As filed with the Securities and Exchange Commission on April 10, 2023
Registration No. 333-
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As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 4/10/23 Chefs’ Warehouse, Inc. S-3ASR 4/10/23 6:1.1M Broadridge Fin’l So… Inc |
Document/Exhibit Description Pages Size 1: S-3ASR Automatic Shelf Registration Statement by a HTML 444K Well-Known Issuer 2: EX-4.2 Instrument Defining the Rights of Security Holders HTML 526K 3: EX-5.1 Opinion of Counsel re: Legality HTML 34K 4: EX-23.1 Consent of Expert or Counsel HTML 6K 5: EX-25.1 Statement of Eligibility to Act as a Trustee HTML 40K 6: EX-FILING FEES Filing Fees Table HTML 37K
Delaware | | | 20-3031526 |
(State
or other jurisdiction of incorporation or organization) | | | (I.R.S. Employer Identification Number |
Large accelerated filer | | | ☒ | | | | | Accelerated
filer | | | ☐ | |
Non-accelerated filer | | | ☐ | | | | | Smaller
reporting company | | | ☐ | |
| | | | | | Emerging
growth company | | | ☐ |
• | our success depends to a significant extent upon general economic conditions, including disposable income levels and changes in consumer discretionary spending; |
• | a significant portion of our future growth is dependent upon our ability to expand our operations in our existing markets and to penetrate new markets through acquisitions; |
• | we may not achieve the benefits expected from our acquisitions, which could
adversely impact our business and operating results; |
• | we may have difficulty managing and facilitating our future growth; |
• | our business is a low-margin business and our profit margins may be sensitive to inflationary and deflationary pressures; |
• | we have significant competition from a variety of sources, and we may not be able to compete successfully; |
• | our customers
are generally not obligated to continue purchasing products from us; |
• | damage to our reputation or lack of acceptance of our specialty food products, center-of-the-plate products and/or the brands we carry in existing and new markets could materially and adversely impact our business, financial condition or results of operations; |
• | we have experienced losses due to our inability to collect accounts receivable in the past and could experience increases in such losses in the future if our customers are unable to pay their debts to us in a timely manner or at all; |
• | new
information or attitudes regarding diet and health or adverse opinions about the health effects of the products we distribute could result in changes in consumer eating habits, which could have a material adverse effect on our business, financial condition or results of operations; |
• | our business operations and future development could be significantly disrupted if we lose key members of our management team; |
• | our insurance policies may not provide adequate levels of coverage against all claims, and fluctuating insurance requirements and costs could negatively impact our profitability. In addition, if we fail to establish proper reserves and adequately estimate future
expenses, the costs associated with our self-insured group medical, workers’ compensation liability and auto liability plans may adversely affect our business, financial condition or results of operations; |
• | conditions beyond our control could materially affect the cost and/or availability of our specialty food products or center-of-the-plate products and/or interrupt our distribution network; |
• | our distribution of center-of-the-plate products, like meat, poultry and seafood, involves increased exposure to price volatility experienced by those products; |
• | group
purchasing organizations may become more active in our industry and increase their efforts to add our customers as members of these organizations; |
• | fuel cost volatility may have a material adverse effect on our business, financial condition or results of operations; |
• | increases in our labor costs, including as a result of labor shortages, the unionization of some of our associates, the price or unavailability of insurance and changes in government regulation, could slow our growth or harm our business; |
• | significant
public health epidemics or pandemics, including the COVID-19 pandemic (the “Pandemic”), may adversely affect our business, results of operations and financial condition; |
• | because our foodservice distribution operations are concentrated in certain culinary markets, we are susceptible to economic and other developments, including adverse weather conditions, in these areas; |
• | information technology system failures or breaches of our network security could interrupt our operations and adversely affect our business; |
• | our
investments in information technology may not produce the benefits that we anticipate; |
• | we may not be able to adequately protect our intellectual property, which, in turn, could harm the value of our brands and adversely affect our business; |
• | product liability claims could have a material adverse effect on our business, financial condition or results of operations; |
• | we are subject to significant governmental regulation and failure to comply could subject us to enforcement actions, recalls or other penalties, which
could have a material adverse effect on our business, financial condition or results of operations; |
• | federal, state, provincial and local tax rules in the United States and the foreign countries we operate in may adversely impact our business, financial condition or results of operations; |
• | our substantial indebtedness may limit our ability to invest in the ongoing needs of our business; |
• | our ability to raise capital in the future may be limited; |
• | we
may be unable to obtain debt or other financing, including financing necessary to execute on our acquisition strategy, on favorable terms or at all; |
• | changes in the method of determining London Interbank Offered Rate (“LIBOR”), or the replacement of LIBOR with an alternative rate, may adversely affect interest charged on our outstanding debt; |
• | the price of our common stock may be volatile and our stockholders could lose all or a part of their investment; |
• | concentration of ownership among our existing executive
officers, directors and their affiliates may prevent new investors from influencing significant corporate decisions; |
• | if securities analysts or industry analysts downgrade our stock, publish negative research or reports or do not publish reports about our business, our stock price and trading volume could decline; |
• | we do not intend to pay dividends for the foreseeable future and our stock may not appreciate in value; |
• | our issuance of preferred stock or debt securities could adversely affect holders of our common
stock and discourage a takeover; and |
• | some provisions of our charter documents and Delaware law may have anti-takeover effects that could discourage an acquisition of us by others, even if an acquisition would be beneficial to our stockholders, and may prevent attempts by our stockholders to replace or remove our current management. |
• | shares of our common stock, par value $0.01 per share; |
• | shares
of our preferred stock, par value $0.01 per share; |
• | our depositary shares |
• | our debt securities, in one or more series, which may be senior debt securities or subordinated debt securities; |
• | warrants to purchase any of the other securities that may be sold under this prospectus; or |
• | any combination of these securities. |
• | prior to the time the stockholder became an interested stockholder, the board of directors of the corporation approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder; |
• | the interested stockholder owned at least 85%
of the voting stock of the corporation, excluding specified shares, upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder; or |
• | at or subsequent to the time the stockholder became an interested stockholder, the business combination is approved by the board of directors of the corporation and authorized by the affirmative vote, at an annual or special meeting, and not by written consent, of at least two-thirds of the outstanding voting shares of the corporation, excluding shares held by that interested stockholder. |
• | mergers
and consolidations with or caused by an interested stockholder; |
• | sales or other dispositions of 10% or more of the assets of a corporation to an interested stockholder; |
• | specified transactions resulting in the issuance or transfer to an interested stockholder of any capital stock of a corporation or its subsidiaries; and |
• | other transactions resulting in a disproportionate financial benefit to an interested stockholder. |
• | all outstanding depositary shares have been redeemed; or |
• | a final distribution in respect of the preferred stock has been made to the holders of depositary shares in connection with any liquidation, dissolution
or winding up of the Company. |
• | the offering price and the aggregate number of warrants offered; |
• | the designation, aggregate principal amount, currencies, denominations and terms of the series of debt securities that can be purchased if a holder exercises a warrant; |
• | the designation and terms of any
series of debt securities with which the warrants are being offered and the number of warrants offered with each such debt security; |
• | the date on and after which the holder of the warrants can transfer them separately from the related series of debt securities; |
• | the principal amount of the series of debt securities that can be purchased if a holder exercises a warrant and the price at which and currencies in which such principal amount may be purchased upon exercise; |
• | the terms of any rights to redeem or call the
warrants; |
• | the date on which the right to exercise the warrants begins and the date on which such right expires; |
• | federal income tax consequences of holding or exercising the warrants; and |
• | any other specific terms, preferences, rights or limitations of, or restrictions on, the warrants. |
• | the offering price and the aggregate number of warrants offered; |
• | the total number of shares that can be purchased if a holder of the warrants exercises them and, in the case of warrants for preferred stock, the designation, total number and terms of the series of preferred stock that can be purchased upon exercise; |
• | the designation and terms of any series of preferred stock with which the warrants are being offered
and the number of warrants being offered with each share of common stock or preferred stock; |
• | the date on and after which the holder of the warrants can transfer them separately from the related common stock or series of preferred stock; |
• | the number of shares of common stock or preferred stock that can be purchased if a holder exercises the warrant and the price at which such common stock or preferred stock may be purchased upon exercise, including, if applicable,
any provisions for changes to or adjustments in the exercise price and in the securities or other property receivable upon exercise; |
• | the date on which the right to exercise the warrants begins and the date on which that right expires; |
• | federal income tax consequences of holding or exercising the warrants; and |
• | any other specific terms, preferences, rights or limitations of, or restrictions on, the warrants. |
• | The
title of the debt securities and whether the debt securities will be senior securities or subordinated securities of the Company. |
• | The total principal amount of the debt securities of the series and any limit on such total principal amount. |
• | If not the principal amount of the debt securities, the portion of the principal amount payable upon acceleration of the maturity of the debt securities or how this portion will be determined. |
• | The
date or dates, or how the date or dates will be determined or extended, when the principal of the debt securities will be payable. |
• | The interest rate or rates, which may be fixed or variable, that the debt securities will bear, if any, or how the rate or rates will be determined, the date or dates from which any interest will accrue or how the date or dates will be determined, the interest payment dates, any record dates for these payments and the basis upon which interest will be calculated if other than that of a 360-day year of twelve 30-day months. |
• | Any optional redemption provisions. |
• | Any
sinking fund or other provisions that would obligate us to repurchase or otherwise redeem the debt securities. |
• | The form in which we will issue the debt securities; whether we will have the option of issuing debt securities in “certificated” form; whether we will have the option of issuing certificated debt securities |
• | If other than
U.S. dollars, the currency or currencies in which the debt securities are denominated and/or payable. |
• | Whether the amount of payments of principal, premium or interest, if any, on the debt securities will be determined with reference to an index, formula or other method (which index, formula or method may be based, without limitation, on one or more currencies, commodities, equity indices or other indices), and how these amounts will be determined. |
• | The place or places, if any, other than or in addition to The City of New York, of payment, transfer, conversion and/or exchange of the debt securities. |
• | If
other than minimum denominations of $2,000 or any integral multiple of $1,000 above the minimum denomination, the denominations in which the offered debt securities will be issued. |
• | If the provisions of Article Fourteen of the indenture described under “defeasance” are not applicable and any provisions in modification of, in addition to or in lieu of any of these provisions. |
• | Whether and under what circumstances we will pay additional amounts, as contemplated by Section 1010 of the indenture,
in respect of any tax, assessment or governmental charge and, if so, whether we will have the option to redeem the debt securities rather than pay the additional amounts (and the terms of this option). |
• | Whether the securities are subordinated and the terms of such subordination. |
• | Any provisions granting special rights to the holders of the debt securities upon the occurrence of specified events. |
• | Any changes or additions to the Events of Default or covenants contained in the indenture.
|
• | Whether the debt securities will be convertible into or exchangeable for any other securities and the applicable terms and conditions. |
• | The particular covenants to which the notes of the series are subject. |
• | Any other material terms of the debt securities. |
• | how it handles securities payments and notices, |
• | whether
it imposes fees or charges, |
• | how it would handle a request for the holders’ consent, if ever required, |
• | whether and how you can instruct it to send you debt securities registered in your own name so you can be a holder, if that is permitted in the future for a particular series of debt securities, |
• | how it would exercise rights under the debt securities if there were a default or other event triggering the need for holders to act to protect their interests, and |
• | if
the debt securities are in book-entry form, how the depositary’s rules and procedures will affect these matters. |
• | the successor or transferee entity, if other than the Company, is a corporation organized and existing under the laws of the United States, any state thereof or the District of Columbia and expressly assumes by a supplemental indenture executed and delivered to the trustee,
in form reasonably satisfactory to the trustee, the due and punctual payment of the principal of, any premium on and any interest on, all the outstanding debt securities of the Company and the performance of every covenant and obligation in the indenture to be performed or observed by the Company; |
• | immediately after giving effect to the transaction, no Event of Default, as defined in the indenture, and no event which, after notice or lapse of time or both, would become
an Event of Default, has happened and is continuing; and |
• | the Company has delivered to the trustee an officers’ certificate and an opinion of counsel, in the form required by the indenture and stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with the foregoing provisions relating to such transaction. |
(a) | default
for 30 days in payment of any interest on the debt securities of such series when it becomes due and payable; |
(b) | default in payment of principal of or any premium on the debt securities of such series at maturity or upon redemption or repayment when the same becomes due and payable; |
(c) | default in the deposit of any principal payment into the sinking fund, when and as due by the terms of any debt security of such series and the indenture; |
(d) | default
by the Company in the performance of any other covenant contained in the indenture for the benefit of the debt securities of such series that has not been remedied by the end of a period of 90 days after notice is given as specified in the indenture; |
(e) | default in the payment of principal or an acceleration of other indebtedness for borrowed money of the Company where the aggregate principal amount with respect to which the default or acceleration has occurred exceeds
$25 million and such acceleration has not been rescinded or annulled or such indebtedness repaid within a period of 30 days after written notice to the Company by the trustee or to the Company and the trustee by the holders of at least 25% in principal amount of all outstanding debt securities under the indenture, provided that if any such default is cured, waived, rescinded or annulled, then the event of default by reason thereof would be deemed not to have occurred; and |
(f) | certain events of bankruptcy, insolvency and reorganization
of the Company. |
• | if an event of default described in clause (a), (b), (c), (d) or (e) above has occurred and is continuing, either the trustee or the holders of not less than 25% in aggregate principal amount of the debt securities of the applicable series may declare the principal amount of the debt securities then outstanding, and any accrued and unpaid interest through the date of such declaration, to be due and payable immediately; |
• | upon
certain conditions such declarations may be annulled and past defaults (except for defaults in the payment of principal of, or any premium or interest on the debt securities and in compliance with certain covenants) may be waived by the holders of a majority in aggregate principal amount of the debt securities of the applicable series; and |
• | if an event of default described in clause (f) occurs and is continuing, then the principal amount of all debt securities issued under the indenture, together with any accrued interest through the occurrence of such event, shall become and be due and payable immediately, without any declaration or other act by the trustee or any other holder. |
• | such holder has given the trustee written notice of a continuing event of default with respect to the debt securities; |
• | the holders of not less than 25% in aggregate principal amount of the debt securities of the applicable series have requested the trustee to institute proceedings in respect of such event of default; |
• | such holder or holders have offered the trustee such reasonable indemnity as the trustee may require; |
• | the
trustee has failed to institute an action for 60 days thereafter; and |
• | no inconsistent direction has been given to the trustee during such 60-day period by the holders of a majority in aggregate principal amount of such debt securities. |
• | to evidence the succession of another corporation to the Company and the assumption by such successor of its obligations under the indenture and the debt securities; |
• | to
add covenants of the Company or surrender of any of its rights, or add any rights for the benefit of the holders of debt securities; |
• | to cure any ambiguity, omission, defect or inconsistency in the indenture; |
• | to establish the form or terms of any other series of debt securities, including any subordinated securities; |
• | to conform the
indenture to the description of securities of any series as set forth in the applicable prospectus supplement; |
• |
• | to
provide any additional events of default. |
• | change the maturity of any payment of principal of, or any premium on, any debt securities, or change any place of payment where, or the coin or currency in which,
any principal, premium or interest is payable, or impair the right to institute suit for the enforcement of any such payment on or after the maturity thereof (or, in the case of redemption or repayment, on or after the redemption or repayment date); |
• | reduce the percentage in principal amount of the outstanding debt securities, the consent of whose holders is required for any such modification, or the consent of whose holders is required for any waiver of compliance with certain provisions of the indenture or certain defaults thereunder and their consequences provided for in the indenture; or |
• | modify
any of the provisions of certain sections of the indenture, including the provisions summarized in this paragraph, except to increase any such percentage or to provide that certain other provisions of the indenture cannot be modified or waived without the consent of the holder of each of the outstanding debt securities affected thereby. |
• | Deposit
in trust for the benefit of all holders of such debt securities a combination of money and government or government agency debt securities or bonds in the relevant currency that will generate enough cash to make interest, principal and any other payments on the debt securities of such series in the relevant currency on their various due dates. |
• | Deliver to the trustee a legal opinion of our counsel confirming that, under current United States federal income tax law, we may make the above deposit without causing you to be taxed on the debt securities of such series any differently than if we did not make the deposit and just repaid such debt securities ourselves at maturity. |
• | We must deposit in trust for the benefit of all holders of the debt securities of such series a combination of money and government or government agency debt securities or bonds in the relevant currency that will generate enough cash to make interest, principal and any other payments on the debt securities of such series in the relevant currency on their various due dates. |
• | We must deliver to the trustee a legal opinion confirming that there has been a change in current United States federal tax law or an Internal Revenue Service ruling that allows us to make the above deposit without causing you to be taxed on the debt securities of such series any
differently than if we did not make the deposit and just repaid such debt securities ourselves at maturity. Under current United States federal tax law, the deposit and our legal release from the debt securities of such series would be treated as though we paid you your share of the cash and debt securities or bonds at the time the cash and debt securities or bonds were deposited in trust in exchange for your debt securities and you would recognize gain or loss on your debt securities at the time of the deposit. |
• | only in fully registered certificated form, |
• | without
interest coupons, and |
• | unless we indicate otherwise in the prospectus supplement or term sheet, in a minimum denomination of $2,000 and amounts above the minimum denomination that are integral multiples of $1,000. |
• | the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately; |
• | any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; |
• | the
terms of the unit agreement governing the units; |
• | United States federal income tax considerations relevant to the units; and |
• | whether the units will be issued in fully registered global form. |
• | to or through underwriting syndicates represented by managing underwriters; |
• | through one or more underwriters without a syndicate for them to offer and sell to the public; |
• | through dealers or agents; |
• | to purchasers directly in negotiated sales or in competitively bid transactions;
or |
• | through a combination of any of these methods. |
• | on or through the facilities of the NASDAQ or any other securities exchange or quotation or trading service on which those securities may be listed, quoted, or traded at the time of sale; and/or |
• | to
or through a market maker otherwise than on the securities exchanges or quotation or trading services set forth above. |
• | the name or names of any underwriters, dealers or agents; |
• | the purchase price of the offered securities and the proceeds to us from such sale; |
• | any underwriting discounts and commissions or agency fees and other items constituting underwriters’ or agents’ compensation; |
• | any initial public offering price and any discounts or concessions allowed or reallowed
or paid to dealers; and |
• | any securities exchange on which such offered securities may be listed. |
• | at fixed prices, which may be changed; |
• | at
market prices prevailing at the time of the sale; |
• | at varying prices determined at the time of sale; or |
• | at negotiated prices. |
• | whether that offering is being made to underwriters or through agents or directly; |
• | the
rules and procedures for any auction or bidding process, if used; |
• | the securities’ purchase price or initial public offering price; and |
• | the proceeds we anticipate from the sale of the securities, if any. |
• | the name of any participating broker, dealer, agent or underwriter; |
• | the
number and type of securities involved; |
• | the price at which such securities were sold; |
• | any securities exchanges on which such securities may be listed; |
• | the commissions paid or discounts or concessions allowed to any such broker, dealer, agent or underwriter where applicable; and |
• | other facts material to the transaction. |
• | is not part of this prospectus, the applicable prospectus supplement and any applicable pricing supplement or the registration statement of which they form a part; |
• | has not been approved
or endorsed by us or by any agent or dealer in its capacity as an agent or dealer, except, in each case, with respect to the respective website maintained by such entity; and |
• | should not be relied upon by investors. |
1. | Our Annual Report on Form
10-K for the year ended December 30, 2022, filed with the SEC on February 28, 2023. |
2. | Our Definitive Proxy Statement on Schedule 14A, filed with the SEC on March 29, 2023 (to the extent incorporated into Part III of our Annual Report on Form 10-K for the year ended December 30, 2022). |
3. | The description of our common stock set forth
under the heading “Description of Our Capital Stock” in the prospectus included in the registration statement on Form S-1 (File No. 333-173445) initially filed with the SEC on April 12, 2011 (as amended from time to time). |
Item 14. | Other Expenses
of Issuance and Distribution. |
| | AMOUNT
TO BE PAID | |
SEC Registration Fee | | | $ (1)(2) |
Legal
Fees and Expenses | | | $(2) |
Accounting Fees and Expenses | | | $(2) |
Printing
Fees and Expenses | | | $(2) |
Trustee’s Fees | | | $(2) |
Miscellaneous | | | $ (2) |
Total | | | $ (2) |
(1) | Fees are being deferred pursuant to Rules 456(b) and 457(r). |
(2) | These fees are based in part on the number of issuances and amount of securities offered and, accordingly, cannot be estimated at this time. |
Item 15. | Indemnification of Directors and Officers. |
Item 16. | Exhibits. |
EXHIBIT NUMBER | | | DESCRIPTION |
1.1** | | | Form
of Underwriting Agreement. |
| | ||
| | Certificate
of Incorporation of the Company, dated as of July 27, 2011 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on August 2, 2011). | |
| | ||
| | Certificate
of Designation of the Voting Powers, Designation, Preferences and Relative, Participating, Optional or Other Special Rights and Qualifications, Limitations and Restrictions of the Series A Preferred Stock of The Chefs’ Warehouse, Inc. (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on March 23, 2020). | |
| | ||
| | Bylaws
of the Company, dated as of January 30, 2017 (incorporated by reference to Exhibit 3.1 to the Company’s Form 8-K filed on January 30, 2017). | |
| | ||
| | Form
of Common Stock Certificate (incorporated by reference to Exhibit 4.1 to the Company’s S-1/A filed on July 1, 2011). | |
| | ||
| | Form of Indenture. | |
| | ||
| | Indenture,
dated as of November 22, 2019, between the Chefs’ Warehouse, Inc. and the Bank of New York Mellon Trust Company, N.A., as Trustee (incorporated by reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K filed on November 22, 2019) | |
| |
EXHIBIT NUMBER | | | DESCRIPTION |
| | Indenture,
dated as of December 13, 2022, between The Chefs’ Warehouse, Inc. and The Bank of New York Mellon Trust Company, N.A., as Trustee (incorporated by reference to Exhibit 4.1 of the Company's Current Report on Form 8-K filed on December 13, 2022) | |
| | ||
| | Form
of 1.875% Convertible Senior Note due 2024 (incorporated by reference to an exhibit to Exhibit 4.1 of the Company’s Current Report on Form 8-K filed on November 22, 2019) | |
| | ||
| | Form
of 2.375% Convertible Senior Note due 2024 (incorporated by reference to an exhibit to Exhibit 4.1 of the Company’s Current Report on Form 8-K filed on December 13, 2022) | |
| | ||
4.7** | | | Form
of Debt Security. |
| | ||
4.8** | | | Form
of Deposit Agreement (including form of Depositary Receipt) |
| | ||
4.9** | | | Form
of Preferred Stock Certificate. |
| | ||
4.10** | | | Form
of Certificate of Designations. |
| | ||
4.11** | | | Form
of Common Stock Warrant Agreement. |
| | ||
4.12** | | | Form
of Common Stock Warrant Certificate. |
| | ||
4.13** | | | Form
of Preferred Stock Warrant Agreement. |
| | ||
4.14** | | | Form
of Preferred Stock Warrant Certificate. |
| | ||
4.15** | | | Form
of Debt Securities Warrant Agreement. |
| | ||
4.16** | | | Form
of Debt Securities Warrant Certificate. |
| | ||
4.17** | | | Form
of Unit Agreement. |
| | ||
| | Opinion
of Shearman & Sterling LLP regarding the legality of the securities being registered. | |
| | ||
| | Consent
of BDO USA, LLP, Independent Registered Public Accounting Firm. | |
| | ||
| | Consent
of Shearman & Sterling LLP (included in Exhibit 5.1 above). | |
| | ||
| | Power
of Attorney (included on the signature page to this registration statement). | |
| | ||
| | Statement
of Eligibility of The Bank of New York Mellon Trust Company, N.A., as Trustee on Form T-1 for the form of Indenture listed as Exhibit 4.2. | |
| | ||
| | Filing
Fee Table |
* |
** | To be filed, if necessary, by post-effective amendment to this registration statement or incorporated by reference from documents filed with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended. |
Item 17. | Undertakings. |
(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 of 1933; |
(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 (if the total dollar value of securities offered would not exceed that which was registered) 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 Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20%
change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; |
(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; |
(2) | That, for the purpose of determining any liability under the Securities Act of 1933, 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 of 1933 to any purchaser: |
(i) | Each prospectus filed by the 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 of 1933 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. |
(5) | That, for the purpose of determining liability of the registrant under the Securities Act of 1933 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. |
(b) | The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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. |
(c) | Insofar as indemnification for liabilities arising under the Securities Act of 1933 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 Securities and Exchange 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. |
| | THE CHEFS’ WAREHOUSE, INC. | ||||
| | | | |||
| | By: | | | ||
| | | | Chairman of the Board of Directors, President and Chief Executive Officer |
SIGNATURE | | | TITLE | | | DATE |
| | | | |||
| | Chairman, President and Chief Executive Officer (Principal Executive Officer) | | | ||
| ||||||
| | | | |||
/s/
James Leddy | | | Chief Financial Officer (Principal Financial Officer) | | | |
| ||||||
| | | | |||
/s/
Timothy McCauley | | | Chief Accounting Officer (Principal Accounting Officer) | | | |
| ||||||
| | | | |||
/s/
John Pappas | | | Director and Vice Chairman | | | |
| ||||||
| | | | |||
/s/
Alan Guarino | | | Director | | | |
| ||||||
| | | | |||
| | Director | | | ||
| ||||||
| | | | |||
/s/
Joseph Cugine | | | Director | | | |
| ||||||
| | | |
SIGNATURE | | | TITLE | | | DATE |
| | | | |||
/s/
Stephen Hanson | | | Director | | | |
| ||||||
| | | | |||
/s/
Katherine Oliver | | | Director | | | |
| ||||||
| | | | |||
| | Director | | | ||
| ||||||
| | | | |||
/s/
Ivy Brown | | | Director | | | |
| ||||||
| | | | |||
/s/
Aylwin Lewis | | | Director | | | |
|
This ‘S-3ASR’ Filing | Date | Other Filings | ||
---|---|---|---|---|
Filed on / Effective on: | 4/10/23 | |||
4/7/23 | ||||
3/29/23 | ARS, DEF 14A, DEFA14A | |||
2/28/23 | 10-K, 4 | |||
12/30/22 | 10-K, ARS | |||
12/13/22 | 8-K | |||
12/24/21 | 10-K, 4, ARS | |||
3/23/20 | 8-A12B, 8-K | |||
11/22/19 | 8-K | |||
12/28/18 | 10-K | |||
1/30/17 | 5, 8-K | |||
8/2/11 | 4, 8-K, S-8 | |||
7/27/11 | 3, EFFECT, S-1/A | |||
7/1/11 | S-1/A | |||
4/12/11 | S-1 | |||
List all Filings |
As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 3/29/23 Chefs’ Warehouse, Inc. DEF 14A 12:2.7M 2/28/23 Chefs’ Warehouse, Inc. 10-K 12/30/22 106:11M 12/13/22 Chefs’ Warehouse, Inc. 8-K:1,2,3,812/09/22 12:845K Donnelley … Solutions/FA 3/23/20 Chefs’ Warehouse, Inc. 8-K:1,3,5,8 3/22/20 13:672K Shearman & Sterling LLP 11/22/19 Chefs’ Warehouse, Inc. 8-K:1,2,3,811/18/19 14:891K Shearman & Sterling LLP 1/31/17 Chefs’ Warehouse, Inc. 8-K:5,9 1/30/17 2:146K Shearman & Sterling LLP 8/02/11 Chefs’ Warehouse, Inc. 8-K:5,8,9 8/02/11 6:222K Donnelley … Solutions/FA 7/01/11 Chefs’ Warehouse, Inc. S-1/A¶ 17:3.3M Donnelley … Solutions/FA 4/12/11 Chefs’ Warehouse, Inc. S-1 4:1.4M Donnelley … Solutions/FA |