As filed with the Securities and Exchange Commission on June 9, 2023
Registration No. 333-
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As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 6/09/23 Tyson Foods, Inc. S-3ASR 6/09/23 5:593K Broadridge Fin’l So… Inc |
Document/Exhibit Description Pages Size 1: S-3ASR Automatic Shelf Registration Statement by a HTML 379K Well-Known Issuer 2: EX-5.1 Opinion of Counsel re: Legality HTML 31K 3: EX-23.1 Consent of Expert or Counsel HTML 6K 4: EX-25.1 Statement of Eligibility to Act as a Trustee HTML 62K 5: EX-FILING FEES Filing Fees Table HTML 42K
Delaware | | | 71-0225165 |
(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 | | | ☐ |
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• | Our Annual Report on Form 10-K for the fiscal year ended October 1, 2022, including those portions of our Definitive Proxy Statement on Schedule 14A filed on December 21, 2022 that are specifically
incorporated by reference into such Annual Report on Form 10-K; |
• | Our Quarterly Reports on Forms 10-Q for the quarter ended December 31, 2022 and for the quarter ended April 1, 2023; |
• | Our Current Reports on Form 8-K or Form 8-K/A filed with the SEC on January 9,
2023, February 13, 2023 and May 15, 2023; and |
• | Our Registration Statement on Form 8-A dated October 14, 1997, and any amendment or report filed for the purpose of updating such description. |
• | the designation of the Offered Securities; |
• | the aggregate principal amount of the Offered Securities |
• | the
date or dates on which principal of, and premium, if any, on the Offered Securities is payable; |
• | the rate or rates at which the Offered Securities shall bear interest, if any, or the method by which such rate shall be determined, and the basis on which interest shall be calculated if other than a 360-day year consisting of twelve 30-day months, the date or dates from which such interest will accrue and on which such interest will be payable and the related record dates; |
• | if other than the offices of the Trustee, the place where the principal of and any premium or interest on the Offered Securities will be payable; |
• | any redemption, repayment or sinking fund provisions; |
• | if other than denominations
of $1,000 or multiples of $1,000, the denominations in which the Offered Securities will be issuable; |
• | if other than the principal amount of such debt security, the portion of the principal amount due upon acceleration; |
• | if other than U.S. dollars, the currency or currencies (including composite currencies) in which the Offered Securities are denominated or payable; |
• | whether the Offered Securities shall be issued in the form of a global security or securities; |
• | if
applicable, a discussion of any material United States federal income tax considerations; |
• | any other specific terms of the Offered Securities; and |
• | the identity of any trustees, depositories, authenticating or paying agents, transfer agents or registrars with respect to the Offered Securities. (Section 2.3) |
(i) | the creation of any mortgage, pledge or other
lien on any shares of stock, indebtedness or other obligations of a Subsidiary or any Principal Property acquired after the date of the Indenture (including acquisitions by way of merger or consolidation) by the Company or a Restricted Subsidiary |
(ii) | any mortgage, pledge or other lien on any shares of stock, indebtedness or other obligations of a Subsidiary or any Principal Property existing at the date of this Indenture; |
(iii) | any
mortgage, pledge or other lien on any shares of stock, indebtedness or other obligations of a Subsidiary or any Principal Property in favor of the Company or any Restricted Subsidiary; |
(iv) | any mortgage, pledge or other lien on Principal Property being constructed or improved securing loans to finance such construction or improvements; |
(v) | any mortgage, pledge or other lien on shares of stock, indebtedness or other obligations of a Subsidiary or any Principal Property incurred in connection with the issuance of tax-exempt governmental obligations; and |
(vi) | renewal
of or substitution for any mortgage, pledge or other lien permitted by any of the preceding clauses (i) through (v), provided, in the case of a mortgage, pledge or other lien permitted under clause (i), (ii) or (iv), the indebtedness secured is not increased nor the lien extended to any additional shares of stock, indebtedness or other obligations of a Subsidiary or any additional Principal Property. |
(i) | indebtedness
of the Company and its Restricted Subsidiaries incurred after the date of the Indenture and secured by liens created, assumed or otherwise incurred or permitted to exist pursuant to the provision described in the last sentence under “Certain Covenants— Restrictions on Liens” and |
(ii) | Attributable Debt of the Company and its Restricted Subsidiaries in respect of all sale and
lease-back transactions with regard to any Principal Property entered into pursuant to the provision described in the last sentence under “—Certain Covenants—Restrictions on Sale and Lease-Back Transactions.” |
(i) | land, land improvements, buildings and associated factory equipment owned or leased pursuant to a capital lease and used by the Company or a Restricted Subsidiary primarily for processing, producing, |
(ii) | certain property referred to in the Indenture;
and |
(iii) | any asset held by Tyson Holding Company (which was subsequently merged with and into Tyson Foods, Inc.) but shall not include any such property or assets described in clauses (i), (ii) or (iii) that is financed through the issuance of tax exempt governmental obligations, or any such property or assets that has been determined by board resolution of the Company not to be of material importance to the respective businesses conducted by the Company or such Restricted Subsidiary, effective as of the date such resolution is adopted. |
(i) | each Subsidiary the major part of whose business consists of finance, banking, credit, leasing, insurance, financial services or other similar operations, or any combination of such operations; and |
(ii) | each
Subsidiary formed or acquired after the date of the Indenture for the purpose of acquiring the business or assets of another person and which does not acquire all or any substantial part of the business or assets of the Company or any Restricted Subsidiary; |
(a) | either |
(i) | the
Company will be the continuing Person or |
(ii) | the Person (if other than the Company) formed by such consolidation or into which the Company is merged or that acquired or leased such property and assets of the Company shall be a corporation organized and validly existing under the laws of the United States of America or any jurisdiction of the United States of America and shall expressly assume, by a supplemental indenture, executed and delivered to the Trustee, all of the
obligations of the Company on all of the debt securities and the Company shall have delivered to the Trustee an opinion of counsel stating that such consolidation, merger or transfer and such supplemental indenture complies with this provision and that all conditions precedent provided for in the Indenture relating to such transaction have been complied with; and |
(b) | immediately after giving effect to such transaction, no Default (as defined in the Indenture)
shall have occurred and be continuing. (Section 5.1) |
(a) | the Company defaults in the payment of the principal of any debt security of such series when
the same becomes due and payable at maturity, upon acceleration, redemption, mandatory repurchase or otherwise; |
(b) | the Company defaults in the payment of interest on any debt security of such series when the same becomes due and payable, and such default continues for a period of 30 days; |
(c) | the Company defaults
in the performance of or breaches any other covenant or agreement of the Company in the Indenture with respect to the debt securities of such series and such default or breach continues for a period of 30 consecutive days after written notice to the Company by the Trustee or to the Company and the Trustee by the Holders (as defined in the Indenture) of 25% or more in aggregate principal amount of the debt securities of such series; |
(d) | an
involuntary case or other proceeding shall be commenced against the Company with respect to it or its debts under any bankruptcy, insolvency or other similar law seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days; or an order for relief shall be entered against the Company under the federal bankruptcy laws; |
(e) |
(i) | commences
a voluntary case under any applicable bankruptcy, insolvency or other similar law, or consents to the entry of an order for relief in an involuntary case under any such law, |
(ii) | consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company or for all or substantially all of the property and assets of the Company or |
(iii) | effects any general assignment for the benefit of creditors; or |
(f) | any
other Events of Default set forth in the applicable prospectus supplement occurs. (Section 6.1) |
(i) | the Trustee may rely and will be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper person, and the Trustee need not investigate any fact or matter stated in the document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit; |
(ii) | before
the Trustee acts or refrains from acting, it may require an officers’ certificate or an opinion of counsel, and the Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion; |
(iii) | the Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care; |
(iv) | the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by the Indenture at the request or direction of any of the Holders, unless
such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction; |
(v) | the Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers or for any action it takes or omits to take in accordance with the direction of the Holders of a majority in principal amount of the outstanding debt securities relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under the Indenture; and |
(vi) | the
Trustee may consult with counsel and the written advice of such counsel or any opinion of counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it under the Indenture in good faith and in reliance on such advice or opinion. (Section 7.2) Subject to such provisions in the Indenture for the indemnification of the Trustee and certain other |
(i) | such Holder has previously given to the Trustee written notice of a continuing Event of Default with respect to the debt securities of such series; |
(ii) | the Holders of at least 25% in aggregate principal amount of outstanding debt securities of such series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee under the Indenture; |
(iii) | such
Holder or Holders have offered to the Trustee indemnity reasonably satisfactory to the Trustee against any costs, liabilities or expenses to be incurred in compliance with such request; |
(iv) | the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and |
(v) | during such 60-day period, the Holders of a majority in aggregate principal amount of the outstanding debt securities of such series have not given the Trustee a direction that is inconsistent with such written request. |
(i) | all debt securities of such series previously authenticated and delivered (other than destroyed, lost or stolen debt securities of such series that have been replaced or debt securities of such series that are fully paid or debt securities of such series for whose payment money or debt securities have previously been held in trust and subsequently repaid to the
Company, as provided in the Indenture) have been delivered to the Trustee for cancellation and the Company has paid all sums payable by it under the Indenture; or |
(ii) | (A) the debt securities of such series mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory to the Trustee for giving the notice of redemption, (B) the Company irrevocably deposits in trust with the Trustee, as trust funds solely for the
benefit of the Holders of such debt securities for that purpose, money or U.S. Government Obligations (as defined in the Indenture) or a combination of money and U.S. Government Obligations sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification of such firm delivered to the Trustee), without consideration of any reinvestment, to pay principal of and interest on the debt securities of such series to maturity or redemption, as the case may be, and to pay all other sums payable by it under the Indenture, (C) no default with respect to the debt |
(i) | the
Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders for payment of the principal of and interest on the debt securities of such series, money or U.S. Government Obligations or a combination of money or U.S. Government Obligations sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification of such firm delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect of such funds payable by the Trustee, to pay and discharge the principal of and accrued interest on the outstanding debt securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be; |
(ii) | such
deposit will not result in a breach or violation of, or constitute a default under, the Indenture or any other agreement or instrument to which the Company is a party or by which it is bound; |
(iii) | no Default (as defined in the Indenture) with respect to the debt securities of such series shall have occurred and be continuing on the date of such deposit or at any time during the period specified in clause (iv)(2)(z) below; |
(iv) | the
Company shall have delivered to the Trustee (1) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the debt securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company’s exercise of its option under this provision of the Indenture and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such option had not been exercised or (y) an opinion of counsel to the same affect as the ruling described in clause (x) above and based on a change in law and (2) an opinion of counsel to the effect that (x) the creation of the defeasance trust does not violate the Investment Company Act of 1940, as
amended, (y) the Holders of the debt securities of such series have a valid first priority security interest in the trust funds, and (z) after the passage of 123 days following the deposit (except after one year following the deposit, with respect to any trust funds for the account of any Holder of the debt securities of such series who may be deemed to be an “insider” as to an obligor on the debt securities of such series for purposes of the United States Bankruptcy Code), the trust funds will not be subject to the effect of Section 547 of the United States Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law in a case commenced by or against the Company |
(v) | if the debt securities of such series are then listed on a national securities exchange, the Company shall have delivered to the Trustee an opinion of
counsel to the effect that the defeasance contemplated by this provision of the Indenture of the debt securities of such series will not cause the debt securities of such series to be delisted; and |
(vi) | the Company has delivered to the Trustee an officers’ certificate and an opinion of counsel, in each case stating that all conditions precedent provided for in the Indenture relating to the defeasance contemplated by this provision of the Indenture of the debt securities
of such series have been complied with. Notwithstanding the foregoing, prior to the end of the 123-day (or one year) period referred to in clause (iv) (2)(z) of this paragraph, none of the Company’s obligations under the Indenture with respect to the debt securities of such series shall be discharged. Subsequent to the end of such 123-day (or one year) period, the Company’s obligations in Sections 2.2 (Execution and Authorization), 2.3 (Amount Unlimited; Issuable in Series), 2.4 (Denomination and Date of Securities; Payments of Interest), 2.5 (Registrar and Paying Agent; Agents Generally), 2.6 (Paying Agent to Hold Money in Trust), 2.7 (Transfer and Exchange), 2.11 (Cancellation), 4.2 (Maintenance of Office or Agency),
7.7 (Compensation and Indemnity), 7.8 (Replacement of Trustee), 8.5 (Repayment by Company) and 8.6 (Reinstatement) of the Indenture with respect to the debt securities of such series shall survive until such debt securities are no longer outstanding. Once there are no longer any debt securities of a particular series outstanding, only the Company’s obligations in Sections 7.7 (Compensation and Indemnity), 8.5 (Repayment by Company) and 8.6 (Reinstatement) of the Indenture with respect to the debt securities of such series shall survive. If and when a ruling from the Internal Revenue Service or an opinion of counsel referred to in clause (iv)(1) of this paragraph is able to be provided specifically without regard
to, and not in reliance upon, the continuance of the Company’s obligations under Section 4.1 (Payment of Securities) of the Indenture, then the Company’s obligations under such Section 4.1 of the Indenture with respect to the debt securities of such series shall cease upon delivery to the Trustee of such ruling or opinion of counsel and compliance with the other conditions precedent provided for in this provision of the Indenture relating to the defeasance contemplated by this provision of the Indenture.
(Section 8.2) |
(i) | the Company has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders
of the debt securities of such series for payment of the principal of and interest, if any, on the debt securities of such series money or U.S. Government Obligations or a combination of money or U.S. Government Obligations in an amount sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification of such firm delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect of such funds payable by the Trustee, to pay and discharge the principal of and interest on the outstanding debt securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be; |
(ii) | such
deposit will not result in a breach or violation of, or constitute a default under, the Indenture or any other agreement or instrument to which the Company is a party or by which it is bound; |
(iii) | no Default with respect to the debt securities of such series shall have occurred and be continuing on the date of such deposit; |
(iv) | the Company has delivered to the Trustee an opinion of counsel to the effect that (A) the creation of the defeasance trust does not violate the
Investment Company Act of 1940, as amended, (B) the Holders of the debt securities of such series have a valid first-priority security interest in the trust funds, (C) such Holders will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and covenant defeasance and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred and (D) after the passage of 123 days following the deposit (except after one year following the deposit, with respect to any trust funds for the account of any Holder of the debt securities of such series who may be deemed to be an “insider” as to an obligor on the debt securities of such series for purposes of the United States Bankruptcy Code), the trust funds will not be subject to the effect of Section 547 of the United States Bankruptcy Code or Section 15 of the New York Debtor
and Creditor Law in a case commenced by or against the Company under either such statute, and either (1) the trust funds will no longer remain the property of the Company (and therefore will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally) or (2) if a court were to rule under any such law in any case or proceeding that the trust funds remained property of the Company, to the extent not paid to such Holders, the Trustee will hold, for the benefit of such Holders, a valid and perfected first priority security interest in such trust funds that is not avoidable in bankruptcy or otherwise (except for the effect of Section 552(b) of
the United States Bankruptcy Code on interest on the trust funds accruing after the commencement of a case under such statute), and the Holders of the debt securities of such series will be entitled to receive adequate protection of their interests in such trust funds if such trust funds are used in such case or proceeding; |
(v) | if the debt securities of such series are then listed on a national securities exchange, the Company shall have delivered to the Trustee an opinion of counsel to the effect that the covenant defeasance contemplated by this provision of the Indenture of the debt securities of such series will not cause the debt securities
of such series to be delisted; and |
(vi) | the Company has delivered to the Trustee an officers’ certificate and an opinion of counsel, in each case stating that all conditions precedent provided for in the Indenture relating to the covenant defeasance contemplated by this provision of the Indenture of the debt securities of such series have been complied with. (Section 8.3) |
(i) | to cure any ambiguity, defect or inconsistency in the Indenture;
provided, that such amendments or supplements shall not adversely affect the interests of the Holders in any material respect; |
(ii) | to comply with Article 5 (Successor Corporation) of the Indenture; |
(iii) |
(iv) | to
evidence and provide for the acceptance of appointment under the Indenture with respect to the debt securities of any or all series by a successor Trustee; |
(v) | to establish the form or forms or terms of debt securities of any series or of the coupons appertaining to such debt securities as permitted by the Indenture; |
(vi) | to provide for uncertificated debt securities and to make all appropriate changes for such purpose; or |
(vii) | to
make any change that does not materially and adversely affect the rights of any Holder. (Section 9.1) |
(i) | extend the stated maturity of the principal of, or any sinking fund obligation or any
installment of interest on, such Holder’s debt security; |
(ii) | reduce the principal amount of such debt security or the rate of interest on such debt security (including any amount in respect of original issue discount), or any premium payable with respect to such debt security; |
(iii) | adversely affect the rights of such Holder under any mandatory repurchase provision or any right of repurchase at the option of such Holder; |
(iv) | reduce the amount of the principal of an Original Issue Discount Security that
would be due and payable upon an acceleration of the maturity of such debt security pursuant to the Indenture or the amount of such debt security provable in bankruptcy; |
(v) | change any place of payment where, or the currency in which, any debt security of such series or any premium or the interest on such debt security is payable; |
(vi) | impair the right to institute suit for the enforcement of any such payment on or after the stated maturity of such debt security (or, in the case of redemption, on or after the redemption date or, in the case of mandatory repurchase, the
date of such repurchase); |
(vii) | reduce the percentage in principal amount of outstanding debt security of such series the consent of whose Holders is required for any such supplemental indenture, for any waiver of compliance with certain provisions of the Indenture or certain Defaults and their consequences provided for in the Indenture; |
(viii) | waive a Default in the payment of principal of or interest
on, any debt security of such series; |
(ix) | cause any debt security of such series to be subordinated in right of payment to any obligation of the Company; or |
(x) | modify any of the provisions of this section of the Indenture, 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 outstanding
debt security of any series affected by such supplemental indenture. |
• | the title of such warrants; |
• | the
aggregate number of such warrants; |
• | the price or prices at which such warrants will be issued; |
• | the currency or currencies in which the price of such warrants will be payable; |
• | the securities or other rights, including rights to receive payment in cash or securities based on the value, rate or price of one or more specified commodities, currencies, securities or indices, or any combination of the foregoing, purchasable upon exercise of such warrants; |
• | the
price at which and the currency or currencies in which the securities or other rights purchasable upon exercise of such warrants may be purchased; |
• | the date on which the right to exercise such warrants shall commence and the date on which such right shall expire; |
• | if applicable, the minimum or maximum amount of such warrants which may be exercised at any one time; |
• | if applicable, the designation and terms of the securities with which such warrants are issued and the number of such warrants issued with each such
security; |
• | if applicable, the date on and after which such warrants and the related securities will be separately transferable; |
• | information with respect to book-entry procedures, if any; |
• | if applicable, a discussion of any material United States federal income tax considerations; and |
• | any other terms of such warrants, including terms, procedures and limitations
relating to the exchange and exercise of such warrants. |
• | debt or equity securities issued by us or securities of third parties, a basket of such securities, an index or indices or such securities or any combination
of the above as specified in the applicable prospectus supplement; |
• | currencies; or |
• | commodities. |
• | the terms of the units
and of the purchase contracts, warrants, debt securities and common stock comprising the units, including whether and under what circumstances the securities comprising the units may be traded separately; |
• | if applicable, a discussion of any material United States federal income tax considerations; |
• | a description of the terms of any unit agreement governing the units; and |
• | a description of the provisions for the payment, settlement,
transfer or exchange of the units. |
• | the depositary notifies us that it is unwilling or unable to continue as a depositary for any securities or if the depositary ceases to be a clearing agency registered under
the Securities Exchange Act of 1934 and a successor depositary is not appointed within 90 days of the notification or of our becoming aware of the depositary’s ceasing to be so registered, as the case may be, |
• | we determine, in our sole discretion, not to have the securities represented by one or more global securities, or |
• | in the case of debt securities, an event of default under the indenture for such debt securities has occurred and is continuing with respect to such debt securities, then, in each case, we will prepare and deliver certificates for such securities in exchange
for beneficial interests in the global securities. Any securities issued in definitive form in exchange for a registered global security will be registered in the name or names that the depositary gives to the relevant trustee, warrant agent, unit agent or other relevant agent of ours or theirs. It is expected that the depositary’s instructions will be based upon directions received by the depositary from participants with respect to ownership of beneficial interests in the registered global security that had been held by the depositary. |
• | through underwriters
or dealers; |
• | through agents; |
• | directly to one or more purchasers; |
• | through a combination of any of these methods of sale; or |
• | through any other method described in the applicable prospectus supplement. |
• | the names of any underwriters or agents; |
• | any discounts and other items constituting underwriters’ or agents’ compensation; |
• | any
discounts or concessions allowed or reallowed or paid to dealers; and |
• | any securities exchanges on which the applicable securities may be listed. |
Item 14. | Other Expenses of Issuance and Distribution |
| | Amount to Be
$ Paid | |
Registration fee | | | $ (*) |
Printing | | | (**) |
Legal
fees and expenses (including Blue Sky fees) | | | (**) |
Transfer agent and trustee fees | | | (**) |
Rating
agency fees | | | (**) |
Accounting fees and expenses | | | (**) |
Miscellaneous | | | (**) |
TOTAL | | | $ (**) |
* | Omitted because the registration fee is being deferred pursuant to Rule 456(b) and 457(r) of the Securities Act and will be paid at the time of any particular offering of securities under this registration statement, and are therefore not estimable at this time. |
** | Not presently known. The estimated aggregate expenses of any offering will be set forth in the applicable prospectus supplement. |
Item 15. | Indemnification of Directors |
• | for any breach of the director’s duty of loyalty to the corporation or its stockholders; |
• | for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of law; |
• | pursuant to Section 174 of the DGCL (providing for liability of directors for unlawful payment of dividends or unlawful stock purchases or redemptions); or |
• | for any transaction from which the director derived an improper personal benefit. |
Item 16. | Exhibits |
Exhibit No. | | | Document
|
1.1* | | | Form of Underwriting Agreement |
4.1 | | | |
4.2 | | | |
4.3 | | | |
4.4 | | | |
4.5 | | | Indenture
dated October 2, 1990, between Sara Lee Corporation and Continental Bank, N.A., as Trustee (the “Sara Lee Indenture”) (previously filed as Exhibit 4.1 to Amendment No. 1 to Registration Statement No. 33-33603 on Form S-3 by Sara Lee Corporation, predecessor in interest to The Hillshire Brands Company, filed with the Commission on October 5, 1990, Commission File No. 001-03344, and incorporated herein by reference). |
4.6 | | | |
4.7 | | | |
4.8 | | | |
4.9 | | | |
4.10 | | |
Exhibit No. | | | Document
|
4.11 | | | |
4.12* | | | Form of Debt Security |
4.13* | | | Form
of Warrant Agreement |
4.14* | | | Form of Purchase Contract |
4.15* | | | Form
of Unit Agreement |
4.16 | | | |
4.17 | | | |
4.18* | | | Form of Subordinated Indenture, between the Company and a trustee
to be named later |
5.1 | | | |
23.1 | | | |
23.2 | | | |
24.1 | | | |
25.1 | | | |
25.2** | | | |
107 | | |
* | To be filed, if necessary, as an exhibit to a post-effective amendment to this registration statement or as an exhibit to a Current Report on Form 8-K to be filed by the registrant in connection with a specific offering, and incorporated herein by reference. |
** | To be filed, if necessary, on a Form T-1 and incorporated
herein by reference. |
Item 17. | Undertakings |
(a) | The undersigned Registrant hereby undertakes: |
(1) | To file, during any period in which offers or sales are being made of securities registered hereby, 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 Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent 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 herein, 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: |
(A) | 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 |
(B) | 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 to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture
Act. |
(c) | 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 Section 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. |
(d) | 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 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 Act and will be governed by the final adjudication of such issue. |
| | TYSON FOODS, INC. | |||||||
| | | | | | ||||
| | By: | | | /s/
John R. Tyson | ||||
| | | | Name: | | | |||
| | | | Title: | | | Executive
Vice President, Chief Financial Officer |
Signature | | | Title | | | Date
|
/s/ Donnie King | | | President, Chief Executive Officer and Director (Principal Executive Officer) | | | |
| ||||||
| | | | |||
/s/
John R. Tyson | | | Executive Vice President and Chief Financial Officer (Principal Financial Officer) | | | |
| ||||||
| | | | |||
| | Vice President, Controller and Chief Accounting Officer (Principal Accounting Officer) | | | ||
| ||||||
| | | | |||
/s/
John H. Tyson | | | Chairman of the Board of Directors | | | |
| ||||||
| | | | |||
/s/
Les R. Baledge | | | Director | | | |
| ||||||
| | | | |||
/s/
Mike Beebe | | | Director | | | |
| ||||||
| | | | |||
| | Director | | | ||
| ||||||
| | | | |||
| | Director | | | ||
| ||||||
| | | |
Signature | | | Title | | | Date
|
/s/ Mikel A. Durham | | | Director | | | |
| ||||||
| | | | |||
| | Director | | | ||
| ||||||
| | | | |||
| | Vice Chairman of the Board of Directors and Lead Independent Director | | | ||
| ||||||
| | | | |||
/s/
Cheryl S. Miller | | | Director | | | |
| ||||||
| | | | |||
| | Director | | | ||
| ||||||
| | | | |||
/s/
Barbara A. Tyson | | | Director | | | |
| ||||||
| | | | |||
/s/
Noel White | | | Executive Vice Chairman of the Board of Directors | | | |
|
This ‘S-3ASR’ Filing | Date | Other Filings | ||
---|---|---|---|---|
Filed on / Effective on: | 6/9/23 | |||
10/1/22 | 10-K, DEF 14A | |||
2/12/20 | 8-K, SC 13G/A | |||
10/3/98 | 10-K, DEF 14A | |||
6/1/95 | ||||
List all Filings |
As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 5/15/23 Tyson Foods, Inc. 8-K/A:5 2/09/23 11:198K 5/08/23 Tyson Foods, Inc. 10-Q 4/01/23 83:15M 2/13/23 Tyson Foods, Inc. 8-K:5 2/09/23 11:241K 2/06/23 Tyson Foods, Inc. 10-Q 12/31/22 94:12M 1/09/23 Tyson Foods, Inc. 8-K:5 1/09/23 11:199K 12/21/22 Tyson Foods, Inc. DEF 14A 10/01/22 1:78M 11/14/22 Tyson Foods, Inc. 10-K 10/01/22 118:20M 2/12/20 Tyson Foods, Inc. 8-K:5,8,9 2/06/20 13:396K 9/28/18 Tyson Foods, Inc. 8-K:1,2,8,9 9/25/18 5:696K Davis Polk & … LLP 01/FA 8/23/17 Tyson Foods, Inc. 8-K:1,2,8,9 8/21/17 5:576K Davis Polk & … LLP 01/FA 6/02/17 Tyson Foods, Inc. 8-K:1,2,8,9 6/02/17 6:942K Davis Polk & … LLP 01/FA 8/08/14 Tyson Foods, Inc. 8-K:1,2,8,9 8/05/14 7:1M Donnelley … Solutions/FA 12/16/98 Tyson Foods, Inc. 10-K 10/03/98 9:212K 12/18/97 Tyson Foods, Inc. S-3 7:279K 10/14/97 Tyson Foods, Inc. 8-A12B 1:5K |