Securities Registration Statement (simplified Form) (s-3/a)
November 16 2016 - 6:04AM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on November 15, 2016
Registration No. 333-214603
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT
NO. 1
TO
FORM S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HOSTESS
BRANDS, INC.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware
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47-4168492
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(State or Other Jurisdiction of
Incorporation or Organization)
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(I.R.S. Employer
Identification No.)
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1 East Armour Boulevard
Kansas City, Missouri 64111
(816) 701-4600
(Address,
Including Zip Code, and Telephone Number, Including Area Code, of Registrants Principal Executive Offices)
Jolyn Sebree
Senior Vice President, General Counsel
Hostess Brands, Inc.
1
East Armour Boulevard
Kansas City, Missouri 64111
(816) 701-4600
(816)
701-4739 fax
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Howard
A. Kenny
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York,
New York 10178
(212) 309-6000
(212) 309-6001 fax
Approximate
date of commencement of proposed sale to the public:
From time to time after the effective date of this registration statement, as determined by market conditions.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the
following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, please check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following
box. ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D.
filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 under the Securities Exchange Act of 1934:
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Large accelerated filer
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☐
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Accelerated filer
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☒
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Non-accelerated filer
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☐ (Do not check if a smaller reporting company)
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Smaller reporting company
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☐
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The registrant hereby
amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment that specifically states that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
This Amendment No. 1 to the Registration Statement on Form S-3 (File No. 333-214603) is being filed solely for the purpose of including the delaying amendment
language set forth on the cover page hereto. This Amendment No. 1 does not modify any provision of the prospectus that forms a part of the registration statement and, accordingly, such prospectus has not been included herein. This
Amendment No. 1 is not intended to amend or delete any part of the registration statement except as specifically noted herein.
PART II
Information Not Required in Prospectus
Item 14.
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Other Expenses of Issuance and Distribution.
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The following table sets forth the costs
and expenses payable in connection with the offering of the securities being registered, all of which will be paid by Hostess Brands, Inc. (the Registrant) (except any underwriting discounts and commissions and expenses incurred by the
selling stockholders for brokerage, accounting, tax or legal services or any other expenses incurred by the selling stockholders in disposing of the shares). All amounts are estimates except the Securities and Exchange Commission (the
SEC) registration fee.
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Amount
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SEC registration fee
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$
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171,212
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FINRA filing fee
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222,086
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Printing and engraving expenses
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50,000
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Legal fees and expenses
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100,000
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Accounting fees and expenses
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75,000
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Transfer agent and registrar fees and expenses
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20,000
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Miscellaneous
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11,702
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Total
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$
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650,000
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Item 15.
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Indemnification of Directors and Officers.
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Section 145 of the Delaware General
Corporation Law (the DGCL) provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses (including attorneys fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with any threatened, pending or completed actions, suits or proceedings in which such person is made a party by reason of such person being or having been a director, officer, employee or
agent of the Registrant. The DGCL provides that Section 145 is not exclusive of other rights to which those seeking indemnification may be entitled under any bylaws, agreement, vote of stockholders or disinterested directors or otherwise. The
Registrants Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws provide for indemnification by the Registrant of its directors and officers to the fullest extent permitted by the DGCL.
Section 102(b)(7) of the DGCL permits a corporation to provide in its certificate of incorporation that a director of the corporation
shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (1) for any breach of the directors duty of loyalty to the corporation or its
stockholders, (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) for unlawful payments of dividends or unlawful stock repurchases, redemptions or other distributions or
(4) for any transaction from which the director derived an improper personal benefit. The Registrants Amended and Restated Certificate of Incorporation provides for such limitation of liability to the fullest extent permitted by the DGCL.
The Registrant maintains standard policies of insurance under which coverage is provided (1) to its directors and officers against
loss arising from claims made by reason of breach of duty or other wrongful act, while acting in their capacity as directors and officers of the Registrant, and (2) to the Registrant with respect to payments which may be made by the Registrant
to such officers and directors pursuant to any indemnification provision contained in the Registrants Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws or otherwise as a matter of law.
The Index to Exhibits is hereby incorporated by reference.
II-1
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities
offered and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission (the Commission) pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the effective registration statement; and
(iii) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however
, that:
Paragraphs (i), (ii) and (iii) do not apply if the information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities and Exchange Act of 1934, as amended (the Exchange Act), that are
incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act to any purchaser:
(i) Each prospectus filed by a Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date
the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed
pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by
Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
Provided
,
however
, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective date.
II-2
(5) That, for the purpose of determining liability of the Registrant under the Securities Act to
any purchaser in the initial distribution of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or
sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned Registrant relating to the
offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of
the undersigned Registrant or used or referred to by the undersigned Registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
(6) That, for purposes of determining any liability under the Securities Act, each filing of the Registrants annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(b) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Hostess Brands, Inc. certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to the Registration Statement on Form
S-3
to be signed on its behalf by the undersigned, thereunto duly authorized,
in Kansas City, Missouri on November 15, 2016.
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HOSTESS BRANDS, INC.
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/s/ Thomas Peterson
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Name:
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Thomas Peterson
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Title:
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Executive Vice President, Chief Financial Officer
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Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 1 to the Registration
Statement on Form S-3 has been signed below by the following persons on behalf of the Registrant, Hostess Brands, Inc., in the capacities and on the date indicated.
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Signature
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Capacity in Which Signed
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Date
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*
William Toler
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President and Chief Executive Officer (Principal Executive Officer)
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November 15, 2016
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/s/ Thomas Peterson
Thomas Peterson
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Chief Financial Officer (Principal Financial and Accounting Officer)
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November 15, 2016
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C. Dean Metropoulos
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Executive Chairman and Director
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November 15, 2016
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Andrew Jhawar
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Director
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November 15, 2016
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Mark R. Stone
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Director
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November 15, 2016
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Laurence Bodner
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Director
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November 15, 2016
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Neil P. DeFeo
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Director
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November 15, 2016
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Jerry D. Kaminski
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Director
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November 15, 2016
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Craig D. Steeneck
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Director
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November 15, 2016
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*By:
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/s/ Thomas Peterson
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Thomas Peterson
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Attorney-in-Fact
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INDEX TO EXHIBITS
The following exhibits are included or incorporated by reference in this registration statement on Form S-3 (certain documents have been previously filed with
the SEC pursuant to the Exchange Act by Hostess Brands, Inc. (Commission File Number 001-37540):
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Exhibit
Number
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Exhibit Title
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1.1
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Form of Underwriting Agreement*
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2.1
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Master Transaction Agreement, dated as of July 5, 2016, by and among Gores Holdings, Inc., Homer Merger Sub, Inc., AP Hostess Holdings, L.P., Hostess CDM Co-Invest, LLC, CDM Hostess Class C, LLC, and AP Hostess Holdings, L.P., in
its capacity as the Sellers Representative (incorporated by reference to Exhibit 2.1 to the Registrants Current Report on Form 8-K filed with the SEC on July 5, 2016)
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4.1
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Specimen Class A Common Stock Certificate (incorporated by reference to Exhibit 4.1 to the Registrants Current Report on Form 8-K filed with the SEC on November 9, 2016)
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4.2
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Specimen Warrant Certificate (incorporated by reference to Exhibit 4.3 to the Registrants Current Report on Form 8-K filed with the SEC on November 9, 2016)
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4.3
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Warrant Agreement between Continental Stock Transfer & Trust Company and the Registrant (incorporated by reference to Exhibit 4.4 to the Registrants Current Report on Form 8-K filed with the SEC on August 19,
2015)
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5.1
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Opinion of Morgan, Lewis & Bockius LLP (incorporated by reference to Exhibit 5.1 to the Registration Statement on Form S-3 (File No. 333-214603), filed on November 14, 2016)
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23.1
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Consent of KPMG LLP (incorporated by reference to Exhibit 23.1 to the Registration Statement on Form S-3 (File No. 333-214603), filed on November 14, 2016)
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23.2
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Consent of KPMG LLP (incorporated by reference to Exhibit 23.2 to the Registration Statement on Form S-3 (File No. 333-214603), filed on November 14, 2016)
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23.3
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Consent of Morgan, Lewis & Bockius LLP (included in Exhibit 5.1 to the Registration Statement)
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24.1
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Powers of Attorney**
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*
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To be filed, if necessary, subsequent to the effectiveness of this registration statement by an amendment to this registration statement or incorporated by reference pursuant to a Current Report on Form 8-K in
connection with the offering of securities
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