SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 20, 2017
AMPLIFY SNACK BRANDS, INC.
(Exact name of Registrant as Specified in Its Charter)
| Delaware | 001-37530 | 47-1254894 | ||
| (State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
| 500 West 5th Street, Suite 1350 Austin, Texas |
78701 | |
| (Address of Principal Executive Offices) | (Zip Code) |
Registrant’s Telephone Number, Including Area Code: 512.600.9893
N/A
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instructions A.2. below):
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 or Rule 12b-2 of the Securities Exchange Act of 1934.
Emerging growth company ☑
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☑
| Item 3.02. | Unregistered Sales of Equity Securities. |
The disclosure in Item 5.02 of this Current Report on Form 8-K regarding the issuance of an inducement award in the form of options to purchase shares of common stock of Amplify Snack Brands, Inc. (the “Company”), par value $0.0001, to Craig Shiesley is incorporated by reference into this Item. The inducement grant is exempt from the registration requirements of the Securities Act of 1933 by virtue of Section 4(a)(2) thereof and/or Regulation D promulgated thereunder.
A press release announcing the inducement grant to Craig Shiesley was issued by us on September 20, 2019, a copy of which is attached hereto as Exhibit 99.1.
| Item 5.02. | Appointment of Certain Officers; Compensatory Arrangements of Certain Officers |
On September 19, 2017, the Compensation Committee of the Company’s Board of Directors (the “Compensation Committee”) granted Craig Shiesley, the Company’s newly appointed Chief Operating Officer and President, North America, a stock option award to purchase 1,166,173 shares of the Company’s common stock subject to the terms of the Company’s Form of Inducement Award Non-Qualified Stock Option Agreement (“Form of Inducement Option Agreement”) which is attached to this report as Exhibit 10.1. One third (1/3) of the shares subject to Mr. Shiesley’s option award shall vest and become exercisable on the last day of the month of first anniversary of September 12, 2017, and the remaining two thirds (2/3) of the shares subject to Mr. Shiesley’s option award shall vest in twenty-four (24) equal monthly installments thereafter, subject to Mr. Shiesley’s continued service to the Company on each vesting date. This option award replaces in its entirety the option award that was purported to be granted to Mr. Shiesley on September 12, 2017, as previously disclosed in the Current Report on Form 8-K filed by the Company on September 12, 2017 (the “Prior Award”). The Prior Award was not effective and is null and void. The terms of the new option are substantially identical to the Prior Award, except that the exercise price of the new option is $7.06 per share which is $0.02 higher than the Prior Award and equal to the closing price of the Company’s common stock on the date of grant, September 19, 2017.
The option award granted to Mr. Shiesley on September 19, 2017, was granted outside of the Company’s current stockholder-approved stock option and incentive plan and is intended to qualify as an “employment inducement award” within the meaning of Section 303A.08 of the New York Stock Exchange Listed Company Manual; accordingly, the Company is not required to seek (and did not seek) approval of the inducement award made to Mr. Shiesley by the Company’s stockholders under applicable New York Stock Exchange rules.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
| Exhibit No. |
Description | |
| 10.1 | Form of Inducement Option Agreement | |
| 99.1 | Press Release, dated September 20, 2017, issued by Amplify Snack Brands, Inc. | |
Exhibit Index
| Exhibit No. |
Description | |
| 10.1 | Form of Non-Qualified Stock Option Agreement Non-Plan Inducement Award | |
| 99.1 | Press Release, dated September 20, 2017, issued by Amplify Snack Brands, Inc. | |
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
| Amplify Snack Brands, Inc. (Registrant) | ||
| By: /s/ Thomas C. Ennis | ||
| Thomas C. Ennis | ||
| President and Chief Executive Officer | ||
September 20, 2017
Exhibit 10.1
AMPLIFY SNACK BRANDS, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
NON-PLAN INDUCEMENT AWARD
Name of Optionee:
No. of Option Shares:
Option Exercise Price per Share:
Grant Date:
Expiration Date:
Amplify Snack Brands, Inc. (the “Company”) hereby grants to the Optionee named above an option (the “Stock Option”) to purchase on or prior to the Expiration Date specified above all or part of the number of shares of Common Stock, par value $0.0001 per share (the “Stock”) of the Company specified above at the Option Exercise Price per Share specified above. This Stock Option has been granted as an “employment inducement award” pursuant to the exemption provided by Section 303A.08 of the New York Stock Exchange Listed Company Manual, is not issued under the Company’s 2015 Stock Option and Incentive Plan, as amended through the date hereof (the “Plan”), and does not reduce the share reserve under the Plan. However, for purposes of interpreting the applicable provisions of this Stock Option, the terms and conditions of the Plan (other than those applicable to the share reserve) shall govern and apply to this Stock Option as if this Stock Option had actually been issued under the Plan. This Stock Option is not intended to be an “incentive stock option” under Section 422 of the Internal Revenue Code of 1986, as amended.
1. Exercisability Schedule. No portion of this Stock Option may be exercised until such portion shall have become exercisable. Except as set forth below, and subject to the discretion of the Administrator (as defined in Section 2 of the Plan) to accelerate the exercisability schedule hereunder, this Stock Option shall be exercisable with respect to the following number of Option Shares on the dates indicated so long as Optionee remains an employee of the Company or a Subsidiary on such dates: [on the last day of the month of the first anniversary of the Grant Date, 1/3rd of the Option Shares will vest and become exercisable, and thereafter 1/36th of the Option Shares will vest and become exercisable on the last day of each month thereafter].
Once exercisable, this Stock Option shall continue to be exercisable at any time or times prior to the close of business on the Expiration Date, subject to the provisions hereof and of the Plan.
2. Manner of Exercise.
(a) The Optionee may exercise this Stock Option only in the following manner: from time to time on or prior to the Expiration Date of this Stock Option, the Optionee may give written notice to the Administrator of his or her election to purchase some or all of the Option Shares purchasable at the time of such notice. This notice shall specify the number of Option Shares to be purchased.
Payment of the purchase price for the Option Shares may be made by one or more of the following methods: (i) in cash, by certified or bank check or other instrument acceptable to the Administrator; (ii) through the delivery (or attestation to the ownership) of shares of Stock that have been purchased by the Optionee on the open market or that are beneficially owned by the Optionee and are not then subject to any restrictions under any Company plan and that otherwise satisfy any holding periods as may be required by the Administrator; (iii) by the Optionee delivering to the Company a properly executed exercise notice together with irrevocable instructions to a broker to promptly deliver to the Company cash or a check payable and acceptable to the Company to pay the option purchase price, provided that in the event the Optionee chooses to pay the option purchase price as so provided, the Optionee and the broker shall comply with such procedures and enter into such agreements of indemnity and other agreements as the Administrator shall prescribe as a condition of such payment procedure; (iv) by a “net exercise” arrangement pursuant to which the Company will reduce the number of shares of Stock issuable upon exercise by the largest whole number of shares with a Fair Market Value that does not exceed the aggregate exercise price; or (v) a combination of (i), (ii), (iii) and (iv) above. Payment instruments will be received subject to collection.
The transfer to the Optionee on the records of the Company or of the transfer agent of the Option Shares will be contingent upon (i) the Company’s receipt from the Optionee of the full purchase price for the Option Shares, as set forth above, (ii) the fulfillment of any other requirements contained herein or in the Plan or in any other agreement or provision of laws, and (iii) the receipt by the Company of any agreement, statement or other evidence that the Company may require to satisfy itself that the issuance of Stock to be purchased pursuant to the exercise of Stock Options and any subsequent resale of the shares of Stock will be in compliance with applicable laws and regulations. In the event the Optionee chooses to pay the purchase price by previously-owned shares of Stock through the attestation method, the number of shares of Stock transferred to the Optionee upon the exercise of the Stock Option shall be net of the Shares attested to.
(b) The shares of Stock purchased upon exercise of this Stock Option shall be transferred to the Optionee on the records of the Company or of the transfer agent upon compliance to the satisfaction of the Administrator with all requirements under applicable laws or regulations in connection with such transfer and with the requirements hereof and of the Plan. The determination of the Administrator as to such compliance shall be final and binding on the Optionee. The Optionee shall not be deemed to be the holder of, or to have any of the rights of a holder with respect to, any shares of Stock subject to this Stock Option unless and until this Stock Option shall have been exercised pursuant to the terms hereof, the Company or the transfer agent shall have transferred the shares to the Optionee, and the Optionee’s name shall have been entered as the stockholder of record on the books of the Company. Thereupon, the Optionee shall have full voting, dividend and other ownership rights with respect to such shares of Stock.
(c) The minimum number of shares with respect to which this Stock Option may be exercised at any one time shall be 100 shares, unless the number of shares with respect to which this Stock Option is being exercised is the total number of shares subject to exercise under this Stock Option at the time.
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(d) Notwithstanding any other provision hereof or of the Plan, no portion of this Stock Option shall be exercisable after the Expiration Date hereof.
3. Termination of Employment. If the Optionee’s employment by the Company or a Subsidiary (as defined in the Plan) is terminated, the period within which to exercise the Stock Option may be subject to earlier termination as set forth below.
(a) Termination Due to Death. If the Optionee’s employment terminates by reason of the Optionee’s death, any portion of this Stock Option outstanding on such date, to the extent exercisable on the date of death, may thereafter be exercised by the Optionee’s legal representative or legatee for a period of 12 months from the date of death or until the Expiration Date, if earlier. Any portion of this Stock Option that is not exercisable on the date of death shall terminate immediately and be of no further force or effect.
(b) Termination Due to Disability. If the Optionee’s employment terminates by reason of the Optionee’s disability (as determined by the Administrator), any portion of this Stock Option outstanding on such date, to the extent exercisable on the date of such termination of employment, may thereafter be exercised by the Optionee for a period of 12 months from the date of disability or until the Expiration Date, if earlier. Any portion of this Stock Option that is not exercisable on the date of disability shall terminate immediately and be of no further force or effect.
(c) Termination for Cause. If the Optionee’s employment terminates for Cause, any portion of this Stock Option outstanding on such date shall terminate immediately and be of no further force and effect. For purposes hereof, “Cause” shall mean, unless otherwise provided in an employment agreement between the Company and the Optionee, a determination by the Administrator that the Optionee shall be dismissed as a result of (i) any material breach by the Optionee of any agreement between the Optionee and the Company; (ii) the conviction of, indictment for or plea of nolo contendere by the Optionee to a felony or a crime involving moral turpitude; or (iii) any material misconduct or willful and deliberate non-performance (other than by reason of disability) by the Optionee of the Optionee’s duties to the Company.
(d) Other Termination. If the Optionee’s employment terminates for any reason other than the Optionee’s death, the Optionee’s disability or Cause, and unless otherwise determined by the Administrator, any portion of this Stock Option outstanding on such date may be exercised, to the extent exercisable on the date of termination, for a period of three months from the date of termination or until the Expiration Date, if earlier. Any portion of this Stock Option that is not exercisable on the date of termination shall terminate immediately and be of no further force or effect.
The Administrator’s determination of the reason for termination of the Optionee’s employment shall be conclusive and binding on the Optionee and his or her representatives or legatees.
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4. Incorporation of Plan. As set forth above, this Stock Option is not granted pursuant to the Plan. Instead, this Stock Option is granted as an “employment inducement award” pursuant to the exemption provided by Section 303A.08 of the New York Stock Exchange Listed Company Manual. However, for purposes of interpreting the provisions of this Stock Option, the terms and conditions of the Plan (other than those applicable to the share reserve, but, including the powers of the Administrator set forth in Section 2(b) of the Plan) shall govern and apply to this Stock Option as if this Stock Option had actually been issued under the Plan. Capitalized terms in this Agreement shall have the meaning specified in the Plan, unless a different meaning is specified herein.
5. Transferability. This Agreement is personal to the Optionee, is non-assignable and is not transferable in any manner, by operation of law or otherwise, other than by will or the laws of descent and distribution. This Stock Option is exercisable, during the Optionee’s lifetime, only by the Optionee, and thereafter, only by the Optionee’s legal representative or legatee.
6. Tax Withholding. The Optionee shall, not later than the date as of which the exercise of this Stock Option becomes a taxable event for Federal income tax purposes, pay to the Company or make arrangements satisfactory to the Administrator for payment of any Federal, state, and local taxes required by law to be withheld on account of such taxable event. The Company shall have the authority to cause the minimum required tax withholding obligation to be satisfied, in whole or in part, by withholding from shares of Stock to be issued to the Optionee a number of shares of Stock with an aggregate Fair Market Value that would satisfy the minimum withholding amount due.
7. No Obligation to Continue Employment. Neither the Company nor any Subsidiary is obligated by or as a result of the Plan or this Agreement to continue the Optionee in employment and neither the Plan nor this Agreement shall interfere in any way with the right of the Company or any Subsidiary to terminate the employment of the Optionee at any time.
8. Integration. This Agreement constitutes the entire agreement between the parties with respect to this Stock Option and supersedes all prior agreements and discussions between the parties concerning such subject matter.
9. Data Privacy Consent. In order to administer this Agreement and to implement or structure future equity grants, the Company, its subsidiaries and affiliates and certain agents thereof (together, the “Relevant Companies”) may process any and all personal or professional data, including but not limited to Social Security or other identification number, home address and telephone number, date of birth and other information that is necessary or desirable for the administration of this Agreement (the “Relevant Information”). By entering into this Agreement, the Optionee (i) authorizes the Company to collect, process, register and transfer to the Relevant Companies all Relevant Information; (ii) waives any privacy rights the Optionee may have with respect to the Relevant Information; (iii) authorizes the Relevant Companies to store and transmit such information in electronic form; and (iv) authorizes the transfer of the Relevant Information to any jurisdiction in which the Relevant Companies consider appropriate. The Optionee shall have access to, and the right to change, the Relevant Information. Relevant Information will only be used in accordance with applicable law.
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10. Notices. Notices hereunder shall be mailed or delivered to the Company at its principal place of business and shall be mailed or delivered to the Optionee at the address on file with the Company or, in either case, at such other address as one party may subsequently furnish to the other party in writing.
| AMPLIFY SNACK BRANDS, INC. | ||
| By: | ||
| Title: | ||
The foregoing Agreement is hereby accepted and the terms and conditions thereof hereby agreed to by the undersigned. Electronic acceptance of this Agreement pursuant to the Company’s instructions to the Optionee (including through an online acceptance process) is acceptable.
| Dated: |
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| Optionee’s Signature | ||||||||
| Optionee’s name and address: | ||||||||
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Exhibit 99.1
Amplify Snack Brands, Inc. Grants Employment Inducement Award
Austin, Texas—September 20, 2017—Amplify Snack Brands, Inc. (“Amplify” or the “Company”) (NYSE: BETR), a leading marketer and manufacturer of branded better-for-you snack food products, today announced that pursuant to Section 303A.08 of the New York Stock Exchange Listed Company Manual, it has granted an employment inducement award to Craig Shiesley, Amplify’s new Chief Operating Officer and President, North America.
In connection with Mr. Shiesley’s appointment as Amplify’s new Chief Operating Officer and President, North America, Mr. Shiesley was granted an option to purchase 1,166,173 shares of Amplify’s common stock, subject to the terms of the Company’s Inducement Award Non-Qualified Stock Option Agreement entered into with Mr. Shiesley. One third (1/3) of the shares subject to Mr. Shiesley’s option award shall vest and become exercisable on the last day of the month of the first anniversary of September 12, 2017, and the remaining two thirds (2/3) of the shares subject to Mr. Shiesley’s option award shall vest in twenty-four (24) equal monthly installments thereafter, subject to Mr. Shiesley’s continued service to the Company on each vesting date. This option award replaces in its entirety a stock option award that was purported to be granted to Mr. Shiesley on September 12, 2017 (the “Prior Award”), which was disclosed in the Current Report on Form 8-K filed by the Company the same day. The Prior Award was not effective and is null and void. The terms of the new option are substantially identical to the Prior Award, except that the exercise price of the new option is $7.06 per share which is $0.02 higher than the Prior Award and equal to the closing price on the date of grant, September 19, 2017.
The award was granted outside of Amplify’s current stockholder-approved stock option and incentive plan and was approved by the Compensation Committee of Amplify’s Board of Directors. The award is intended to qualify as an “employment inducement award” within the meaning of Section 303A.08 of the New York Stock Exchange Listed Company Manual. For further details regarding the equity compensation of Mr. Shiesley, please see Amplify’s Current Reports on Form 8-K filed September 12, 2017 and September 20, 2017 with the Securities and Exchange Commission.
About Amplify Snack Brands, Inc.
Headquartered in Austin, Texas, Amplify Snack Brands is a high growth snack food company focused on developing and marketing products that appeal to consumers’ growing preference for Better-For-You (BFY) snacks. Our brands SkinnyPop®, Tyrrells®, Paqui®, Oatmega®, Lisa’s® Chips, The Wholesome Food CompanyTM, and Thomas ChipmanTM embody our BFY mission of “snacking without compromise” and have amassed a loyal customer base across a wide range of food distribution channels in the United States, United Kingdom, Canada, Europe and Australia. For additional information, please visit: http://amplifysnackbrands.com.
Investors
Amplify Snack Brands, Inc.
Josh Gittler, 512-640-8377
jgittler@amplifysnacks.com
or
ICR
Katie Turner, 646-277-1228
katie.turner@icrinc.com