or threatened breach by you of any of the covenants in this Agreement, without the necessity of showing actual monetary damages or the posting of a bond or other security. Such action for injunctive relief in aid of arbitration shall be brought exclusively in the Supreme Court of the State of New York, New York County, or in the United States District Court for the Southern District of New York, or in any other court of competent jurisdiction sitting in the County and State of New York, and you and the Company agree to the personal jurisdiction thereof. You and the Company hereby irrevocably waive any objection you or the Company may now or hereafter have to the laying of venue of any such action for injunctive relief in aid of arbitration in said court(s), and further irrevocably waive any claim you or the Company may now or hereafter have that any such action brought in said court(s) has been brought in an inconvenient forum.
You and the Company further agree that, in the event that any provision of this Agreement is determined by any court or arbitrator of competent jurisdiction to be unenforceable for any reason, that provision or a portion thereof will be deemed to be modified so as to render it enforceable to the maximum extent permitted by law and to the extent such provision or portion thereof cannot be rendered enforceable, this Agreement shall be considered divisible as to such provision, which shall become null and void, leaving the remainder of this Agreement in full force and effect.
The provisions of this Agreement shall not affect the Company’s ability to enforce the provisions of any other agreement in effect between the Company or any Subsidiary and you, including without limitation, the covenants contained in any offer letter, severance plan or policy, or employment agreement.
|
No Right to Continued Employment
|
Neither the grant of this Award, nor any other action taken hereunder shall be construed as giving you the right to be retained in the employ or service of the Company or any of its Subsidiaries (for the vesting period or any other period of time) nor interfere in any way with the Company’s right to terminate your employment.
|
Applicable Law and Arbitration
|
This Agreement will be subject to and interpreted in accordance with the laws of the State of Delaware, without reference to the principles of conflicts of laws, and applicable Federal or other securities laws. Any dispute, controversy or claim arising out of or relating to the Plan or this Agreement that cannot be resolved by you on the one hand and the Company on the other, shall be submitted to arbitration in accordance with the terms of the Plan, except to the extent otherwise provided in this Agreement with respect to injunctive relief in aid of arbitration.
|
Delivery of Documents
|
The Company may, in its sole discretion, decide to deliver any documents related to this Award or other Awards granted to you under the Plan by electronic means. By signing the Cover Sheet, you consent to receive all documents related to this Award or other Awards granted to your under the Plan by electronic delivery and agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or a third party designated by the Company.
|
Amendment
|
The terms and conditions of this Agreement and the RSUs may be amended by the Committee or the Board as permitted by the Plan.
|
The Plan and Other Agreements
|
The text of the Plan and any amendments thereto are incorporated in this Agreement by reference.
This Agreement, the Cover Sheet and the Plan constitute the entire understanding between you and the Company regarding the RSUs. Any prior agreements, commitments or negotiations concerning the RSUs are superseded. In the event there is any express conflict between this Agreement and the terms of the Plan, the terms of the Plan shall govern.
|
Granted to:
|
|
|
|
|
|
Date of Grant:
|
|
|
|
|
|
Performance Period:
|
|
|
|
|
|
Performance Metric:
|
|
|
|
|
|
Target Number of PSUs:
|
|
|
|
|
|
Performance Goal:
|
|
|
|
|
|
|
|
|
Maximum
|
|
|
|
|
|
Target
|
|
|
|
|
|
Threshold or below
|
|
|
|
|
|
|
|
|
Vesting Date:
|
|
|
|
|
Right to Shares
|
|
The award of PSUs represents your right to receive, and the Company’s obligation to issue, one share of the Company’s Class A Common Stock (a “Share”) for each PSU that is or becomes a Vested PSU (as described below) on the Vesting Date, subject to the terms of this Agreement. Such issuance will occur as soon as practicable following the date the Committee certifies the extent to which Performance Goal has been satisfied as of the Vesting Date, determined in accordance with Exhibit A attached hereto, but no later than 70 days following the Vesting Date. Notwithstanding the foregoing, the Company will not permit the issuance of Shares at a time when such issuance would violate any law, rule, regulation or Company policy, as determined by the Company.
|
|
|
|
Vested PSUs
|
|
The number of PSUs, if any, that become Vested PSUs will be determined as of the end of the Performance Period, based on the extent to which the Performance Goal, as set forth in the Cover Sheet, has been achieved for the Performance Period, as determined in accordance with Exhibit A and certified by the Committee. If actual performance is equal to or below the threshold Performance Goal for the Performance Period, then no PSUs will become Vested PSUs for the Performance Period. If the target Performance Goal has been achieved for the Performance Period, then the target number of PSUs for the Performance Period, as set forth on the Cover Sheet, will become Vested PSUs for the Performance Period. If the maximum Performance Goal (or greater) has been achieved for the Performance Period, then the maximum number of PSUs for the Performance Period, as set forth on the Cover Sheet, will become Vested PSUs for the Performance Period. If actual performance falls between the threshold Performance Goal and the target Performance Goal, or between the target Performance Goal and the maximum Performance Goal, the number of PSUs that become Vested PSUs will be determined by linear interpolation between the respective performance inflection points.
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Performance Metric
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As set forth in the Cover Sheet, the Performance Metric shall be …………., as defined and further described in Exhibit A.
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Vesting; Forfeiture
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On the Vesting Date, your right to issuance of the Shares underlying any PSUs that are Vested PSUs as of the Vesting Date shall become vested and nonforfeitable. Should your employment with the Company and its Subsidiaries terminate for any reason prior to the Vesting Date, all PSUs will be forfeited and you will have no right to the issuance of any Shares hereunder. Notwithstanding the foregoing, if such termination is other than (i) by you voluntarily (except where such voluntary termination entitles you to severance under the Company’s severance plan) or (ii) by the Company for Cause, the date of such termination will be treated as if it were the Vesting Date, and you will be entitled to issuance of a number of Shares underlying any PSUs that would become Vested PSUs determined as if the Performance Period ended on the termination date, and the number of PSUs as set forth in the Cover Sheet was prorated to reflect the shortened Performance Period, but your rights in respect of any additional PSUs will be forfeited. Issuance of shares underlying Vested PSUs shall occur within 70 days following your termination of employment.
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Termination for Cause; Breach of any Continuing Obligation; Recoupment
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If your employment is terminated for Cause or if you breach any restrictive covenant under this Agreement or any other agreement between you and the Company or its Subsidiaries, the PSUs, whether or not vested, will immediately terminate.
In addition, if at any time within one year after the date on which you receive payment in respect of the PSUs (whether in the form of cash or Shares), (a) your employment is terminated for Cause or (b) after termination of your employment for any reason, the Committee determines in its discretion either that (i) during your period of employment, you engaged in an act or omission that would have warranted termination of your employment for Cause or (ii) after termination of your employment, you engaged in conduct that violated any continuing obligation or duty in respect of the Company or any Subsidiary (including any breach of any restrictive covenant under this Agreement or any other agreement between you and the Company or any Subsidiary), then, subject to applicable law, upon notice from the Company, you shall repay to the Company any cash or Shares you received pursuant to the PSUs, or if you disposed of any such Shares, the Fair Market Value of such Shares as of the date of disposition.
Nothing in this Agreement shall limit the Company’s right of recoupment pursuant to Section 13 of the Plan, including recoupment of payments pursuant to the Company’s compensation recovery, “clawback” or similar policy, as may be in effect from time to time.
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Change of Control
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Notwithstanding the foregoing:
(A) If there occurs a Change of Control prior to the Vesting Date, and this Award does not continue or is not assumed by an acquiror, then the date of such Change of Control will be treated as if it were the Vesting Date, and you will be entitled to issuance a number of Shares underlying any PSUs that would become Vested PSUs determined as if the Performance Period ended on the date of the Change of Control, and the number of PSUs as set forth in the Cover Sheet was prorated to reflect the shortened Performance Period. Issuance of shares underlying Vested PSUs determined in accordance with this subsection (A) shall occur within 70 days following the Change of Control; and
(B) If there occurs a Change of Control, and this Award continues or is assumed by an acquiror, and your employment is terminated by the Company or an acquiror without Cause or otherwise under circumstances entitling you to severance under the Company’s or acquiror’s severance plan within 12 months following the Change of Control, then the number of PSUs that become Vested PSUs as of the date of such termination shall be equal to the target number of PSUs, as set forth on the Cover Sheet. Issuance of shares underlying Vested PSUs determined in accordance with this subsection (B) shall occur within 70 days following your termination of employment.
For purposes of the foregoing, this Award shall not be treated as continued or assumed unless it is continued or assumed on a substantially equivalent basis, including, without limitation, continuation or assumption of the Performance Metric and Performance Goals.
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Taxes
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You are solely responsible for the satisfaction of all taxes and penalties that may arise in connection with the award or settlement of the PSUs. At the time of taxation, the Company shall have the right to deduct from other compensation, or to withhold Shares in an amount equal to the federal (including FICA), state, local and foreign taxes and other amounts as may be required by law to be withheld with respect to the PSUs. If Shares are withheld, the value of the Shares withheld may not exceed the minimum applicable tax withholding amount (except as otherwise determined by the Committee in its sole discretion). By accepting this Award, you expressly consent to the withholding of Shares or other amounts payable to you.
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Restrictions on Resale/ Company Policies
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By signing this Agreement, you agree not to sell any Shares received hereunder at a time when applicable laws, regulations or Company policies prohibit a sale. Any Shares issued hereunder, and any cash proceeds realized from the sale of such Shares will be subject to all share retention, trading, and other policies that may be implemented by the Committee or the Board from time to time.
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Transfer of right to receive PSUs
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You cannot transfer or assign your PSUs. For instance, you may not sell your right to PSUs or use such right as security for a loan. If you attempt to do any of these things, your Award will immediately become invalid.
Regardless of any marital property settlement agreement, the Company or a securities broker, as applicable, is not obligated to recognize your former spouse’s interest in your right to PSUs in any way.
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Stockholder Rights
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You, or your estate or heirs, have no rights as a stockholder of the Company in respect of PSUs, unless and until the underlying Shares are issued. No adjustments are made for dividends or other rights if the applicable record date occurs before Shares are issued, except as described in the Plan. However, to the extent you hold PSUs on the record date any cash dividend is declared on Shares, you will receive a dividend equivalent right (“DER”). A DER is a right to an amount, per PSU held, equal to the amount of the cash dividend declared and paid in respect of one Share. DERs will be credited in the form of additional PSUs, with the number of PSUs based on the Fair Market Value of a Share as of the date the dividend is paid (rounded down to the nearest whole Share). DERs will be subject to the same vesting and other conditions as the PSUs. If and to the extent that the underlying PSUs are forfeited, all related DERs shall also be forfeited. DERs will be paid at the same time the underlying PSUs are settled if and to the extent that the underlying PSUs vest and become payable.
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Restrictive Covenants:
Covenant Not to Compete
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During your employment with the Company or any Subsidiary and continuing for a period of six (6) months after the termination of the employment relationship by either party, with or without Cause, including voluntary termination, you will not, directly or indirectly, as an employee, agent, partner, consultant, representative, contractor or in any other capacity, work for or operate a “Competitive Business”. For the purposes of this Agreement, Competitive Business means any enterprise (including a person, firm or business) operating or which has made material plans to operate (i) in the in-store bakery or sweet baked goods business or (ii) any other business that offers products competitive with those products offered by the Company or its Subsidiaries or which the Company or its Subsidiaries have made material plans to offer. This restriction is limited to the United States and any other geographic market in which the Company or its Subsidiaries operate, or have made material plans to operate, as of the date of your separation from the Company or its Subsidiaries.
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Covenant Not to Solicit
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During your employment with the Company or any Subsidiary and continuing for a period of six (6) months after the termination of the employment relationship by either party, with or without Cause, including voluntary termination, you will not, directly or indirectly, (a) as an employee, agent, partner, consultant, representative, contractor or in any other capacity, solicit, call on, divert, negotiate with or communicate with any customer or distributor of the Company or its Subsidiaries with whom you had contact during the final one (1) year period of your employment with the Company or any Subsidiary for the purpose of providing or selling competitive products or services to those of the Company or any Subsidiary or diverting or inducing the diversion of business from the Company or any Subsidiary or (b) engage, recruit, solicit for employment or engagement, offer employment to or hire, or otherwise seek to influence or alter any relationship with any person who is an employee of the Company or any Subsidiary; provided, however, that this provision shall not restrict you from offering employment to or otherwise engaging any current or former employee of the Company or any Subsidiary who responds to a general advertisement. The term “contact” as used above, shall mean any customer or distributor: (i) with which you had dealings; or (ii) for which you had responsibility for engaging, supervising, overseeing or conducting the Company’s or any Subsidiary’s relationship.
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Remedies Applicable to Restrictive Covenants
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You acknowledge and agree that each of the covenants in this Agreement has a unique, very substantial and immeasurable value to the Company and its Subsidiaries, that such covenants will not in any way impair your ability to earn a living and that you have sufficient assets and skills to earn a living while such covenants remain in force and that, as a result of the foregoing, in the event that you breach such covenants, monetary damages would be an insufficient remedy for the Company and its Subsidiaries and equitable enforcement of the covenants would be proper. You therefore agree that the Company, in addition to any other remedies available to it, including under this Agreement and pursuant to Section 13 of the Plan, will be entitled to preliminary and permanent injunctive relief in aid of arbitration in the event of any breach or threatened breach by you of any of the covenants in this Agreement, without the necessity of showing actual monetary damages or the posting of a bond or other security. Such action for injunctive relief in aid of arbitration shall be brought exclusively in the Supreme Court of the State of New York, New York County, or in the United States District Court for the Southern District of New York, or in any other court of competent jurisdiction sitting in the County and State of New York, and you and the Company agree to the personal jurisdiction thereof. You and the Company hereby irrevocably waive any objection you or the Company may now or hereafter have to the laying of venue of any such action for injunctive relief in aid of arbitration in said court(s), and further irrevocably waive any claim you or the Company may now or hereafter have that any such action brought in said court(s) has been brought in an inconvenient forum.
You and the Company further agree that, in the event that any provision of this Agreement is determined by any court or arbitrator of competent jurisdiction to be unenforceable for any reason, that provision or a portion thereof will be deemed to be modified so as to render it enforceable to the maximum extent permitted by law and to the extent such provision or portion thereof cannot be rendered enforceable, this Agreement shall be considered divisible as to such provision, which shall become null and void, leaving the remainder of this Agreement in full force and effect.
The provisions of this Agreement shall not affect the Company’s ability to enforce the provisions of any other agreement in effect between the Company or any Subsidiary and you, including without limitation, the covenants contained in any offer letter, severance plan or policy, or employment agreement.
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No Right to Continued Employment
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Neither the grant of this Award, nor any other action taken hereunder shall be construed as giving you the right to be retained in the employ or service of the Company or any of its Subsidiaries (for the vesting period or any other period of time) nor interfere in any way with the Company’s right to terminate your employment.
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Applicable Law and Arbitration
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This Agreement will be subject to and interpreted in accordance with the laws of the State of Delaware, without reference to the principles of conflicts of laws, and applicable Federal or other securities laws. Any dispute, controversy or claim arising out of or relating to the Plan or this Agreement that cannot be resolved by you on the one hand and the Company on the other, shall be submitted to arbitration in accordance with the terms of the Plan, except to the extent otherwise provided in this Agreement with respect to injunctive relief in aid of arbitration.
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Delivery of Documents
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The Company may, in its sole discretion, decide to deliver any documents related to this Award or other Awards granted to you under the Plan by electronic means. By signing the Cover Sheet, you consent to receive all documents related to this Award or other Awards granted to your under the Plan by electronic delivery and agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or a third party designated by the Company.
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Amendment
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The terms and conditions of this Agreement and the PSUs may be amended by the Committee or the Board as permitted by the Plan.
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The Plan and Other Agreements
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The text of the Plan and any amendments thereto are incorporated in this Agreement by reference.
This Agreement, the Cover Sheet and the Plan constitute the entire understanding between you and the Company regarding the PSUs. Any prior agreements, commitments or negotiations concerning the PSUs are superseded. In the event there is any express conflict between the Cover Sheet, this Agreement and the terms of the Plan, the terms of the Plan shall govern.
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Granted to:
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Date of Grant:
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Shares subject to the Option:
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Exercise Price per Share:
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Expiration Date:
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Vesting Commencement Date:
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Vesting Schedule:
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Nonqualified Stock Option
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This Option is not intended to be an Incentive Stock Option under section 422 of the Internal Revenue Code and will be interpreted accordingly.
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Vesting
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Your right to exercise this Option vests at the times and in the manner as shown on the Cover Sheet.
Except in connection with a Change of Control, as described below, this Option will cease vesting as of the date your employment with the Company and its Subsidiaries has terminated for any reason.
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Termination
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Should your employment with the Company and its Subsidiaries terminate for any reason except in connection with a Change of Control as described below, the portion of this Option that is not then vested will immediately terminate, and, except as provided below, the portion that is then vested will terminate at the close of business at the Company’s registered office on the 90th day after your termination date. Your Option will expire in any event at the close of business at the Company’s registered office on the Expiration Date set forth on the Cover Sheet.
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Death or Disability
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If your employment terminates because of your death or Disability, your right to exercise the vested portion of this Option will expire at the close of business at the Company’s registered office on the date that is one year following your death or Disability (or on the Expiration Date set forth on the Cover Sheet, if earlier).
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Termination for Cause or Breach of any Continuing Obligation; Recoupment
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If your employment is terminated for Cause or if you breach any restrictive covenant under this Agreement or any other agreement between you and the Company or its Subsidiaries, the Option, whether or not vested, will immediately terminate.
In addition, if at any time within one year after the date on which you exercise the Option or otherwise receive payment in respect of the Option, (a) your employment is terminated for Cause or (b) after termination of your employment for any reason, the Committee determines in its discretion either that (i) during your period of employment, you engaged in an act or omission that would have warranted termination of your employment for Cause, or (ii) after termination of your employment, you engaged in conduct that violated any continuing obligation or duty in respect of the Company or any Subsidiary (including any breach of any restrictive covenant under this Agreement or any other agreement between you and the Company or any Subsidiary), then, subject to applicable law, upon notice from the Company, you shall repay to the Company any cash or Shares you received in respect of the Option (less the exercise price paid by you), or if you disposed of any such Shares, the Fair Market Value of such Shares as of the date of disposition (less the exercise price paid by you).
Nothing in this Agreement shall limit the Company’s right of recoupment pursuant to Section 13 of the Plan, including recoupment of payments pursuant to the Company’s compensation recovery, “clawback” or similar policy, as may be in effect from time to time.
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Change of Control
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Notwithstanding the foregoing, in the event of a Change of Control, the Committee may take such actions with respect to the Option as it deems appropriate pursuant to the Plan. If the Option continues in effect after a Change of Control and the Participant’s employment is terminated by the Company and its Subsidiaries without Cause or otherwise under circumstances entitling you to severance under the Company’s or acquiror’s severance plan, upon or within 12 months following the Change of Control, any unvested portion of the Option shall become fully vested upon such termination of employment.
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Restrictions on Exercise
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The Company will not permit you to exercise this Option if the issuance of Shares at that time would violate any law, rule, regulation or Company policy, as determined by the Company.
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Notice of Exercise
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When you wish to exercise this Option, you must complete and execute such documents, if any, and complete such processes, that the Company or a securities broker approved by the Company may require to accomplish the Option exercise (“Notice of Exercise”).
Upon exercise of the Option (or portion thereof), the Option (or portion thereof) will terminate and cease to be outstanding.
If someone else wants to exercise the Option after your death, that person must prove to the Company’s satisfaction that he or she is entitled to do so.
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Form of Payment
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When you submit your Notice of Exercise, you must include payment of the exercise price for the Shares you are purchasing, along with applicable withholding taxes. Payment may be made in one (or a combination) of the following forms:
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- Your personal check, a cashier’s check or a money order.
- If permitted by the Company, irrevocable directions to a securities broker approved by the Company to sell your Shares subject to the Option and to deliver all or a portion of the sale proceeds to the Company in payment of the exercise price and applicable withholding taxes. (The balance of the sale proceeds, if any, will be delivered to you.) The directions must be given by signing forms, if any, provided by the Company or the securities broker.
- Any other method permitted by the Company at the time of exercise.
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Taxes
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When you exercise any portion of the Option, the Company will withhold taxes as required by applicable law, and your ability to exercise any portion of the Option is conditional upon your making arrangements satisfactory to the Company.
You are solely responsible for the satisfaction of all taxes and penalties that may arise in connection with the Option. At the time of taxation, the Company shall have the right to deduct from other compensation, or to withhold Shares in an amount equal to the federal (including FICA), state, local and foreign taxes and other amounts as may be required by law to be withheld with respect to the exercise of the Option. If Shares are withheld, the value of the Shares withheld may not exceed the minimum applicable tax withholding amount (except as otherwise determined by the Committee in its sole discretion). By accepting this Award, you expressly consent to the withholding of Shares or other amounts payable to you.
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Restrictions on Resale/Company Policies
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By signing this Agreement, you agree not to sell any Shares received upon exercise of the Option at a time when applicable laws, regulations or Company policies prohibit a sale. The Option, any Shares issued pursuant to the Option, and any cash proceeds realized from the sale of such Shares will be subject to all share retention, trading, and other policies that may be implemented by the Committee or the Board from time to time.
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Transfer of Option
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Prior to your death, only you may exercise this Option. You cannot transfer or assign this Option. For instance, you may not sell this Option or use it as security for a loan. If you attempt to do any of these things, this Option will immediately become invalid.
In the event of your death, the Option may be exercised by your designated beneficiary, if any, or your executors, personal representatives or distributees determined in accordance with your will or the laws of descent and distribution.
Regardless of any marital property settlement agreement, the Company or a securities broker, as applicable, is not obligated to honor a Notice of Exercise from your former spouse, nor is the Company or the securities broker obligated to recognize your former spouse’s interest in your Option in any other way.
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Stockholder Rights
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You, or your estate or heirs, have no rights as a stockholder of the Company with respect to the Shares subject to the Option until a proper Notice of Exercise has been submitted, and the exercise price and withholding taxes have been tendered and the Shares have been delivered to you.
Upon the delivery of shares of Common Stock upon exercise, you will have all the rights of a shareholder with respect to such shares of Common Stock, including the right to vote such shares of Common Stock and to receive all dividends and other distributions paid with respect to them.
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Restrictive Covenants:
Covenant Not to Compete
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During your employment with the Company or any Subsidiary and continuing for a period of six (6) months after the termination of the employment relationship by either party, with or without Cause, including voluntary termination, you will not, directly or indirectly, as an employee, agent, partner, consultant, representative, contractor or in any other capacity, work for or operate a “Competitive Business”. For the purposes of this Agreement, Competitive Business means any enterprise (including a person, firm or business) operating or which has made material plans to operate (i) in the in-store bakery or sweet baked goods business or (ii) any other business that offers products competitive with those products offered by the Company or its Subsidiaries or which the Company or its Subsidiaries have made material plans to offer. This restriction is limited to the United States and any other geographic market
in which the Company or its Subsidiaries operate, or have made material plans to operate, as of the
date of your separation from the Company or its Subsidiaries.
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Covenant Not to Solicit
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During your employment with the Company or any Subsidiary and continuing for a period of six (6) months after the termination of the employment relationship by either party, with or without Cause, including voluntary termination, you will not, directly or indirectly, (a) as an employee, agent, partner, consultant, representative, contractor or in any other capacity, solicit, call on, divert, negotiate with or communicate with any customer or distributor of the Company or its Subsidiaries with whom you had contact during the final one (1) year period of your employment with the Company or any Subsidiary for the purpose of providing or selling competitive products or services to those of the Company or any Subsidiary or diverting or inducing the diversion of business from the Company or any Subsidiary or (b) engage, recruit, solicit for employment or engagement, offer employment to or hire, or otherwise seek to influence or alter any relationship with any person who is an employee of the Company or any Subsidiary; provided, however, that this provision shall not restrict you from offering employment to or otherwise engaging any current or former employee of the Company or any Subsidiary who responds to a general advertisement. The term “contact” as used above, shall mean any customer or distributor: (i) with which you had dealings; or (ii) for which you had responsibility for engaging, supervising, overseeing or conducting the Company’s or any Subsidiary’s relationship.
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Remedies Applicable to Restrict Covenants
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You acknowledge, agree and represent that the type and periods of restrictions imposed in this Agreement are fair and reasonable, and that such restrictions are intended solely to protect the legitimate interests of the Company and its Subsidiaries, rather than to prevent you from earning a livelihood. You further acknowledge and agree that the business of the Company and its Subsidiaries is highly competitive and that the Company’s and its Subsidiaries’ confidential information and proprietary materials have been developed by the Company and its Subsidiaries at significant expense and effort, and that the restrictions contained in this Agreement are reasonable and necessary to protect the legitimate business interests of the Company and its Subsidiaries. You represent and agree that: (i) you have reviewed and understand the covenants set forth in this Agreement, (ii) you are fully aware of your obligations hereunder, including, without limitation, the length of time, scope and geographic coverage of these covenants, (iii) the length of time, scope and geographic coverage of these covenants is reasonable and (iv) you are receiving valuable and sufficient consideration for your covenants under this Agreement, including without limitation your covenants not to compete and not to solicit.
You acknowledge and agree that each of the covenants in this Agreement has a unique, very substantial and immeasurable value to the Company and its Subsidiaries, that such covenants will not in any way impair your ability to earn a living and that you have sufficient assets and skills to earn a living while such covenants remain in force and that, as a result of the foregoing, in the event that you breach such covenants, monetary damages would be an insufficient remedy for the Company and its Subsidiaries and equitable enforcement of the covenants would be proper. You therefore agree that the Company, in addition to any other remedies available to it, including under this Agreement and pursuant to Section 13 of the Plan, will be entitled to preliminary and permanent injunctive relief in aid of arbitration in the event of any breach or threatened breach by you of any of the covenants in this Agreement, without the necessity of showing actual monetary damages or the posting of a bond or other security. Such action for injunctive relief in aid of arbitration shall be brought exclusively in the Supreme Court of the State of New York, New York County, or in the United States District Court for the Southern District of New York, or in any other court of competent jurisdiction sitting in the County and State of New York, and you and the Company agree to the personal jurisdiction thereof. You and the Company hereby irrevocably waive any objection you or the Company may now or hereafter have to the laying of venue of any such action for injunctive relief in aid of arbitration in said court(s), and further irrevocably waive any claim you or the Company may now or hereafter have that any such action brought in said court(s) has been brought in an inconvenient forum.
You and the Company further agree that, in the event that any provision of this Agreement is determined by any court or arbitrator of competent jurisdiction to be unenforceable for any reason, that provision or a portion thereof will be deemed to be modified so as to render it enforceable to the maximum extent permitted by law and to the extent such provision or portion thereof cannot be rendered enforceable, this Agreement shall be considered divisible as to such provision, which shall become null and void, leaving the remainder of this Agreement in full force and effect.
The provisions of this Agreement shall not affect the Company’s ability to enforce the provisions of any other agreement in effect between the Company or any Subsidiary and you, including without limitation, the covenants contained in any offer letter, severance plan or policy, or employment agreement.
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No Right to Continued Employment
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Neither the grant of the Option, nor any other action taken hereunder shall be construed as giving you the right to be retained in the employ or service of the Company or any of its Subsidiaries (for the vesting period or any other period of time) nor interfere in any way with the Company’s right to terminate your employment.
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Applicable Law and Arbitration
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This Agreement will be subject to and interpreted in accordance with the laws of the State of Delaware, without reference to the principles of conflicts of laws, and applicable Federal or other securities laws. Any dispute, controversy or claim arising out of or relating to the Plan or this Agreement that cannot be resolved by you on the one hand and the Company on the other, shall be submitted to arbitration in accordance with the terms of the Plan, except to the extent otherwise provided in this Agreement with respect to injunctive relief in aid of arbitration.
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Delivery of Documents
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The Company may, in its sole discretion, decide to deliver any documents related to the Option or other Awards granted to you under the Plan by electronic means. By signing the Cover Sheet, you consent to receive all documents related to the Option or other Awards granted to your under the Plan by electronic delivery and agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or a third party designated by the Company.
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Amendment
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The terms and conditions of this Agreement and the Option may be amended by the Committee or the Board as permitted by the Plan.
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The Plan and Other Agreements
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The text of the Plan and any amendments thereto are incorporated in this Agreement by reference.
This Agreement, the Cover Sheet and the Plan constitute the entire understanding between you and the Company regarding this Option. Any prior agreements, commitments or negotiations concerning this Option are superseded.
In the event there is any express conflict between this Agreement and the terms of the Plan, the terms of the Plan shall govern.
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Granted to:
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Date of Grant:
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Number of RSUs:
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Vesting Commencement Date:
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Vesting Schedule:
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Right to Shares
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The award of RSUs represents your right to receive, and the Company’s obligation to deliver, one share of Common Stock (a “Share”) per RSU, subject to the terms and conditions of this Agreement, the Plan and the Cover Sheet.
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Vesting
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The RSUs awarded to you will vest in accordance with the schedule set forth in the Cover Sheet.
All unvested RSUs will cease vesting and will be forfeited as of the date your employment with the Company and its Subsidiaries has terminated for any reason.
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Delivery; Settlement
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A number of Shares equal to the number of the RSUs that vest on each Vesting Date will be delivered as soon as practicable and within 60 days following the applicable Vesting Date, and upon such delivery, you shall have no further rights with respect to those RSUs.
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Change of Control
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Notwithstanding the foregoing:
(A) if there occurs a Change of Control, and this Award does not continue or is not assumed by an acquiror on a substantially equivalent basis, then all RSUs that have not yet vested shall vest immediately prior to the Change of Control; and
(B) if there occurs a Change of Control, and this Award continues or is assumed by an acquiror on a substantially equivalent basis, and you experience a Change in Control Termination as defined by the HB Key Executive Severance Benefit Plan, as in effect at the time of your termination of employment, then all RSUs that have not yet vested shall vest immediately on your date of termination.
A number of Shares equal to the number of the RSUs that vest in accordance with the preceding clauses (A) and (B) shall be delivered as soon as practicable and within 60 days following the applicable vesting date described above, and upon such delivery, you shall have no further rights with respect to those RSUs.
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Termination
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Should your employment with the Company and its Subsidiaries terminate for any reason except in connection with a Change of Control as described above, all of your RSUs then unvested and outstanding will terminate, and you will no longer have any rights in respect of such RSUs.
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Termination for Cause or Breach of any Continuing Obligation; Recoupment
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If your employment is terminated for Cause or if you breach any restrictive covenant under any agreement between you and the Company or its Subsidiaries, the RSUs, whether or not vested, will immediately terminate.
In addition, if at any time within one year after the date on which you receive payment in respect of the RSUs (whether in the form of cash or Shares), (a) your employment is terminated for Cause or (b) after termination of your employment for any reason, the Committee determines in its discretion either that (i) during your period of employment, you engaged in an act or omission that would have warranted termination of your employment for Cause, or (ii) after termination of your employment, you engaged in conduct that violated any continuing obligation or duty in respect of the Company or any Subsidiary (including any breach of any restrictive covenant under any agreement between you and the Company or any Subsidiary), then, subject to applicable law, upon notice from the Company, you shall repay to the Company any cash or Shares you received pursuant to the RSUs, or if you disposed of any such Shares, the Fair Market Value of such Shares as of the date of disposition.
Nothing in this Agreement shall limit the Company’s right of recoupment pursuant to Section 13 of the Plan, including recoupment of payments pursuant to the Company’s compensation recovery, “clawback” or similar policy, as may be in effect from time to time.
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Taxes
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You are solely responsible for the satisfaction of all taxes and penalties that may arise in connection with the award or settlement of the RSUs. At the time of taxation, the Company shall have the right to deduct from other compensation, or to withhold Shares in an amount equal to the federal (including FICA), state, local and foreign taxes and other amounts as may be required by law to be withheld with respect to the RSUs. If Shares are withheld, the value of the Shares withheld may not exceed the minimum applicable tax withholding amount (except as otherwise determined by the Committee in its sole discretion). By accepting this Award, you expressly consent to the withholding of Shares or other amounts payable to you.
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Restrictions on Resale and Settlement
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By signing this Agreement, you agree not to sell any Shares received upon settlement of RSUs at a time when applicable laws, regulations or Company policies prohibit a sale. The Company’s obligation to deliver Shares upon settlement of the RSUs shall be subject to applicable laws, rules and regulations and also to such approvals by governmental agencies as may be deemed appropriate to comply with relevant securities laws and regulations, and the Company will not permit the issuance of Shares at a time when such issuance would violate any law, rule, regulation or Company policy, as determined by the Company.
Any Shares issued hereunder, and any cash proceeds realized from the sale of such Shares will be subject to all share retention, trading, and other policies that may be implemented by the Committee or the Board from time to time.
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Transfer of RSUs
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You cannot transfer or assign your RSUs. For instance, you may not sell RSUs or use them as security for a loan. If you attempt to do any of these things, your Award will immediately become invalid.
Regardless of any marital property settlement agreement, the Company or a securities broker, as applicable, is not obligated to recognize your former spouse’s interest in your right to RSUs in any way.
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Stockholder Rights; Dividend Equivalent Rights
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You, or your estate or heirs, have no rights as a stockholder of the Company in respect of RSUs unless and until Shares have been delivered in settlement of the RSUs.
No adjustments are made for dividends or other rights if the applicable record date occurs before Shares are delivered, except as described in the Plan. However, to the extent you hold RSUs on the record date any cash dividend is declared on Shares, you will receive a dividend equivalent right (“DER”). A DER is a right to an amount, per RSU held, equal to the amount of the cash dividend declared and paid in respect of one Share. DERs will be credited in the form of additional RSUs, with the number of RSUs based on the Fair Market Value of a Share as of the date the dividend is paid (rounded down to the nearest whole Share). DERs will be subject to the same vesting and other conditions as the RSUs to which they relate. If and to the extent that the underlying RSUs are forfeited, all related DERs shall also be forfeited. DERs will be paid at the same time the underlying RSUs are settled
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No Right to Continued Employment
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Neither the grant of this Award, nor any other action taken hereunder shall be construed as giving you the right to be retained in the employ or service of the Company or any of its Subsidiaries (for the vesting period or any other period of time) nor interfere in any way with the Company’s right to terminate your employment.
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Applicable Law and Arbitration
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This Agreement will be subject to and interpreted in accordance with the laws of the State of Delaware, without reference to the principles of conflicts of laws, and applicable Federal or other securities laws. Any dispute, controversy or claim arising out of or relating to the Plan or this Agreement that cannot be resolved by you on the one hand and the Company on the other, shall be submitted to arbitration in accordance with the terms of the Plan.
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Certain Definitions
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For purposes of this Agreement, “Cause” shall have the meaning set forth in the Employment Agreement between you and Hostess Brands, LLC entered into on April 12, 2018, as amended by the First Amendment to Employment Agreement dated as of August 1, 2018.
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Granted to:
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Date of Grant:
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Performance Period:
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Performance Metric:
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Target Number of PSUs:
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Performance Goal:
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Maximum
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Target
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Threshold or below
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Vesting Date:
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Right to Shares
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The award of PSUs represents your right to receive, and the Company’s obligation to issue, one share of the Company’s Class A Common Stock (a “Share”) for each PSU that is or becomes a Vested PSU (as described below) on the Vesting Date, subject to the terms of this Agreement. Such issuance will occur as soon as practicable following the date the Committee certifies the extent to which Performance Goal has been satisfied as of the Vesting Date, determined in accordance with Exhibit A attached hereto, but no later than 70 days following the Vesting Date. Notwithstanding the foregoing, the Company will not permit the issuance of Shares at a time when such issuance would violate any law, rule, regulation or Company policy, as determined by the Company.
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Vested PSUs
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The number of PSUs, if any, that become Vested PSUs will be determined as of the end of the Performance Period, based on the extent to which the Performance Goal, as set forth in the Cover Sheet, has been achieved for the Performance Period, as determined in accordance with Exhibit A and certified by the Committee. If actual performance is equal to or below the threshold Performance Goal for the Performance Period, then no PSUs will become Vested PSUs for the Performance Period. If the target Performance Goal has been achieved for the Performance Period, then the target number of PSUs for the Performance Period, as set forth on the Cover Sheet, will become Vested PSUs for the Performance Period. If the maximum Performance Goal (or greater) has been achieved for the Performance Period, then the maximum number of PSUs for the Performance Period, as set forth on the Cover Sheet, will become Vested PSUs for the Performance Period. If actual performance falls between the threshold Performance Goal and the target Performance Goal, or between the target Performance Goal and the maximum Performance Goal, the number of PSUs that become Vested PSUs will be determined by linear interpolation between the respective performance inflection points.
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Performance Metric
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As set forth in the Cover Sheet, the Performance Metric shall be , as defined and further described in Exhibit A.
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Vesting; Forfeiture
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On the Vesting Date, your right to issuance of the Shares underlying any PSUs that are Vested PSUs as of the Vesting Date shall become vested and nonforfeitable. Should your employment with the Company and its Subsidiaries terminate for any reason prior to the Vesting Date, all PSUs will be forfeited and you will have no right to the issuance of any Shares hereunder. Notwithstanding the foregoing, if such termination is other than (i) by you voluntarily without Good Reason or (ii) by the Company for Cause, the date of such termination will be treated as if it were the Vesting Date, and you will be entitled to issuance of a number of Shares underlying any PSUs that would become Vested PSUs determined as if the Performance Period ended on the termination date, and the number of PSUs as set forth in the Cover Sheet was prorated to reflect the shortened Performance Period, but your rights in respect of any additional PSUs will be forfeited. Issuance of shares underlying Vested PSUs shall occur within 70 days following your termination of employment.
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Termination for Cause; Breach of any Continuing Obligation; Recoupment
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If your employment is terminated for Cause or if you breach any restrictive covenant under any agreement between you and the Company or its Subsidiaries, the PSUs, whether or not vested, will immediately terminate.
In addition, if at any time within one year after the date on which you receive payment in respect of the PSUs (whether in the form of cash or Shares), (a) your employment is terminated for Cause or (b) after termination of your employment for any reason, the Committee determines in its discretion either that (i) during your period of employment, you engaged in an act or omission that would have warranted termination of your employment for Cause or (ii) after termination of your employment, you engaged in conduct that violated any continuing obligation or duty in respect of the Company or any Subsidiary (including any breach of any restrictive covenant under any agreement between you and the Company or any Subsidiary), then, subject to applicable law, upon notice from the Company, you shall repay to the Company any cash or Shares you received pursuant to the PSUs, or if you disposed of any such Shares, the Fair Market Value of such Shares as of the date of disposition.
Nothing in this Agreement shall limit the Company’s right of recoupment pursuant to Section 13 of the Plan, including recoupment of payments pursuant to the Company’s compensation recovery, “clawback” or similar policy, as may be in effect from time to time.
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Change of Control
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Notwithstanding the foregoing:
(A) If there occurs a Change of Control prior to the Vesting Date, and this Award does not continue or is not assumed by an acquiror, then the date of such Change of Control will be treated as if it were the Vesting Date, and you will be entitled to issuance a number of Shares underlying any PSUs that would become Vested PSUs determined as if the Performance Period ended on the date of the Change of Control, and the number of PSUs as set forth in the Cover Sheet was prorated to reflect the shortened Performance Period. Issuance of shares underlying Vested PSUs determined in accordance with this subsection (A) shall occur within 70 days following the Change of Control; and
(B) If there occurs a Change of Control, and this Award continues or is assumed by an acquiror, and you experience a Change in Control Termination as defined by the HB Key Executive Severance Benefit Plan, as in effect at the time of your termination of employment, then the number of PSUs that become Vested PSUs as of the date of such termination shall be equal to the target number of PSUs, as set forth on the Cover Sheet. Issuance of shares underlying Vested PSUs determined in accordance with this subsection (B) shall occur within 70 days following your termination of employment.
For purposes of the foregoing, this Award shall not be treated as continued or assumed unless it is continued or assumed on a substantially equivalent basis, including, without limitation, continuation or assumption of the Performance Metric and Performance Goals.
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Taxes
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You are solely responsible for the satisfaction of all taxes and penalties that may arise in connection with the award or settlement of the PSUs. At the time of taxation, the Company shall have the right to deduct from other compensation, or to withhold Shares in an amount equal to the federal (including FICA), state, local and foreign taxes and other amounts as may be required by law to be withheld with respect to the PSUs. If Shares are withheld, the value of the Shares withheld may not exceed the minimum applicable tax withholding amount (except as otherwise determined by the Committee in its sole discretion). By accepting this Award, you expressly consent to the withholding of Shares or other amounts payable to you.
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Restrictions on Resale/ Company Policies
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By signing this Agreement, you agree not to sell any Shares received hereunder at a time when applicable laws, regulations or Company policies prohibit a sale. Any Shares issued hereunder, and any cash proceeds realized from the sale of such Shares will be subject to all share retention, trading, and other policies that may be implemented by the Committee or the Board from time to time.
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Transfer of right to receive PSUs
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You cannot transfer or assign your PSUs. For instance, you may not sell your right to PSUs or use such right as security for a loan. If you attempt to do any of these things, your Award will immediately become invalid.
Regardless of any marital property settlement agreement, the Company or a securities broker, as applicable, is not obligated to recognize your former spouse’s interest in your right to PSUs in any way.
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Stockholder Rights
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You, or your estate or heirs, have no rights as a stockholder of the Company in respect of PSUs, unless and until the underlying Shares are issued. No adjustments are made for dividends or other rights if the applicable record date occurs before Shares are issued, except as described in the Plan. However, to the extent you hold PSUs on the record date any cash dividend is declared on Shares, you will receive a dividend equivalent right (“DER”). A DER is a right to an amount, per PSU held, equal to the amount of the cash dividend declared and paid in respect of one Share. DERs will be credited in the form of additional PSUs, with the number of PSUs based on the Fair Market Value of a Share as of the date the dividend is paid (rounded down to the nearest whole Share). DERs will be subject to the same vesting and other conditions as the PSUs. If and to the extent that the underlying PSUs are forfeited, all related DERs shall also be forfeited. DERs will be paid at the same time the underlying PSUs are settled if and to the extent that the underlying PSUs vest and become payable.
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No Right to Continued Employment
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Neither the grant of this Award, nor any other action taken hereunder shall be construed as giving you the right to be retained in the employ or service of the Company or any of its Subsidiaries (for the vesting period or any other period of time) nor interfere in any way with the Company’s right to terminate your employment.
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Applicable Law and Arbitration
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This Agreement will be subject to and interpreted in accordance with the laws of the State of Delaware, without reference to the principles of conflicts of laws, and applicable Federal or other securities laws. Any dispute, controversy or claim arising out of or relating to the Plan or this Agreement that cannot be resolved by you on the one hand and the Company on the other, shall be submitted to arbitration in accordance with the terms of the Plan.
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Certain Definitions
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For purposes of this Agreement, “Cause” and “Good Reason” shall have the meanings set forth in the Employment Agreement between you and Hostess Brands, LLC entered into on April 12, 2018, as amended by First Amendment to Employment Agreement dated as of August 1, 2018.
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Delivery of Documents
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The Company may, in its sole discretion, decide to deliver any documents related to this Award or other Awards granted to you under the Plan by electronic means. By signing the Cover Sheet, you consent to receive all documents related to this Award or other Awards granted to your under the Plan by electronic delivery and agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or a third party designated by the Company.
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Amendment
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The terms and conditions of this Agreement and the PSUs may be amended by the Committee or the Board as permitted by the Plan.
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The Plan and Other Agreements
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The text of the Plan and any amendments thereto are incorporated in this Agreement by reference.
This Agreement, the Cover Sheet and the Plan constitute the entire understanding between you and the Company regarding the PSUs. Any prior agreements, commitments or negotiations concerning the PSUs are superseded. In the event there is any express conflict between this Agreement, the Cover Sheet and the terms of the Plan, the terms of the Plan shall govern.
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Granted to:
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Date of Grant:
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Shares subject to the Option:
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Exercise Price per Share:
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Expiration Date:
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Vesting Commencement Date:
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Vesting Schedule:
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Nonqualified Stock Option
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This Option is not intended to be an Incentive Stock Option under section 422 of the Internal Revenue Code and will be interpreted accordingly.
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Vesting
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Your right to exercise this Option vests at the times and in the manner as shown on the Cover Sheet.
Except in connection with a Change of Control, as described below, this Option will cease vesting as of the date your employment with the Company and its Subsidiaries has terminated for any reason.
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Termination
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Should your employment with the Company and its Subsidiaries terminate for any reason except in connection with a Change of Control as described below, the portion of this Option that is not then vested will immediately terminate, and, except as provided below, the portion that is then vested will terminate at the close of business at the Company’s registered office on the 90th day after your termination date. Your Option will expire in any event at the close of business at the Company’s registered office on the Expiration Date set forth on the Cover Sheet.
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Death or Disability
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If your employment terminates because of your death or Disability, your right to exercise the vested portion of this Option will expire at the close of business at the Company’s registered office on the date that is one year following your death or Disability (or on the Expiration Date set forth on the Cover Sheet, if earlier).
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Termination for Cause or Breach of any Continuing Obligation; Recoupment
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If your employment is terminated for Cause or if you breach any restrictive covenant under any agreement between you and the Company or its Subsidiaries, the Option, whether or not vested, will immediately terminate.
In addition, if at any time within one year after the date on which you exercise the Option or otherwise receive payment in respect of the Option, (a) your employment is terminated for Cause or (b) after termination of your employment for any reason, the Committee determines in its discretion either that (i) during your period of employment, you engaged in an act or omission that would have warranted termination of your employment for Cause, or (ii) after termination of your employment, you engaged in conduct that violated any continuing obligation or duty in respect of the Company or any Subsidiary (including any breach of any restrictive covenant under any agreement between you and the Company or any Subsidiary), then, subject to applicable law, upon notice from the Company, you shall repay to the Company any cash or Shares you received in respect of the Option (less the exercise price paid by you), or if you disposed of any such Shares, the Fair Market Value of such Shares as of the date of disposition (less the exercise price paid by you).
Nothing in this Agreement shall limit the Company’s right of recoupment pursuant to Section 13 of the Plan, including recoupment of payments pursuant to the Company’s compensation recovery, “clawback” or similar policy, as may be in effect from time to time.
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Change of Control
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Notwithstanding the foregoing, in the event of a Change of Control, the Committee may take such actions with respect to the Option as it deems appropriate pursuant to the Plan. If the Option continues in effect after a Change of Control and you experience a Change in Control Termination as defined by the HB Key Executive Severance Benefit Plan, as in effect at the time of your termination of employment, any unvested portion of the Option shall become fully vested upon such termination of employment.
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Restrictions on Exercise
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The Company will not permit you to exercise this Option if the issuance of Shares at that time would violate any law, rule, regulation or Company policy, as determined by the Company.
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Notice of Exercise
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When you wish to exercise this Option, you must complete and execute such documents, if any, and complete such processes, that the Company or a securities broker approved by the Company may require to accomplish the Option exercise (“Notice of Exercise”).
Upon exercise of the Option (or portion thereof), the Option (or portion thereof) will terminate and cease to be outstanding.
If someone else wants to exercise the Option after your death, that person must prove to the Company’s satisfaction that he or she is entitled to do so.
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Form of Payment
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When you submit your Notice of Exercise, you must include payment of the exercise price for the Shares you are purchasing, along with applicable withholding taxes. Payment may be made in one (or a combination) of the following forms:
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- Your personal check, a cashier’s check or a money order.
- If permitted by the Company, irrevocable directions to a securities broker approved by the Company to sell your Shares subject to the Option and to deliver all or a portion of the sale proceeds to the Company in payment of the exercise price and applicable withholding taxes. (The balance of the sale proceeds, if any, will be delivered to you.) The directions must be given by signing forms, if any, provided by the Company or the securities broker.
- Any other method permitted by the Company at the time of exercise.
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Taxes
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When you exercise any portion of the Option, the Company will withhold taxes as required by applicable law, and your ability to exercise any portion of the Option is conditional upon your making arrangements satisfactory to the Company.
You are solely responsible for the satisfaction of all taxes and penalties that may arise in connection with the Option. At the time of taxation, the Company shall have the right to deduct from other compensation, or to withhold Shares in an amount equal to the federal (including FICA), state, local and foreign taxes and other amounts as may be required by law to be withheld with respect to the exercise of the Option. If Shares are withheld, the value of the Shares withheld may not exceed the minimum applicable tax withholding amount (except as otherwise determined by the Committee in its sole discretion). By accepting this Award, you expressly consent to the withholding of Shares or other amounts payable to you.
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Restrictions on Resale/Company Policies
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By signing this Agreement, you agree not to sell any Shares received upon exercise of the Option at a time when applicable laws, regulations or Company policies prohibit a sale. The Option, any Shares issued pursuant to the Option, and any cash proceeds realized from the sale of such Shares will be subject to all share retention, trading, and other policies that may be implemented by the Committee or the Board from time to time.
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Transfer of Option
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Prior to your death, only you may exercise this Option. You cannot transfer or assign this Option. For instance, you may not sell this Option or use it as security for a loan. If you attempt to do any of these things, this Option will immediately become invalid.
In the event of your death, the Option may be exercised by your designated beneficiary, if any, or your executors, personal representatives or distributees determined in accordance with your will or the laws of descent and distribution.
Regardless of any marital property settlement agreement, the Company or a securities broker, as applicable, is not obligated to honor a Notice of Exercise from your former spouse, nor is the Company or the securities broker obligated to recognize your former spouse’s interest in your Option in any other way.
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Stockholder Rights
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You, or your estate or heirs, have no rights as a stockholder of the Company with respect to the Shares subject to the Option until a proper Notice of Exercise has been submitted, and the exercise price and withholding taxes have been tendered and the Shares have been delivered to you.
Upon the delivery of shares of Common Stock upon exercise, you will have all the rights of a shareholder with respect to such shares of Common Stock, including the right to vote such shares of Common Stock and to receive all dividends and other distributions paid with respect to them.
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No Right to Continued Employment
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Neither the grant of the Option, nor any other action taken hereunder shall be construed as giving you the right to be retained in the employ or service of the Company or any of its Subsidiaries (for the vesting period or any other period of time) nor interfere in any way with the Company’s right to terminate your employment.
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Applicable Law and Arbitration
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This Agreement will be subject to and interpreted in accordance with the laws of the State of Delaware, without reference to the principles of conflicts of laws, and applicable Federal or other securities laws. Any dispute, controversy or claim arising out of or relating to the Plan or this Agreement that cannot be resolved by you on the one hand and the Company on the other, shall be submitted to arbitration in accordance with the terms of the Plan.
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Certain Definitions
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For purposes of this Agreement, “Cause” shall have the meaning set forth in the Employment Agreement between you and Hostess Brands, LLC entered into on April 12, 2018, as amended by the First Amendment to Employment Agreement dated as of August 1, 2018.
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Delivery of Documents
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The Company may, in its sole discretion, decide to deliver any documents related to the Option or other Awards granted to you under the Plan by electronic means. By signing the Cover Sheet, you consent to receive all documents related to the Option or other Awards granted to your under the Plan by electronic delivery and agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or a third party designated by the Company.
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Amendment
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The terms and conditions of this Agreement and the Option may be amended by the Committee or the Board as permitted by the Plan.
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The Plan and Other Agreements
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The text of the Plan and any amendments thereto are incorporated in this Agreement by reference.
This Agreement, the Cover Sheet and the Plan constitute the entire understanding between you and the Company regarding this Option. Any prior agreements, commitments or negotiations concerning this Option are superseded.
In the event there is any express conflict between this Agreement and the terms of the Plan, the terms of the Plan shall govern.
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Date: May 8, 2019
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/s/ Andrew P. Callahan
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President and Chief Executive Officer
(Principal Executive Officer)
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Date: May 8, 2019
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/s/ Thomas A. Peterson
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Executive Vice President, Chief Financial Officer
(Principal Financial and Accounting Officer)
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Date: May 8, 2019
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/s/ Andrew P. Callahan
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President and Chief Executive Officer
(Principal Executive Officer)
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Date: May 8, 2019
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/s/ Thomas A. Peterson
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Executive Vice President, Chief Financial Officer
(Principal Financial and Accounting Officer)
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