UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of
the Securities Exchange Act of 1934 (Amendment No. )
| | | | | |
Filed by the Registrant x |
|
Filed by a Party other than the Registrant o |
|
| Check the appropriate box: |
| x | Preliminary Proxy Statement |
| o | Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) |
| o | Definitive Proxy Statement |
| o | Definitive Additional Materials |
| o | Soliciting Material under §240.14a-12 |
BUNGE LIMITED
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
| | | | | | | | |
| Payment of Filing Fee (Check the appropriate box): |
| x | No fee required. |
| o | Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11. |
| (1) | Title of each class of securities to which transaction applies: |
| (2) | Aggregate number of securities to which transaction applies: |
| (3) | Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined): |
| (4) | Proposed maximum aggregate value of transaction: |
| (5) | Total fee paid: |
| o | Fee paid previously with preliminary materials. |
| o | Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. |
| (1) | Amount Previously Paid: |
| (2) | Form, Schedule or Registration Statement No.: |
| (3) | Filing Party: |
| (4) | Date Filed: |
| | | | | |
This document includes forward-looking statements within the meaning | Bunge Limited
1391 Timberlake Manor Parkway
St. Louis, Missouri 63017
U.S.A. |
Dear Shareholder:
Enclosed is the proxy statement for Bunge’s 2023 special shareholders meeting to be held on [●], [●], 2023.
You are being asked to vote upon a proposal to approve the Redomestication that would change the place of incorporation of the ultimate parent company of the Bunge Group from Bermuda to Switzerland. As part of the Redomestication, we will become a Swiss corporation and our corporate name will change to [●]. The number of shares you will own in [●], the Swiss company, will be the same as the number of common shares you held in Bunge Limited, the Bermuda company, immediately prior to the completion of the Redomestication, and your relative economic interest in Bunge will remain unchanged. And, while distributions paid by Swiss companies are generally subject to Swiss withholding tax, because we will make distributions out of qualifying capital contribution reserves, no Swiss withholding tax should apply to distributions paid by [●] for the foreseeable future.
After the completion of the transaction, [●] will continue the business operations conducted by Bunge Limited before the transaction. The shares of [●] will be listed on the New York Stock Exchange under the symbol “BG,” the same symbol under which your common shares are currently listed.
Bunge was incorporated in Bermuda when the then-separate Bunge companies consolidated in 1995. On [●], 2022, our Board of Directors unanimously approved the Redomestication to Switzerland, following an extensive review of our business operations and emerging trends in the global tax environment. Switzerland allows Bunge to align its corporate legal structure with its commercial operations, is more centrally located within our major markets and home of many global companies. It will locate Bunge in a country with balanced corporate governance requirements, more sophisticated financial and commercial infrastructure as well as a stable and well-developed legal system. We have had substantial operations in Switzerland for many years.
Our Redomestication to Switzerland is subject to various conditions, including shareholder approval and the approval of the Supreme Court of Bermuda (the “Bermuda Court”), and is expected to be completed later this year. We may delay or otherwise abandon the Redomestication if future events occur that cause us to determine that the Redomestication is no longer in the best interests of Bunge or its shareholders.
This proxy statement provides you with detailed information regarding the Redomestication. We encourage you to read this entire document carefully. You should carefully consider “Risk Factors” beginning on page [●] for a discussion of risks before voting at the meeting.
| | | | | | | | | | | |
| | | |
| | |
| | Kathleen Hyle Chair of the Private Securities Litigation Reform ActBoard of 1995. All statements other than statements of historical or current facts, including statements regarding our environmental and other sustainability plans and goals, made in this document are forward-looking. We use words such as anticipates, believes, expects, future, intends, and similar expressions to identify forward-looking statements. Forward-looking statements reflect management’s current expectations and are inherently uncertain. Actual results could differ materially for a variety of reasons. Risks and uncertainties that could cause our actual results to differ significantly from management’s expectations are described in our 2021 Annual Report on Form 10-K, including under Item 1A. Risk Factors. All forward-looking statements speak only as of the date made, and we undertake no obligation to publicly update or revise any forward-looking statements to reflect events or circumstances that may arise after the date of this report except as required by law.Directors |
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of the securities to be issued in the transaction or determined if this proxy statement is truthful or complete. Any representation to the contrary is a criminal offense.
| | | | | |
| Bunge Limited
1391 Timberlake Manor Parkway
St. Louis, Missouri 63017
U.S.A. |
March [•], 2022
Dear Shareholder:
It was a remarkable year for Bunge in 2021. Against the backdrop of dynamic marketsThis proxy statement is dated [●] and the ongoing pandemic, our team once again roseis first being mailed to the challenge and built upon last year’s record earnings. Bunge leveraged our unique oilseeds platform and critical position in the global food chain to connect farmers with end-customers around the world, collaborating to find solutions to the challenges they faced.
During the year, we added two directors to our Board, who bring valuable skills and experience to our team. Our highly engaged, diverse and independent Board is committed to stakeholder engagement, and we maintain a robust outreach program that allows us to gain valuable insights into the issues that matter most to our stakeholders. For instance, in 2021 we implemented additional changes to our incentive programs, adding ESG performance metrics, further strengthening the pay-for-performance principles underpinning our executive compensation program. We also made changes to our Corporate Governance Principles, enhancing our board membership criteria to include a diversity policy and to provide more clarity into our director selection and recruitment process. The updated Principles and charters can be foundshareholders on our website. Additionally, the Board is acting on the shareholder recommendation to eliminate supermajority voting provisions of our Bye-laws, and we are asking shareholders to adopt a proposal to amend our Bye-laws accordingly.
It was a watershed year for accomplishments in sustainability in our operations and across our value chains. This critical focus area is at the heart of what we do. The Board’s Sustainability and Corporate Responsibility Committee, which oversees the development of relevant sustainability policies, strategies and programs, worked closely with management to advance a range of initiatives.
Notably, in 2021, we announced Science-Based Targets with an aim to achieve absolute reductions in carbon emissions for our own operations and in our supply chains. We refinanced our sustainability-linked revolving credit facility, which was enhanced to include the same Science-Based Targets. We continued making significant strides toward our commitment to achieve deforestation-free supply chains in 2025, and we advanced our work to support the development of lower carbon intensity feedstocks.
As we look forward into 2022 and beyond, we are excitedor about the future for our core oilseeds and origination business, as well as the demand growth we see coming from the emerging areas of renewable fuel feedstocks, plant-based lipids and plant-based food proteins. We believe Bunge is well-positioned to capture the growth opportunities ahead of us as we remain focused on creating long-term shareholder value.
On behalf of the Board of Directors and all the employees of Bunge, thank you for your support and investment in Bunge.
| | | | | | | | |
| | |
| |
| Kathleen Hyle
Chair of the Board of Directors
|
[●].
PRELIMINARY COPY - SUBJECT TO COMPLETION
NOTICE OF ANNUAL GENERAL MEETING OF SHAREHOLDERS
| | | | | | | | |
Date and Time | | Your vote is very important. Whether or not you plan to access the Annual General Meeting, please promptly vote by mail, internet or telephone so that your shares will be represented at the meeting. |
Thursday, May 12, 2022, at 11:00 a.m., Central Time | |
| |
Place | |
Bunge Limited's 2022 Annual General Meeting of Shareholders ("Annual General Meeting") will be held virtually online via live webcast at www.virtualshareholdermeeting.com/BG2022. | |
|
|
| | | | | | | | | | | | | | | | | | | | |
| At the Annual General Meeting, we are asking shareholders to vote on the following: |
| | | | | | |
| 1 | | Election of the 11 director nominees named in the Proxy Statement | | 4 | | Approval of amendments to our Bye-laws to eliminate shareholder supermajority approval requirements |
| | | | | | |
| | | | | | |
| 2 | | Approval of a non-binding advisory vote on the compensation of our Named Executive Officers | | 5 | | Shareholder proposal regarding shareholder right to act by written consent, if properly presented at the meeting |
| | | | | | |
| | | | | | |
| 3 | | Appointment of Deloitte & Touche LLP as our independent auditor for fiscal year 2022, and authorization of the Audit Committee of the Board of Directors to determine the independent auditor's fees | | |
| |
| | | | | | | | |
If you are a registered holder of our common shares (i.e., you hold your shares through our transfer agent, Computershare), please follow the instructions included in your proxy materials or on your proxy card to access the Annual General Meeting. If your common shares are held through an intermediary (i.e., brokerage firm, bank or other nominee), you should receive a voting instruction form from your brokerage firm, bank or other nominee.
Please read carefully “Information About this Proxy Statement and the Annual General Meeting” beginning on page 78 of this proxy statement to ensure that you comply with the requirements for voting and accessing the Annual General Meeting. | | Record Date |
| March 14, 2022 |
| |
| Shareholders as of the Record Date are entitled to notice of, and to vote at, the Annual General Meeting and at any subsequent adjournments or postponements. |
| | |
We will also present at the Annual General Meeting the consolidated financial statements and independent auditor's report for the fiscal year ended December 31, 2021, copies of which can be found in our 2021 Annual Report that accompanies this notice. |
| | |
|
Bunge Limited 1391 Timberlake Manor Parkway St. Louis, Missouri 63017 Important Notice of Internet Availability of Proxy Materials for the Annual General Meeting to be held on May 12, 2022: The Proxy Statement and Annual Report on Form 10-K are available at investors.bunge.com/investors/corporate-governance/governance-documents and www.ProxyVote.com.
|
NOTICE OF MEETING OF BUNGE LIMITED SHAREHOLDERS
To Be Held On [●], 2023
To the holders of voting and non-voting shares of Bunge Limited:
We will hold a meeting of our shareholders online via live webcast at [●], commencing at [●] local time, on [●], 2023 to vote:
a.to approve the Redomestication that would change the place of incorporation of the ultimate parent company of the Bunge Group from Bermuda to Switzerland through a Bermuda law Scheme of Arrangement attached as Annex A to this proxy statement.
b.to adjourn the meeting to a later date to solicit additional proxies if there are insufficient votes at the time of the meeting to approve the Redomestication.
c.on any other matters that properly come before the meeting and any adjournments or postponements of the meeting.
The close of business on [●], 2023 is the record date for determining the shareholders entitled to notice of and to vote at the meeting or any adjournments or postponements of the meeting.
Please vote your shares to ensure your shares are represented. You should complete, sign and date the enclosed proxy and return it promptly in the enclosed envelope, whether or not you expect to attend the virtual meeting. You may revoke your proxy and vote in person if you decide to attend the virtual meeting. You may also designate proxies to vote your shares via the Internet or by telephone. Your Internet or telephone designation authorizes the named proxies to vote your shares in the same manner as if you marked, signed and returned your proxy card. Please review the instructions in the proxy statement and on your proxy card regarding each of these options.
The Redomestication is subject to various conditions, including the approval of the Bunge shareholders and the Supreme Court of Bermuda.
By Order of the Board of Directors | | | | | |
| |
March [•●], 2022
2023 | Lisa Ware-Alexander Vice President, Deputy General Counsel and Corporate Secretary |
This proxy statement incorporates documents by reference. See “Where You Can Find More Information” beginning on page [●] for a listing of documents incorporated by reference. These documents are available to any person, including any beneficial owner, upon request directed to our Investor Relations department by telephone at 636-292-3014 or by submitting a written request to 1391 Timberlake Manor Parkway, Chesterfield, Missouri 63017, U.S.A., Attention: Ruth Ann Wisener. To ensure timely delivery of these documents, any request should be made by [●]. The exhibits to these documents will generally not be made available unless they are specifically incorporated by reference in this proxy statement.
TABLE OF CONTENTS
| | | | | |
| Overview of the Redomestication | |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| Equity Incentive Plans | |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
This summary highlights certain information contained in this proxy statement. As it is only a summary, please review the entire proxy statement before voting.
Annual General Meeting Information
| | | | | |
Time and Date: | Thursday, May 12, 2022, at 11:00 a.m., Central Time, with log-in beginning at 10:45 a.m. on May 12, 2022. |
| |
| |
Location: | The Annual General Meeting will be a virtual meeting conducted exclusively online via live audio webcast, allowing shareholders to participate in the meeting from any location convenient to them. There will not be a physical meeting.
|
| |
| |
Record Date: | Shareholders of record as of the close of business on March 14, 2022 are entitled to vote. |
| |
| |
Voting: | Each outstanding common share is entitled to one vote. You may vote by telephone, internet, mail or by accessing the Annual General Meeting. Please see "Voting" on page 80. |
| |
| |
Attendance: | To access the Annual General Meeting, please follow the instructions contained in "Information About the Meeting" on page 79. Shareholders who access the meeting will be allowed to submit questions in our virtual shareholder meeting forum before and during the meeting.
|
Proposals and Voting Recommendations
A majority of votes cast is required to approve each proposal, unless otherwise indicated.
| | | | | | | | | | | | | | |
| Proposal | Board's Voting
Recommendation | Page References
(for more detail) |
| | | | |
| 1 | | Election of Directors | P FOR EACH NOMINEE | |
| | | | |
| | | | |
| 2 | | Advisory Vote on Named Executive Officer Compensation | P FOR | |
| | | | |
| | | | |
| 3 | | Appointment of Independent Auditor | P FOR | |
| | | | |
| | | | |
| 4 | | Approval of Amendments to our Bye-laws to Eliminate Shareholder Supermajority Approval Requirements (1) | P FOR | |
| | | | |
| | | | |
| 5 | | Shareholder Proposal Regarding Shareholder Right to Act by Written Consent | O AGAINST | |
| | | | |
| | | | |
(1) As further described in Proposal 4 on page 72, the affirmative votes of not less than 66% of all votes attaching to all shares entitling a holder to attend and vote on this proposal are necessary for approval of the proposed Shareholder Supermajority Approval Elimination Amendment.
Director Nominees
The Board of Directors has nominated the 11 directors named below for election at the Annual General Meeting and recommends that shareholders vote FOR the election of each director nominee. Each nominee is currently a director of the Company. The following table provides summary information about each nominee, including committee assignments. See "Proposal 1 - Election of Directors" on page 8 for additional information regarding the nominees. | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | Director Since | Other Public Boards | | Committee Membership |
| Name | Age | Independent | Audit (1) | HRCC (2) | ERMC (3) | CGNC (4) | SCRC (5) |
| | | | | | | | | |
Sheila Bair Deputy Chair | 67 | 2019 | 2 | Yes | l | | l | l(C) | |
| | | | | | | | | |
| Carol Browner | 66 | 2013 | 0 | Yes | | | | l | l(C) |
| Paul Fribourg | 68 | 2018 | 3 | No | | | l | | l |
| J. Erik Fyrwald | 62 | 2018 | 1(6) | Yes | | l(C) | | | l |
Gregory Heckman Chief Executive Officer | 59 | 2018 | 1 | No | | | | | |
| Bernardo Hees | 52 | 2019 | 1 | Yes | | l | l | | l |
Kathleen Hyle Board Chair | 63 | 2012 | 1 | Yes | | | | l | |
| Michael Kobori | 62 | 2021 | 0 | Yes | | | l | | l |
| Kenneth Simril | 56 | 2021 | 0 | Yes | l | l | | | |
| Henry "Jay" Winship | 54 | 2018 | 1 | Yes | l(C) | l | | l | |
| Mark Zenuk | 54 | 2018 | 0 | Yes | l | | l(C) | | |
| | | | | | | | | | | | | | | | | | | | |
l = Member | | (1) | Audit Committee | | (4) | Corporate Governance and Nominations Committee |
| (C) = Chair | | (2) | Human Resources and Compensation Committee | | (5) | Sustainability and Corporate Responsibility Committee |
| | (3) | Enterprise Risk Management Committee | | | |
(6) Mr. Fyrwald additionally serves as the Chair of the Board of Adama Ltd., which is listed on the Shenzhen Stock Exchange, and Sinofert Holdings Limited, which is listed on the Hong Kong Exchange. Both companies are controlled by Syngenta Group for which he serves as CEO.
Through its ongoing Board refreshment process, the Board strives to achieve the right balance of long-tenured directors, with years of experience and institutional knowledge, and new directors who bring diverse thinking to the boardroom.
| | | | | | | | |
Director Nominee Tenure | | Director Nominee Independence |
| | |
| | |
Key Skills, Qualifications, Backgrounds and Experience
Our Board possesses a diverse range of relevant and complementary skills, qualifications, backgrounds and experience, including the key qualifications listed in the following director nominee skills matrix. Further details regarding each director’s qualifications, experience and skills are included in each director nominee’s profile in "Proposal 1 - Election of Directors." This high-level summary is not intended to be an exhaustive list of each director nominee’s skills or contributions to the Board.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Director Nominee Skills |
| | | | | | | | | | | | |
Public Company CEO Experience | | | | | | 3 | | | | | | |
| | | | | | | | | | | | |
Financial | | | | | | | | | 6 | | | |
| | | | | | | | | | | | |
Risk Management | | | | | | | | | | | | 9 |
| | | | | | | | | | | | |
South America Business Expertise | | | | | | | | 5 | | | | |
| | | | | | | | | | | | |
China Business Expertise | | | | | | | | | 6 | | | |
| | | | | | | | | | | | |
Agricultural Industry | | | | | | | | | 6 | | | |
| | | | | | | | | | | | |
Food Ingredient | | | | | | | | | | 7 | | |
| | | | | | | | | | | | |
Manufacturing and Logistics | | | | | | | | | | | | 9 |
| | | | | | | | | | | | |
Government and Public Policy | | | | | | | | | 6 | | | |
| | | | | | | | | | | | |
Sustainability | | | | | | | 4 | | | | | |
| | | | | | | | | | | | |
Director Nominee Gender Diversity | | | Director Nominee Racial / Ethnic Diversity |
| | | |
Corporate Governance Highlights
Our commitment to good corporate governance practices includes the following:
| | | | | |
L | Active, Independent Board |
| |
| •Active engagement with stakeholders
•Independent, non-executive Board Chair and Deputy Chair
•Declassified Board
•Nine out of 11 director nominees are independent
•Independent Committee Chairs
•Executive sessions of independent directors at each meeting
•Board and committees have access to independent legal, financial, executive compensation and other advisors
•Directors have unlimited access to Company officers and employees
•Nine of the director nominees have been added to the Board in the last five years, including two new director nominees that were added in 2021
•High rate of board attendance at Board and committee meetings, with average 2021 attendance of approximately 99%
•To enhance alignment of director and shareholder interests, a substantial portion of director compensation is paid in equity
|
| |
G | Corporate Governance |
| |
| •Commitment to Board refreshment; average tenure of our Board is less than four years
•Updated our Corporate Governance Principles, enhancing our Board membership criteria to include a diversity policy and robust director succession and refreshment processes
•Diverse Board with a broad range of key skills, qualifications, backgrounds and experience; 27% of our directors are female and additionally 27% are ethnically diverse
•Requisite director retirement age of 72
•In response to shareholder feedback, we are requesting shareholder approval to amend our Bye-laws to eliminate certain supermajority voting requirements
•Board commitment to overseeing Environmental, Social and Governance ("ESG") matters, and refreshed committee charters to clarify ESG oversight
•Annual Board review of Company strategy
•Active risk oversight by full Board and committees
•Robust Board and committee self-assessments and director nomination processes
•Board takes active role in management succession planning
•No Board member serves on an excessive number of outside public boards
|
| |
m | Shareholder Rights |
| |
| •Annual election of directors
•Long-standing investor outreach program
•Holders of 10% or more of our issued and outstanding common shares may call a special meeting of shareholders
•Proxy access allows shareholders to nominate directors to the Board
•No poison pill
|
2021 Financial and Strategic Highlights
2021 was the strongest performance on record to date against a volatile backdrop including the continued impact of the COVID-19 pandemic and a highly dynamic market. We believe the Bunge team’s execution is evidence that the way we have transformed the business over the last three years is creating the collaborative, global culture that will maximize the value of the Company. We are excited about the additional opportunities we see to continue to grow the Company while we do our part to lower carbon emissions and encourage best practices across the entire supply chain.
Highlights of our operational, strategic and financial achievements in 2021 are provided below:
| | | | | | | | | | | | | | |
$12.93
adjusted earnings per share(1)
| Highest recorded adjusted Earnings Per Share ("EPS") in Company history | | Achieved records in total crush volume, refining performance and port volumes |
| | | | |
Agribusiness and Refined and Specialty Oils posted record full-year results | | Returned $423M to shareholders through dividends and share repurchases
|
| | | | |
Financial return metrics continued to significantly exceed respective costs of capital | | Announced Science-Based Targets ("SBTs") related to the achievement of an absolute reduction in carbon emissions |
| | | | |
Delivered strong cash flow
with full year adjusted funds
from operations(2) of approximately
|
$2.0B | | Closed on refinancing of a credit facility tied to sustainability targets |
(1)Adjusted EPS is a non-GAAP financial measure, see Appendix A – Reconciliation of Non-GAAP Financial Measures for reconciliation to the most directly comparable U.S. GAAP measure.
(2)Adjusted funds from operations is a non-GAAP financial measure, see Appendix A - Reconciliation of Non-GAAP Financial Measures for reconciliation to the most directly comparable U.S. GAAP measure.
We also continued our commitment to sustainability, taking actions to reduce our own environmental footprint and collaborating actively with partners, customers and other stakeholders to improve the sustainability of the food production chain. Our approach to sustainability reflects our three goal areas, and includes some of the important achievements below:
| | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | |
| Action on Climate | | | Responsible Supply Chains | | | Accountability |
| | | | | | | |
| | | | | | | |
Announced SBTs for our operations and our supply chains | | Made progress on a commitment to end deforestation in our supply chains in 2025 | | Refinanced $1.75B loan linked to five sustainability performance targets |
| | | | | | | |
| | | | | | | |
Grew in low-carbon markets like renewable fuels and plant-based foods | | Initiated a global human rights and indigenous community rights assessment | | Linked incentive compensation to sustainability goals for executives and 5,500+ employees |
| | | | | | | |
| | | | | | | |
Enhanced climate-related risks and opportunities management | | Launched Sustainable Partnership Program to increase South America indirect soy supply chain transparency | | Increased scores in ESG disclosure platforms, including MSCI, CDP and Newsweek |
We view sustainability as a key part of our strategy to maximize long-term shareholder value, as we believe that operating responsibly and providing products that help our customers achieve their sustainability goals provides us opportunities to (1) grow our business, (2) increase customer collaboration and loyalty, (3) attract, retain, and motivate employees, and (4) reduce our impact on the environment.
Executive Compensation Highlights
Our executive compensation philosophy is built upon a strong foundation of linking pay with performance over the long-term and is structured to:
•Align the interests of executives with the long-term interests of shareholders. The majority of pay opportunity for our Named Executive Officers ("NEOs") is delivered in the form of performance-based incentives.
| | | | | | | | |
CEO Target Total Compensation Mix(1)
| | Other NEO Target Total Compensation Mix(1)
|
| | |
(1) Base salary, target annual cash incentive and target value of equity awards at grant.
•Drive business goals and strategies. Incentive plan targets are directly tied to business goals and strategies and are based upon metrics that drive long-term value creation.
•
Reward profitable growth and increased shareholder value.
Performance metrics balance earnings growth and returns on investment. The pay mix is equity leveraged, resulting in realized compensation in line with stock price performance.
The table below highlights our current executive compensation practices that drive performance and serve our shareholders' long-term interests.
| | | | | | | | | | | | | | |
WHAT WE DO | | WHAT WE DON'T DOOVERVIEW OF THE REDOMESTICATION |
We are seeking shareholder approval at the meeting of a merger transaction by way of the Bermuda law Scheme of Arrangement, attached to this proxy statement as Annex A (the “Scheme of Arrangement”) that will effectively change the place of incorporation of the parent company of the Bunge Group from Bermuda to Switzerland (the “Redomestication”).
If the Scheme of Arrangement becomes effective, it will effect a share exchange (the “Share Exchange”) pursuant to which (i) your common shares of Bunge Limited (“Bunge-Bermuda”) will be exchanged for an equal number of registered shares of [●] (“Bunge-Switzerland”) and (ii) Bunge-Switzerland will become the parent company of the Bunge Group.
Bunge incorporated in Bermuda in 1995 when the then-separate Bunge group of companies consolidated into a single company. Over the past few years, Bunge has undertaken an extensive review of its business operations and the emerging trends in the global tax environment. As part of this review, Bunge performed a substantial analysis of alternative jurisdictions to which the Company might redomesticate. Switzerland was determined to be the best jurisdiction in which to redomesticate because it allows Bunge to better align its corporate legal structure with Bunge’s commercial operations and because Bunge has conducted substantial business operations in Switzerland for decades. Switzerland is also a jurisdiction that is well suited for global companies and offers a well-developed corporate, legal and regulatory environment.
As part of this review, Bunge has taken into account likely legislative tax changes proposed by the member states of the Organization for Economic Cooperation and Development (or "OECD") and in particular the Pillar 2 Model Rules, aiming at introducing a global minimum corporate tax rate of 15% on financial statement income. The focus of the OECD is to discourage multinational corporations from using low tax or no tax jurisdictions (tax havens) to avoid taxation.
Our Redomestication to Switzerland is subject to various conditions, including shareholder approval and the approval of the Bermuda Court, and is expected to be effective later this year. We may, however, delay or otherwise abandon the Redomestication if future events occur that cause our board of directors to determine that the Redomestication is no longer in the interest of Bunge or its shareholders.
If the Redomestication is completed:
•the place of incorporation and principal executive office of [●] will be Switzerland;
•the operational headquarters of the Bunge Group will remain in St. Louis, Missouri;
•our corporate name will be changed to [●];
•holders of shares in Bunge Limited will automatically receive shares in [●] on an one-for-one basis, and their relative economic interest in the Bunge Group will remain unchanged; and
•[●] shares will be listed for trading on the NYSE under the ticker symbol “BG”.
Bunge’s current dividend rate, shareholder communications and related matters will be unchanged. The effects of Redomestication on Bunge and its shareholders are explained in “Certain Tax Considerations” starting at page [●] and “Comparison of Shareholder Rights” starting at page [●].
The Redomestication will be completed pursuant to the Scheme of Arrangement, which is subject to shareholder approval and the approval of the Bermuda Court. The Scheme of Arrangement contemplates a merger by which (i) [●] will become the publicly traded parent company of the Bunge Group and (ii) holders of Bunge Limited common shares will receive common shares of [●] on a one-for-one basis.
The Redomestication involves several steps.
1) Incorporation of a new company registered in Geneva, Switzerland, named [●] (“Bunge-Switzerland”), as a direct, wholly-owned subsidiary of Bunge Limited, the Bermuda company whose shares you currently own (“Bunge-Bermuda”).
2) Bunge-Switzerland, in turn, forms a new Bermuda subsidiary named Horizon Merger Company Limited (“Bunge-MergerCo”).
3) Following the Bunge-Bermuda shareholders' meeting to be held on [●] and a hearing of the Bermuda Court scheduled for [●], assuming we have obtained the necessary shareholder and court approvals, Bunge-MergerCo will merge with Bunge-Bermuda by way of the Scheme of Arrangement, with Bunge-Bermuda as the surviving company. As a result of the Redomestication, Bunge-MergerCo will cease to exist, and Bunge-Bermuda will become a direct, wholly-owned subsidiary of Bunge-Switzerland.
4) Effective for the date that is one day after the effective date of the merger of Bunge-Bermuda with Bunge-MergerCo ("Effective Date"), Bunge-Bermuda will make a U.S. tax election to be treated as a disregarded entity for U.S. tax purposes.
The diagram that follows depicts the Redomestication:
In this proxy statement, we sometimes refer to Bunge-Bermuda and Bunge-Switzerland as “we,” “our” or “Bunge.”
| | | | |
P | We Do award more than 50% of target total compensation for our NEOs and 76% for our CEO in long-term equity-based incentives
| | O | We Don't allow repricing of stock options or buy out underwater stock options without shareholder approval
|
P | We Do use multiple performance metrics for short-term and long-term awards
| | O | We Don't have single trigger change of control provisions
|
P | We Do have comprehensive disclosure of metrics and goals
| | O | We Don't have golden parachute excise tax gross ups
|
P | We Dohave long-term incentives that are majority performance-based
| | O | We Don't allow hedging or pledging of Company shares or holding Company shares in margin accounts
|
P | We Do have robust share ownership guidelines for directors, executive officers and other senior leaders
| | O | We Don't allow transactions by directors, officers and Company insiders in Company stock without pre-clearance
|
P | We Doconduct an annual compensation risk assessment for employee incentive plans
| | O | We Don't have excessive executive perquisites
|
P | WeDo have a clawback policy
| | | QUESTIONS AND ANSWERS ABOUT THE REDOMESTICATION |
Q: What am I being asked to vote on at the meeting?
Shareholder Engagement HighlightsA: You are being asked to vote on the Redomestication, which will effectively change our place of incorporation from Bermuda to Switzerland by way of the Scheme of Arrangement.
Shareholder feedbackAs a result of the Redomestication, Bunge-Bermuda will become a direct, wholly-owned subsidiary of Bunge-Switzerland, and you will become a shareholder of Bunge-Switzerland. Your common shares of Bunge-Bermuda will be cancelled and you will receive, on a one-for-one basis with your Bunge-Bermuda shares that have been cancelled, new shares of Bunge-Switzerland.
You also are being asked to vote on a proposal to adjourn the meeting to a later date to solicit additional proxies if there are insufficient votes at the time of the meeting to approve the Redomestication proposal.
Q: Why do you want to change your place of incorporation from Bermuda to Switzerland?
A: Bunge incorporated in Bermuda in 1995 when the then-separate Bunge group of companies consolidated into a single company. Over the past few years, Bunge has done an extensive review of its business operations and the emerging trends in global tax environment. As part of this review, Bunge performed a substantial analysis of alternative jurisdictions in which it might redomesticate. Switzerland was determined to be the best jurisdiction in which to redomesticate because it allows Bunge to better align its corporate legal structure with its commercial operations. Switzerland is a key inputjurisdiction that is well suited for global companies and offers a well-developed corporate, legal and regulatory environment.
As part of this review, Bunge has taken into account likely legislative tax changes proposed by the member states of the Organization for Economic Cooperation and Development (or "OECD") and in particular the Pillar 2 Model Rules, aiming at introducing a global minimum corporate tax rate of 15% on financial statement income. The focus of the OECD is to discourage multinational corporations from using low tax or no tax jurisdictions (tax havens) to avoid taxation.
As part of the Redomestication, Bunge will be locating its publicly traded parent company to Switzerland, a jurisdiction in which Bunge has operated for decades and for which we have significant substance. Switzerland is the home of many global companies, and if the Redomestication is approved, [●] will be located in a country with balanced corporate governance requirements, more sophisticated financial and commercial infrastructure as well as a stable and well-developed legal system.
Q: Will the Redomestication affect our compensation program. Between 2014, whencurrent or future operations?
A: The Redomestication will have no significant impact on how we beganconduct our annual shareholder engagement program, and 2020, an average of 86% of votes cast were in favorday-to-day operations. The locations of our executive compensation program. At our 2021 Annual General Meeting, more than 94% offuture operations will depend on the votes cast on our annual say-on-pay vote were in favorneeds of our executive compensation program.
Annually, we reach out to our top shareholders representing 40 - 50%business, independent of our legal domicile.
Q: Will the Redomestication dilute my economic interest?
A: No, the Redomestication will not dilute your economic interest in the Bunge Group. Immediately after the Redomestication, the number of issued and outstanding shares of Bunge-Switzerland will be the same as wellthe number of issued and outstanding shares of Bunge-Bermuda immediately before the completion of the Redomestication. Bunge-Switzerland will hold, in addition, [●] shares for future use to satisfy its obligations to deliver shares in connection with awards granted under our equity incentive plans and for such other purposes as proxy advisory firmsBunge-Switzerland's board of directors may determine. Bunge-Switzerland will assume Bunge-Bermuda’s existing obligation to deliver shares under our equity incentive plans. Because Bunge-Bermuda will be a wholly-owned subsidiary of Bunge-Switzerland after the Redomestication, your economic interest will not change in the Redomestication.
Q: Is the Redomestication taxable to me?
A: Determining the tax consequences of the Redomestication to you may be complex and will depend on your specific situation. The Redomestication is intended to be a “reorganization” under Section 368(a) of the U.S. Internal Revenue Code, where U.S. holders of shares of Bunge-Bermuda are generally not expected to recognize gain or loss on the exchange of such shares solely for shares of Bunge-Switzerland in the Redomestication. Under Swiss tax law, no Swiss tax is generally due for non-Swiss holders of Bunge-Bermuda shares on the ultimate receipt of
Bunge-Switzerland shares in the Redomestication. If you are a Swiss holder and are a beneficial owner of Bunge Limited shares, the Redomestication may result in Swiss tax consequences to you and you are therefore urged to contact your tax advisors. Other jurisdictions may tax holders on the ultimate receipt of shares in Bunge-Switzerland depending on the tax residence of the holder. We urge you to consult your tax advisor for a full understanding of the tax consequences of the Redomestication to you.
Q: Will there be Swiss withholding tax on future distributions, if any, by Bunge-Switzerland?
A: Because we will make distributions from qualifying capital contribution reserves, Swiss withholding tax should not apply to distributions paid to Bunge-Switzerland shareholders from Bunge-Switzerland for the foreseeable future.
Swiss federal withholding tax of 35% is generally due on distributions to Bunge-Switzerland shareholders from Bunge-Switzerland out of available earnings or other non-qualifying reserves for Swiss withholding tax purposes, regardless of the place of residency of the shareholder, subject to exceptions discussed below which we plan to use to substantially eliminate the Swiss withholding tax for the foreseeable future.
Distributions to shareholders in relation to a reduction of par value or paid out of qualifying capital contribution reserves recognized by the Swiss Federal Tax Administration will be exempt from Swiss withholding tax. Bunge-Switzerland expects to pay distributions out of such qualifying capital contribution reserves for the foreseeable future, and as a result, any such distributions to shareholders will be exempt from the Swiss withholding tax. Upon completion of the Redomestication, we expect Bunge-Switzerland to have a par value of $[0.01] per share and qualifying capital contribution reserves per share recognized by the Swiss Federal Tax Administration, such that the combination of the two should approximate the market capitalization value of Bunge-Bermuda immediately prior to the completion of the Redomestication. It is estimated that the Swiss withholding tax would not be applicable for the foreseeable future.
After we have depleted qualifying capital contribution reserves, distributions will be subject to the 35% Swiss withholding tax. Bunge-Switzerland will be required to withhold at such rate and remit on a net basis any payments made to a holder of Bunge-Switzerland shares and pay such withheld amounts to the Swiss Federal Tax Administration. The shareholder may be entitled to a full or partial refund of the Swiss withholding tax, depending on where the holder is tax resident. You are urged to consult your tax adviser for a full understanding of the tax consequences.
Q: Will there be Swiss withholding tax on future share repurchases, if any, by Bunge-Switzerland?
A: Under Swiss law, repurchases of shares for the purposes of capital reduction are generally treated as a partial liquidation subject to 35% Swiss withholding tax, irrespective of the tax residency of the shareholder. However, the 35% Swiss withholding tax is not applicable to certain share repurchases, and we expect to utilize certain tax attributes and other industry thought leaders.arrangements to substantially reduce or eliminate this tax burden for the foreseeable future. The repurchase of shares for purposes other than capital reduction, such as to retain as treasury shares for use in connection with equity incentive plans, convertible debt, similar instruments or acquisitions, will not be subject to the 35% Swiss withholding tax. Any portion of the repurchase price attributable to par value or qualifying capital contribution reserves recognized by the Swiss Federal Tax Administration will not be subject to the 35% Swiss withholding tax. Upon completion of the Redomestication, we expect Bunge-Switzerland to have a par value and qualifying capital contribution reserves for Swiss withholding tax purposes such that the combination of the two should result in a substantial reduction of the 35% Swiss withholding tax for the foreseeable future.
Q: What are qualifying capital contribution reserves?
A: Under Swiss statutory reporting requirements and for Swiss withholding tax purposes, qualifying capital contribution reserves represent, among other things, the amount per share by which the issue price of a share exceeds its par value. Qualifying capital contribution reserves may, subject to the restrictions described under “Description of Bunge-Switzerland Shares—Distributions” and “Description of Bunge-Switzerland Shares—Repurchases of Registered Shares,” be returned to shareholders, including through distributions and share repurchases. Distributions to shareholders out of qualifying capital contribution reserves that have previously been recognized by the Swiss Federal Tax Administration are exempt from Swiss withholding tax, as are distributions by virtue of a reduction of par value. Please note that qualifying capital contribution reserves for Bunge-Switzerland’s statutory reporting purposes and Swiss withholding tax purposes (which sometimes is also referred to as additional paid-in capital) will not be the same as additional paid-in capital reflected on Bunge-Switzerland’s consolidated financial statements prepared in accordance with U.S. GAAP.
Q: When do you expect the Redomestication to be completed?
A: We are working towards completing the Redomestication as quickly as possible and it remains subject to shareholder approval and the approval of the Bermuda Court. We currently expect to complete the Redomestication this year. However, the Redomestication may be delayed or otherwise abandoned if further events occur that cause our board of directors to determine that the Redomestication is no longer in the best interest of Bunge or its shareholders.
Q: What will I receive for my Bunge-Bermuda shares?
A: After the Redomestication, you will hold one Bunge-Switzerland share for each Bunge-Bermuda share you held immediately prior to the completion of the Redomestication.
Q: Do I have to take any action to exchange my Bunge-Bermuda shares?
A: No. Your Bunge-Bermuda common shares will be exchanged for Bunge-Switzerland shares without any action on your part. All of Bunge-Bermuda’s common shares are issued in uncertificated book-entry form. All of Bunge-Switzerland’s shares will also be issued in uncertificated book-entry form.
Q: May I trade Bunge-Bermuda shares between the date of this proxy statement and the Effective Date?
A: Yes. The Bunge-Bermuda shares will continue to trade during this period.
Q: After the Redomestication, where may I trade Bunge-Switzerland shares?
A: The Bunge-Switzerland shares will be listed and traded on the NYSE under the symbol “BG,” the same symbol under which your Bunge-Bermuda shares are currently listed.
Q: What vote of Bunge-Bermuda shareholders is required to approve the proposals?
A: The Redomestication proposal must be approved by the affirmative vote of holders of Bunge-Bermuda common shares representing a majority in number and at least 75% in value of the Bunge-Bermuda common shares present and voting at the meeting, whether in person or by proxy. The affirmative vote of holders of a majority of the Bunge-Bermuda common shares present in person or by proxy at the meeting and entitled to vote on the matter is required to approve the adjournment proposal. Please see “The Shareholders Meeting—Record Date; Voting Rights; Vote Required for Approval.”
Q: What vote does my board of directors recommend?
A: The Bunge-Bermuda board of directors unanimously recommends that Bunge-Bermuda’s shareholders vote “FOR” both of the proposals.
Q: How do I vote?
A: You may vote three ways:
•By telephone or online: If you are a shareholder of record, you may appoint your proxy by telephone, or electronically through the internet, by following the instructions on your proxy card.
•By mail: If you are a shareholder of record, you may appoint your proxy by marking, dating and signing your proxy card and returning it by mail in the enclosed postage-paid envelope.
•At the meeting: We will hold a meeting of our shareholders online via live webcast at [●], commencing at [●] local time, on [●], 2023. If you are planning to attend the virtual meeting, you may vote your shares at the meeting.
Q: May I submit my proxy by the Internet or telephone?
A: Yes. Instead of submitting your vote by mail on the enclosed proxy card, you may give your voting instruction by the Internet or telephone. Shareholders of record who do not hold their shares through a bank, broker or nominee may grant a proxy to vote on the Internet at [●] or by telephone by calling the number listed on the proxy card. Please have your proxy card in hand when calling or going online. If you hold your shares in the name of a bank, broker or other nominee, you should follow the instructions provided by your bank, broker or nominee when voting your shares.
Q: What if I plan to attend the shareholder meeting?
A: The shareholder meeting will be a virtual meeting conducted exclusively online via live audio webcast, allowing shareholders to participate in the meeting from any location convenient to them. There will not be a physical meeting.
Even if you plan to virtually attend the shareholder meeting, we recommend that you submit your proxy anyway. If you are a holder of record, you may still attend the shareholder meeting and vote.
Q: How do I access the shareholder meeting?
A: To be admitted to the shareholder meeting visit [●] and enter the 16-digit control number found on your proxy card or voter instruction form. If you hold your common shares through a brokerage firm, bank or other nominee, you should follow the instructions provided by your brokerage firm, bank other holder of record to be able to participate in the meeting.
Q: What if I have trouble accessing the shareholder virtually?
A: The virtual meeting platform is fully supported across browsers (internet Explorer, Firefox, Chrome and Safari) and devices (desktops, laptops, tablets and cell phones) running the most updated version of applicable software and plugins. You should ensure that you have a strong internet connection wherever you intend to participate in the meeting. We encourage you to access the meeting prior to the start time. You will be able to log in beginning at [●], Central Time on [●], 2023. We will have a technician ready to assist you with any technical difficulties you may have accessing the shareholder meeting. If you encounter any difficulties accessing the shareholder meeting, please call the technical support number that will be posted on the virtual meeting platform login page.
Q: If I can't participate in the live shareholder webcast, can I vote or listen to it later?
A: You may vote your common shares before the meeting by following the instructions on your proxy card or voter instruction form. You do not need to access the webcast to vote if you submitted your vote via proxy in advance of the shareholder meeting. We do not intend to record the shareholder meeting; however, we will disclose the results on a Form 8-K that we will file with the SEC within four business days of the shareholder meeting.
Q: If my shares are held in “street name” by my broker, will my broker vote my shares for me?
A: No. We recommend that you contact your broker. Your broker can give you directions on how to instruct the broker to vote your shares. Your broker may not be able to vote your shares unless the broker receives appropriate instructions from you.
Q: If my shares are held “street name” by my broker, how do I register in advance to access the shareholder meeting?
A: If you are a registered holder of common shares (i.e., you hold your shares through our transfer agent, (Computershare), you do not need to register in advance to access the shareholder meeting. Please follow the instructions described above and on your proxy card or voter instruction form that you received.
If you hold your common shares through a brokerage firm, bank or other nominee, you should follow the instructions provided by your brokerage firm, bank or other holder of record to be able to participate in the meeting.
Q: May I change my vote after I grant my proxy?
A: Yes. You may change your vote at any time before your proxy is voted at the meeting. You may revoke your proxy any time prior to its exercise by:
•giving written notice of the revocation to the Corporate Secretary of Bunge-Bermuda;
•if you are a holder of record, or a beneficial holder with a proxy from the holder of record, by accessing and voting at the shareholder meeting;
•revoking the proxy by telephone or the Internet; or
•properly completing and executing a later-dated proxy and delivering it to the Corporate Secretary of Bunge-Bermuda at or before the meeting.
If you have instructed a broker to vote your shares, you must follow the procedure provided by your broker to change those instructions.
Your attendance alone will not revoke your proxy. To revoke a proxy, you must take one of the actions described above. Any written notice of revocation must be sent to the attention of the Bunge-Bermuda Corporate Secretary at 1391 Timberlake Manor Parkway, Chesterfield, Missouri 63017, U.S.A.
Q: Are proxy materials available on the Internet?
A: Yes.
Q: Whom should I call if I have questions about the meeting or the Redomestication?
A: You should contact either of the following:
Bunge-Bermuda:
Ruth Ann Wisener
Investor Relations
1391 Timberlake Manor Parkway
Chesterfield, Missouri 63017, U.S.A.
Phone: (636) 292-3014
our proxy solicitor:
[●]
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
94%
of Shareholders voted FOR Say-on-Pay at our 2021 Annual General Meeting
| | | Engagement Methods | | | Engagement Topics | | | Who Participates |
| | •Individual investor meetings
•Annual shareholder meeting
•Quarterly earnings calls
•Informational materials and public filings
| | | •Company Overview
•Business Highlights
•Corporate Governance
•Diversity & Inclusion
•Sustainability
•Executive Compensation
| | | •Board of Directors
•Executive Leadership Team
•Investor Relations
•Subject Matter Experts
|
| | | | | | |
| | | | | | |
Engage institutional investors representing
40 - 50%
of issued and outstanding shares
| | | | | | SUMMARY |
Further,This summary highlights selected information from this proxy statement. It does not contain all of the information that is important to you. To understand the Redomestication more fully, and for a more complete legal description of the Redomestication, you should read carefully the entire proxy statement, including the annexes. The Scheme of Arrangement attached as Annex A to this proxy statement is the legal document that outlines the Redomestication. The articles of association and organizational regulations of Bunge-Switzerland summarized herein will govern our company after the completion of the Redomestication. We encourage you to read those documents and summaries. Unless otherwise indicated, currency amounts in 2021this proxy statement are stated in United States dollars.
Parties to the Redomestication
Bunge-Bermuda: Bunge-Bermuda is an exempted company limited by shares incorporated under the laws of Bermuda. We are registered with the Registrar of Companies in Bermuda under registration number EC20791. We trace Bunge’s history back to 1818 when we commenced in-depth consultations, ledwere founded as a trading company in Amsterdam, The Netherlands. We are a holding company and substantially all of our operations are conducted through our subsidiaries. Our corporate headquarters are located at 1391 Timberlake Manor Parkway, Chesterfield, Missouri, 63017, United States of America, and our telephone number is (314) 292-2000. Our registered office is located at 2 Church Street, Hamilton, HM 11, Bermuda.
Bunge-Switzerland: Bunge-Switzerland is a newly formed Swiss company and is currently wholly-owned by Bunge-Bermuda. Bunge-Switzerland has not engaged in any business or other activities other than in connection with its formation and the Redomestication. As a result of the Redomestication, Bunge-Switzerland will become the ultimate parent company of the Bunge Group, including Bunge-Bermuda.
The registered office and principal executive office of Bunge-Switzerland are located at Route de Florissant 13 1206 Geneva, Switzerland. The telephone number of Bunge Switzerland is +41 22 592 91 00.
Bunge-MergerCo: Bunge-MergerCo is a Bermuda exempted company newly formed for the purpose of merging with Bunge-Bermuda in the Redomestication, with Bunge-Bermuda as the surviving company. Bunge-MergerCo is a direct, wholly-owned subsidiary of Bunge-Switzerland. Bunge-MergerCo has not engaged in any business or other activities other than in connection with its formation and the Redomestication.
The registered office and principal executive office of Bunge-MergerCo are located at 2 Church Street, Hamilton, HM 11, Bermuda. The telephone number of Bunge MergerCo is [●].
The Redomestication (see page [●])
The Redomestication will effectively change our place of incorporation from Bermuda to Geneva, Switzerland.
The Redomestication involves several steps. First, we have formed Bunge-Switzerland as a direct, wholly-owned subsidiary of Bunge-Bermuda. Bunge-Switzerland, in turn, has formed Bunge-MergerCo, a new Bermuda subsidiary. Following the Bunge-Bermuda shareholders' meeting to be held on [●], 2023 and a hearing of the Bermuda Court scheduled for [●], 2023, and assuming we have obtained the necessary shareholder and court approvals, Bunge-MergerCo will merge with Bunge-Bermuda by way of the Scheme of Arrangement, with Bunge-Bermuda as the surviving company. As a result of the Redomestication Bunge-MergerCo will cease to exist, and Bunge-Bermuda will become a direct, wholly-owned subsidiary of Bunge-Switzerland. Effective for the date that is one day after the Effective Date, Bunge-Bermuda will make a U.S. tax election to be treated as a disregarded entity for U.S. tax purposes.
After the Redomestication, you will continue to own an interest in a parent company that will continue to conduct the business operations as conducted by Bunge-Bermuda before the Redomestication. The number of shares you will own in Bunge-Switzerland will be the same as the number of shares you owned in Bunge-Bermuda immediately prior to the Redomestication, and your relative economic interest in the Bunge Group will remain unchanged.
Reasons for the Redomestication (see page [●])
The decision by the Board of Directors to complete the Redomestication follows an extensive review of our business operations and emerging trends in the global tax environment. Switzerland was determined to be the best jurisdiction to redomesticate as it allows Bunge to better align its corporate legal structure with Bunge’s commercial operations. Switzerland is also a jurisdiction that is well suited for global companies and offers a well-developed corporate, legal and regulatory environment.
Tax Considerations (see page [●])
Determining the tax consequences of the Redomestication to you may be complex and will depend on your specific situation. The Redomestication is intended to be a “reorganization” under Section 368(a) of the U.S. Internal Revenue Code, where U.S. holders of shares of Bunge-Bermuda are generally not expected to recognize gain or loss on the exchange of such shares solely for shares of Bunge-Switzerland in the Redomestication. Under Swiss tax law, no Swiss tax is generally due for non-Swiss holders of Bunge-Bermuda shares on the ultimate receipt of Bunge Switzerland shares in the Redomestication. If you are a Swiss holder and are a beneficial owner of Bunge Limited shares, the Redomestication may result in Swiss tax consequences to you and you are therefore urged to contact your tax advisors. Other jurisdictions may tax holders on the ultimate receipt of shares in Bunge-Switzerland depending on the tax residence of the holder. We urge you to consult your tax advisor for a full understanding of the tax consequences of the Redomestication to you.
Rights of Shareholders (see page [●])
Most of the principal attributes of Bunge-Bermuda’s common shares and Bunge-Switzerland’s registered shares will be similar. However, there are differences between your rights under Swiss law and under Bermuda law. In addition, there are differences between Bunge-Bermuda’s constituent documents and Bunge-Switzerland’s proposed constituent documents. We discuss these differences in detail under “Description of Bunge-Switzerland Shares” and “Comparison of Rights of Shareholders.”
Stock Exchange Listing (see page [●])
Immediately following the Redomestication, the shares of Bunge-Switzerland will be listed on the New York Stock Exchange under the symbol “BG,” the same symbol under which the Bunge-Bermuda common shares are currently listed.
Court Approval of the Redomestication (see page [●])
If shareholders of Bunge-Bermuda approve the Redomestication, a request will be filed with the Bermuda Court to approve the Redomestication. The Bermuda Court may impose such conditions as it deems appropriate in relation to the Redomestication but may not impose any material changes without the joint consent of Bunge-Bermuda, and Bunge-Switzerland. In determining whether to exercise its discretion and approve the Redomestication, the Bermuda Court will be required to determine, among other things, whether the Scheme of Arrangement is fair to Bunge-Bermuda’s shareholders in general and might reasonably have been approved by a leading ESG advisory organization,shareholder of Bunge-Bermuda acting in his own interests.
Market Price and Dividend Information (see page [●])
On [●], the last trading day before the public announcement of the Redomestication, the closing price of the Bunge-Bermuda common shares on the New York Stock Exchange was $[●] per share. On [●], the most recent practicable date before the date of this proxy statement, the closing price of the Bunge-Bermuda common shares was $[●] per share.
No Appraisal Rights (see page [●])
Under Bermuda law, the shareholders of Bunge-Bermuda do not have any right to an appraisal of the value of their shares or payment for them in connection with the Redomestication.
Accounting Treatment of the Redomestication (see page [●])
Under U.S. GAAP, the Redomestication represents a transaction between entities under common control. Assets and liabilities transferred between entities under common control are accounted for at cost. Accordingly, the assets and liabilities of Bunge-Switzerland will be reflected at their carrying amounts in the accounts of Bunge-Bermuda under U.S. GAAP on the Effective Date.
Shareholders Meeting (see page [●])
Time, Place, Date and Purpose: The shareholders meeting will be held online via live webcast at [●], commencing at [●] local time, on [●]. At the meeting, Bunge-Bermuda’s board of directors will ask the shareholders to vote to approve:
•the Redomestication, which will be effected by the Scheme of Arrangement, in connection with the Agreement and Plan of Merger, pursuant to which Bunge-Bermuda would merge with Bunge-MergerCo, with Bunge-Bermuda as the surviving company, and each holders of Bunge-Bermuda common shares will receive Bunge-Switzerland shares on a one-for-one basis;
•a motion to adjourn the meeting to a later date to solicit additional proxies if there are insufficient votes at the time of the meeting to approve the Redomestication; and
•any other matters that properly come before the meeting and any adjournments or postponements of the meeting.
Record Date: Only holders of record of Bunge-Bermuda common shares on [●] are entitled to notice of and to vote at the meeting or any adjournment or postponement of the meeting.
Quorum: The holders of more than 50% of our issued and outstanding voting common shares throughout the meeting will constitute a quorum. Abstentions and “broker non-votes” will be counted toward the presence of a quorum, but will not be considered votes cast on any of the proposals brought before, the special meeting.
Financial Statements
Pro forma financial statements for Bunge-Switzerland are not presented in this proxy statement because no significant pro forma adjustments are required to be made to the historical consolidated statement of operations of Bunge-Bermuda for the year ended December 31, 2021. Those financial statements are included in Bunge-Bermuda’s Annual Report on Form 10‑K for the year ended December 31, 2021.
Recommendation of the Board of Directors
The Bunge-Bermuda board of directors unanimously recommends that Bunge-Bermuda’s shareholders vote “FOR” the Redomestication. The Bunge-Bermuda board of directors also unanimously recommends that Bunge-Bermuda’s shareholders vote “FOR” the adjournment proposal, which is not a condition to the Redomestication.
Required Vote (see page [●])
Approval of the Redomestication requires the affirmative vote of holders of Bunge-Bermuda common shares representing a majority in number and at least 75% in value of the Bunge-Bermuda common shares present in person or by proxy at the meeting and entitled to vote on the matter. The affirmative vote of holders of at least a majority of the Bunge-Bermuda common shares present in person or by proxy at the meeting and entitled to vote on the matter is required to approve the adjournment proposal. See “The Shareholders Meeting—Record Date; Voting Rights; Vote Required for Approval.”
Proxies (see page [●])
General: A proxy card is being sent to each shareholder as of the record date. If you properly received a proxy card, you may grant a proxy to vote on the proposals by marking your proxy card appropriately, executing it in the space provided, dating it, and returning it to us. If you hold your shares in the name of a bank, broker or other nominee, you should follow the instructions provided by your bank, broker or nominee when voting your shares. If you have timely submitted a properly executed proxy card or provided your voting instructions by telephone or on the Internet and clearly indicated your votes, your shares will be voted as indicated.
Revocation: You may revoke your proxy card at any time prior to its exercise by:
•giving written notice of the revocation to the Corporate Secretary of Bunge-Bermuda;
•if you are a holder of record, or a beneficial holder with a consortiumproxy from the holder of investorsrecord, by accessing and voting at the shareholder meeting;
•voting again by telephone or the Internet; or
•properly completing and executing a later-dated proxy and delivering it to support our efforts to enhance transparency around our ESG strategy, performance and engagement.the Corporate Secretary of Bunge-Bermuda at or before the meeting.
However, your attendance alone will not revoke your proxy.
| | |
PROPOSAL 1 — ELECTION OF DIRECTORSRISK FACTORS |
Before you decide how to vote on the Redomestication, you should carefully consider the following risk factors, in addition to the other information contained in this proxy statement and the documents incorporated by reference, including, without limitation, our Annual Report on Form 10-K for the year ended December 31, 2021 and subsequent filings with the SEC.
ElectionYour rights as a shareholder will change as a result of the Redomestication.
Because of differences between Swiss law and Bermuda law, your rights as a shareholder will change if the Redomestication is completed. For a description of these differences, see “Comparison of Rights of Shareholders.”
As a result of increased shareholder approval requirements, Bunge-Switzerland will have less flexibility than Bunge-Bermuda with respect to certain aspects of capital management.
Under Bunge-Bermuda’s bye-laws, Bunge-Bermuda’s Board of Directors
Our may issue, without shareholder approval, any common shares authorized in Bunge-Bermuda’s memorandum of association that are not issued or reserved. Bermuda law and Bunge-Bermuda’s bye-laws also provide substantial flexibility in establishing the terms of preferred shares. In addition, Bunge-Bermuda’s Board basedof Directors has the right, subject to statutory limitations, to declare and pay dividends on Bunge-Bermuda’s common shares without a shareholder vote. Swiss law allows Bunge-Switzerland’s shareholders to authorize share capital that can be issued by the recommendationsboard of directors without shareholder approval, but this authorization is limited to (i) 50% of Bunge-Switzerland's stated share capital (e.g., the Corporate Governanceissuance of shares in connection with an acquisition) and Nominations Committee, has nominated each(ii) an additional 50% of Bunge-Switzerland's stated share capital for the eleven nominees listed below for election at the Annual General Meeting, each to hold office until next year's Annual General Meeting.
Eachissuance of Messrs. Fribourg, Fyrwald, Heckmanshares in connection with convertible or similar financial instruments and Winship were initially selected as a director pursuantour equity incentive plans. The authority to the respective Cooperation Agreements with Continental Grain Company, D.E. Shaw Valence Portfolios, L.L.C.Board of Directors to issue shares for such purposes must be renewed by the shareholders every five years. Additionally, Swiss law grants existing shareholders preemptive rights to subscribe for newly issued shares and D.E. Shaw Oculus Portfolios, L.L.C., eachadvance subscription rights to subscribe for convertible and similar financial instruments. Preemptive rights and advance subscription rights may be limited or withdrawn for valid reasons. Swiss law also does not provide as much flexibility in the various terms that can attach to different classes of shares. Swiss law also reserves for approval by shareholders many corporate actions over which expiredBunge-Bermuda’s Board of Directors currently has authority. For example, dividends must be approved by shareholders. While we do not believe that the differences between Bermuda law and Swiss law relating to our capital management will have an adverse effect on November 12, 2019. While the selection of Messrs. Fribourg, Fyrwald, Heckman and Winship is no longer required, the Corporate Governance and Nominations Committee and the Board believe they are qualified nominees who are committedus, we cannot assure you that situations will not arise where such flexibility would have provided substantial benefits to promoting the long-term interests of our shareholders.
Each nomineeBunge-Switzerland may not be able to make distributions or repurchase shares without subjecting you to Swiss withholding tax.
Under current Swiss law, distributions made out of qualifying capital contribution reserves recognized by the Swiss Federal Tax Administration or made in the form of a par value reduction are not subject to Swiss withholding tax. However, there can be no assurances that the Swiss withholding rules will not be changed in the future or that shareholders will approve a distribution out of qualifying capital contribution reserves recognized by the Swiss Federal Tax Administration or a reduction in par value for distributions. Further, over the long term, the amount of par value and qualifying contribution reserves available for Bunge-Switzerland may be limited. If Bunge-Switzerland is presentlyunable to make a memberdistribution out of qualifying capital contribution reserves or through a reduction in par value, then any dividends paid by Bunge-Switzerland will generally be subject to a Swiss withholding tax at a rate of 35%. The withholding tax must be withheld from the gross distribution and paid to the Swiss Federal Tax Administration. Dividends, if any, paid on Bunge-Bermuda’s shares are not currently subject to withholding tax in Bermuda. A U.S. holder that qualifies for benefits under the Convention between the United States of America and the Swiss Confederation for the Avoidance of Double Taxation with Respect to Taxes on Income, which we refer to as the “U.S.-Swiss Treaty,” may apply for a refund of the Board andtax withheld in excess of the 15% treaty rate (or for a full refund in case of qualified pension funds). Switzerland currently has agreed to serve if elected.
Nominees
The Board believes that its members possessconcluded more than 70 tax treaties with the requisite tenure, diversity and varietysame treatment regarding the refund of complementary skills, qualifications, backgrounds and experience that contribute to the Board's ability to oversee our operations and to shape our long-term business strategy. The following director nominee skills matrix is a high-level summary that is not intended to be an exhaustive list of each director nominee’s skills or contributions to the Board.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Bair | Browner | Fribourg | Fyrwald | Heckman | Hees | Hyle | Kobori | Simril | Winship | Zenuk |
| Key Skills and Experience | | | | | | | | | | | |
| Public Company CEO Experience | | | | P | P | P | | | | | |
| Financial | P | | | | | P | P | | P | P | P |
| Risk Management | P | | P | P | P | P | P | | P | P | P |
| South America Business Expertise | | | P | P | P | P | | | | | P |
| China Business Expertise | P | | P | P | P | P | | | | | P |
| Agricultural Industry | | | P | P | P | | | P | | P | P |
| Food Ingredient | | | P | P | P | P | | | P | P | P |
| Manufacturing and Logistics | | | P | P | P | P | P | P | P | P | P |
| Government and Public Policy | P | P | P | | P | | P | P | | | |
| Sustainability | | P | | P | P | | | P | | | |
| Tenure and Independence | | | | | | | | | | | |
| Board Tenure | 2 | 8 | 3 | 3 | 3 | 2 | 9 | <1 | <1 | 3 | 3 |
| Independent | P | P | | P | | P | P | P | P | P | P |
| Demographics | | | | | | | | | | | |
| Age | 67 | 66 | 68 | 62 | 59 | 52 | 63 | 62 | 56 | 54 | 54 |
| Gender Identity | W | W | M | M | M | M | W | M | M | M | M |
| Asian | | | | | | | | P | | | |
| Black/African American | | | | | | | | | P | | |
| Hispanic/Latino | | | | | | P | | | | | |
| White/Caucasian | P | P | P | P | P | | P | | | P | P |
The following paragraphs set forth information about the nominees.
| | | | | |
Sheila Bair, 67
Board Member since 2019Swiss withholding taxes.
Deputy Chair since 2021
Committees:
Audit;
Corporate Governance and Nominations (Chair);
Enterprise Risk Management
| Ms. Bair is the former Chair of the Federal Deposit Insurance Corporation ("FDIC"), where she served in that capacity from 2006 to 2011. After leaving the FDIC, she joined the Pew Charitable Trust as a senior advisor, a role she held from 2011 through 2015. Ms. Bair also served as president of Washington College from 2015 to 2017, and senior advisor to the international law firm DLA Piper, from 2014 to 2015. Earlier in her career, she also served as Assistant Secretary for Financial Institutions at the U.S. Department of the Treasury (2001 to 2002), Senior Vice President for Government Relations of the New York Stock Exchange (1995 to 2000), Commissioner of the Commodity Futures Trading Commission (1991 to 1995), and as counsel to Kansas Republican Senate Majority Leader Bob Dole (1981 to 1988). She continues her work on financial policy issues as chair emeritus of the Systemic Risk Council, which advocates for financial stability, and as a founding director of the Volcker Alliance, which advances excellence in public service. Ms. Bair serves as Chair of the Fannie Mae board and is a non-executive director of Lion Electric Company, where she serves as a member of the Audit Committee and chairs the Nomination and Corporate Governance Committee. She is a former non-executive director of Host Hotels & Resorts, Inc., Thomson Reuters, where she chaired the Risk Committee, and the Industrial and Commercial Bank of China Ltd. She is an accomplished author and has written several books on financial issues. In 2021, she was appointed trustee of the prestigious Economists for Peace and Security, a select group of prominent economists and others committed to world security and prosperity. She holds a bachelors from the University of Kansas and a J.D. from the University of Kansas School of Law. She also holds honorary doctorates from Kansas University, Amherst College and Drexel University.
Skills and Qualifications: Ms. Bair brings to the Board significant experience in global capital markets and financial risk management, as well as regulation and public policy and advising large, complex organizations in both the public and private sectors.
|
Carol Browner, 66
Board Member since 2013
Committees:
Corporate Governance and Nominations;
Sustainability and Corporate Responsibility (Chair)
| Ms. Browner is senior of counsel at Covington & Burling LLP, a multinational law firm, and is a member of their environmental, social and governance practice. From 2011 to 2021, Ms. Browner was senior counsel at Albright Stonebridge Group, a global advisory firm. From 2009 to 2011, she served as Assistant to President Barack Obama and director of the White House Office of Energy and Climate Change Policy. From 2001 to 2008, Ms. Browner was a founding principal of the Albright Group and Albright Capital Management LLC. Previously, she served as Administrator of the Environmental Protection Agency from 1993 to 2001. She also chairs the board of the League of Conservation Voters and is a sustainability advisor to Neutron Holdings, Inc., d/b/a Lime. She holds a J.D. and B.A. from the University of Florida.
Skills and Qualifications: Ms. Browner brings to the Board significant experience in regulation and public policy, the environment and sustainability, particularly with respect to agriculture, energy and renewable fuels, and also advising large, complex organizations in both the public and private sectors.
|
| | | | | |
Paul Fribourg, 68
Board Member since 2018
Committees:
Enterprise Risk Management;
Sustainability and Corporate Responsibility
| Mr. Fribourg has served as Chairman and CEO of Continental Grain Company since 1997 and is a member of its management committee. Mr. Fribourg has over 40 years of experience owning and operating businesses in the food, agribusiness and commodities industries. Mr. Fribourg is also a director of Estee Lauder Companies, Inc., Restaurant Brands International, Inc. and Loews Corporation, as well as Syngenta Group Co., Ltd, a private company. He is a former director of Apollo Global Management, LLC (2011-2018). He is also a member of the Rabobank International North American Agribusiness Advisory Board, Board of Managers of Wayne Farms, LLC, Council on Foreign Relations, International Business Leaders Advisory Council for The Mayor of Shanghai and Temasek Americas Advisory Panel. He holds a B.A. in Economics from Amherst College and completed the Advanced Management Program at Harvard Business School.
Skills and Qualifications: Mr. Fribourg's experience as the Chief Executive Officer of an international agribusiness and investment company, and as a director of multiple public and private companies in various industries, provides our Board with relevant agricultural and food ingredient industry experience, as well as knowledge of manufacturing and logistics, risk management and public policy. Mr. Fribourg also provides the Board with insights into business operations in South America and China.
|
J. Erik Fyrwald, 62
Board Member since 2018
Committees:
Human Resources and Compensation (Chair);
Sustainability and Corporate Responsibility
| Mr. Fyrwald is currently the CEO of Syngenta Group, a leading global agriculture company, a position he has held since 2016. Mr. Fyrwald is also an Executive Director on the Syngenta Group Board of Directors and Chairman of the not-for-profit Syngenta Foundation for Sustainable Agriculture. He is also Chairman of the Board of Directors of ADAMA Ltd and Sinofert Holdings Ltd, both majority-owned and controlled by Syngenta Group. Previously, he served as President and CEO of Univar, a leading distributor of chemicals and related services, from 2012 to 2016. Prior to that, he was President of Ecolab, a provider of cleaning, sanitation, water treatment and oil and gas products services from 2011 to 2012, and Chairman, President and CEO of Nalco, a water treatment and oil and gas products and services company from 2008 to 2011. He was also Group Vice President of the Agriculture and Nutrition Division of DuPont from 2003 to 2008. Mr. Fyrwald is a non-executive director on the board of Eli Lilly and Company, where he serves on the Science and Technology Committee. He also serves on the Board of Directors for CropLife International, the Swiss-American Chamber of Commerce and the UN World Food Program Farm to Market Initiative. He holds a B.S. in Chemical Engineering from the University of Delaware and completed the Advanced Management Program at Harvard Business School.
Skills and Qualifications: Mr. Fyrwald's senior leadership experience in global business with focus on agriculture, as well as technology and innovation, provides our Board with valuable perspectives relating to our industry, international operations, including in South America and China, manufacturing and logistics and sustainability matters. He also brings corporate governance experience to the Board.
|
| | | | | |
Gregory Heckman, 59
Board Member since 2018
| Mr. Heckman has served as Bunge Limited's CEO since 2019 and a director since October 2018. Mr. Heckman is Founding Partner of Flatwater Partners, a private investment firm, and has over 30 years of experience in the agriculture, energy and food processing industries. He served as CEO of The Gavilon Group from 2008 to 2015. During his time at Gavilon, he led the company through a period of considerable growth in both the agriculture and energy industries prior to the eventual sale of the agriculture business to Marubeni Corporation and the energy business to NGL Energy Partners. Prior to Gavilon, Mr. Heckman was Chief Operating Officer of ConAgra Foods Commercial Products and President and COO of ConAgra Trade Group. Mr. Heckman also serves as a non-executive director on the board of OCI NV, a global producer of fertilizer and chemicals. He is also a member of the North America Agribusiness Advisory Board of Rabobank, the New York Stock Exchange Board Advisory Council and the Aksarben Foundation Board of Governors. Mr. Heckman holds a B.S. in agriculture economics and marketing from the University of Illinois at Urbana-Champaign.
Skills and Qualifications: Mr. Heckman's deep agribusiness and food industry knowledge and leadership experience, his proven track record in driving growth and shareholder value at Bunge and previous businesses he has led, as well as his experience as our CEO, provides the Board with valuable perspectives as we continue to grow our portfolio of businesses, while increasing our focus on sustainability and optimizing our operation and risk management execution.
|
Bernardo Hees, 52
Board Member since 2019
Committees:
Enterprise Risk Management;
Human Resources and Compensation;
Sustainability and Corporate Responsibility
| Mr. Hees was a partner at 3G Capital, a global investment firm, from 2010 until the end of 2019. Mr. Hees served as CEO of The Kraft Heinz Company from July 2015 until June 2019 and as CEO of H.J. Heinz Company from June 2013 until its merger with Kraft Foods Group, Inc. in July 2015. Previously, Mr. Hees served as CEO of Burger King Worldwide Holdings, Inc., a global fast food restaurant chain, from September 2010 to June 2013 and Burger King Worldwide, Inc. from June 2012 to June 2013 and as CEO of América Latina Logística, a logistics company, from January 2005 to September 2010. Mr. Hees serves as Executive Chairman of the Board of Directors of Avis Budget Group, Inc. He holds a B.A. in Economics from the Pontifical Catholic University of Rio de Janeiro and an MBA from Warwick Business School in the United Kingdom.
Skills and Qualifications: Mr. Hees's experience as a former chief executive of a large international consumer products company and his experience as a former partner of a global investment firm provides the Board with valuable perspective relating to global food and food ingredient supply chains. He also provides the Board with insights into the South American marketplace. He has a finance background, and a strong understanding of compensation and sustainability matters.
|
| | | | | |
Kathleen Hyle, 63
Board Member since 2012
Board Chair since 2018
Committees:
Corporate Governance and Nominations
| Ms. Hyle served as Senior Vice President of Constellation Energy and Chief Operating Officer of Constellation Energy Resources from November 2008 until her retirement in June 2012, following the completion of the merger of Constellation Energy with Exelon Corporation. From June 2007 to November 2008, Ms. Hyle served as Chief Financial Officer ("CFO") for Constellation Energy Nuclear Group and for UniStar Nuclear Energy, LLC, a strategic joint venture between Constellation Energy and Électricité de France. Prior to that, Ms. Hyle held the position of Senior Vice President of Finance for Constellation Energy from 2005 to 2007 and Senior Vice President of Finance, Information Technology, Risk and Operations for Constellation New Energy from January to October 2005. Prior to joining Constellation Energy, Ms. Hyle served as the CFO of ANC Rental Corp., the parent company of Alamo Rent-A-Car and National Rent-A-Car; Vice President and Treasurer of Auto-Nation, Inc.; and Vice President and Treasurer of The Black and Decker Corporation. Ms. Hyle is currently a non-executive director on the board of AmerisourceBergen Corporation and is a former director of The ADT Corporation. She previously served on the Board of Trustees of Center Stage in Baltimore, MD and as trustee of the Loyola University Maryland Sellinger School of Business and Management. She has a B.A. from Loyola College.
Skills and Qualifications: Ms. Hyle brings senior leadership experience and extensive financial, risk management, manufacturing and logistics and public policy experience to the Board. She also previously chaired Bunge's Audit Committee for several years and qualifies as an audit committee financial expert.
|
Michael Kobori, 62
Board Member since 2021
Committees:
Enterprise Risk Management;
Sustainability and Corporate Responsibility
| Mr. Kobori is currently the Chief Sustainability Officer at Starbucks Coffee Company, a position he has held since 2020. Prior to joining Starbucks, he was with Levi Strauss & Co. where he served as Vice President, Sustainability from 2007 to 2020 and the Director, Global Code of Conduct from 2001 to 2006. Prior to that, he was with The Asia Foundation, where he supported human rights and economic development in Bangladesh, Thailand and Vietnam. Mr. Kobori has been a lecturer in corporate sustainability at the Haas Business School, University of California at Berkeley. He is the Executive Producer of Utopia Theatre Project, an artist-led social justice theater company. Mr. Kobori has served on a number of not-for profit boards and advisory commissions, including the Cotton Board, Better Cotton Initiative, Sustainable Apparel Coalition, ILO Better Work, Levi Strauss Foundation and The Asia Foundation. He holds a Masters of Public Policy and AB, Psychology and Asian Studies degrees from the University of California, Berkeley.
Skills and Qualifications: Mr. Kobori brings to the Board significant experience in environmental matters, sustainability and public policy, particularly with respect to climate, agriculture and water. He also has experience working for a large multinational beverage and manufacturing company with complex supply chains. In addition, his extensive experience in the private sector provides unique perspectives on diversity and social justice matters. He also provides the Board with insights on business operations in Asia.
|
| | | | | |
Kenneth Simril, 56
Board Member since 2021
Committees:
Audit;
Human Resources and Compensation
| Mr. Simril is the President of BakeMark Ingredients, a leading distributor and manufacturer of bakery ingredients across North America. Prior to joining BakeMark, he was President and Chief Executive Officer of Fleischmann's Ingredients, a position he held from 2006 to 2021. Prior to joining Fleischmann's, he was the Chief Financial Officer and Chief Operations Officer of Clipper Corporation, a manufacturer of both custom and semi-custom items for the food service industry. Before clipper Corporation, Mr. Simril was the Chief Financial Officer of ClearPath Networks Inc. He has also served in various finance and engineering roles with Mobil Oil Corporation and Exxon Mobil Corporation. Mr. Simril is a former non-executive director of At Home Group, Inc. He currently serves as an independent director of American Funds managed by the Capital Group, a privately held company. He holds a B.S. in Petroleum Engineering from the University of Southern California and an MBA from Harvard Business School.
Skills and Qualifications: Mr. Simril brings to the Board significant financial and leadership expertise and experience working for large, complex multinational companies. In addition, he brings significant food and ingredients experience, manufacturing, logistics, strategic and investment management experience. Mr. Simril is an audit committee financial expert.
|
Henry "Jay" Winship, 54
Board Member since 2018
Committees:
Audit (Chair);
Corporate Governance and Nominations;
Human Resources and Compensation
| Since 2016, Mr. Winship has served as President of Pacific Point Capital, a privately owned asset management firm. Prior to that, he was a Principal, Senior Managing Director and Member of the Investment Committee at Relational Investors, which he joined in 1996. He has over 25 years of experience as an institutional investor and in investment management, accounting and financial management. Mr. Winship is a non-executive director of C.H. Robinson and former non-executive director of CoreLogic, Inc. He also serves on the Board of Advisors of the Corporate Governance Institute at San Diego State University Fowler College of Business. He is a Certified Public Accountant and holds the professional designation of Chartered Financial Analyst. He holds a bachelor's degree in finance from the University of Arizona and an MBA from the University of California, Los Angeles.
Skills and Qualifications: Mr. Winship brings to the Board expertise and experience as an institutional investor helping to grow shareholder value at a wide range of public companies. Mr. Winship has significant experience in the areas of finance, capital allocation and risk management, and provides our Board with valuable perspectives on a range of agricultural and food ingredient industry topics. Mr. Winship is an audit committee financial expert and has extensive corporate governance expertise.
|
Under current Swiss law, repurchases of shares for the purposes of capital reduction are treated as a partial liquidation subject to 35% Swiss withholding tax on the difference between the par value plus qualifying capital contributions reserves and the repurchase price. Over the long term, the amount of par value and qualifying contribution reserves available for Bunge-Switzerland may be limited. Bunge-Switzerland may follow a share repurchase process for future share repurchases, if any, whereby Swiss institutional investors purchase Bunge-Switzerland shares from you and then sell the shares to Bunge-Switzerland and apply for a refund of the Swiss withholding tax. However, if Bunge-Switzerland is unable to use this process successfully, Bunge-Switzerland may not be able to repurchase shares for the purposes of capital reduction without subjecting you to Swiss withholding taxes. Please see “Certain Tax Considerations—Swiss Tax Considerations—Consequences to Shareholders of Bunge-Switzerland Subsequent to the Redomestication—Repurchases of Shares.”The Redomestication will result in additional costs to us, some of which will be incurred regardless of whether the Redomestication is completed.
The completion of the Redomestication will result in an increase in some of our ongoing expenses and require us to incur some new expenses in connection with the Redomestication regardless of whether the Redomestication is completed.
| | | | | |
Mark Zenuk, 54
Board Member since 2018
Committees:
Audit;
Enterprise Risk Management (Chair)
| Mr. Zenuk has served as Managing Partner of Tillridge Global Agribusiness Partners, an agribusiness private equity firm, since 2016. Prior to Tillridge, he was a Managing Director at NGP Energy Capital Management where he led the agribusiness investment platform from 2010 to 2016. Before joining NGP Energy Capital Management, he served in many domestic and international executive leadership roles with Archer Daniels Midland Company ("ADM"), having most recently led ADM’s oilseed business unit. Before joining ADM in 1999, he served as General Manager of the Commodity Marketing Group for the Saskatchewan Wheat Pool and Marketing Manager for the Canadian Wheat Board. He holds a B.S. in Agricultural Economics from the University of Saskatchewan.
Skills and Qualifications: Mr. Zenuk's senior leadership experience provides deep knowledge of global agribusiness and food and ingredients markets, along with risk management expertise and, through his private equity experience, financial acumen and a strong commitment to strategic growth and shareholder value. Mr. Zenuk also brings manufacturing and logistics experience in global operations.
|
| | | | | |
R | OUR BOARD RECOMMENDS THAT YOU VOTE FOR THE ELECTION OF EACH OF THE NOMINEES FOR DIRECTOR. |
The following sections provide an overview of our corporate governance policies and practices, including with respect to Board tenure and refreshment, independence of directors, Board leadership, risk oversight, shareholder outreach and the structure and key aspects of our Board and committee operations. The Board regularly reviews our policies and processes in the context of current corporate governance trends, regulatory changes and recognized best practices.
Board and Corporate Governance Developments
Our Board is committed to highly effective corporate governance that is responsive to shareholders. We have conducted a formal shareholder outreach program for several years in which we listen to our shareholders’ perspectives on our performance and strategy, governance matters, our executive compensation program, sustainability, human capital management and other topics of shareholder interest. In addition, through our ongoing investor relations activities, we also solicit shareholder perspectives on these matters. See “Corporate Governance - Shareholder Outreach and Engagement” for more information on these activities.
Board Structure and Size
As of the date of this proxy statement, our Board consists of 11 directors. Directors are elected at each annual general meeting of shareholders to hold office for one-year terms until the next annual general meeting of shareholders.
Board Succession and Tenure
The Board actively reviews and refreshes its membership. In furtherance of this objective, the Corporate Governance and Nominations Committee assists the Board in developing succession planning guided by the long-term strategy and ongoing business operations of the Company. As part of the succession planning, the Corporate Governance and Nominations Committee annually, and on an as needed basis, reviews the composition of the Board against the skills criteria applicable to potential candidates for nomination to the Board, as well as existing directors, and makes director nomination recommendations to the Board.
In addition, the Board has adopted a requisite director retirement age of 72; however, it does not impose director tenure limits as the Board believes that imposing limits on director tenure could arbitrarily deprive it of the valuable contributions of its most experienced members. Accordingly, length of Board service is one of a variety of factors considered by the Corporate Governance and Nominations Committee in making director nomination recommendations to the Board. Additionally, we have implemented full declassification of our Board, which means each director must be re-nominated by the Board on an annual basis. This provides the Board with the opportunity to consider the optimal mix of characteristics, skills, qualifications and experience of its members each year.
Over the course of the last four years, eight directors have either left the Board or decided not to stand for re-election. As a result, the average tenure of our director nominees is less than four years, with the longest tenured nominee having served for nine years. This significant Board refreshment process has resulted in an increase in the depth, scope of qualifications and diversity represented on the Board.
Director Selection and Qualifications
As provided in its charter, the Corporate Governance and Nominations Committee strives to recommend candidates, pursuant to the Board Membership Criteria and Diversity Policy set forth in the Corporate Governance Principles, that (1) complement the current members of the Board and other proposed nominees to further the objective of having a Board that guides the long-term strategy and ongoing business operations of the Company, and (2) reflects a diversity of background and experience to effectively perform the functions of the Board and its committees.
In that regard, the Corporate Governance and Nominations Committee recommends to the Board director candidates for nomination and election during the annual general meeting or for appointment to fill vacancies. The Committee works with our Board to identify certain characteristics, skills and experience to help meet specific Board needs that have arisen or are expected to arise. When the Corporate Governance and Nominations Committee reviews a potential new candidate, it looks specifically at the candidate's qualifications with respect to these needs as well as the
Board Membership Criteria and Diversity Policy. Additionally, the Corporate Governance and Nominations Committee annually reviews the tenure, performance, skills and contributions of existing Board members to the extent they are candidates for re-election. Directors eligible for re-election abstain from Board discussions regarding their nomination and from voting on such nomination.
For all directors, we require an independent mindset, high personal and professional ethics, integrity, sound business judgment, the ability and willingness to commit sufficient time to the Board and to promoting the long-term interests of the Company's shareholders. Our Board considers many factors in evaluating the suitability of individual director candidates, including, but not limited to: a general understanding of global business, finance and other disciplines relevant to the success of a large, publicly traded company; understanding of our business and technology; education, professional background and personal accomplishment; and geographic, gender, age, and racial and ethnic diversity. The Board is committed to actively seeking highly qualified women and individuals from historically underrepresented groups to include in the candidate pool from which Board nominees are selected.
The Board evaluates each individual in the context of the Board as a whole, with the objective of recommending Board nominees that can best realize the strategy and success of the Company and represent shareholder interests, using its diversity of experience. The invitation to stand for election to the Board shall be extended by the Chair of the Board on behalf of the Board.
In determining whether to recommend a director for re-election, the Committee considers the director’s participation in and contributions to the activities of the Board, the results of the most recent Board evaluation, and meeting attendance. The Board does not believe that directors should expect to be re-nominated annually.
Under the Corporate Governance Principles, directors must inform the Chair of the Board and the Chair of the Corporate Governance and Nominations Committee in advance of accepting an invitation to serve on another public company board. In addition, no director may sit on the board, or beneficially own more than 1% of the outstanding equity securities, of any of our competitors in our principal lines of business.
In connection with the director nominations process, the Corporate Governance and Nominations Committee may identify candidates through recommendations provided by members of the Board, management, shareholders or other persons, and has also engaged professional search firms to assist in identifying or evaluating qualified candidates.
A professional search firm assisted the Corporate Governance and Nominations Committee in connection with its recommendation of Messrs. Kobori and Simril, who were both appointed to the Board of Directors in 2021. When using a professional search firm, the Corporate Governance and Nominations Committee directs the firm to include in each director search qualified candidates who reflect diverse backgrounds, including diversity of gender, race, ethnicity, and nationality. Based on the Board Membership Criteria and Diversity Policy outlined in our Corporate Governance Principles, the firm is directed to provide for review and consideration a diverse slate of candidates. After consulting with the Corporate Governance and Nominations Committee, the firm further screens and interviews candidates as directed to determine their qualifications, interest and any potential conflicts of interest and provides its results to the Committee.
The Corporate Governance and Nominations Committee will review and evaluate candidates taking into account available information concerning the candidate, the qualifications for Board membership described above and other factors that it deems relevant. In conducting its review and evaluation, the Corporate Governance and Nominations Committee may solicit the views of other members of the Board, senior management and third parties, and conduct interviews of proposed candidates and request that candidates meet with other members of the Board. Each of the nominees for election at the Annual General Meeting was recommended by the Corporate Governance and Nominations Committee.
Proxy Access/Shareholder Recommendations and Nominations
The Corporate Governance and Nominations Committee will evaluate candidates recommended by shareholders in the same manner as candidates recommended by other persons. In accordance with our Bye-laws, shareholders who wish to propose a director nominee must give written notice to our Corporate Secretary at our registered address at Clarendon House, 2 Church Street, Hamilton HM 11, Bermuda, not later than 120 days before the first anniversary of the date on which our proxy statement was distributed to shareholders in connection with the prior year's annual general meeting. If no annual general meeting was held in the prior year or if the date of the annual general meeting has been changed by more than 30 days from the date contemplated in the prior year's proxy statement, the notice
must be given before the later of (i) 150 days prior to the contemplated date of the annual general meeting and (ii) the date which is 10 days after the date of the first public announcement or other notification of the actual date of the annual general meeting. Where directors are to be elected at a special general meeting, such notice must be given before the later of (i) 120 days before the date of the special general meeting and (ii) the date which is 10 days after the date of the first public announcement or other notification of the date of the special general meeting. In each case, the notice must include, as to each person the shareholder proposes to nominate for election or re-election as director, all information relating to that person required to be disclosed in solicitations of proxies for election of directors pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended, which we refer to as the Exchange Act, which includes such person's written consent to being named in the proxy statement as a nominee and to serving as a director if elected, and evidence satisfactory to us that such nominee has no interests that would limit such nominee's ability to fulfill their duties of office. We may require any nominee to furnish such other information as reasonably may be required by us to determine the eligibility of such nominee to serve as a director. A shareholder may propose a director nominee to be considered by our shareholders at the annual general meeting provided that the notice provisions in our Bye-laws as set forth above are met, even if such director nominee is not nominated by the Corporate Governance and Nominations Committee. A shareholder may also recommend director candidates for consideration by the Corporate Governance and Nominations Committee at any time. Any such recommendations should include the nominee's name and qualifications for Board membership.
Board Independence
The Board is composed of a substantial majority of independent directors. Currently, nine of our 11 incumbent directors and nominees are independent.
In accordance with the listing standards of the New York Stock Exchange ("NYSE"), to be considered independent, a director must have no material relationship with Bunge directly or as a partner, shareholder or officer of an organization that has a relationship with Bunge. The NYSE has also established enhanced independence standards applicable to members of our Audit Committee and our Human Resources and Compensation Committee.
The Board annually reviews commercial and other relationships between directors and members of their immediate families and Bunge to make a determination regarding the independence of each director. To assist it in making these determinations, the Board has adopted categorical standards of director independence which are set forth in Annex A to our Corporate Governance Principles. The categorical standards of director independence are included as Appendix B to this proxy statement and are also available through the "Investors — Corporate Governance" section of our website, www.bunge.com. Transactions, relationships and arrangements between a director and Bunge that are within our independence standards are deemed immaterial, subject to NYSE standards. Additionally, our Bye-laws provide that no more than two directors may be employed by us or any company or entity which we control.
In making its independence determinations, the Board considers relevant facts and circumstances, including that in the normal course of business, purchase and sale and other commercial and charitable transactions or relationships may occur between Bunge and other companies or organizations with which some of our directors or their immediate family members are affiliated. For 2021, the Board considered the following transactions and relationships and determined them to be immaterial:
•ordinary course business transactions with certain portfolio companies of Tillridge Global Agribusiness Partners, a private equity firm where Mr. Zenuk serves as Managing Partner. Mr. Zenuk does not serve as an officer or employee of any of these portfolio companies and has no involvement in Bunge's dealings with these companies. Additionally, these commercial relationships predated Mr. Zenuk joining our Board. The highest amount of annual purchase or sale transactions between Bunge and any of the portfolio companies in 2021 was approximately $14.3 million.
•ordinary course business transactions with Syngenta, a global agrochemical and seed manufacturer where Mr. Fyrwald serves as CEO and Mr. Fribourg serves as a non-executive director. These transactions totaled approximately $139.7 million of sales to and approximately $31.3 million of purchases from Syngenta in 2021, less than 2% of Syngenta's annual gross revenues.
•ordinary course business transactions with Bakemark USA, a distributor and manufacturer of bakery ingredients, where Mr. Simril serves as President. These transactions totaled approximately $13.4 million of sales to Bakemark USA in 2021, less than 2% of Bakemark USA's annual gross revenues. Additionally, these commercial relationships predated Mr. Simril joining our Board.
•ordinary course business transactions with Fleischmann's Ingredients, a subsidiary of Kerry Group, where Mr. Simril was the former President and CEO. These transactions totaled approximately $7.6 million of sales to and $15.5 million of purchases from Kerry Group and its affiliates, less than 2% of Kerry Group's annual gross revenues. Additionally, these commercial relationships predated Mr. Simril joining our Board.
Based on the evaluation and criteria described above, the Board has determined that the following directors are independent: Mses. Bair, Browner and Hyle and Messrs. Fyrwald, Hees, Kobori, Simril, Winship and Zenuk. Mr. Heckman is not considered an independent director since he also serves as our CEO. Mr. Fribourg was determined not to be independent due to the amount of ordinary course business transactions between Continental Grain Company and Bunge during Continental Grain's fiscal year 2021, whereby such transactions exceeded the thresholds set forth in the categorical standards of director independence.
Board Leadership Structure
Our Board does not have a requirement that the roles of CEO and Chair of the Board be either combined or separated, because the Board believes this determination should be made based on the best interests of Bunge and its shareholders at any point in time based on the facts and circumstances then facing the Company. Demonstrating the Board's commitment to making these thoughtful and careful determinations, our Board has separated the Chair and CEO roles since 2013 and has had an independent, non-executive Board Chair since January 1, 2014. Ms. Hyle currently serves as Board Chair and ex officio member of each committee. In addition, Ms. Bair was appointed as non-executive Deputy Chair on May 5, 2021. The Board believes that its current leadership structure is in the best interests of the Company and its shareholders at this time and demonstrates its commitment to independent oversight, which is a critical aspect of effective governance.
Additionally, as described above, our Board is characterized by a substantial majority of independent directors as well as key Board committees that are composed entirely of independent directors. As a result, independent directors oversee critical matters, including the integrity of our financial statements, the evaluation and compensation of executive management, the selection of directors and Board performance.
Board Meetings and Committees
The Board normally has five regularly scheduled meetings per year, and committee meetings are normally held in conjunction with Board meetings. Additionally, the Board holds virtual meetings to receive updates on our business and as circumstances may require. Our Board met seven times in 2021 and acted by written consent four times. All directors serving on the Board as of December 31, 2021 attended at least 99% of the combined Board and committee meetings on which they served during the last fiscal year.
Our Bye-laws give our Board the authority to delegate its powers to committees appointed by the Board. We have five standing Board committees: the Audit Committee, the Human Resources and Compensation Committee, the Enterprise Risk Management Committee, the Corporate Governance and Nominations Committee and the Sustainability and Corporate Responsibility Committee. Each of these committees is chaired by an independent director and each of the Audit Committee, Human Resources and Compensation Committee and Corporate Governance and Nominations Committee is composed entirely of independent directors. The members of the Audit Committee and the Human Resources and Compensation Committee also meet the enhanced independence rules of the Securities and Exchange Commission ("SEC") and NYSE applicable to such committees. Pursuant to their charters, each of these committees are authorized and assured of appropriate funding to retain and consult with external advisors and counsel, as they deem appropriate, to assist in the performance of their duties. The committees are required to conduct meetings and take action in accordance with the directions of the Board, the provisions of our Bye-laws and the terms of their respective committee charters. Each of these committees has the power under its charter to sub-delegate the authority and duties designated in its charter to subcommittees or individual members of the committee as it deems appropriate, unless prohibited by law, regulation or any NYSE listing standard. Copies of these committee charters are available through the "Investors — Corporate Governance" section of our website, www.bunge.com. Please note that the information contained in or connected to our website is not intended to be part of this proxy statement.
| | | | | |
2021 meetings l 10
| Primary Responsibilities: |
| |
Members:
Henry "Jay" Winship (Chair)
Sheila Bair
Kenneth Simril
Mark Zenuk
| •the quality and integrity of our financial statements and related disclosures;
•compliance with legal and regulatory requirements;
•the independent auditor's qualifications, independence, fees and performance;
•the performance of our internal audit and control functions; and
•assists the Board in its oversight of cybersecurity.
|
The Audit Committee meets separately with our independent auditor and also in quarterly executive sessions with members of management, including our chief audit executive and our chief compliance officer. Additionally, the Audit Committee regularly meets in executive sessions at which only the Audit Committee members are in attendance, without any members of our management present. No Audit Committee member may simultaneously serve on the audit committees of more than two other public companies without the prior approval of the Board. Messrs. Winship and Simril qualify as audit committee financial experts.
| | | | | |
Human Resources and Compensation Committee |
| | | | | |
2021 meetings l 5
| Primary Responsibilities: |
| |
Members:
J. Erik Fyrwald (Chair)
Bernardo Hees
Kenneth Simril
Henry "Jay" Winship
| •designing, reviewing and overseeing Bunge's executive compensation program;
•reviewing and approving corporate goals and objectives relevant to the compensation of our CEO, evaluating the performance of the CEO in light of these goals and objectives and setting the CEO's compensation based on this evaluation;
•reviewing the evaluation by the CEO of each executive officer reporting directly to the CEO and overseeing and approving the total compensation packages for each executive officer reporting directly to the CEO;
•reviewing and approving employment, consulting, retirement and severance agreements and arrangements for the CEO and executive officers reporting directly to the CEO;
•reviewing and making recommendations to the Board regarding our incentive compensation plans, including our equity incentive plans, and administering our equity incentive plans;
•establishing and reviewing our executive and director share ownership guidelines;
•reviewing our compensation practices to ensure that they do not encourage unnecessary and excessive risk-taking;
•making recommendations to the Board on director compensation; and
•overseeing talent management programs, succession planning and the Company's initiatives and policies related to diversity and inclusion, workforce environment and culture.
|
The Human Resources and Compensation Committee has sole authority to retain or terminate any such compensation consultants or advisors and to approve their fees. For additional information on the Human Resources and Compensation Committee's role, its use of outside advisors and their roles, as well as the Human Resources and Compensation Committee's processes and procedures for the consideration and determination of executive compensation, see "Compensation Discussion and Analysis — Determining Compensation" beginning on page 38 of this proxy statement.
| | | | | |
Corporate Governance and Nominations Committee |
| | | | | |
2021 meetings l 7
| Primary Responsibilities: |
| |
Members:
Sheila Bair (Chair)
Carol Browner
Kathleen Hyle
Henry "Jay" Winship
| •monitoring significant developments in the law and practice of corporate governance and overseeing, reviewing, and recommending changes to the Company’s corporate governance framework;
•leading the Board in its annual performance evaluation;
•developing and recommending to the Board and overseeing the Corporate Governance Principles of the Company;
•advising the Board with respect to charters, structure, and functions of the committees of the Board and qualifications for membership thereon;
•assisting the Board by actively identifying individuals qualified to become Board members;
•overseeing policies and processes relating to director orientation and continuing education;
•assisting the Board with director succession planning and director recruitment processes;
•making director independence recommendations to the Board;
•recommending to the Board the director nominees for election at the next annual meeting of shareholders; and
•periodically reviewing the political contribution program and the Company's position and engagement on relevant public policy governance issues.
|
| | | | | |
Enterprise Risk Management Committee |
| | | | | |
2021 meetings l 7
| Primary Responsibilities: |
| |
Members:
Mark Zenuk (Chair)
Sheila Bair
Paul Fribourg
Bernardo Hees
Michael Kobori
| •supervising the quality and integrity of our risk management practices;
•reviewing and approving our risk management policies and risk limits on a periodic basis, including climate-related risks, and advising our Board on risk management practices (see "Risk Oversight" for more information); and
•overseeing the development of an Enterprise Risk Management framework, periodically reviewing a wider scope of enterprise risks facing the Company, and management's risk mitigation strategies.
|
| | | | | |
Sustainability and Corporate Responsibility Committee |
| | | | | |
2021 meetings l 4
| Primary Responsibilities: |
| |
Members:
Carol Browner (Chair)
Paul Fribourg
J. Erik Fyrwald
Bernardo Hees
Michael Kobori
| •oversight of our governance policies, strategies and programs with respect to sustainability and corporate social responsibility, including matters related to:
–human rights;
–food safety;
–environmental matters related to climate change and emissions, water conservation and management, energy consumption and efficiency, product stewardship, and waste disposal;
–the Company's public commitments regarding non-deforestation and emissions reductions;
–ESG external trends and public affairs;
–relations with stakeholders;
–assisting the Board and Enterprise Risk Management Committee in fulfilling their risk management oversight responsibility relating to ESG; and
–philanthropy.
|
Board and Committee Evaluations
Pursuant to NYSE requirements, our Corporate Governance Principles and the charters of each of the Board’s committees, the Board and each of its committees conducts annual self-assessments of their performance. The Board recognizes that a thorough and constructive assessment process is an essential component of good corporate governance. These self-assessments are intended to facilitate a candid assessment and discussion by the Board and each committee of its effectiveness and performance and identification of areas for improvement. A summary of the process is below:
| | | | | |
Questionnaires: | •The Corporate Governance and Nominations Committee Chair and the Committee members oversee the overall Board committee self-assessment process.
•Questionnaires for the Board and each standing committee are reviewed and updated on an annual basis prior to distribution to each of the directors.
•Topics include, but are not limited to:
–Board and committee dynamics, meetings, materials and effectiveness;
–the flow of information to and from the Board and its committees;
–Board composition, size and leadership; and
–corporate strategy, risk oversight and management, director and executive compensation, succession planning and shareholder engagement.
|
Individual Directors: | •Each director is provided with a questionnaire for the full Board and one for each standing committee on which the director serves.
|
Reviews: | •The Corporate Governance and Nominations Committee, along with the third-party facilitator, which may be retained as deemed appropriate, reviews and discusses the responses to the Board and all committee questionnaires.
•Each committee reviews and discusses the responses to their respective committee questionnaires.
•The Corporate Governance and Nominations Committee provides the Board with a summary of the Board and committee questionnaires and develops recommendations for areas that the Board and its committees should consider as improvements. These areas are further discussed by the Board.
|
| | | | | |
Board Summary and Feedback: | •The Chair of the Corporate Governance and Nominations Committee, working with the Board Chair, other directors and the senior management team as appropriate, develops action plans for any items that require follow-up.
|
Changes implemented: | •In addition to significant Board refreshment, in recent years the Board’s approach to Board and committee self-assessments has resulted in changes made to Board agendas, meeting materials, management presentations, committee responsibilities and charters, committee consultants, leadership and composition.
|
Executive Succession Planning and Leadership Development
Succession planning and leadership development are top priorities for the Board and management. On an annual and as needed basis, the Human Resources and Compensation Committee, with oversight by the Board, reviews succession plans and candidate profiles for the CEO and other senior management positions, and oversees talent management programs that drive capability building, leadership development and workforce culture. The Human Resources and Compensation Committee also reviews workforce health metrics at each meeting that provide insight into workforce movement, diversity and inclusion initiatives, engagement and culture.
The Board believes that succession planning: (i) is a board-driven, collaborative and continuous process; (ii) should consider the Company's long-term strategic goals; and (iii) involves building a diverse and inclusive, talent-rich organization by attracting and developing the right people. Individuals who are identified as succession candidates for critical positions are given exposure and visibility to Board members through formal presentations and informal events.
Risk Oversight
Our Board of Directors oversees management's approach to risk management, which is designed to support the achievement of our strategic objectives and enhance shareholder value. Our Board has considered the most effective organizational structure to appropriately oversee major risks. It has established a dedicated Board committee, the Enterprise Risk Management Committee, which enables greater focus at the Board level on risk oversight tailored to our business and industries. Additionally, each of our other Board committees considers risks within its area of responsibility. All Board committees regularly report on their activities to the full Board to promote effective coordination and to ensure that the entire Board remains apprised of major risks, how those risks may interrelate, and how management addresses those risks. Finally, Bunge has management teams responsible for risk, including a Chief Risk Officer, a Management Risk Committee and an Internal Audit team to assist with the day-to-day implementation, governance and monitoring of risk management strategies and risk mitigation efforts. An overview of each Board committee and their respective roles in risk oversight are outlined below:
| | | | | |
Entity | Primary Responsibility for Risk Management |
| |
Enterprise Risk Management Committee | •Oversees the quality and integrity of our risk management practices relating to the following key areas: commodities risk, foreign exchange risk, liquidity, interest rate and funding risk, credit and counterparty risk, country risk, climate-related risk, new trading or investing business activity risk and sanctions and derivatives compliance.
•Reviews and approves corporate risk policies and limits associated with our risk appetite.
•Oversees the development of an Enterprise Risk Management framework periodically reviewing a wider scope of enterprise risks facing the Company, and management's risk mitigation strategies.
•Meets regularly with our CEO, CFO, Chief Risk Officer, and other members of senior management to receive regular updates on our risk profile and risk management activities.
|
| | | | | |
Audit Committee | •Oversees risks related to our financial statements, the financial reporting process and accounting and financial controls.
•Receives an annual risk assessment briefing from our chief audit executive, as well as periodic update briefings, and reviews and approves the annual internal audit plan that is designed to address the identified risks.
•Reviews key risk considerations relating to the annual audit with our independent auditor.
•Assists the Board in fulfilling its oversight responsibility with respect to legal and compliance matters, including meeting with and receiving periodic briefings from members of our legal and compliance staff.
•Oversees our cybersecurity and other information technology risks, including risk management programs and controls.
|
Human Resources and Compensation Committee | •Oversees risks relating to compensation and benefits programs to ensure incentives are appropriately balanced and do not motivate executives and employees to take imprudent risks.
•Oversees programs, policies and practices relating to talent management, diversity and inclusion, and workforce environment and culture.
•Oversees CEO and senior management succession planning and compensation.
•Advises the Board on CEO and director compensation.
•See "Compensation and Risk" beginning on page 44 of this proxy statement for more information.
|
Corporate Governance and Nominations Committee | •Oversees risks related to our governance framework and processes.
•Identifies individuals qualified to serve as Board members pursuant to the guidelines and diversity policy established by the Board in the Corporate Governance Principles.
•Provides oversight of Board effectiveness and independence.
•Conducts the annual Board and committee self-assessment process that is aimed at ensuring that the Board and its committees are functioning effectively and able to meet their responsibilities, including risk oversight.
|
| | | | | |
Sustainability and Corporate Responsibility Committee | •Oversees the Company's governance, policies, strategies and programs related to sustainability, corporate social responsibility matters, human rights, food safety, product stewardship, and environmental trends, issues, risks and concerns which could affect the Company’s business activities and performance.
•Oversees and provides guidance to management on sustainability, corporate social responsibility, political and environmental governance matters in public debate, public policy, regulation and legislation.
•Reviews the Company's charitable giving policies and programs.
|
Management | •Chief Risk Officer: Implements an effective risk management framework and provides daily oversight of risk.
•Chief Information Officer: Provides updates to the Audit Committee on cyber trends, incidents, risks, and the Company's response systems and mitigation strategies on an annual and as needed basis.
•Internal Audit: Provides reliable and timely information to our Board, Audit Committee and management regarding our Company’s effectiveness in identifying and appropriately controlling risks.
•Management Risk Committee: Reviews significant risk events, emerging risks and drivers of risk. Serves as the most senior management-level risk governance body at the Company, and reviews on an ongoing basis key enterprise risks. Provides oversight for all risk management activities, including the risk framework.
|
Corporate Governance Principles and Code of Conduct
Our Board has adopted Corporate Governance Principles that set forth our corporate governance objectives and policies and, subject to our Bye-laws, govern the functioning of the Board. Our Corporate Governance Principles are available through the "Investors — Corporate Governance" section of our website, www.bunge.com. Please note that information contained in or connected to our website is not intended to be part of this proxy statement.
The Code of Conduct sets forth our commitment to ethical business practices, reinforces various corporate policies and reflects our values, vision and culture. Our Code of Conduct applies to all of our directors, officers and employees worldwide, including our CEO and senior financial officers. Our Code of Conduct is available on our website. We intend to post amendments to and waivers of (to the extent applicable to certain officers and our directors) our Code of Conduct on our website.
Executive Sessions of Our Board
Our Corporate Governance Principles provide that the non-management directors shall meet without management directors at regularly scheduled executive sessions and at such other times as they deem appropriate. Our Board meets in executive session without management directors present at each regularly scheduled Board meeting. Our non-executive, independent Board Chair presides over these sessions.
Communications with Our Board
To facilitate the ability of shareholders to communicate with our Board and to facilitate the ability of interested persons to communicate with non-management directors, the Board has established a physical mailing address and an electronic address to which such communications may be sent, which is available on our website, www.bunge.com, through the "Investors — Corporate Governance" section.
Communications received are initially directed to our legal department, where they are screened to eliminate communications that are merely solicitations for products and services, items of a personal nature not relevant to us or our shareholders and other matters that are improper or irrelevant to the functioning of the Board or Bunge. All other communications are forwarded to the relevant director, if addressed to an individual director or a committee chair, or to the members of the Corporate Governance and Nominations Committee if no particular addressee is specified.
Board Member Attendance at Annual General Meetings
It is the policy of our Board that our directors attend each annual general meeting of shareholders. In 2021, all nominees who were serving as directors at the time attended our annual general meeting.
Shareholder Outreach and Engagement
Shareholder outreach is a key priority of our Board and management, and through our shareholder outreach program, we engage with our investors to gain valuable insights into the current and emerging issues that matter most to them, including with respect to corporate governance, executive compensation, sustainability, human capital management, diversity and inclusion, and other matters. Over the past several years, our independent Board Chair and management have engaged with institutional investors representing approximately 40% to 50% of our issued and outstanding shares. Additionally, outside of the shareholder outreach program, we interact with institutional and individual shareholders throughout the year on a wide range of issues. Feedback from these discussions is relayed to the Board of Directors and is a key element in the development of our governance, compensation and sustainability policies, as well as the ongoing evaluation of our business strategy and performance.
For example, as a result of feedback received and collaboration with our shareholders in recent years we have:
•taken significant action to refresh our Board and the leadership and composition of our Board committees;
•made meaningful changes to our executive compensation program;
•enhanced our proxy disclosures with respect to the composition, skill sets and diversity of our Board;
•enhanced our sustainability policies and programs, particularly with respect to addressing deforestation risks in our supply chain, climate-related risks and water sustainability;
•updated our Corporate Governance Principles to enhance our Board membership criteria, including the addition of a diversity policy and director succession planning;
•updated our committee charters to clarify the roles and responsibilities with respect to ESG matters; and
•implemented full declassification of our Board.
The Board will continue to seek investor input in furtherance of its commitment to enhancing our governance practices and building long-term shareholder value.
Environmental, Social and Governance
We incorporate sustainability into many areas of our business, from how we plan and develop our strategic goals, compensate employees and operate our facilities to how we engage with our customers, suppliers, employees, communities and other stakeholders. We strive to make decisions across our value chain built on a foundation of ethical leadership, accountability and environmental stewardship. We urge sustainability and responsibility along the supply chain from the farm to the table and work collaboratively with our value chain partners to realize these ambitions at scale.
| | | | | | | | |
| | “We serve customers at both ends of the value chain – from farmers to consumers. This position gives us a unique view on just how critical sustainability has become at each step along the way. We connect with our partners to help them realize their sustainability goals as we work together to achieve success across our common challenges and opportunities.” |
| |
| –Robert Coviello
Chief Sustainability Officer and Government Affairs
|
We believe that our position in the global food system enables us to unite diverse stakeholders – from farmers to consumers, NGOs and governments — and to promote actions that help to support sustainable agriculture.
Our key areas of growth – expansion of our oilseed processing and origination capabilities, production of renewable feedstocks, increasing our plant lipids portfolio and development of new plant-based protein ingredients – are not only central to our business strategy but also a testament to the alignment of sustainability with our corporate vision.
In the past two years, company-wide improvements enabled Bunge to take advantage of improved market conditions and generate record earnings, which we expect will position us for long-term success. We aim to provide value for our shareholders while continuing to accelerate our focus on sustainable business opportunities that contribute to more climate-friendly agribusiness and food systems.
To meet today's challenges and contribute to the solutions ahead, we have defined sustainability goals that incorporate activities and commitments supporting three key areas:
| | | | | | | | | | | |
| | | |
| | Action on Climate | We implement innovative solutions to minimize our environmental footprint and support projects and activities that strengthen our approach to fighting climate change |
| | | |
| | | |
| | Responsible Supply Chains | We promote sustainable agriculture and implement robust projects that protect and improve the environment, while supporting the social and economic well-being of growers and local communities |
| | | |
| | | |
| | Accountability | We aim to be an accountable leader within our industry, helping to raise the bar on our sector’s performance by regularly tracking and disclosing progress on our commitments and sustainability performance |
Bunge’s Board has established five board committees that oversee Bunge’s governance, compensation, risk management and sustainability practices, including climate-related risks and opportunities.
•Oversight of sustainability at Bunge is led by the Sustainability and Corporate Responsibility Committee and specific related sustainability responsibilities are integrated across other Board committees. The Sustainability and Corporate Responsibility Committee oversees and provides input on the development of sustainability and corporate social responsibility policies, strategies and programs of the Company.
•The Corporate Governance and Nominations Committee has the overall responsibility for overseeing, among other things, Bunge’s governance frameworks and board practices, as well as the identification of qualified board candidates with the appropriate skills, diversity and experience to oversee Bunge’s business.
•The Human Resources and Compensation Committee oversees our compensation framework, governance, guidelines and performance criteria, which includes Environmental, Social and Governance ("ESG") and human capital metrics.
•The Enterprise Risk Management Committee evaluates climate-related risks and exposures in connection with its periodic review of other enterprise risks facing the Company, and management's risk mitigation strategies.
•The Audit Committee periodically evaluates non-financial reporting practices and requirements which may impact the Company's regulatory filings, including ESG risks.
We mitigate against climate change risks we face by integrating carbon-focused decision-making across our organization. We are working to minimize our environmental footprint and take action to reduce greenhouse gas emissions through our commitment to climate action. In 2021, we announced SBTs with an aim to achieve absolute reductions in carbon emissions for our own operations and in our supply chains. To meet these targets, Bunge expects to make significant enhancements across our global operations, promote regenerative farming practices and emphasize decarbonization in shipping and logistics.
A substantial portion of emissions reduction within our supply chains, known as Scope 3 emissions, are tied to our industry-leading commitment to have deforestation-free supply chains in 2025. Progress against this commitment remains strong, as we achieve improved traceability and monitoring figures to our sourcing in the high priority geographies of the world.
In December 2021, we closed on the refinancing of our $1.75 billion, three-year revolving credit facility. The interest rate is linked to our credit ratings and to five core sustainability targets, creating a meaningful connection between Bunge’s capital structure and sustainability strategy.
As of January 1, 2021, performance-based sustainability goals are a component of the annual incentive bonuses paid to our executive team and over 5,500 of our employees. Our compensation framework is based on a pay-for-performance philosophy with payout now directly impacted by our attainment of certain sustainability targets.
Bunge's ESG disclosure platforms and our efforts to integrate sustainability into our business and supply chains have led to increased ESG disclosure scores year-over-year.
For more information about our sustainability efforts, annual reports and dashboards, please visit www.bunge.com/sustainability.
Human Capital Management
Our culture of trust, accountability, collaboration and innovation starts with inclusion and recognition of the importance of having different perspectives in our global workforce. We care about our people. We listen, empower, develop and reward them, driving high levels of engagement and commitment to Bunge. From hiring the best talent, to inclusion and diversity initiatives, and through career development, total rewards, and wellness, Bunge is committed to creating programs and resources that enhance our workplace environment and the employee experience, which support us in retaining and engaging our most valuable resource: our people.
| | | | | | | | |
| | "We pride ourselves on ensuring Bunge remains an employer of choice in the markets where we operate. We are committed to making sure the diverse voices of our employees are heard and their skills and passions are applied to achieving our business and sustainability goals around the world.” |
| |
| –Deborah Borg
Chief Human Resources and Communications Officer
|
2021 Workforce Highlights
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Global Female Diversity | | | 84% Y
Employee Engagement
| | | Reduction in Total Recordable Injury Rate
q5% YOY
|
| | | | | | | |
| | | | | | | |
16%
Leadership
| | | 40%
Total SG&A(1) Population
| | | | |
| | | | | | |
| | | | | | |
| | | | Named to Newsweek's List of Most Loved Workplaces
for 2021
| | |
Overall female population 23% | | | | | We believe in social responsibility, community development projects and philanthropy. Bunge participates in and sponsors activities that support communities where we operate around the world. |
| | | | | | | |
| | | | | | | |
U.S. Minority(2)
| | | | |
| | | | | | | | |
| | | | | | | | |
28%
Leadership
| | | 26%
Overall Population
| | | ~22,700
Employees Globally
| | CAUTIONARY INFORMATION REGARDING FORWARD-LOOOKING STATEMENTS |
(1) SG&A standsThis proxy statement and the documents incorporated by reference in this proxy statement contain both historical and forward-looking statements. The Private Securities Litigation Reform Act of 1995 provides a “safe harbor” for Selling, Generalforward looking statements to encourage companies to provide prospective information to investors. This proxy statement and Administrativethe documents incorporated by reference into this proxy statement include forward looking statements that reflect our current expectations and generally encompassesprojections about our non-industrial, global corporate support functions
(2) U.S. Minority encompasses all non-White race categories of employees tracked withinfuture results, performance, prospects and opportunities, including expectations regarding the United States
Bunge's workforce is distributed globally with South America representing the largest portionconsummation of the workforce.Redomestication, benefits, timing and effects of the Redomestication, offices and operations, share trading, management of our business, taxes, strategic flexibility, legal and regulatory environment, financial results and other statements that are not historical facts, are forward looking statements. Forward looking statements include all statements that are not historical in nature. We have tried to identify these forward looking statements by using words including “may,” “will,” “should,” “could,” “expect,” “anticipate,” “believe,” “plan,” “intend,” “estimate,” “continue” and similar expressions. These forward looking statements are subject to a number of risks, uncertainties and other factors that could cause our actual results, performance, prospects or opportunities, to differ materially from those expressed in, or implied by, these forward looking statements. These factors include the risks, uncertainties, assumptions, trends and other factors discussed under the heading “Risk Factors” and elsewhere in our periodic reports filed with the Securities and Exchange Commission or in the applicable prospectus supplement or other offering material, including:
•risks and uncertainties related to our ability to complete the Redomestication, including our ability to obtain necessary approvals and the risk of changes in tax laws;
•the impacts of the COVID-19 pandemic and other potential pandemic outbreaks;
•the effect of weather conditions and the impact of crop and animal disease on our business;
•the impact of global and regional economic, agricultural, financial and commodities market, political, social and health conditions;
•changes in governmental policies and laws affecting our business, including agricultural and trade policies, financial markets regulation and environmental, tax and biofuels regulation;
•the impact of seasonality;
•the impact of government policies and regulations;
•the outcome of pending regulatory and legal proceedings;
•our ability to complete, integrate and benefit from acquisitions, divestitures, joint ventures and strategic alliances;
•the impact of industry conditions, including fluctuations in supply, demand and prices for agricultural commodities and other raw materials and products that we sell and use in our business, fluctuations in energy and freight costs and competitive developments in our industries;
•the impact on our operations and facilities from the military conflict in Ukraine and the resulting economic and other sanctions imposed on Russia, including the impact on Bunge resulting from a continuation and/or escalation of the conflict and sanctions against Russia;
•the effectiveness of our capital allocation plans, funding needs and financing sources;
•the effectiveness of our risk management strategies;
•operational risks, including industrial accidents, natural disasters and cybersecurity incidents;
•changes in foreign exchange policy or rates;
•the impact of our dependence on third parties;
•our ability to attract and retain executive management and key personnel; and
EMEA = Europe, Middle East, Africa
Our Board plays an important role in the oversight of talent management and culture at Bunge and our Human Resources and Compensation Committee devotes time each quarter to engage on strategic talent management and total rewards initiatives.
Diversity, Equity & Inclusion
We know we are most successful in achieving our goals when we have diversity of talent and thought, and an inclusive and equitable culture that values all voices. We pride ourselves on our international diversity, and the diversity of experience and industry backgrounds of our workforce. It is a top priority for us to continue advancing diversity, equity and inclusion within our organization, the industry and the communities where we live and work.
We are one of the founding members of •Together We Grow, an industry consortium made up of corporations, NGO's and academic institutions that aim to build a skilled, diverse and inclusive workforce in the United States. Since 2016, we have helped develop action plans to create an ecosystem within our industry that supports diverse talent.
| | | | | |
| In 2021, we signed the CEO Action for Diversity & Inclusion, joining a wide range of industry leaders in pledging to advance diversity and inclusion within the workplace – with the goal of building inclusive workplace environments where employees feel empowered to bring their authentic selves to work.
|
| | | | | |
In 2021, we joined the Paradigm for Parity® coalition – committing to address gender parity in corporate leadership positions. In partnership with the coalition, we’ll work to achieve gender equality throughout our leadership structure by 2030 – a critical step in ensuring diversity of thought is represented at Bunge.
| |
Bunge’s Diversity, Equity & Inclusion Pillars align our actions to three primary areas:
| | | | | | | | | | | | | | | | | | | | |
Workforce Representation and Inclusive Environment | | | Social Responsibility and
Community Outreach
| | | Accountability |
| | | | | | |
| | | | | | |
•We are committed to attract, retain, engage and advance talent that is representative of the communities we live in and the customers we serve
•We provide equitable opportunities for recruitment and promotion and create an environment that welcomes and celebrates individual uniqueness
| | | •We position ourselves as an employer of choice, a good corporate citizen and leader in the agribusiness and the food industry
•We use our position as a global leader to make a positive impact on our communities and the world
•We champion fair labor practices and foster inclusion and equity in our supplier network and in the communities where we operate
| | | •We hold ourselves accountable to enhancing diversity representation and inclusion in our workforce
•We develop effective processes, systems and measures to track progress
|
Public Policy Engagements
Lawmakers and agency officials govern and regulate many aspects of our industry and can have considerable influence on our success. Therefore, we believe political advocacy is an important way to supportother factors affecting our business interests and contribute positively to the communities where we operate. Accordingly, senior leadership and our Board encourage involvement in activities that advance Bunge’s goals. We support political candidates that align with our values and business principles and who have strong connections to areas where we have facilities. In addition, we are members of organizations that may contribute to dialogue and political action on agricultural, food and biofuel issues.generally.
As a company, we engage in activities that include lobbying, making contributions to candidates from our employee-funded political action committee ("PAC"), and participating in trade associations. In light of these risks, uncertainties and assumptions, you should not place undue reliance on any forward looking statements contained in this proxy statement or in any document incorporated by reference herein or therein. Additional risks that we may currently deem immaterial or that are not presently known to us could also cause the forward looking events that took place on January 6, 2021 atdiscussed in this proxy statement or any document incorporated by reference herein or therein not to occur. Except as otherwise required by federal securities laws, we undertake no obligation to publicly update or revise any forward looking statements, whether as a result of new information, future events, changed circumstances or any other reason after the U.S. Capitol building, the Bunge PAC decided to pause all political contributions to allow the Bunge PAC boarddate of directors (the "PAC board") sufficient time to reassess its federal candidate evaluation process. The PAC board approved a resolution codifying the decision-making process for which candidates the Bunge PAC will support. The resolution includes criteria such as: presence of a Bunge facility in the candidate’s district; key committee assignment; leadership position; and support for key issues. In October 2021, after consultation with our executive leadership team and the Corporate Governance and Nominations Committee of the Board, the PAC board restarted contributions to federal candidates meeting the new criteria.
The Corporate Governance and Nominations Committee periodically reviews the political contribution program, including political contributions made by the Bunge PAC.
To learn more about our political engagement and contributions, and to view our lobbying and contributions disclosures, please visit bunge.com/corporate-governance/political-contributions.this proxy statement.
| | |
DIRECTOR COMPENSATIONTHE REDOMESTICATION |
Our compensation program for non-employee directors is designed to enable us to attract, retain and motivate highly qualified directors to serve on our Board. It is also intended to further align the interests of our directors with those of our shareholders. Annual compensation for our non-employee directors in 2021 comprised a mix of cash and equity-based compensation. The Human Resources and Compensation Committee annually receives competitive information on the status of Board compensation for non-employee directors from its independent compensation consultant and is responsible for recommending to the Board changes in director compensation. In 2021, no changes were made to the compensation of the Board of Directors.Directors has unanimously approved and recommends that you approve the Redomestication.
Directors' Fees
Non-employee directors receivedThe Redomestication involves several steps. First, we have formed Bunge-Switzerland as a direct, wholly-owned subsidiary of Bunge-Bermuda. Bunge-Switzerland, in turn, has formed Bunge-MergerCo, a new Bermuda subsidiary. Following the following fees in 2021:
| | | | | | | | | | | | | | | | | |
| | | | | •Each member of the Audit Committee receives an annual fee for the added workload and responsibilities of this committee.
•No fees are paid for services as a member of any other committee.
•If the Board and/or a committee meets in excess of 10 times in a given year, each non-employee director receives a fee of $1,000 for each additional meeting attended.
•Non-employee directors are reimbursed for reasonable expenses incurred by them in attending Board meetings, committee meetings and shareholder meetings. |
| Non-Employee Director Compensation | | Director | | |
| | | | |
| Annual Cash Retainer Fee | | | | |
| All Non-Employee Directors | | $100,000 | | |
| Non-Executive Chair (supplemental) | | $100,000 | | |
| | | | |
| Annual Equity Award | | | | |
| All Non-Employee Directors | | $140,000 | | |
| Non-Executive Chair (supplemental) | | $150,000 | | |
| | | | |
| Committee Compensation | Member | Chair | | |
| | | | |
| Annual Fee - Audit Committee | $10,000 | $20,000 | | |
| | | | |
| Annual Fee - All Other Committees | $— | $15,000 | | |
Non-Employee Director Share Ownership Guidelines
To further align the personal interests of the Board with the interests of our shareholders, the Board has established share ownership guidelines for the minimum amount of common shares that are requiredBunge-Bermuda shareholders' meeting to be held on [●] and a hearing of the Bermuda Court scheduled for [●], assuming we have obtained the necessary shareholder and court approvals, Bunge-MergerCo will merge with Bunge-Bermuda by our non-employee directors. These guidelines are requiredway of the Scheme of Arrangement, with Bunge-Bermuda as the surviving company. As a result of the Redomestication, Bunge-MergerCo will cease to exist, and Bunge-Bermuda will become a direct, wholly-owned subsidiary of Bunge-Switzerland. Effective for the date that is one day after the Effective Date, Bunge-Bermuda will make a U.S. tax election to be met within five yearstreated as a disregarded entity for U.S. tax purposes.
After the Redomestication, you will continue to own an interest in a parent company that will continue to conduct the business operations as conducted by Bunge-Bermuda before the Redomestication. The number of a non-employee director's initial appointment or election toshares you will own in Bunge-Switzerland will be the Board. For non-employee directors, the guideline is five times the annual cash retainer fee paid by Bunge to its non-employee directors (i.e., $500,000). Shares deemed to be owned for purposes of the share ownership guidelines include only shares owned directly. Unvested restricted stock units do not count toward satisfaction of the guidelines. We have not granted any stock options under the Bunge Limited 2017 Non-Employee Directors Equity Incentive Plan,same as Amended and Restated. Furthermore, our non-employee directors are required to hold 100% of the net shares acquired through the equity incentive plans until the guidelines are met.
Bunge Limited 2017 Non-Employee Directors Equity Incentive Plan
The Bunge Limited 2017 Non-Employee Directors Equity Incentive Plan, as Amended and Restated (the "2017 NED Plan"), was approved by our shareholders in May 2021. The 2017 NED Plan, unless otherwise determined by the Human Resources and Compensation Committee, provides for an annual equity award to each non-employee director as of the date of our annual general meeting of shareholders. A non-employee director who is elected or appointed to the Board other than on the date of an annual meeting shall receive, as of the date of such election or appointment, a pro rata portion of the awards made to non-employee directors generally on the immediately preceding date of grant based on the number of days from the date of election or appointmentshares you owned in Bunge-Bermuda immediately prior to the next annual meeting, divided by 365. Redomestication, and your relative economic interest in the Bunge Group will remain unchanged.
The value, typecompletion of the Redomestication will change the governing law that applies to shareholders of our parent company from Bermuda law to Swiss law. There are differences between Bermuda law and termsSwiss law. See “Comparison of such awards areRights of Shareholders” for a summary of some of these differences.
Upon completion of the Redomestication, we will remain subject to the U.S. Securities and Exchange Commission (“SEC”) reporting requirements and the corporate governance requirements of NYSE, and we will continue to report our financial results in U.S. dollars and under U.S. generally accepted accounting principles (“U.S. GAAP”).
We currently expect to complete the Redomestication later this year.
Background and Reasons for the Redomestication
Bunge incorporated in Bermuda in 1995 when the then-separate Bunge group of companies consolidated into a single company. Over the past few years, Bunge has done an extensive review of its business operations and the emerging trends in global tax environment. As part of this review, Bunge performed a substantial analysis of alternative jurisdictions in which it might Redomesticate. Switzerland was determined to be the best jurisdiction to which Redomesticate because it allows Bunge to better align its corporate legal structure with its commercial operations. Switzerland is a jurisdiction that is well suited for global companies and offers a well-developed corporate, legal and regulatory environment. We have had substantial operations in Switzerland for many years.
As part of this review, Bunge has taken into account likely legislative tax changes proposed by the Human Resourcesmember states of the Organization for Economic Cooperation and Compensation Committee; however,Development (or "OECD") and in particular the grant date fair valuePillar 2 Model Rules, aiming at introducing a global minimum corporate tax rate of all awards payable15% on financial statement income. The focus of the OECD is to discourage multinational corporations from using low tax or no tax jurisdictions (tax havens) to avoid taxation.
As part of the Redomestication, Bunge will be re-locating its publicly traded parent company to Switzerland, a place from which Bunge has operated for decades and in common shares for services renderedwhich we have significant substance. Switzerland is more centrally located within Bunge’s major markets and the home of many global companies. It will locate Bunge in a country with balanced corporate governance requirements, more sophisticated financial and commercial infrastructure as well as a stable and well-developed legal system that accommodates global businesses.
Given the emerging focus on whether companies have substantial operations in their jurisdiction of incorporation, we preliminarily considered six countries in which we do business as potential jurisdictions to which we might redomesticate. We reduced this list to three countries and carefully analyzed them separately and relative to each other based on legal system, governance requirements, acceptability by each non-employee director during any calendar year may not exceed $540,000. We may grant non-qualified stock options,investors, the ability to report financial results under U.S. GAAP, the effect on our long-term indebtedness, implementation costs and timing.
stock appreciation rights, restricted stock unitsWe ultimately selected Switzerland in this process. Among other things, we determined that it accomplished our main objective of Redomestication to a jurisdiction with a recognized and relatively well-developed and stable legal system in which we had substantial operations. We also determined that Switzerland had well-developed corporate governance requirements, and had a history of commerce, generally reliable judicial processes and was generally accepted by investors.
While other formsnon-Swiss countries also had favorable attributes, those jurisdictions would have subjected us to governance requirements that were substantially different from those applicable to us under U.S. SEC and NYSE requirements as well as prevailing investor attributes.
Additional tax costs may be incurred in light of recent and expected changes in global tax environment. Other considerations that we considered are:
•Swiss law requires shareholder approval of various matters, including the issuance of shares and declaration of dividends, that are not required to be approved by shareholders under Bermuda law or NYSE requirements, which could cause us to miss opportunities. See “Description of Bunge-Switzerland Shares.”
•While we do not expect that this will present a practical issue for the foreseeable future, Switzerland generally imposes 35% Swiss withholding taxes on dividends. See "Questions and answers to the Redomestication".
In the final analysis, we concluded that the positive considerations outweighed the negative considerations and supported selecting Switzerland as the jurisdiction to which to redomesticate.
The Board considered these factors when assessing the Redomestication and determining to submit it to shareholders and concluded that proceeding with the Redomestication to Switzerland was preferable to redomesticating to other jurisdictions or not redomesticating at all at this time. We cannot assure you, however, that the anticipated benefits of the Redomestication will be realized or that we will complete the Redomestication at all. In addition to the potential benefits described above, the Redomestication will expose Bunge-Bermuda and its shareholders to certain risks. Please see the discussion under “Risk Factors.”
The Agreement and Plan of Merger
There are several steps to the Redomestication:
•Bunge-Bermuda has formed Bunge-Switzerland, which, in turn, has formed Bunge-MergerCo;
•following the Bunge-Bermuda shareholders' meeting and a hearing of the Bermuda Court on [●], and assuming we have obtained the necessary shareholder and court approvals, Bunge-MergerCo will merge with Bunge-Bermuda by way of the Scheme of Arrangement, with Bunge-Bermuda surviving as a direct, wholly-owned subsidiary of Bunge-Switzerland;
•all of the issued and outstanding shares of Bunge-Bermuda will be cancelled and converted into the right of holders of Bunge-Bermuda to receive Bunge-Switzerland shares;
•these resulting shares of Bunge-MergerCo will be converted into one share of Bunge-Bermuda for issuance, allotment and contribution to the capital contribution reserves of Bunge-Switzerland in exchange for the delivery of one share of Bunge-Switzerland for each issued and outstanding share of Bunge-Bermuda as of the Effective Date, plus one Bunge-Switzerland share for each share of Bunge-Bermuda held in treasury (collectively the “Treasury Shares”) as of the Effective Date for future use to satisfy Bunge-Switzerland’s obligations to deliver shares in connection with awards granted under our equity incentive plans and for such other purposes as Bunge-Switzerland's Board of Directors may determine;
•Bunge-Switzerland will assume, with effect as of the Effective Date, Bunge-Bermuda’s existing obligation to deliver shares under such equity incentive plans;
•Bunge-Bermuda will deliver to its shareholders (through its transfer agent) one Bunge-Switzerland share for each Bunge-Bermuda share held by them. Bunge-Switzerland has, prior to the effectiveness of the Redomestication, issued such number of shares to Bunge-Bermuda at an issue price equal to the aggregate par value of such shares. In connection with the completion of the Redomestication, Bunge-Bermuda will further contribute the Treasury Shares to Bunge-Switzerland.
Additional Agreements
Bunge-Switzerland and Bunge-MergerCo will indemnify the executive officers and directors of Bunge-Bermuda and its subsidiaries and will maintain directors’ and officers’ liability insurance for those executive officers and directors for six years after the Effective Date.
Amendment or Termination
The Agreement and Plan of Merger may be amended, modified or supplemented at any time before or after its adoption by the shareholders of Bunge-Bermuda. However, after adoption, no amendment, modification or supplement may be made or effected that generallyrequires further approval by Bunge-Bermuda shareholders without obtaining that approval.
The Board of Directors of Bunge-Bermuda may terminate the Agreement and Plan of Merger and abandon the Redomestication at any time prior to its effectiveness without obtaining the approval of Bunge-Bermuda shareholders.
Conditions to Consummation of the Redomestication
The Redomestication will not be completed unless, among other things, the following conditions are basedsatisfied or, if allowed by law, waived:
•the Redomestication is approved by the requisite vote of shareholders of Bunge-Bermuda;
•none of the parties to the Agreement and Plan of Merger is subject to any governmental decree, order or injunction that prohibits the consummation of the Redomestication;
•the Bunge-Switzerland registered shares to be issued in the Redomestication and the Articles of Association of Bunge-Switzerland have been registered with the commercial register in [●], Switzerland;
•the requisite court order sanctioning the Redomestication shall have been obtained from the Bermuda Court and filed with the Bermuda Registrar of Companies and shall be effective;
•the Bunge-Switzerland shares to be issued pursuant to the Redomestication are authorized for listing on the valueNew York Stock Exchange, subject to official notice of issuance;
•Bunge receives an opinion from Jones Day, in form and substance reasonably satisfactory to it, confirming, as of the Effective Date , the matters discussed under “Certain Tax Considerations—U.S. Federal Income Tax Considerations”; and
•Bunge receives an opinion from Homburger Ltd, in form and substance reasonably satisfactory to it, confirming, as of the Effective Date, the matters discussed under “Certain Tax Considerations—Swiss Tax Considerations.”
In the event the conditions to the Redomestication are not satisfied, the Scheme of Arrangement may be abandoned or delayed, even after approval by our shareholders and the Bermuda Court. If conditions to the Redomestication are not satisfied or waived on or before 5:00 p.m. (Bermuda time) on the date nine months after the date on which the Scheme of Arrangement becomes effective, or such later date as agreed by Bunge-Bermuda and sanctioned by the Bermuda Court, the Scheme of Arrangement will lapse by its terms. In addition, under Bermuda law, the Scheme of Arrangement may be otherwise delayed or otherwise abandoned if further events occur that cause our Board or Directors to determine that the Redomestication is no longer in the best interest of Bunge or its shareholders.
Bunge-Bermuda is a party to certain credit agreements that require waivers from third-party lenders prior to implementation of the Redomestication. See “—Credit Facilities” for more information.
Court Approval of the Redomestication
Pursuant to Section 99 of the Companies Act 1981 of Bermuda (the “Companies Act”), the Scheme of Arrangement requires the approval of the Bermuda Court. This requires Bunge-Bermuda to file an application for the sanction of the Scheme of Arrangement with the Bermuda Court. Prior to the mailing of this proxy statement, Bunge‑Bermuda made an application to the Bermuda Court for an order convening a special meeting of Bunge-Bermuda voting common shareholders to consider and if thought fit approve the Scheme of Arrangement (the “Convening Order”).
At the special meeting, Bunge-Bermuda shareholders will be asked to approve the Scheme of Arrangement. If the shareholders approve the Scheme of Arrangement, then Bunge-Bermuda will apply to the Bermuda Court for an order sanctioning the Scheme of Arrangement (the “Sanction Hearing”). At the Sanction Hearing, the Bermuda Court may impose such conditions as it deems appropriate in relation to the Scheme of Arrangement but may not impose any material changes without the joint consent of Bunge-Bermuda and Bunge-Switzerland. In determining whether to exercise its discretion and approve the Scheme of Arrangement, the Bermuda Court will determine, among other things, whether the Scheme of Arrangement is fair to Bunge-Bermuda’s common shareholders in general. If you are a common shareholder who wishes to appear or be represented and present evidence or arguments at the Sanction Hearing, you may do so. Holders of Bunge-Bermuda common shares underat the 2017 NED Plan. Unless otherwise determinedRecord Date who vote either for or against the proposal or who the Bermuda Court is satisfied have a substantial economic interest in the Scheme of Arrangement are entitled to appear before the Bermuda Court, at the time and date set for the hearing of the petition to sanction the Scheme of Arrangement, to voice your objection to the Scheme of Arrangement. Bunge-Bermuda will not object to your appearance or participation at the hearing, on the grounds that you do not have a s substantial economic interest in the Scheme of Arrangement.
Should you wish to appear before the Bermuda Court, Bunge-Bermuda encourages you to adopt one of the below noted procedures:
•appearing in person at the Bermuda Court, having notified Bunge-Bermuda's legal counsel 48 hours in advance of your intention to do so by e-mailing or telephoning [●]. You will in such circumstances be requested to provide an affidavit setting out the Human Resources and Compensation Committee, equity awards generally vest onevidence upon which you seek to rely at the hearing;
•filing an affidavit with the Bermuda Court at least 48 hours prior to the date of the first annualhearing of the petition to sanction setting out your reasons for objecting. At the same time as filing the affidavit, you should serve a copy of the affidavit on Bunge-Bermuda by leaving same at the office of [●]; or
•instructing counsel to appear on your behalf before the Bermuda Court, such counsel to provide notice of their intention to appear [●] at least 48 hours prior to the sanction hearing and at the same time providing a copy of the evidence upon which counsel shall seek to rely set out in an affidavit.
The Scheme of Arrangement will become effective as soon as a copy of the order of the Bermuda Court sanctioning the Scheme of Arrangement has been delivered to the Registrar of Companies in Bermuda as required by Section 99 of the Companies Act. See “Summary — Conditions to Consummation of the Scheme of Arrangement” for more information on these conditions.
Once the Scheme of Arrangement is effective, the Bermuda Court will have exclusive jurisdiction to hear and determine any suit, action or proceeding and to settle any dispute which arises out of or is connected with the terms of the Scheme of Arrangement or its implementation or out of any action taken or omitted to be taken under the Scheme of Arrangement or in connection with the administration of the Scheme of Arrangement. A shareholder who wishes to enforce any rights under the Scheme of Arrangement after such time should notify Bunge-Bermuda in writing of its intention at least five business days prior to commencing a new proceeding. After the effective time of the Scheme of Arrangement, no shareholder may commence a proceeding against Bunge-Switzerland or Bunge-Bermuda with respect to or arising from the Scheme of Arrangement except to enforce its rights under the Scheme of Arrangement where a party has failed to perform its obligations under the Scheme of Arrangement.
When under any provision of the Scheme of Arrangement after the effective time of the Scheme of Arrangement a matter is to be determined by Bunge-Bermuda, then Bunge-Bermuda will have discretion to interpret those matters under the Scheme of Arrangement in a manner that it considers fair and reasonable, and its decisions will be binding on all concerned.
Bunge-Bermuda may, subject to U.S. securities law constraints, consent to any modification of the Scheme of Arrangement on behalf of the shareholders that the Bermuda Court determines to approve or impose.
Federal Securities Law Consequences; Resale Restrictions
The issuance of Bunge-Switzerland shares to Bunge-Bermuda’s shareholders in connection with the Redomestication will not be registered under the Securities Act of 1933 (the “Securities Act”). Section 3(a)(10) of the Securities Act exempts securities issued in exchange for one or more outstanding securities from the general requirement of registration where the terms and conditions of the issuance and exchange of such securities have been approved by any court of competent jurisdiction, after a hearing upon the fairness of the terms and conditions of the issuance and
exchange at which all persons to whom such securities will be issued have a right to appear and to whom adequate notice of the hearing has been given. In determining whether it is appropriate to convene the shareholder scheme meeting convened pursuant to its directions, the Bermuda Court will consider whether the terms and conditions of the Redomestication are fair. The Bermuda Court has fixed the date for the hearing of the application to approve the Redomestication at [●], in Hamilton, Bermuda. The Bunge-Switzerland shares issued to Bunge-Bermuda shareholders in connection with the Redomestication will be freely transferable, except for restrictions applicable to certain “affiliates” of Bunge-Bermuda under the Securities Act, as follows:
•Persons who were not affiliates of Bunge-Bermuda at the date of the Redomestication and have not been affiliates within 90 days prior to such date will be permitted to sell any Bunge-Switzerland shares received in the Redomestication without regard to Rule 144 under the Securities Act.
•Persons who were affiliates of Bunge-Bermuda at the date of the Redomestication or were affiliates within 90 days prior to such date will be permitted to resell any Bunge-Switzerland shares they receive pursuant to the Redomestication in the manner permitted by Rule 144. In computing the holding period of the Bunge-Switzerland shares for the purposes of Rule 144(d), such persons will be permitted to “tack” the holding period of their Bunge-Bermuda shares held prior to the Effective Date.
Persons who may be deemed to be affiliates of Bunge-Bermuda and Bunge-Switzerland for these purposes generally include individuals or entities that control, are controlled by, or are under common control with, Bunge-Bermuda and Bunge-Switzerland, and would not include shareholders who are not executive officers, directors or significant shareholders of Bunge-Bermuda and Bunge-Switzerland.
The Agreement and Plan of Merger requires Bunge-Bermuda to prepare and deliver to Bunge-Switzerland a list that identifies all persons whom Bunge-Bermuda believes may be deemed to be affiliates prior to the completion of the Redomestication. Bunge-Bermuda is also required, pursuant to the Agreement and Plan of Merger, to use its commercially reasonable best efforts to cause each person whom it identifies on the list as a potential affiliate to deliver, at or prior to the completion of the Redomestication, a written agreement that the affiliate will not sell, pledge, transfer or otherwise dispose of any of the Bunge-Switzerland shares issued to the affiliate pursuant to the Redomestication unless the sale, pledge, transfer or other disposition meets one of the following criteria:
•it is made pursuant to an effective registration statement filed under the Securities Act;
•it is in compliance with Rule 144; or
•in the opinion of counsel, it is otherwise exempt from the registration requirements of the Securities Act.
Bunge-Bermuda has not filed a registration statement with the SEC covering any resales of the Bunge-Switzerland shares to be received by Bunge-Bermuda’s shareholders in the Redomestication.
Effective Date
If the Redomestication is approved by the requisite shareholder vote and by the Bermuda Court, we anticipate that the Redomestication will become effective as soon as practicable following the applicable grant date, providedSanction Hearing, upon our filing of the director continuescourt order sanctioning the Redomestication with the Bermuda Registrar of Companies. We currently expect to serve oncomplete the Redomestication later this year, subject to the conditions noted below.
In the event the conditions to the Redomestication are not satisfied, the Redomestication may be abandoned or delayed, even after approval by our shareholders and the Bermuda Court. In addition, the Redomestication may be abandoned or delayed for any reason by our Board until such date. To date, we have granted only restricted stock units under the plan. Unless prohibited by the 2017 NED Plan or the Human Resources and Compensation Committee determines otherwiseof Directors at any time prior to a change in control, upon the occurrence of a change in controlRedomestication becoming effective, even though the Redomestication may have been adopted by our shareholders and either (i) a successor failsthe Bermuda Court, and all conditions to assume, substitutethe Redomestication may have been satisfied.
If conditions to the Redomestication are not satisfied or replace outstanding awards or (ii) a non-employee director’s service is terminatedwaived on or before 5:00 p.m. (Bermuda time) on the occurrencedate nine months after the date on which the Scheme of Arrangement becomes effective, or such later date as agreed by Bunge-Bermuda and sanctioned by the Bermuda Court, the Scheme of Arrangement will lapse by its terms. In addition, under Bermuda law, the Scheme of Arrangement may be otherwise delayed or otherwise abandoned if further events occur that cause our board or directors to determine that the Redomestication is no longer in the best interest of Bunge or its shareholders.
Board of Directors of Bunge-Switzerland
When the Redomestication is completed, the Directors of Bunge-Bermuda immediately prior to the completion of the first anniversaryRedomestication are expected to be the Directors of Bunge-Switzerland. Bunge-Switzerland’s articles of association allow for the same number of Directors as Bunge-Bermuda currently has, and Bunge-Bermuda’s Directors will carry their terms of office over to the Bunge-Switzerland’s Board of Directors.
Required Vote; Board Recommendation
The Redomestication requires the affirmative vote of holders of Bunge-Bermuda common shares representing a majority in number and at least 75% in value of the change in control: (1) any restricted stock units and other forms of award shall immediately vest; and (2) any outstanding and unvested non-qualified stock options and stock appreciation rights shall become immediately exercisable. The 2017 NED Plan provides that up to 320,000Bunge-Bermuda common shares maypresent and voting at the meeting, whether in person or by proxy. See “The Meeting—Record Date; Voting Rights; Vote Required for Approval.” Our Board of Directors has unanimously approved the Redomestication and recommends that shareholders vote “FOR” approval of both of the proposals.
Regulatory Matters
We are not aware of any other governmental approvals or actions that are required to complete the Redomestication other than compliance with U.S. federal and state securities laws and Bermuda and Swiss corporate law.
No Appraisal Rights
Under Bermuda law, none of the shareholders of Bunge-Bermuda has any right to an appraisal of the value of their shares or payment for them in connection with the Redomestication.
No Action Required to Exchange Shares
On the Effective Date, your Bunge-Bermuda common shares will be exchanged for Bunge-Switzerland shares without any action on your part. All of Bunge-Bermuda’s common shares are issued in uncertificated book-entry form. All of Bunge-Switzerland’s shares will also be issued under the plan. As of December 31, 2021, 135,435 shares had been granted, inclusive of dividend equivalents.
Prohibitions against Short Sales, Hedging, Margin Accounts and Pledging
Our insider trading and pre-clearance policy prohibits directors, officers, employees and entities controlled by them, among others, from engaging in short sale transactions in our securities, holding our securities in margin accounts or pledging our securities as collateral. Additionally, directors, members of our executive committee and entities controlled by them, among others, are further prohibited from owning, holding, purchasing, selling, exercising, converting or otherwise acquiring or benefiting from any derivative securities, including puts, calls, equity collars, straddles, forward contracts and similar instruments that may be used as part of a hedging, tax, risk management or other strategy (other than stock options, restricted stock or restricted stock units issued by us).uncertificated book-entry form.
Director Compensation TableDistribution Policy
The following table sets forth the compensation for non-employee directors who served on our Board during the fiscal year ended December 31, 2021.
| | | | | | | | | | | |
| Non-Employee Director Compensation |
| Name | Fees Earned or Paid in Cash ($) | Stock Awards(1)(2)($) | Total ($) |
| Sheila Bair | $119,808 | $139,937 | $259,745 |
Vinita Bali(3) | $38,077 | $— | $38,077 |
| Carol Browner | $115,000 | $139,937 | $254,937 |
| Paul Fribourg | $100,000 | $139,937 | $239,937 |
| J. Erik Fyrwald | $115,000 | $139,937 | $254,937 |
| Bernardo Hees | $100,000 | $139,937 | $239,937 |
| Kathleen Hyle | $205,192 | $289,863 | $495,055 |
| Michael Kobori | $18,478 | $73,599 | $92,077 |
| Kenneth Simril | $20,326 | $73,599 | $93,925 |
| Henry "Jay" Winship | $120,000 | $139,937 | $259,937 |
| Mark Zenuk | $125,000 | $139,937 | $264,937 |
(1)Each of the non-employee directors serving on the Board on the close of business on Bunge's May 5, 2021 Annual General Meeting received an annual grant of 1,583 restricted stock units. In addition, as part of Ms. Hyle's compensation for serving as non-executive Chair, she was granted an additional 1,696 restricted stock units. Annual grants vest on the first anniversary of the date of grant (May 05, 2022), provided the director continuesBunge-Bermuda has historically paid and Bunge-Switzerland expects to serve on the Board on such date. Following their appointmentcontinue to the Board on October 25, 2021, Messrs. Kobori and Simril received a prorated annual grant of 832 restricted stock units vesting on May 05, 2022. The average of the high and low sale pricespay cash distributions to holders of our common shares on a quarterly basis. Any future determination to pay distributions will, subject to the NYSE was $88.40provisions of applicable law, be at the discretion of our Board and will depend upon then existing conditions, including our financial condition, results of operations, contractual and other relevant legal or regulatory restrictions, capital requirements, business prospects and other factors our Board deems relevant. Following the Redomestication, future declaration and payment of Bunge-Switzerland distributions will be subject to shareholder approval.
For a description of restrictions on May 5, 2021distributions imposed by Swiss law, see “Description of Bunge-Switzerland Shares—Distributions,” “—Repurchases of Registered Shares” and $88.46 on October 25, 2021.“Certain Tax Considerations—Swiss Tax Considerations—Consequences to Shareholders of Bunge-Switzerland Subsequent to the Redomestication.”
(2)The amounts shown reflect
Equity Incentive Plans
If the full grant date fair valueRedomestication is completed, Bunge-Switzerland will adopt and assume Bunge-Bermuda’s equity incentive plans and other employee benefit plans and arrangements, and those plans and arrangements will be amended as necessary to give effect to the Redomestication, including to provide (1) that shares of Bunge-Switzerland will be issued, held, available or used to measure benefits as appropriate under the plans and arrangements, in lieu of shares of Bunge-Bermuda, including upon exercise of any options or share appreciation rights issued under those plans and arrangements; and (2) for the appropriate substitution of Bunge-Switzerland for Bunge-Bermuda in those plans and arrangements. Shareholder approval of the awardRedomestication will also constitute shareholder approval of these amendments and the adoption and assumption of the plans and arrangements by Bunge-Switzerland.
Stock Exchange Listing
Bunge-Bermuda’s common shares are currently listed on the New York Stock Exchange. There is currently no established public trading market for the shares of Bunge-Switzerland. We intend to make application so that, immediately following the Redomestication, the shares of Bunge-Switzerland will be listed on the New York Stock Exchange under the symbol “BG,” the same symbol under which the Bunge-Bermuda common shares are currently listed.
Accounting Treatment of the Redomestication
Under U.S. GAAP, the Redomestication represents a transaction between entities under common control. Assets and liabilities transferred between entities under common control are accounted for at cost. Accordingly, the assets and liabilities of Bunge-Switzerland will be reflected at their carrying amounts in the accounts of Bunge-Bermuda on the Effective Date.
Credit Facilities
Upon the completion of the Redomestication, a “change of control” of Bunge-Bermuda constituting an event of default may be deemed to have occurred under the terms of the bank credit agreements governing the unsecured $1.1 billion 364-day Revolving Credit Agreement, unsecured committed $1.35 billion 5-year Revolving Credit Agreement, unsecured $865 million 5-year Revolving Credit Agreement, unsecured $1.75 billion 3-year Revolving Credit Facility, $750 million term loan facility, $250 million Delayed Draw Term Loan Facility, $250 million Term Loan Facility, ¥30.7 billion Term Loan Facility and $90 million Term Loan Facility and $600 million commercial paper program of wholly-owned subsidiaries of Bunge-Bermuda. These agreements permit acceleration of the borrowings under such facilities upon such an event of default. Bunge-Bermuda also guarantees certain local credit lines and other financial reporting purposesarrangements of its subsidiaries in which consent may be required. We are seeking amendments to these facilities from our lenders to assign Bunge-Bermuda’s obligations as guarantor thereunder to Bunge-Switzerland in connection with the Redomestication, although we may not be able to obtain the creditor consents required to successfully amend any or all of these facilities. In addition, Bunge-Bermuda and certain of its subsidiaries participate in a trade receivable securitization program (the "Program") with a financial institution, as administrative agent, and certain commercial paper conduit purchasers and committed purchasers that provides for funding of up to $1.1 billion against receivables sold into the Program in which we are seeking amendments to assign Bunge-Bermuda’s obligations thereunder to Bunge-Switzerland. The failure to amend some or all of these facilities could have an adverse effect on our ability to complete the Redomestication or on our business, results of operations or financial condition after the completion of the Redomestication. In connection with the Redomestication, Bunge Switzerland will assume the obligations of Bunge Limited as guarantor under each series of outstanding senior notes in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 718 ("ASC Topic 718") (without any reduction for riskthe terms of forfeiture)the applicable indentures. We do not expect to incur significant costs in connection with obtaining these consents or taking these actions.
Effect of the Redomestication on Potential Future Status as determineda Foreign Private Issuer
Upon completion of the Redomestication, we will remain subject to SEC reporting requirements, the mandates of the Sarbanes-Oxley Act and the corporate governance rules of the New York Stock Exchange, and we will continue to report our financial results in U.S. dollars and under U.S. GAAP.
We do not currently believe that Bunge-Switzerland will qualify as a “foreign private issuer” within the meaning of the rules promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), upon completion of the Redomestication. The definition of a “foreign private issuer” has two parts—one based on applyinga company’s percentage of U.S. resident shareholders and the assumptions usedother on its business contacts with the U.S. An organization incorporated under the laws of a foreign country qualifies as a foreign private issuer if either part of the definition is satisfied. We do not expect to qualify as a foreign private issuer under the shareholder test because we currently expect that more than 50% of Bunge-Switzerland’s outstanding voting securities will continue to be held by U.S. residents after the completion of the Redomestication. However, under the business contacts test, if it were the case after the Redomestication that (1) more than 50% of Bunge-Switzerland’s assets were located outside the United States, (2) Bunge-Switzerland’s business was not administered principally in Bunge's audited financial statements. See Note 26the U.S. and (3) a majority of Bunge-Switzerland’s executive officers and directors were neither U.S. citizens nor U.S. residents, then Bunge-Switzerland would qualify as a foreign private issuer. We do not expect that Bunge-Switzerland will meet the requirements of clause (3) of this test upon the completion of the Redomestication, as we believe a majority of Bunge-Switzerland’s executive officers and directors will continue to be U.S. citizens or U.S. residents. However, Bunge-Switzerland may satisfy this element of the audited consolidatedtest sometime in the future and, as a result, qualify for status as a foreign private issuer at such later date. If and when that occurs, Bunge-Switzerland would be exempt from certain requirements applicable to U.S. public companies, including:
•the rules requiring the filing of Quarterly Reports on Form 10-Q and Current Reports on Form 8-K with the SEC,
•the SEC’s rules regulating proxy solicitations,
•the provisions of Regulation FD,
•the filing of reports of beneficial ownership under Section 16 of the Exchange Act (although beneficial ownership reports may be required under Section 13 of the Exchange Act), and
•“short-swing” trading liability imposed on insiders who purchase and sell securities within a six-month period.
In addition, Bunge-Switzerland would then be allowed to:
•file annual reports within six months after the end of a fiscal year,
•include more limited compensation disclosure in its filings with the SEC,
•apply accounting principles other than U.S. GAAP to its financial statements, in our Annual Report on Form 10-K for the year ended December 31, 2021, regarding assumptions underlying the valuation of equity awards. Other than the restricted stock units reported abovealthough reconciliation to U.S. GAAP would be required if International Financial Reporting Standards (“IFRS”) is not used, and associated dividend equivalents, no director had any other stock awards outstanding as of December 31, 2021. The number of awards granted excludes dividend equivalents. The closing price of our common shares on the NYSE on December 31, 2021 was $93.36.
(3)•Ms. Bali did not stand for re-election at the May 5, 2021 Annual General Meeting and was not eligible for a stock award.choose which reporting currency to use in presenting its financial statements.
| | |
SHARECERTAIN TAX CONSIDERATIONS |
The information presented under the caption “—U.S. Federal Income Tax Considerations” below is a discussion of the certain U.S. federal income tax consequences (1) to U.S. holders and non-U.S. holders (as defined below) of the Redomestication, and of owning and disposing of Bunge-Switzerland shares received in the Redomestication; and (2) to Bunge-Bermuda, Bunge-Switzerland and Bunge-MergerCo of the Redomestication. The information presented under the caption “—Swiss Tax Considerations” is a discussion of the certain Swiss tax consequences (1) to shareholders resident for tax purposes in a country other than Switzerland of the Redomestication and of the ownership and disposition of the Bunge-Switzerland shares and (2) to Bunge-Switzerland of the Redomestication and subsequent operations. The information presented under the caption “—Bermuda Tax Considerations” is a discussion of the material Bermuda tax consequences of the Redomestication.
You should consult your own tax advisor regarding the applicable tax consequences to you of the Redomestication and of ownership and disposition of the Bunge-Switzerland shares under the laws of the United States (federal, state and local), Switzerland (federal, cantonal and communal), Bermuda and any other applicable foreign jurisdiction.
U.S. Federal Income Tax Considerations
Scope of Discussion
This discussion does not generally address any aspects of U.S. taxation other than U.S. federal income taxation, is not a complete analysis or description of all of the possible tax consequences of the Redomestication or of owning and disposing of Bunge-Switzerland shares and does not address all tax considerations that may be relevant to you, such as U.S. federal estate and gift tax laws, or state, local or non-U.S. tax laws. Special rules that are not discussed in the general descriptions below may also apply to you, such as the accounting rules of section 451(b) of the Internal Revenue Code 1986, as amended, which we refer to as the “U.S. Code.”. In particular, this discussion deals only with holders that hold their Bunge-Bermuda shares and will hold their Bunge-Switzerland shares as capital assets and does not address the tax treatment of special classes of holders, such as:
•a holder of Bunge-Bermuda shares who, at any time within the five-year period ending on the date of the Redomestication, has actually or constructively owned 10% or more of the total combined voting power of all classes of stock entitled to vote of Bunge-Bermuda or who, immediately before the Redomestication, actually or constructively owns at least 5% of either the total voting power or the total value of the stock of Bunge-Bermuda,
•a holder of Bunge-Switzerland shares who, immediately after the Redomestication, actually and constructively owns at least 5% of either the total voting power or the total value of the stock of Bunge-Switzerland or who, at any time after the Redomestication, actually or constructively owns 10% or more of the total combined voting power of all classes of stock entitled to vote of Bunge-Switzerland,
•a bank or other financial institution,
•a tax-exempt entity,
•an insurance company,
•a person holding shares as part of a “straddle,” “hedge,” “integrated transaction,” or “conversion transaction,”
•a partnership or other-through entity or a person holding shares through such entity,
•a U.S. expatriate,
•a person who is liable for alternative minimum tax,
•a broker-dealer or trader in securities or currencies,
•a U.S. holder whose “functional currency” is not the U.S. dollar,
•a regulated investment company,
•a real estate investment trust,
•a trader in securities who has elected the mark-to-market method of accounting for its securities,
•a holder who received the Bunge-Bermuda shares through the exercise of employee stock options or otherwise as compensation or through a tax qualified retirement plan, or
•a non-corporate holder of Bunge-Switzerland shares who, because of limitations under the U.S. securities laws or other legal limitations, is not free to dispose of those shares without restriction.
This discussion is based on the laws of the United States, including the U.S. Code, its legislative history, existing and proposed Treasury regulations promulgated thereunder, judicial decisions, published rulings and administrative pronouncements, each as in effect on the date of this proxy statement. These laws may change, possibly with retroactive effect. In addition, the application and interpretation of certain aspects of the passive foreign investment company rules, referred to below, require the issuance of regulations which in many instances have not been promulgated and which may have retroactive effect. There can be no assurance that any of these regulations will be enacted or promulgated, and if so, when they will take effect or the effect they may have on this discussion. There can be no assurance that the United States Internal Revenue Service (“IRS”) will not disagree with or will not successfully challenge any of the conclusions reached and described in this discussion. No ruling has been or will be sought from the IRS with respect to the position and issues discussed herein.
For purposes of this discussion, a “U.S. holder” is any beneficial owner of Bunge-Bermuda shares, or, after the completion of the Redomestication, Bunge-Switzerland shares, that for U.S. federal income tax purposes is:
•an individual citizen or resident alien of the United States,
•a corporation (or other entity taxable as a corporation) organized under the laws of the United States or any state thereof including the District of Columbia,
•an estate, the income of which is subject to U.S. federal income taxation regardless of its source, or
•a trust if (1) it validly elects to be treated as a United States person for U.S. federal income tax purposes or (2)(a) its administration is subject to the primary supervision of a court within the United States and (b) one or more United States persons have the authority to control all of its substantial decisions.
A “non-U.S. holder” of Bunge-Bermuda shares, or, after the completion of the Redomestication, Bunge-Switzerland shares is a holder, other than an entity or arrangement treated as a partnership for U.S. federal income tax purposes, that is not a U.S. holder. For purposes of this summary, “holder” or “shareholder” means either a U.S. holder or a non-U.S. holder or both, as the context may require.
If a partnership (including any entity or arrangement treated as a partnership for U.S. federal income tax purposes) is a beneficial owner of Bunge-Bermuda shares or Bunge-Switzerland shares, the tax treatment of a partner in that partnership will generally depend on the status of the partner and the activities of the partnership. Holders of Bunge-Bermuda shares or Bunge-Switzerland shares that are partnerships and partners in these partnerships are urged to consult their tax advisers regarding the U.S. federal income tax consequences to them of the Redomestication and the ownership and disposition of the Bunge-Switzerland shares.
In the discussion that follows, except as otherwise indicated, it is assumed, as Bunge believes to be the case, that Bunge-Bermuda has not been and will not be a passive foreign investment company before the Redomestication and that Bunge-Switzerland will not be a passive foreign investment company after the Redomestication. See “—Passive Foreign Investment Company Considerations.” It is also assumed, as Bunge expects to be the case, that Bunge-Switzerland will continue to be a foreign corporation in the future. See “—Effect of the Redomestication on Potential Future Status as a Foreign Private Issuer.”
It is intended that the Redomestication, together with an election by Bunge-Bermuda to be disregarded for U.S. federal tax purposes effective for the date that is one day after the Effective Date, qualify as a "reorganization" under Section 368(a) of the U.S. Code. The remainder of the discussion assumes that the Redomestication qualifies as "reorganization" within the meaning of Section 368(a) of the U.S. Code.
Bunge
Consequences of the Redomestication: Bunge-Bermuda, Bunge-Switzerland and Bunge-MergerCo will not, as a result of the Redomestication, recognize gain or loss for U.S. federal income tax purposes.
U.S. Holders
Consequences of the Redomestication: U.S. holders will generally recognize no gain or loss upon the exchange of Bunge-Bermuda shares for Bunge-Switzerland shares in the Redomestication. A U.S. holder’s tax basis of the Bunge-Switzerland shares received in the Redomestication generally should equal the U.S. holder’s tax basis in its shares of Bunge-Bermuda exchanged, and the U.S. holder’s holding period of the Bunge-Switzerland shares will include the period during which the U.S. holder held its shares of Bunge-Bermuda shares exchanged in the Redomestication. Shareholders who hold their Bunge-Bermuda shares with differing bases or holding periods are urged to consult their tax advisors with regard to identifying the bases and holding periods of the particular Bunge-Switzerland shares received in the Redomestication.
Taxation of Distributions on the Bunge-Switzerland Shares: The gross amount of a distribution paid with respect to Bunge-Switzerland shares, including the full amount of Swiss withholding tax on such amount, if any, will be a dividend for U.S. federal income tax purposes to the extent of Bunge-Switzerland’s current or accumulated earnings and profits (as determined for U.S. tax purposes). With respect to non-corporate U.S. holders, provided certain requirements are met (including certain holding period requirements), dividends received from a “qualified foreign corporation” will be subject to U.S. federal income tax at the reduced rate accorded to long-term capital gains. As long as the Bunge-Switzerland shares are listed on the New York Stock Exchange or certain other exchanges and/or Bunge-Switzerland qualifies for benefits under the income tax treaty between the United States and Switzerland, Bunge-Switzerland will be treated as a “qualified foreign corporation” for this purpose. This reduced rate will not be available in all situations, and U.S. holders should consult their own tax advisors regarding the application of the relevant rules to their particular circumstances. Dividends received by a corporate shareholder generally will not be eligible for the dividends received deduction which is generally allowed to U.S. corporate shareholders on dividends received from a domestic corporation.
To the extent that a distribution exceeds Bunge-Switzerland’s current or accumulated earnings and profits (as determined for U.S. tax purposes), it will be treated as a nontaxable return of capital to the extent of the taxpayer’s basis in the shares, and thereafter generally should be treated as a capital gain. Special rules not here described may apply to shareholders who do not have a uniform basis and holding period in all of their Bunge-Switzerland shares, as to which shareholders should consult their own tax advisors.
As discussed further under "-Swiss Tax Considerations-Exemption from Swiss Withholding Tax-Distribution to Shareholders", we do not expect Swiss withholding tax to be applicable on distributions paid to Bunge-Switzerland shareholders from Bunge-Switzerland for the foreseeable future. In the even Swiss withholding taxes apply to such distributions, subject to complex limitations, such Swiss withholding tax generally will be treated for U.S. tax purposes as a foreign tax that may be claimed as a foreign tax credit against the U.S. federal income tax liability of a U.S. holder. Distributions paid to U.S. holders with respect to Bunge-Switzerland shares should generally be treated as foreign source income, which may be relevant in calculating the foreign tax credit limitation. The limitation on foreign taxes eligible for a credit is calculated separately with respect to specific classes of income. Dividends paid by Bunge-Switzerland generally will constitute “passive category income,” or in the case of certain U.S. holders, “general category income” or “foreign branch” income. Moreover, Treasury regulations that apply to taxable years beginning on or after December 28, 2021 may in some circumstances prohibit a U.S. holder from claiming a foreign tax credit unless the taxes are creditable under an applicable treaty and the holder is eligible for benefits under the treaty and elects its application. The rules relating to the determination of the foreign tax credit are complex, and shareholders should consult their tax advisors to determine whether and to what extent a credit would be available. In lieu of claiming a credit, U.S. holders may claim a deduction of foreign taxes paid in the taxable year. Unlike a tax credit, a deduction generally does not reduce U.S. tax on a dollar-for-dollar basis. In the event a 35% Swiss withholding tax applies to a distribution by Bunge-Switzerland, a U.S. holder that qualifies for benefits under the Convention between the United States of America and the Swiss Confederation for the Avoidance of Double Taxation with Respect to Taxes on Income, which we refer to as the “U.S.-Swiss Treaty,” may apply for a refund of the tax withheld in excess of the 15% treaty rate (or for a full refund in case of qualified pension funds).
Dispositions of Bunge-Switzerland Shares: U.S. holders of Bunge-Switzerland shares generally should recognize capital gain or loss for U.S. federal income tax purposes on the sale, exchange or other disposition of Bunge-Switzerland shares in the same manner as on the sale, exchange or other disposition of any other shares held as capital assets (including shares of Bunge-Bermuda stock sold, exchange or otherwise disposed of before the Redomestication). Any gain or loss generally will be long-term capital gain or loss if the U.S. holder’s holding period for the shares disposed of exceeds one year. Long-term capital gains recognized by non-corporate U.S. holders should be eligible to be taxed at the reduced rate for capital gains. There are limitations on the deductibility of capital losses.
Medicare Tax on Net Investment Income: U.S. holders that are individuals, estates and certain trusts generally will be subject to an additional 3.8% Medicare contribution tax on their “net investment income” (which includes dividend income and capital gain on the sale or other taxable disposition of the shares). U.S. holders should consult their tax advisors regarding the possible effect of this legislation on their ownership and disposition of their shares.
Passive Foreign Investment Company Considerations: The treatment of U.S. holders of Bunge-Switzerland shares in some cases could be materially different from that described above if, at any relevant time, Bunge-Bermuda or Bunge-Switzerland were a passive foreign investment company, which we will refer to as a "PFIC". For U.S. tax purposes, a foreign corporation, such as Bunge-Bermuda or Bunge-Switzerland, will be classified as a PFIC for any taxable year if either (1) 75% or more of its gross income is passive income (as defined for U.S. tax purposes) or (2) the average percentage of its assets which produce passive income or which are held for the production of passive income is at least 50%. For purposes of applying the tests in the preceding sentence, the foreign corporation is deemed to own its proportionate share of the assets of and to receive directly its proportionate share of the income of any other corporation of which the foreign corporation owns, directly or indirectly, at least 25% by value of the stock.
Classification of a foreign corporation as a PFIC can have various adverse consequences to shareholders of the corporation who are “United States persons,” as defined in the U.S. Code. These include taxation of gain on a sale or other disposition of the shares of the corporation at the maximum ordinary income rates and imposition of an interest charge on gain or on distributions with respect to the shares.
Bunge believes that Bunge-Bermuda has not been a PFIC in any prior taxable year and does not expect Bunge-Bermuda to be a PFIC in the taxable year in which the Redomestication will occur.
In addition, Bunge does not expect Bunge-Switzerland to be or become a PFIC following the Redomestication. However, the tests for determining PFIC status are applied annually, and it is difficult to accurately predict future income and assets relevant to this determination. Accordingly, Bunge cannot assure U.S. holders that Bunge-Switzerland will not become a PFIC.
If Bunge-Switzerland should determine in the future that it is a PFIC, it will endeavor to so notify U.S. holders of Bunge-Switzerland shares, although there can be no assurance that it will be able to do so in a timely and complete manner. U.S. holders of Bunge-Switzerland shares should consult their own tax advisors about the PFIC rules, including the availability of certain elections, which may mitigate certain adverse tax consequences of owning shares in a PFIC.
Non-U.S. Holders
Consequences of the Redomestication and Subsequent Disposition of the Bunge-Switzerland Shares: In general, a non-U.S. holder of Bunge-Bermuda shares will not in any case be subject to U.S. federal income or withholding tax on any gain with respect to the Redomestication and should not be subject to U.S. federal income or withholding tax on any gain recognized on a subsequent disposition of the Bunge-Switzerland shares, unless: (1) such gain is effectively connected with the conduct by the holder of a trade or business within the United States and, if a tax treaty applies, is attributable to a permanent establishment or fixed place of business maintained by such holder in the United States, (2) in the case of capital gain of a holder who is an individual, such holder is present in the United States for 183 days or more during the taxable year in which the capital gain is recognized and certain other conditions are met, or (3) such holder is subject to backup withholding (as described below).
Taxation of Distributions on the Bunge-Switzerland Shares: A non-U.S. holder generally will not be subject to U.S. federal income tax on distributions received on its Bunge-Switzerland shares, unless the distributions are effectively connected with the holder’s conduct of a trade or business in the United States and, if a tax treaty applies, the distributions are attributable to a permanent establishment or fixed place of business maintained by the holder in the United States or such holder is subject to backup withholding (as described below).
Except to the extent otherwise provided under an applicable tax treaty, a non-U.S. holder generally will be taxed in the same manner as a U.S. holder on distributions paid and gains recognized that are effectively connected with the holder’s conduct of a trade or business in the United States. Effectively connected distributions received and gains recognized by a corporate non-U.S. holder may also, under certain circumstances, be subject to an additional “branch profits tax” at a 30% rate (or, if applicable, a lower treaty rate), subject to certain adjustments.
Information Reporting and Backup Withholding
Distribution payments with respect to shares of Bunge-Switzerland and proceeds from the disposition of shares of Bunge-Switzerland may be subject to information reporting and to backup withholding (currently at a 24% rate). Backup withholding generally will apply to a U.S. holder if:
•the U.S. holder fails to furnish its Taxpayer Identification Number (“TIN”) (which, for an individual, is his or her Social Security Number) to the payor in the manner required;
•the U.S. holder furnishes an incorrect TIN and the payor is so notified by the IRS;
•the payor is notified by the IRS that the U.S. holder has failed to properly report payments of interest or dividends; or
•under certain circumstances, the U.S. holder fails to certify, under penalties of perjury, that such holder is a U.S. person, has furnished a correct TIN and has not been notified by the IRS that such holder is subject to backup withholding for failure to report interest or dividend payments.
Backup withholding and information reporting do not apply with respect to payments made to certain exempt recipients. U.S. holders should consult their tax advisors regarding their qualification for exemption from backup withholding and information reporting, and the procedure for obtaining such an exemption if available.
A non-U.S. holder may be required to provide a taxpayer identification number, certify the holder’s foreign status, or otherwise establish an exemption to not be subject to backup withholding tax on distributions and disposition proceeds with respect to shares of Bunge-Switzerland. Non-U.S. holders of Bunge-Switzerland shares should consult their tax advisers regarding the application of information reporting and backup withholding in their particular situations, the availability of exemptions, and the procedure for obtaining such an exemption, if available.
Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules may be allowed as a credit against the holder’s U.S. federal income tax liability and may entitle such person to a refund, provided that certain required information is timely furnished to the IRS.
Swiss Tax Considerations
Scope of Discussion
This discussion does not generally address any aspects of Swiss taxation other than federal, cantonal and communal income taxation, Swiss withholding taxation, and Swiss stamp duties. This discussion is not a complete analysis or listing of all of the possible tax consequences of the Redomestication or of holding and disposing of Bunge-Switzerland shares and does not address all tax considerations that may be relevant to you. Special rules that are not discussed in the general descriptions below may also apply to you.
This discussion is based on the laws of the Confederation of Switzerland, including the Direct Federal Tax Act of 1990, the Federal Harmonization of Cantonal and Communal Direct Taxes Act of 1990, The Federal Withholding Tax Act of 1965, the Federal Stamp Tax Act of 1973, as amended, which we refer to as the “Swiss tax law,” existing and proposed regulations promulgated thereunder, published judicial decisions and administrative pronouncements, each as in effect on the date of this proxy statement or with a known future effective date. These laws may change, possibly with retroactive effect.
For purposes of this discussion, a “Swiss holder” is any beneficial owner of Bunge-Bermuda shares, or, after the completion of the Redomestication, Bunge-Switzerland shares, that for Swiss direct tax purposes is:
•an individual resident of Switzerland or otherwise subject to Swiss taxation under article 3, 4 or 5 of the Direct Federal Tax Act of 1990, as amended, or article 3 or 4 of the Federal Harmonization of Cantonal and Communal Direct Taxes Act of 1990, as amended; or
•a corporation or other entity taxable as a corporation organized under the laws of the Switzerland or otherwise subject to Swiss taxation under article 50 or 51 of the Direct Federal Tax Act of 1990, as amended, or article 20 or 21 of the Federal Harmonization of Cantonal and Communal Direct Taxes Act of 1990, as amended.
A “non-Swiss holder” of Bunge-Bermuda shares, or, after the completion of the Redomestication, Bunge-Switzerland shares, is a holder that is not a Swiss holder. For purposes of this summary, “holder” or “shareholder” means either a Swiss holder or a non-Swiss holder or both, as the context may require.
Consequences of the Redomestication
Shareholder Tax Consequences
No Swiss tax is due for non-Swiss holders upon the exchange of Bunge-Bermuda shares for Bunge-Switzerland shares in the Redomestication.
If Swiss holders are beneficial owners of Bunge-Bermuda shares or Bunge-Switzerland shares, they are urged to consult their tax advisers regarding the Swiss tax consequences to them of the Redomestication.
Swiss Corporate Tax Consequences
Under Swiss tax law as it applies to corporations, the Redomestication is considered to be a tax neutral restructuring for Bunge-Bermuda, Bunge-Switzerland and Bunge-MergerCo. Therefore, no Swiss corporate income taxes will be due with respect to these companies as a result of the Redomestication. As a tax neutral restructuring, the Redomestication is also exempt from Swiss withholding tax and Swiss stamp duties.
Taxation of Bunge-Switzerland Subsequent to the Redomestication
Corporate Income Tax
A Swiss resident company is subject to corporate income tax at federal, cantonal and communal levels on its worldwide income. However, qualifying net dividend income and net capital gains on the sale of qualifying investments in subsidiaries are effectively exempt from federal, cantonal and communal corporate income tax. Consequently, Bunge-Switzerland expects dividends from its subsidiaries and capital gains from sales of investments in its subsidiaries to be exempt from Swiss corporate income tax.
Stamp duty – Swiss Issuance Stamp Tax
Swiss issuance stamp tax is a federal tax levied on the issuance of shares and increases in or contributions to the equity of Swiss corporations. The applicable tax rate is 1% of the contribution value of the assets contributed to equity. Exemptions are available in tax neutral restructuring transactions. As a result, any future issuance of shares by Bunge-Switzerland or any other increase in its equity may be subject to the issuance stamp tax unless the equity is increased in the context of a merger or other qualifying restructuring transaction.
Stamp duty – Swiss Transfer Stamp Tax
The transfer of taxable Swiss and foreign securities (e.g., shares) in which a Swiss bank or other Swiss securities dealers (as defined in the Swiss Federal Stamp Tax Act) participate as contracting parties or as intermediaries is typically subject to Swiss transfer tax at the rate of 0.15% (for securities issued by a resident of Switzerland) and 0.3% (for securities issued by a resident of a foreign country). However, the transfer of taxable securities within qualifying restructuring transactions is exempt from transfer stamp tax.
Swiss Withholding Tax on Certain Interest Payments
A federal withholding tax is levied on the interest payments of certain debt instruments. In such case, the rate would amount to 35% of the gross interest payment to the debtholders. No Swiss withholding tax would be due on interest payments on debt instruments issued by non-Swiss subsidiaries of Bunge-Switzerland, provided that Bunge-Switzerland does not guarantee the debt instruments, or if such a guarantee is provided, the proceeds from the issuance by the non-Swiss subsidiary are not used for financing activities in Switzerland in an amount exceeding the total equity of all non-Swiss subsidiaries of the Bunge Group. Any such withholding tax may be fully or partially refundable to qualified debtholders either based on Swiss domestic tax law or based on existing double taxation treaties. Although, as described in “The Redomestication—Guarantees,” Bunge-Switzerland intends to guarantee certain debt of its subsidiary Bunge-Bermuda, none of the proceeds has been or is expected to be used for financing activities in Switzerland. Consequently, no Swiss withholding tax should be due with respect to such obligations. In the event of the imposition of any such withholding tax, Bunge-Bermuda would be required under some of its debt obligations to gross up the interest payments to cover the tax.
Consequences to Shareholders of Bunge-Switzerland Subsequent to the Redomestication
The tax consequences discussed below are not a complete analysis or description of all the possible tax consequences that may be relevant to you. You should consult your own tax advisor in respect of the tax consequences related to receipt, ownership, purchase or sale or other disposition of Bunge-Switzerland shares and the procedures for claiming a refund of withholding tax.
Swiss Income Tax on Dividends and Similar Distributions
A non-Swiss holder will not be subject to Swiss income taxes on dividend income and similar distributions in respect of Bunge-Switzerland shares, unless the shares are attributable to a permanent establishment or a fixed place of business maintained in Switzerland by such non-Swiss holder. However, dividends and similar distributions are subject to Swiss withholding tax. See “—Swiss Withholding Tax—Distributions to Shareholders.”
Swiss Wealth Tax
A non-Swiss holder will not be subject to Swiss wealth taxes unless the holder’s Bunge-Switzerland shares are attributable to a permanent establishment or a fixed place of business maintained in Switzerland by such non-Swiss holder.
Swiss Capital Gains Tax upon Disposal of Bunge-Switzerland Shares
A non-Swiss holder will not be subject to Swiss income taxes for capital gains unless the holder’s shares are attributable to a permanent establishment or a fixed place of business maintained in Switzerland by such non-Swiss holder. In such case, the non-Swiss holder is required to recognize capital gains or losses on the sale of such shares, which will be subject to cantonal, communal and federal income tax.
Swiss Withholding Tax—Distributions to Shareholders
A Swiss withholding tax of 35% is due on dividends and similar distributions to Bunge-Switzerland shareholders from Bunge-Switzerland out of available earnings or other non-qualifying reserves for withholding tax purposes, regardless of the place of residency of the shareholder (subject to the exceptions discussed under “—Exemption from Swiss Withholding Tax—Distributions to Shareholders” below). Bunge-Switzerland will be required to withhold at such rate and remit on a net basis any payments made to a holder of Bunge-Switzerland shares and pay such withheld amounts to the Swiss Federal Tax Administration. Please see “—Refund of Swiss Withholding Tax on Dividends and Other Distributions.”
Exemption from Swiss Withholding Tax—Distributions to Shareholders
Distributions to shareholders in relation to a reduction of par value and distributions to shareholders out of qualifying capital contribution reserves recognized by the Swiss Federal Tax Administration are exempt from the Swiss withholding tax. Bunge-Switzerland expects to pay distributions out of qualifying capital contribution reserves recognized by the Swiss Federal Tax Administration for the foreseeable future, and as a result, any such distributions to shareholders will be exempt from the Swiss withholding tax. Upon completion of the Redomestication, we expect Bunge-Switzerland to have a par value of $[0.01] per share and qualifying capital contribution reserves per share for Swiss statutory reporting purposes, such that the combination of the two should approximate the market capitalization value of Bunge-Bermuda immediately prior to the completion of the Redomestication.
Repurchases of Shares
Repurchases of shares for the purposes of capital reduction are treated as a partial liquidation subject to the 35% Swiss withholding tax. However, for shares repurchased for capital reduction, the portion of the repurchase price attributable to the par value and to the qualifying contribution reserves recognized by the Swiss Federal Tax Administration of the shares repurchased will not be subject to the Swiss withholding tax. Bunge-Switzerland would be required to withhold at such rate the tax from the difference between the repurchase price and the related amount of par value and qualifying contribution reserves. Bunge-Switzerland would be required to remit on a net basis the purchase price with the Swiss withholding tax deducted to a holder of Bunge-Switzerland shares and pay the withholding tax to the Swiss Federal Tax Administration.
With respect to the refund of Swiss withholding tax from the repurchase of shares, see “—Refund of Swiss Withholding Tax on Dividends and Other Distributions” below.
In many instances, Swiss companies listed on the SIX Swiss Exchange carry out share repurchase programs through a “second trading line” on the SIX Swiss Exchange. Swiss institutional investors typically purchase shares from shareholders on the open market and then sell the shares on the second trading line back to the company. The Swiss institutional investors are generally able to receive a full refund of the withholding tax. Due to, among other things, the time delay between the sale to the company and the institutional investors’ receipt of the refund, the price companies pay to repurchase their shares has historically been slightly higher (but less than 1.0%) than the price of such companies’ shares in ordinary trading on the SIX Swiss Exchange first trading line.
We do not expect to be able to use the SIX Swiss Exchange second trading line process to repurchase our shares because we do not intend to list our shares on the SIX Swiss Exchange. We do, however, intend to follow an alternative process whereby we expect to be able to repurchase our shares in a manner that should allow Swiss institutional market participants selling the shares to us to receive a refund of the Swiss withholding tax and, therefore, accomplish the same purpose as share repurchases on the second trading line at substantially the same cost to us and such market participants as share repurchases on a second trading line.
The repurchase of shares for purposes other than capital reduction, such as to retain as treasury shares for use in connection with equity incentive plans, convertible debt or other instruments within certain periods, will generally not be subject to Swiss withholding tax. However, see “Comparison of Rights of Shareholders” for a discussion on the limitations on the amount of repurchased shares that can be held as treasury shares.
Refund of Swiss Withholding Tax on Dividends and Other Distributions
Swiss Holders: A Swiss tax resident, corporate or individual, can recover the withholding tax in full if such resident is the beneficial owner of the Bunge-Switzerland shares at the time the dividend or other distribution becomes due and provided that such resident reports the gross distribution received on such resident’s income tax return, or in the case of an entity, includes the taxable income in such resident’s income statement, in accordance with statutory law requirements.
Non-Swiss Holders: If the shareholder that receives a distribution from Bunge-Switzerland is not a Swiss tax resident, does not hold the Bunge-Switzerland shares in connection with a permanent establishment or a fixed place of business maintained in Switzerland, and resides in a country that has concluded a treaty for the avoidance of double taxation with Switzerland for which the conditions for the application and protection of and by the treaty are met, then the shareholder may be entitled to a full or partial refund of the withholding tax described above. You should note that the procedures for claiming treaty refunds (and the time frame required for obtaining a refund) may differ from country to country.
Switzerland has entered into bilateral treaties for the avoidance of double taxation with respect to income taxes with numerous countries, including the United States, whereby under certain circumstances all or part of the withholding tax may be refunded.
U.S. Residents: The Swiss-U.S. tax treaty provides that U.S. residents eligible for benefits under the treaty can seek a refund of the Swiss withholding tax on dividends for the portion exceeding 15% (leading to a refund of 20%) or a 100% refund in the case of qualified pension funds. Please refer to the discussion under “—U.S. Federal Income Tax Considerations—U.S. Holders—Taxation of Distributions on the Bunge-Switzerland Shares” for applicability of U.S. foreign tax credits for any net withholding taxes paid.
As a general rule, the refund will be granted under the treaty if the U.S. resident can show evidence of:
•beneficial ownership,
•U.S. residency, and
•meeting the U.S.-Swiss tax treaty’s limitation on benefits requirements.
The claim for refund must be filed with the Swiss Federal Tax Administration (Eigerstrasse 65, 3003 Berne, Switzerland), not later than December 31 of the third year following upon the calendar year in which the dividend payments became due. The relevant Swiss tax form is Form 82C for companies, 82E for other entities and 82I for individuals. These forms can be obtained from any Swiss Consulate General in the United States or from the Swiss Federal Tax Administration at the address mentioned above or online. Each form needs to be filled out in triplicate, with each copy duly completed and signed before a notary public in the United States. You must also include evidence that the withholding tax was withheld at the source.
Swiss Transfer Stamp Tax in Relation to the Transfer of Bunge-Switzerland Shares: The purchase or sale of Bunge-Switzerland shares may be subject to Swiss federal stamp taxes on the transfer of securities irrespective of the place of residency of the purchaser or seller if the transaction takes place through or with a Swiss bank or other Swiss securities dealer, as those terms are defined in the Federal Stamp Tax Act of 1973 and no exemption applies in the specific case. If a purchase or sale is not entered into through or with a Swiss bank or other Swiss securities dealer, then no stamp tax will be due. The applicable stamp tax rate is 0.075% for each of the two parties to a transaction and is calculated based on the purchase price or sale proceeds. If the transaction does not involve cash consideration, the transfer stamp duty is computed on the basis of the market value of the consideration.
Bermuda Tax Considerations
The Redomestication will not result in any income tax consequences under Bermuda law to Bunge-Bermuda, Bunge-Switzerland, Bunge-MergerCo or their respective shareholders.
The discussion in this section “Certain Tax Considerations” is for general information only and may not address all tax considerations that may be significant to shareholders.
| | |
| DESCRIPTION OF BUNGE-SWITZERLAND SHARES |
The following description of Bunge-Switzerland’s share capital is a summary. This summary is not complete and is subject to the complete text of Bunge-Switzerland's proposed articles of association and organizational regulations (the latter being analogous to bylaws). Except where otherwise indicated, the description below reflects Bunge-Switzerland’s articles of association and organizational regulations as those documents will be in effect upon completion of the Redomestication. We encourage you to read those documents carefully.
Capital Structure
Immediately after the Redomestication, Bunge-Switzerland will only have one class of shares outstanding, registered shares with a par value of $[0.01] per share.
Issued Share Capital: In the Redomestication, Bunge-Switzerland will issue one registered share for each issued and outstanding Bunge-Bermuda share. In addition, Bunge-Switzerland will issue [●] Treasury Shares to Bunge-Bermuda for future use to satisfy Bunge-Switzerland’s obligations to deliver registered shares in connection with awards granted under equity incentive plans and for such other purposes as Bunge-Switzerland's Board of Directors may determine. Bunge-Switzerland will assume Bunge-Bermuda’s existing obligation to deliver shares under such equity incentive plans. Upon completion of the Redomestication, the registered share capital of Bunge-Switzerland is expected to be approximately [●], comprised of approximately [●] million registered shares, including [●] Treasury Shares and [●] shares issued in connection with the formation of Bunge-Switzerland.
Capital Band: Immediately prior to the Redomestication, Bunge-Switzerland will not have any share capital authorized for future issuance. Upon completion of the Redomestication, Bunge-Switzerland will have a capital band ranging from $[●] (lower limit) to $[●] (upper limit) and the Board of Directors will be authorized to increase or reduce, within such range, the share capital once or several times and in any amount or to repurchase or dispose of registered shares directly or indirectly, until the earlier of [●], 2028 or the full use of the capital band, without shareholder approval.
In the event of a share issuance based on Bunge-Switzerland's capital band, the Board of Directors determines the date of the issuance, the issuance price, the type of contribution, the date from which the new registered shares carry the right to distributions and, subject to the provisions of Bunge-Switzerland’s articles of association, the conditions for the exercise of the subscription rights with respect to the issuance. The Board of Directors may allow subscription rights that are not exercised to expire, or it may place such rights or registered shares, the subscription rights of which have not been exercised, at market conditions or use them otherwise in the interest of Bunge-Switzerland. After [●], 2028 (or earlier, upon full use of the capital band), capital band will be available to the Board of Directors for issuance of additional registered shares only if the authorization is reapproved by shareholders.
In a share issuance based on Bunge-Switzerland's capital band, Bunge-Switzerland and Bunge-Switzerland’s shareholders have subscription rights to obtain newly issued registered shares in an amount proportional to the par value of the registered shares they already hold. However, the Board of Directors may withdraw or limit these subscription rights in certain circumstances as set forth in Bunge-Switzerland’s articles of association. For further details on these circumstances, see “—Preemptive Rights and Advance Subscription Rights.”
Conditional Share Capital: Immediately prior to the Redomestication, Bunge-Switzerland will not have any conditional share capital. Upon completion of the Redomestication, Bunge-Switzerland’s articles of association will provide for a conditional capital that, following the effectiveness of the Redomestication, will authorize the issuance of additional registered shares up to a maximum amount of [●]% of the share capital registered in the commercial register (which is expected to be approximately [●] registered shares) without obtaining additional shareholder approval. These registered shares may be issued:
•with respect to up to [●] fully paid-in registered shares, the exercise or mandatory exercise of conversion, exchange, exercise, option, warrant, subscription or other rights to acquire registered or through obligations to acquire registered shares, which are or were granted to or imposed upon shareholders or third parties alone or in connection with bonds, notes, loans, options, warrants or other securities or contractual obligations of Bunge-Switzerland or any of its group companies; or
•with respect to up to [●] fully paid-in registered shares, the exercise or mandatory exercise of rights to acquire registered shares or through obligations to acquire registered shares, which are or were granted to or imposed on members of the Board of Directors, members of the executive management, employees, contractors or consultants of Bunge-Switzerland or its group companies, or other persons providing services to Bunge-Switzerland or its group companies.
In connection with the issuance of bonds, notes, loans, options, warrants or other securities or contractual obligations convertible into or exercisable or exchangeable for Bunge-Switzerland registered shares, the Board of Directors is authorized to withdraw or limit the advance subscription rights of shareholders in certain circumstances. See “—Substantive Rights and Advance Subscription Rights” below.
The subscription rights of shareholders are excluded with respect to registered shares issued to directors, employees, contractors, consultants or other persons providing services to Bunge-Switzerland or any of its group companies.
Other Classes or Series of Shares: The Board of Directors may not create shares with increased voting powers without the affirmative resolution adopted by shareholders holding at least 66 2/3% of the voting rights and a majority of the par value of the registered shares represented at a general meeting.
Subscription Rights and Advance Subscription Rights
Under the Swiss Code, the prior approval of a general meeting of shareholders is generally required to authorize, for later issuance, the issuance of registered shares, or rights to subscribe for, or convert into, registered shares (which rights may be connected to debt instruments or other financial obligations). In addition, the existing shareholders will have subscription rights in relation to such registered shares or rights in proportion to the respective par values of their holdings. The shareholders may, with the affirmative vote of shareholders holding 66 2/3% of the voting rights and a majority of the par value of the registered shares represented at the general meeting, withdraw or limit the subscription rights for valid reasons (such as a merger, an acquisition or any of the reasons authorizing the Board of Directors to withdraw or limit the subscription rights of shareholders in the context of an authorized capital increase as described below).
If the general meeting of shareholders has approved the creation of a capital band or conditional share capital, it thereby delegates the decision whether to withdraw or limit the subscription and advance subscription rights for valid reasons to the Board of Directors. Bunge-Switzerland’s articles of association provide for this delegation with respect to Bunge-Switzerland’s capital band and conditional share capital in the circumstances described below under “—Authorized Share Capital” and “—Conditional Share Capital.”
Capital Band: The Board of Directors is authorized to withdraw or limit the subscription rights with respect to the issuance of registered shares based on the capital band and allocate such rights to third parties (including individual shareholders), the company or any of its group companies if:
•the issue price of the new registered shares is determined by reference to the market price;
•for raising equity capital in a fast and flexible manner, which would not be possible, or would only be possible with great difficulty or at significantly less favorable conditions, without the exclusion of the subscription rights of existing shareholders;
•for the acquisition of companies, part(s) of companies or participations, for the acquisition of products, intellectual property or licenses by or for investment projects of Bunge-Switzerland or any of its group companies, or for the financing or refinancing of any of such transactions through a placement of registered shares;
•for purposes of broadening the shareholder constituency of Bunge-Switzerland in certain financial or investor markets, for purposes of the participation of strategic partners including financial investors, or in connection with the listing of new registered shares on domestic or foreign stock exchanges;
•for purposes of granting an over-allotment option of up to 20% of the total number of registered shares in a placement or sale of registered shares to the respective initial purchaser(s) or underwriter(s);
•for the participation of members of the Board of Directors, members of the executive management, employees, contractors, consultants or other persons performing services for the benefit of Bunge-Switzerland or any of its group companies;
•following a shareholder or a group of shareholders acting in concert having accumulated shareholdings in excess of 15% of the share capital registered in the commercial register without having submitted to all other shareholders a takeover offer recommended by the Board of Directors; or
•for the defense of an actual, threatened or potential takeover offer that the Board of Directors, upon consultation with an independent financial adviser retained by it, has not recommended or will not recommend to the shareholders to accept on the basis that the Board of Directors does not find such takeover bid to be financially fair to the shareholders.
Conditional Share Capital: In connection with the issuance of bonds, notes, loans, options, warrants or other securities or contractual obligations convertible into or exercisable or exchangeable for Bunge-Switzerland registered shares, the subscription rights of shareholders are excluded and the Board of Directors is authorized to withdraw or limit the advance subscription rights of shareholders with respect to registered shares issued from Bunge-Switzerland’s conditional share capital if (1) there is a valid reason to withdraw or limit subscription rights of shareholders in connection with the issuance of shares based on the capital band (see immediately above) or (2) the bonds or similar instruments are issued on appropriate terms.
If the advance subscription rights are withdrawn or limited:
•the acquisition price of the registered shares shall be set taking into account the market price prevailing at the date on which the instruments or obligations are issued and;
•the instruments or obligations may be converted, exchanged or exercised during a maximum period of 30 years from the date of the relevant issuance or entry.
The subscription rights and the advance subscription rights of shareholders are excluded with respect to registered shares issued from Bunge-Switzerland’s conditional share capital to directors, employees, contractors, consultants or other persons providing services to Bunge-Switzerland or any of its group companies.
The subscription rights and the advance subscription rights of shareholders that may be issued subject to a limitation or the withdrawal of subscription rights or advance subscription rights from (i) the capital band pursuant to Bunge-Switzerland’s articles of association and/or (ii) the conditional share capital pursuant to Bunge-Switzerland’s articles of association may not exceed [●] new Shares.
Distributions of Dividends
Under Swiss law, distributions of dividends may be paid out only if the company has sufficient distributable profits from the previous fiscal year, or if the company has freely distributable reserves, including out of capital contribution reserves, each as will be presented on the balance sheet included in the annual standalone statutory financial statements of Bunge-Switzerland. The affirmative vote of shareholders holding a majority of the votes cast at a general meeting (whereby abstentions, broker nonvotes, blank or invalid ballots shall be disregarded for purposes of establishing the majority) must approve distributions of dividends. The Board of Directors may propose to shareholders that a distribution of dividend be paid but cannot itself authorize the dividend.
Under the Swiss Code, if Bunge-Switzerland’s statutory reserves amount to less than 20% of the share capital recorded in the commercial register (i.e., 20% of the aggregate par value of Bunge-Switzerland’s registered capital), then at least 5% of Bunge-Switzerland’s annual profit must be allocated to the statutory profit reserve. The Swiss Code and Bunge-Switzerland’s articles of association permit Bunge-Switzerland to accrue additional reserves. In addition, Bunge-Switzerland is required to create a special reserve on its stand-alone annual statutory balance sheet in the amount of the purchase price of registered shares any of its group companies repurchases, which amount may not be used for dividends or subsequent repurchases. Own shares held directly by Bunge-Switzerland are presented on the stand-alone annual statutory balance sheet as a reduction of total shareholders' equity.
Swiss companies generally must maintain a separate company, stand-alone “statutory” balance sheet for the purpose of, among other things, determining the amounts available for the return of capital to shareholders, including by way of a distribution of dividends. Bunge-Switzerland’s auditor must confirm that a dividend proposal made to shareholders conforms with the requirements of the Swiss Code and Bunge-Switzerland’s articles of association. Dividends are usually due and payable shortly after the shareholders have passed a resolution approving the payment; however, it is also possible to pay dividends or other distributions in, for example, quarterly instalments. Bunge-Switzerland’s articles of association provide that dividends that have not been claimed within five years after the due date become the property of Bunge-Switzerland and are allocated to the statutory profit reserves. For information about deduction of the withholding tax from dividend payments, see “Certain Tax Considerations—Swiss Tax Considerations.”
Bunge-Switzerland is expected to declare any distribution of dividends and other capital distributions in U.S. dollars.
Repurchases of Registered Shares
The Swiss Code limits a company’s ability to hold or repurchase its own registered shares. Bunge-Switzerland and its group companies may only repurchase shares if and to the extent that sufficient freely distributable reserves are available, as described above. The aggregate par value of all Bunge-Switzerland registered shares held by Bunge-Switzerland and its group companies may not exceed 10% of the registered share capital. However, Bunge-Switzerland may repurchase its own registered shares beyond the statutory limit of 10% if the shareholders have passed a resolution at a general meeting of shareholders (including as part of the capital band provision included in Bunge-Switzerland's articles of association) authorizing the Board of Directors to repurchase registered shares in an amount in excess of 10% and the repurchased shares are dedicated for cancellation. Any registered shares repurchased pursuant to such an authorization will then be cancelled either upon the approval of shareholders holding a majority of votes cast at a general meeting (whereby abstentions, broker nonvotes, blank or invalid ballots shall be disregarded for purposes of establishing the majority) or, if the authorization is contained in the capital band provision of Bunge-Switzerland's articles of association, upon Bunge-Switzerland's Board of Directors effecting the cancellation based on the authority granted to it in the capital band provision. Repurchased registered shares held by Bunge-Switzerland or its group companies do not carry any rights to vote at a general meeting of shareholders but are entitled to the economic benefits generally associated with the shares. For information about withholding tax and share repurchases, see “Certain Tax Considerations—Swiss Tax Considerations.”
Reduction of Share Capital
Capital distributions may also take the form of a distribution of cash or property that is based upon a reduction of Bunge-Switzerland’s share capital recorded in the commercial register. Such a capital reduction requires the approval of shareholders holding a majority of votes cast at a general meeting (whereby abstentions, broker nonvotes, blank or invalid ballots shall be disregarded for purposes of establishing the majority). A special audit report must confirm that creditors’ claims remain fully covered despite the reduction in the share capital recorded in the commercial register. On or before the approval by the general meeting of shareholders of the capital reduction, the Board of Directors must give public notice of the capital reduction resolution in the Swiss Official Gazette of Commerce and notify creditors that they may request, within thirty days, satisfaction of or security for their claims (to the extent that the coverage of creditors' claims prior to the capital reduction has been reduced). The obligation to provide security does not apply if the reduction of the share capital does not jeopardize the satisfaction of the creditors' claims. If an unqualified special audit report is available, the law presumes that creditors' claims are not jeopardized. The presumption may be rebutted by creditors in exceptional circumstances.
General Meetings of Shareholders
The general meeting of shareholders is Bunge-Switzerland’s supreme corporate body. Ordinary and extraordinary shareholders' meetings may be held. Among other things, the following powers will be vested exclusively in the general meeting of shareholders:
•adoption and amendment of Bunge-Switzerland’s articles of association;
•election of the chair and the members of the Board of Directors, the members of the compensation committee, the auditor and the independent voting rights representative;
•approval of the annual business report, the stand-alone statutory financial statements and the consolidated financial statements;
•approval on the allocation of profit shown on the balance sheet contained in the stand-alone statutory financial statements of the company, in particular the determination of dividend and other capital distributions to shareholders (including by way of repayment of statutory capital reserve (such as in the form of qualifying capital contribution reserves);
•discharge of the members of the Board of Directors and the persons entrusted with management from liability for business conduct during the previous fiscal year to the extent such conduct is known to the shareholders;
•the approval of the compensation of the Board of Directors and the executive management team pursuant to the articles of association, and the advisory vote on the report (established under Swiss law) pertaining to the compensation of the company's Board of Directors and executive management in the prior fiscal year;
•the delisting of Bunge-Switzerland equity securities;
•the approval of the report on non-financial matters pursuant to article 964c CO; and
•any other resolutions that are submitted to a general meeting of shareholders pursuant to law, Bunge-Switzerland’s articles of association or by voluntary submission by the Board of Directors (unless a matter is within the exclusive competence of the Board of Directors pursuant to the Swiss Code).
Under the Swiss Code and Bunge-Switzerland’s articles of association, Bunge-Switzerland must hold an annual, ordinary general meeting of shareholders within six months after the end of its fiscal year for the purpose, among other things, of approving the annual (standalone and consolidated) financial statements and the annual report, annually electing the chair of the Board of Directors and the Directors, the members of the compensation committee, and annually approving the maximum aggregate compensation payable to the Board of Directors and the members of the executive management team. The invitation to general meetings must be published in the Swiss Official Gazette of Commerce at least 20 calendar days prior to the relevant general meeting of shareholders. No resolutions may be passed at a shareholders' meeting concerning agenda items for which proper notice was not given. This does not apply, however, to proposals made during a shareholders' meeting to convene an extraordinary meeting or to initiate a special investigation. No previous notification will be required for proposals concerning items included on the agenda or for debates as to which no vote is taken.
Annual general meetings of shareholders may be convened by the Board of Directors or, under certain circumstances, by the auditor. A general meeting of shareholders can be held in Switzerland or abroad. Bunge-Switzerland expects to set the record date for each general meeting of shareholders on a date not more than 20 calendar days prior to the date of each general meeting and announce the date of the general meeting of shareholders prior to the record date.
An extraordinary general meeting of Bunge-Switzerland may be called in the circumstances provided by law, the resolution of the Board of Directors or, under certain circumstances, by the auditor. In addition, the Board of Directors is required to convene an extraordinary general meeting of shareholders if so resolved by the general meeting of shareholders, or if so requested by shareholders holding an aggregate of at least 5% of the registered shares or votes, specifying the items for the agenda and their proposals. If the Board of Directors does not comply with the request to publish the notice of the extraordinary general meeting within a reasonable period of time, but at the latest within 60 days, the requesting shareholders may request the court to order that the meeting be convened.
Under Bunge-Switzerland’s articles of association, shareholders who hold, alone or together, at least 0.5 percent of the share capital or votes and are insofar recorded in the share register may request that an item be included on the agenda of a general meeting of shareholders. Such shareholder may also nominate one or more directors for election. A request for inclusion of an item on the agenda must be in writing and received by Bunge-Switzerland at least 120 but not more than 150 calendar days prior to the meeting. To nominate a nominee, the shareholder must, no earlier than 150 calendar days and no later than 120 calendar days prior to the first anniversary of the date (as stated in the Bunge-Switzerland proxy materials) on which the Bunge-Switzerland definitive proxy statement for the prior year’s annual general meeting was first released to Bunge-Switzerland’s shareholders, deliver a notice to, and such notice must be received by, Bunge-Switzerland at its registered office; provided, however, that if the annual general meeting is not scheduled to be held within a period beginning 30 days before such anniversary date and ending 30 days after such anniversary date, the notice shall be given in the manner provided herein by the later of the close of business on the date that is 180 days prior to such other meeting date or the tenth day following the date that Bunge-Switzerland first makes public disclosure regarding such other meeting date. The request must specify the relevant agenda items and proposals, together with evidence of the required shares recorded in the share register, as well as any other information as would be required to be included in a proxy statement pursuant to the rules of the SEC.
Under the Swiss Code, a general meeting of shareholders for which a notice of meeting has been duly published may not be adjourned without publishing a new notice of meeting.
Voting
Each Bunge-Switzerland registered share carries one vote at a general meeting of shareholders. Voting rights may be exercised by shareholders registered in Bunge-Switzerland’s share register, through the independent voting rights representative elected by shareholders at each annual general meeting, their legal representative or, on the basis of a written proxy, by any other representative who need not be a shareholder.
Shareholders wishing to exercise their voting rights who hold their shares through a broker, bank or other nominee should follow the instructions provided by such broker, bank or other nominee or, absent instructions, contact such broker, bank or other nominee for instructions. Shareholders holding their shares through a broker, bank or other nominee will not automatically be registered in Bunge-Switzerland's share register. If any such shareholder wishes to be registered in Bunge-Switzerland's share register, such shareholder should contact the broker, bank or other nominee through which it holds Bunge-Switzerland shares.
Bunge-Switzerland’s articles of association do not limit the number of registered shares that may be voted by a single shareholder.
Treasury shares, whether owned by Bunge-Switzerland or one of Bunge-Switzerland’s controlled subsidiaries, will not be entitled to vote at general meetings of shareholders.
Pursuant to the Swiss Code, shareholders have the exclusive right to determine the following matters:
•adoption and amendment of Bunge-Switzerland’s articles of association;
•election of members of the board of directors, its chair, the members of the compensation committee, the independent voting rights representative, and the statutory auditor;
•approval of the annual business report, the stand-alone statutory financial statements and the consolidated financial statements;
•approval on the allocation of profit shown on the balance sheet contained in the stand-alone statutory financial statements of the company, in particular the determination of dividend and other capital distributions to shareholders (including by way of repayment of statutory capital reserve (such as in the form of qualifying capital contribution reserves);
•discharge of the members of the board of directors from liability for previous business conduct to the extent such conduct is known to the shareholders; and
•the approval of the compensation of the board of directors and the executive management team pursuant to the articles of association, and the advisory vote on the report (established under Swiss law) pertaining to the compensation of the company's board of directors and executive management in the prior fiscal year;
•the delisting of Bunge-Switzerland equity securities;
•the approval of the report on non-financial matters pursuant to article 964c CO; and
•any other resolutions that are submitted to a general meeting of shareholders pursuant to law, Bunge-Switzerland’s articles of association or by voluntary submission by the board of directors (unless a matter is within the exclusive competence of the board of directors pursuant to the Swiss Code).
Pursuant to Bunge-Switzerland’s articles of association, the shareholders generally pass resolutions by the affirmative vote of a majority of the votes cast at the meeting (broker nonvotes, abstentions and blank and invalid ballots will be disregarded), unless otherwise provided by law or Bunge-Switzerland’s articles of association. In an election in which the number of candidates exceeds the number of the respective positions that are on the agenda at the general meeting, the candidates are elected by a plurality of the votes cast at the general meeting, such that the candidates receiving the most affirmative votes (up to the number of candidates to be elected) are elected and a majority votes cast shall not be a prerequisite to the election.
In addition, the NYSE requires a shareholder vote for certain matters such as:
•the approval of equity compensation plans (or certain amendments to such plans);
•the issuance of shares equal to or in excess of 20% of the voting power of the shares outstanding before the issuance of such shares (subject to certain exceptions, such as public offerings for cash and certain bona fide private placements);
•certain issuances of shares to related parties; and
•issuances of shares that would result in a change of control.
For these types of matters, the minimum vote which will constitute shareholder approval for NYSE listing purposes is the approval by a majority of votes cast, provided that the total vote cast on the proposal represents over 50% in interest of all securities entitled to vote on the proposal.
The Swiss Code requires the affirmative vote of at least two-thirds of the voting rights and a majority of the par value of the registered shares, each as represented at a general meeting to approve the following matters:
•the amendment to or the modification of the purpose of Bunge-Switzerland;
•the combination of shares listed on a stock exchange;
•an increase in share capital through the conversion of equity surplus, against contributions in kind or by way of set-off with a receivable and the granting of special privileges;
•the limitation or withdrawal of subscription rights;
•the introduction of conditional share capital or the introduction of a capital band;
•the restriction of the transferability of registered shares and the cancellation of such a restriction;
•the introduction of shares with privileged voting rights;
•the change of currency of the share capital;
•the introduction of the casting vote of the acting chair in the general meeting;
•the delisting of Bunge-Switzerland’s equity securities;
•the relocation of the place of incorporation of Bunge-Switzerland;
•the introduction of an arbitration provision in the articles of association; and
•the dissolution of Bunge-Switzerland.
The same supermajority voting requirements apply to resolutions in relation to transactions among corporations based on the Merger Act, including a merger, demerger or conversion of a corporation (other than a cash-out or certain squeeze-out mergers, in which minority shareholders of the company being acquired may be compensated in a form other than through shares of the acquiring company, for instance, through cash or securities of a parent company of the acquiring company or of another company—in such a merger, an affirmative vote of 90% of the outstanding registered shares is required). Swiss law may also impose this supermajority voting requirement in connection with the sale of “all or substantially all of its assets” by Bunge-Switzerland. See “—Compulsory Acquisitions; Appraisal Rights” and “—Shareholder Approval of Business Combinations.”
Say on Pay
Bunge-Switzerland is required to hold non-binding shareholder advisory votes on executive compensation required by SEC rules. Bunge-Switzerland holds these advisory votes on an annual basis. In addition, under Swiss law, Bunge-Switzerland is required to hold annual binding shareholder votes on the prospective maximum aggregate amount of compensation of each of Bunge-Switzerland's board of directors (for the period between annual meetings) and the executive management team (for the fiscal year commencing after the annual general meeting at which ratification is sought). Shareholders are further required to vote at each annual general meeting, on an advisory basis, on the compensation report (established under Swiss law) regarding the compensation of the members of the board of directors and the executive management team in the preceding fiscal year.
ESG Matters
Bunge-Switzerland will be required to establish a report on non-financial matters covering the following matters: (1) environmental matters, in particular the CO2 goals; (2) social issues; (3) employee-related issues;(4) respect for human rights; and (5) combating corruption. The report must contain the information required to understand the business performance, the business result, the state of the undertaking and the effects of its activity on the above non-financial matters.
More particularly, the report must include: (1) a description of the business model; (2) a description of the policies adopted in relation to the matters referred to above, including the due diligence applied; (3) a presentation of the measures taken to implement these policies and an assessment of the effectiveness of these measures; (4) a description of the main risks related to the above matters and how the undertaking is dealing with these risks; in particular (a) risks that arise from the undertaking's own business operations, and (b) provided this is relevant and proportionate, risks that arise from its business relationships, products or services; and (5) the main performance indicators for the undertaking's activities in relation to the above matters.
Bunge-Switzerland's board of directors will be required to submit the report to shareholders for approval by the annual general meeting, for the first time in 2024 in relation to financial year 2023.
Quorum for General Meetings
The presence of shareholders, in person or by proxy, holding at least a majority of the registered shares recorded in Bunge-Switzerland’s share register and generally entitled to vote at a meeting, is a quorum for the transaction of business. The board of directors has no authority to waive the quorum requirements stipulated in the articles of association.
Inspection of Books and Records
Under the Swiss Code, a shareholder has a right to inspect the share register with regard to its, his or her own shares and otherwise to the extent necessary to exercise its, his or her shareholder rights. No other person has a right to inspect the share register. The books and correspondence of a Swiss company may be inspected with the express authorization of the general meeting of shareholders or by resolution of the board of directors and subject to the safeguarding of the company’s business secrets. At a general meeting of shareholders, any shareholder is entitled to request information from the board of directors concerning the affairs of the company. Shareholders may also ask the auditor questions regarding its audit of the company. The board of directors and the auditor must answer shareholders’ questions to the extent necessary for the exercise of shareholders’ rights and subject to prevailing business secrets or other material interests of Bunge-Switzerland.
Special Investigation
If the shareholders’ inspection and information rights as outlined above prove to be insufficient, any shareholder may propose to the general meeting of shareholders that specific facts be examined by a special commissioner in a special investigation. If the general meeting of shareholders approves the proposal, Bunge-Switzerland or any shareholder may, within three months after the general meeting of shareholders, request the court at Bunge-Switzerland’s registered office to appoint a special commissioner. If the general meeting of shareholders rejects the request, one or more registered shareholders representing at least 5% of the share capital or voting rights may request the court to appoint a special commissioner. The court will issue such an order if the petitioners can demonstrate that the board of directors, any member of the board or an officer of Bunge-Switzerland infringed the law or Bunge-Switzerland’s articles of association and thereby damaged the company or the shareholders. The costs of the investigation would generally be allocated to Bunge-Switzerland and only in exceptional cases to the petitioners.
Compulsory Acquisitions; Appraisal Rights
Business combinations and other transactions that are binding on all shareholders are governed by the Merger Act. A statutory merger or demerger requires that at least 66 2/3% of the registered shares and a majority of the par value of the registered shares represented at the general meeting of shareholders vote in favor of the transaction. Under the Merger Act, a “demerger” may take two forms:
•a legal entity may divide all of its assets and transfer such assets to other legal entities, with the shareholders of the transferring entity receiving equity securities in the acquiring entities and the transferring entity dissolving upon deregistration in the commercial register; or
•a legal entity may transfer all or a portion of its assets to other legal entities, with the shareholders of the transferring entity receiving equity securities in the acquiring entities.
If a transaction under the Merger Act receives all of the necessary consents, all shareholders would be compelled to participate in the transaction. See “—Voting Rights.”
Swiss companies may be acquired by an acquirer through the direct acquisition of the share capital of the Swiss company. With respect to corporations limited by shares, such as Bunge-Switzerland, the Merger Act provides for the possibility of a so-called “cash-out” or “squeeze-out” merger if the acquirer controls 90% of the outstanding registered shares. In these limited circumstances, minority shareholders of the company being acquired may be compensated in a form other than through shares of the acquiring company (for instance, through cash or securities of a parent company of the acquiring company or of another company). For business combinations effected in the form of a statutory merger or demerger and subject to Swiss law, the Merger Act provides that if the equity rights have not been adequately preserved or compensation payments in the transaction are unreasonable, a shareholder may request the competent court to determine a reasonable amount of compensation.
In addition, under Swiss law, the sale of “all or substantially all of its assets” by Bunge-Switzerland may require a resolution of the general meeting of shareholders passed by holders of at least two-thirds of the voting rights and a majority of the par value of the registered shares, each as represented at the general meeting of shareholders. Whether or not a shareholder resolution is required depends on the particular transaction, including whether the following test is satisfied:
•the company sells a core part of its business, without which it is economically impracticable or unreasonable to continue to operate the remaining business;
•the company’s assets, after the divestment, are not invested in accordance with the company’s statutory business purpose; and
•the proceeds of the divestment are not earmarked for reinvestment in accordance with the company’s business purpose but, instead, are intended for distribution to shareholders or for financial investments unrelated to the company’s business.
If all of the foregoing apply, a shareholder resolution would likely be required.
Anti-Takeover Provisions
Bunge-Switzerland’s articles of association have provisions that could have an anti-takeover effect. These provisions are intended to enhance the likelihood of continuity and stability in the composition of the board of directors and in the policies formulated by the board of directors and may have the effect of discouraging actual or threatened changes of control by limiting certain actions that may be taken by a potential acquirer prior to its having obtained sufficient control to adopt a special resolution amending Bunge-Switzerland’s articles of association.
Under the Swiss Code, directors may at any time, with or without cause, be removed from office by resolution of the shareholders at a general meeting of shareholders holding the majority of the votes cast at the general meeting (whereby abstentions, broker nonvotes, blank or invalid ballots shall be disregarded for purposes of establishing the majority), provided that a proposal for such resolution has been put on the agenda for the meeting in accordance with the requirements of the Swiss Code and Bunge-Switzerland’s articles of association.
Under Swiss law, there is generally no prohibition of business combinations with interested shareholders. Any transactions of a company with interested shareholders must be done at arm's length terms and may not be unduly discriminatory to other shareholders. In certain circumstances, shareholders and members of the board of directors of Swiss companies, as well as certain persons associated with them, must refund any payments they receive that are not made on an arm’s length basis.
Upon completion of the Redomestication, Bunge-Switzerland’s articles of association will include a capital band provision, according to which the board of directors is authorized, at any time during a five-year period, to limit or withdraw the subscription rights of the existing shareholders in various circumstances, including (1) following a shareholder or a group of shareholders acting in concert having accumulated shareholdings in excess of 15% of the share capital registered in the commercial register without having submitted to all other shareholders a takeover offer recommended by the board of directors; or (2) for the defense of an actual, threatened or potential takeover offer that the board of directors, upon consultation with an independent financial adviser retained by it, has not recommended or will not recommend to the shareholders to accept on the basis that the board of directors does not find such takeover bid to be financially fair to the shareholders.
For other provisions that could be considered to have an anti-takeover effect, in addition to “—Preemptive Rights and Advance Subscription Rights” and “—General Meetings of Shareholders” above, see “—Corporate Governance” below.
Legal Name; Formation; Fiscal Year; Registered Office
The legal and commercial name of Bunge-Switzerland is[●]. Bunge-Switzerland was initially formed on [●], 2023. Bunge-Switzerland is incorporated and domiciled in Geneva, Switzerland, and operates under the Swiss Code as a stock corporation (Aktiengesellschaft/ Société Anonyme). Bunge-Switzerland is recorded in the Commercial Register of the Canton of Geneva with the registration number [●]. Bunge-Switzerland’s fiscal year is the calendar year.
The address of Bunge-Switzerland’s registered office and principal executive office is [●], [●], Geneva, Switzerland, and the telephone number at that address is +41-[●].
Corporate Purpose
Currently, Bunge-Switzerland is a subsidiary of Bunge-Bermuda, and its business purpose is to acquire, hold, manage, exploit and sell, whether directly or indirectly, participations in businesses in Switzerland and abroad, in particular businesses that are involved in the utilization of agricultural resources, and to provide financing for this purpose. Upon completion of the Redomestication, Bunge-Switzerland will become the new holding company of the Bunge group of companies. Bunge-Switzerland’s amended business purpose will be to acquire, hold, manage, exploit and sell, whether directly or indirectly, participations in businesses in Switzerland and abroad including, without limitation, the development, processing and marketing of agricultural fuel and other products and services. Bunge-Switzerland may engage in all other types of transactions that appear appropriate to promote, or are related to, the business purpose of the company. Bunge-Switzerland may acquire, hold, manage, mortgage and sell real estate and intellectual property rights in Switzerland and abroad and may also fund other companies, in Switzerland or abroad.
Duration; Dissolution; Rights upon Liquidation
Bunge-Switzerland’s duration is unlimited. Bunge-Switzerland may be dissolved at any time with the approval of shareholders holding two-thirds of the voting rights and a majority of the par value of the registered shares, each as represented at a general meeting. Dissolution by court order is possible if Bunge-Switzerland becomes bankrupt, or for cause at the request of shareholders holding at least 10% of Bunge-Switzerland’s share capital. Under Swiss law, any surplus arising out of liquidation, after the settlement of all claims of all creditors, will be distributed to shareholders in proportion to the paid-up par value of registered shares held, subject to Swiss withholding tax requirements of 35%, all or part of which can potentially be reclaimed under the relevant tax rules in Switzerland or double taxation treaties concluded between Switzerland and foreign countries. Bunge-Switzerland's shares carry no privilege with respect to such liquidation surplus.
Uncertificated Shares
Bunge-Switzerland currently issues registered shares in uncertificated, book-entry form.
Stock Exchange Listing
Upon the completion of the Redomestication, the registered shares will be listed on the New York Stock Exchange and trade under the symbol “BG.”
No Sinking Fund
The registered shares have no sinking fund provisions.
No Liability for Further Calls or Assessments
The registered shares to be issued in the Redomestication will be duly and validly issued, fully paid and nonassessable.
No Redemption and Conversion
The registered shares are not convertible into shares of any other class or series or subject to redemption either by Bunge-Switzerland or the holder of the shares.
Transfer and Registration of Shares
No restrictions apply to the transfer of Bunge-Switzerland registered shares. So long as and to the extent that Bunge-Switzerland's shares are intermediated securities within the meaning of the Swiss Federal Intermediated Securities Act, (i) any transfer of Bunge-Switzerland's shares is effected by a corresponding entry in the securities deposit account of a bank or a depository institution, (ii) no Bunge-Switzerland shares can be transferred by way of assignment, and (iii) a security interest in any Bunge-Switzerland shares cannot be granted by way of assignment. Any person who acquires Bunge-Switzerland's shares may submit a request to Bunge-Switzerland to be entered into the share register as a shareholder with voting rights, provided such persons expressly declare that they have acquired the shares in their own name and for their own account, that there is no agreement on the redemption of the shares and that they bear the economic risk associated with the shares. Bunge-Switzerland's Board of Directors may record nominees who hold shares in their own name, but for the account of third parties, as shareholders of record with voting rights in the share register of the Company. Beneficial owners of shares who hold shares through a nominee exercise the shareholders' rights through the intermediation of such nominee. Bunge-Switzerland’s share register will initially be kept by Computershare Inc., which acts as transfer agent and registrar. The share register reflects only record owners of Bunge-Switzerland shares. Swiss law does not recognize fractional share interests.
| | |
| COMPARISON OF RIGHTS OF SHAREHOLDERS |
Your rights as a shareholder of Bunge-Bermuda are governed by Bermuda law and Bunge-Bermuda’s memorandum of association and bye-laws. After the Redomestication, you will become a shareholder of Bunge-Switzerland, and your rights will be governed by Swiss law and Bunge-Switzerland’s articles of association and organizational regulations (the latter being analogous to bye-laws).
Many of the principal attributes of Bunge-Bermuda’s ordinary shares and Bunge-Switzerland’s registered shares will be similar. However, there are differences between your rights under Swiss law and under the corporate statutory and common law of Bermuda, which is modeled on certain provisions of the corporate statutory law of England and Wales and in respect of which the common law of England and Wales is highly persuasive authority as to questions of Bermuda law. In addition, there are differences between Bunge-Bermuda’s memorandum of association and bye-laws and Bunge-Switzerland’s articles of association and organizational regulations (the latter being analogous to bye-laws). Furthermore, the counterparts of some provisions that are included in Bunge-Bermuda’s memorandum of association and bye-laws are included in Bunge-Switzerland’s organizational regulations. As a result, Bunge-Switzerland’s Board of Directors will be able to amend these provisions without shareholder approval, which Bunge-Bermuda’s Board of Directors is currently unable to do. The following discussion is a summary of material changes in your rights resulting from the Redomestication. This summary is not complete and does not cover all of the differences between Swiss law and Bermuda law affecting companies and their shareholders or all the differences between Bunge-Bermuda’s memorandum of association and bye-laws and Bunge-Switzerland’s articles of association and organizational regulations. We believe this summary is accurate. It is, however, subject to the complete text of the relevant provisions of the Swiss Code of Obligations (the “Swiss Code”), in particular articles 620 through 763 of the Swiss Code, and Switzerland’s Federal Act on Mergers, Demergers, Transformations and the Transfer of Assets (the “Merger Act”), the Companies Act 1981 of Bermuda (the “Companies Act”), Bunge-Bermuda’s memorandum of association and bye-laws and Bunge-Switzerland’s articles of association and organizational regulations.
Capitalization
Bunge-Bermuda: As of [●], 2022, the authorized share capital of Bunge-Bermuda was $4,210,000 composed of 400,000,000 common shares, par value $0.01 per share, and 21,000,000 preference shares, par value $0.01 per share. In addition, as of such date, Bunge-Bermuda held [●] common shares in treasury. The Board of Directors of Bunge-Bermuda may authorize the issuance of additional shares up to the amount of the authorized capital without obtaining additional shareholder approval (subject to any applicable requirements of the NYSE). The Board of Directors of Bunge-Bermuda may also approve the issuance of partly paid and unpaid common shares, as well as fractional common shares.
Bunge-Switzerland: In connection with the Redomestication, Bunge-Switzerland will issue one registered share for each Bunge-Bermuda share. In addition, Bunge-Switzerland will create [●] million Treasury Shares for future use to satisfy Bunge-Switzerland’s obligations to deliver registered shares in connection with awards granted under equity incentive plans or for such other purposes as Bunge-Switzerland's Board of Directors may determine. Bunge-Switzerland's total issued share capital upon completion of the Redomestication is therefore expected to amount to $[●], consisting of [●] registered shares, each with a par value of $0.01. The Board of Directors may not create shares with increased voting powers without the affirmative resolution adopted by shareholders holding at least 66 2/3% of the voting rights and a majority of the par value of the registered shares, each as represented at a general meeting. Immediately after the Redomestication, Bunge-Switzerland will only have one class of shares outstanding, so all references to “voting rights” in this “Comparison of Rights of Shareholders” will mean the voting rights of Bunge-Switzerland’s registered shares, unless another class of shares is subsequently created upon a shareholder resolution adopted at a general meeting. Likewise, a “majority of the par value of the registered shares” will mean a majority of the par value of Bunge-Switzerland’s registered shares with a $[0.01] par value per share.
Immediately prior to the Redomestication, Bunge-Switzerland will not have any share capital authorized for future issuance. Upon completion of the Redomestication, Bunge-Switzerland will have a capital band ranging from $[●] (lower limit) to $[●] (upper limit), corresponding to a range of [●]% calculated by reference to Bunge-Switzerland's capital upon completion of the Redomestication (which is expected to be approximately $[●]), and the Board of Directors will be authorized to increase or reduce the share capital once or several times and in any amount or to repurchase or dispose of registered shares directly or indirectly, until the earlier of the expiration of five years after the adoption of the capital band by shareholders at the general meeting of shareholders approving the Redomestication or the full use of the capital band, without shareholder approval.
In the event of a capital increase based on the capital band, the Board of Directors determines the date of the issuance, the issuance price, the type of contribution, the date from which the new registered shares carry the right to dividends and, subject to the provisions of Bunge-Switzerland’s articles of association, the conditions for the exercise of the subscription rights with respect to the issuance. The Board of Directors may allow subscription rights that are not exercised to expire, or it may place such rights or registered shares, the subscription rights of which have not been exercised, at market conditions or use them otherwise in the interest of Bunge-Switzerland. After the expiration of the initial five-year period or the full use of the capital band, the capital band will be available to the Board of Directors for issuance of additional registered shares only if a new capital band is reapproved by shareholders.
In a share issuance based on Bunge-Switzerland's capital band, Bunge-Switzerland’s shareholders would have subscription rights to obtain newly issued registered shares in an amount proportional to the par value of the registered shares they already hold. However, the Board of Directors may withdraw or limit these subscription rights in certain circumstances as set forth in Bunge-Switzerland’s articles of association. For further details on these circumstances, see “—Subscription Rights and Advance Subscription Rights.”
Immediately prior to the Redomestication, Bunge-Switzerland will not have any conditional share capital. Upon completion of the Redomestication, Bunge-Switzerland’s articles of association will provide for a conditional share capital that, following the effectiveness of the Redomestication, will authorize the issuance of additional registered shares up to a maximum amount of [●]% of the share capital registered in the commercial register (which is expected to be approximately [●] registered shares) without obtaining additional shareholder approval. These registered shares may be issued:
•with respect to up to [●] fully paid-in registered shares, through the exercise or mandatory exercise of conversion, exchange, exercise, option, warrant, subscription or other rights to acquire registered or through obligations to acquire registered shares, which are or were granted to or imposed upon shareholders or third parties alone or in connection with bonds, notes, loans, options, warrants or other securities or contractual obligations of Bunge-Switzerland or any of its group companies; or
•with respect to up to [●] fully paid-in registered shares, through the exercise or mandatory exercise of rights to acquire registered shares or through obligations to acquire registered shares, which are or were granted to or imposed on members of the Board of Directors, members of the executive management, employees, contractors or consultants of Bunge-Switzerland or its group companies, or other persons providing services to Bunge-Switzerland or its group companies.
In connection with the issuance of bonds, notes, loans, options, warrants or other securities or contractual obligations convertible into or exercisable or exchangeable for Bunge-Switzerland registered shares, the Board of Directors is authorized to withdraw or limit the advance subscription rights of shareholders in certain circumstances. See “—Subscription Rights and Advance Subscription Rights.”
The advance subscription rights and subscription rights of shareholders are excluded with respect to registered shares issued to directors, employees, contractors or other persons providing services to Bunge-Switzerland or one of its subsidiaries.
The subscription rights and the advance subscription rights of shareholders that may be issued subject to a limitation or the withdrawal of subscription rights or advance subscription rights from (i) the capital band pursuant to Bunge-Switzerland’s articles of association and/or (ii) the conditional share capital pursuant to Bunge-Switzerland’s articles of association may not exceed [●] new Shares.
Bunge-Bermuda: Holders of Bunge-Bermuda common shares have no subscription or preferential right to purchase any securities of Bunge-Bermuda. As a result, as described below under “— Other Anti-Takeover Measures,” the Board of Directors may authorize the issuance of securities that could discourage a takeover or other transaction without offering the securities to each holder of Bunge-Bermuda common shares.
Bunge-Switzerland: Under the Swiss Code, the prior approval of a general meeting of shareholders is generally required to authorize, for later issuance, the issuance of registered shares, or rights to subscribe for, or convert into, registered shares (which rights may be connected to debt instruments or other obligations). In addition, the existing shareholders will have subscription rights in relation to such registered shares or rights in proportion to the respective par values of their holdings. The shareholders may, with the affirmative vote of shareholders holding 66 2/3% of the voting rights and a majority of the par value of the registered shares, each as represented at the general meeting, withdraw or limit the subscription rights for valid reasons (such as a merger, an acquisition or any of the reasons authorizing the Board
of Directors to withdraw or limit the subscription rights of shareholders in the context of an authorized capital increase as described below).
If the general meeting of shareholders has approved the creation of a capital band or conditional capital, it thereby delegates the decision whether to withdraw or limit the subscription and advance subscription rights for the valid reasons specified in the articles of association to the Board of Directors. Bunge-Switzerland’s articles of association provide for such a delegation with respect to Bunge-Switzerland’s capital band and conditional share capital in the circumstances described below.
The Board of Directors is authorized to withdraw or limit the subscription rights with respect to the issuance of registered shares based on the capital band and allocate such rights to third parties (including individual shareholders), the company or any of its group companies:
•if the issue price of the new shares is determined by reference to the market price; or
•for raising equity capital in a fast and flexible manner, which would not be possible, or would only be possible with great difficulty or at significantly less favorable conditions, without the exclusion of the subscription rights of existing shareholders; or
•for the acquisition of companies, part(s) of companies or participations, for the acquisition of products, intellectual property or licenses by or for investment projects of the company or any of its group companies, or for the financing or refinancing of any of such transactions through a placement of shares; or
•for purposes of broadening the shareholder constituency of the company in certain financial or investor markets, for purposes of the participation of strategic partners including financial investors, or in connection with the listing of new shares on domestic or foreign stock exchanges; or
•for purposes of granting an over-allotment option (Greenshoe) of up to 20% of the total number of shares in a placement or sale of shares to the respective initial purchaser(s) or underwriter(s); or
•for the participation of members of the Board of Directors, members of the executive management, employees, contractors, consultants or other persons performing services for the benefit of the Company or any of its group companies; or
•following a shareholder or a group of shareholders acting in concert having accumulated shareholdings in excess of 15% of the share capital registered in the commercial register without having submitted to all other shareholders a takeover offer recommended by the Board of Directors; or
•for the defense of an actual, threatened or potential takeover offer that the Board of Directors, upon consultation with an independent financial adviser retained by it, has not recommended or will not recommend to the shareholders to accept on the basis that the Board of Directors does not find such takeover bid to be financially fair to the shareholders.
In connection with the issuance of bonds, notes, loans, options, warrants or other securities or contractual obligations convertible into or exercisable or exchangeable for Bunge-Switzerland registered shares, the subscription rights of shareholders are excluded and the Board of Directors is authorized to withdraw or limit the advance subscription rights of shareholders with respect to registered shares issued from Bunge-Switzerland’s conditional share capital if (1) there is a valid reason to withdraw or limit subscription rights of shareholders as provided for in connection with the issuance of shares based on the capital band (see immediately above) or (2) the bonds or similar instruments are issued on appropriate terms.
If the advance subscription rights are neither granted directly nor indirectly by the Board of Directors, the following applies:
•the acquisition price of the shares shall be set taking into account the market price prevailing at the date on which bonds, notes, loans, options, warrants or other securities or contractual obligations of the Company or any of its group companies are issued; and
•bonds, notes, loans, options, warrants or other securities or contractual obligations of the Company or any of its group companies may be converted, exchanged or exercised during a maximum period of 30 years from the date of the relevant issuance or entry.
In connection with the issuance of shares or the exercise or mandatory exercise of rights to acquire shares or the obligations to acquire shares, which are or were granted to or imposed on members of the Board of Directors, members of the executive management, employees, contractors or consultants of Bunge-Switzerland or its group companies, or other persons providing services to Bunge-Switzerland or its group companies, the subscription rights and advance subscription rights of the shareholders of Bunge-Switzerland are excluded.
The subscription rights and the advance subscription rights of shareholders that may be issued subject to a limitation or the withdrawal of subscription rights or advance subscription rights from (i) the capital band pursuant to Bunge-Switzerland’s articles of association and/or (ii) the conditional share capital pursuant to Bunge-Switzerland’s articles of association may not exceed [●] new Shares.
For more information on authorized and conditional capital, see “—Capitalization” above.
Distributions and Dividends; Repurchases and Redemptions
Bunge-Bermuda: Bunge-Bermuda is not required to present proposed dividends or distributions from contributed surplus to its shareholders for approval or adoption. Under section 54 of the Companies Act, Bunge-Bermuda may not declare or pay a dividend, or make a distribution out of contributed surplus, if there are reasonable grounds for believing that:
•Bunge-Bermuda is, or would after the payment be, unable to pay its liabilities as they become due; or
•the realizable value of Bunge-Bermuda's assets would thereby be less than the aggregate of its liabilities and its issued share capital and share premium accounts.
For the purposes of section 54 of the Companies Act, “contributed surplus” includes proceeds arising from donated shares, credits resulting from the redemption or conversion of shares at less than the amount set up as a nominal capital and donations of cash and other assets to the company.
Under the Companies Act, preference shares of a Bermuda company may be redeemed if so authorized by its memorandum of association or bye-laws, provided that;
•no such shares shall be redeemed except out of (i) the capital paid up thereon, (ii) the funds of the company available for dividend or distribution or (iii) the proceeds of a fresh issue of shares made for the purposes of the redemption;
•the premium, if any, payable on redemption, is provided for out of (i) the company’s funds which would be otherwise available for dividend or distribution or (ii) the company’s share premium account before the shares are redeemed; and
•there are no reasonable grounds for believing that the company is, or after such redemption would be, unable to repay its liabilities as they become due.
The redemption of preference shares may be effected on such terms and in such manner as may be provided by or determined in accordance with the bye-laws of the company.
Under the Companies Act, a Bermuda company may repurchase its own shares if so authorized by its memorandum of association or bye-laws, provided that:
•no such shares shall be repurchased except out of (i) the capital paid up thereon, (ii) the funds of the company available for dividend or distribution or (iii) the proceeds of a fresh issue of shares made for the purposes of the repurchase;
•the premium, if any, payable on repurchase, is provided for out of (i) the company’s funds which would be otherwise available for dividend or distribution or (ii) the company’s share premium account before the shares are repurchased; and
•there are no reasonable grounds for believing that the company is, or after such repurchase would be, unable to repay its liabilities as they become due.
The terms and manner of the repurchase need not be provided by, or determined in accordance with, the bye-laws of the company.
Under Bunge-Bermuda’s bye-laws, Bunge-Bermuda may, upon the agreement of a shareholder, repurchase all or part of the common shares of such shareholder, whether or not the company has made a similar offer to all or any of the other shareholders. Bunge-Bermuda’s common shares are not redeemable.
In addition, Bunge-Bermuda’s bye-laws give the board the authority to exercise all of the powers of the company to purchase all or any part of the issued and outstanding shares in accordance with law and any designated stock exchange.
Bunge-Switzerland: Under Swiss law, distribution of dividends may be paid out only if the corporation has sufficient distributable profits from the previous fiscal year, or if the corporation has freely distributable reserves, including out of capital contribution reserves, each as will be presented on the balance sheet included in the annual standalone statutory financial statements of Bunge-Switzerland. The affirmative vote of shareholders holding a majority of the votes cast at a general meeting (whereby abstentions, broker nonvotes, blank or invalid ballots shall be disregarded for purposes of establishing the majority) must approve distributions of dividends. The Board of Directors may propose to shareholders that a distribution of a dividend be paid but cannot itself authorize the distribution of the dividend.
Under the Swiss Code, if Bunge-Switzerland’s statutory reserves amount to less than 20% of the share capital recorded in the commercial register (i.e., 20% of the aggregate par value of Bunge-Switzerland’s registered capital), then at least 5% of Bunge-Switzerland’s annual profit must be allocated to the statutory profit reserve. The Swiss Code and Bunge-Switzerland’s articles of association permit Bunge-Switzerland to accrue additional reserves. In addition, Bunge-Switzerland is required to create a special reserve on its stand-alone annual statutory balance sheet in the amount of the purchase price of registered shares any of its group companies repurchases, which amount may not be used for dividends or subsequent repurchases. Own shares held directly by Bunge-Switzerland are presented on the stand-alone annual statutory balance sheet as a reduction of total shareholders' equity.
Swiss companies generally must maintain a separate company, stand-alone “statutory” balance sheet for the purpose of, among other things, determining the amounts available for the return of capital to shareholders, including by way of a distribution of dividends. Bunge-Switzerland’s auditor must confirm that a dividend proposal made to shareholders conforms with the requirements of the Swiss Code and Bunge-Switzerland’s articles of association. Dividends are usually due and payable shortly after the shareholders have passed a resolution approving the payment; however, it is also possible to pay dividends or other distributions in, for example, quarterly instalments. Bunge-Switzerland’s articles of association provide that dividends that have not been claimed within five years after the due date become the property of Bunge-Switzerland and are allocated to the statutory profit reserves. For information about deduction of the withholding tax from dividend payments, see “Certain Tax Considerations—Swiss Tax Considerations.”
The Swiss Code limits a company’s ability to hold or repurchase its own registered shares. Bunge-Switzerland and its group companies may only repurchase shares if and to the extent that sufficient freely distributable reserves are available, as described above. The aggregate par value of all Bunge-Switzerland registered shares held by Bunge-Switzerland and its group companies may not exceed 10% of the registered share capital. However, Bunge-Switzerland may repurchase its own registered shares beyond the statutory limit of 10% if the shareholders have passed a resolution at a general meeting of shareholders (including as part of the capital band provision included in Bunge-Switzerland's articles of association) authorizing the Board of Directors to repurchase registered shares in an amount in excess of 10% and the repurchased shares are dedicated for cancellation. Any registered shares repurchased pursuant to such an authorization will then be cancelled either upon the approval of shareholders holding a majority of the votes cast at a general meeting (whereby abstentions, broker nonvotes, blank or invalid ballots shall be disregarded for purposes of establishing the majority) or, if the authorization is contained in the capital band provision of Bunge-Switzerland's articles of association, upon Bunge-Switzerland's Board of Directors effecting the cancellation based on the authority granted to it in the capital band provision. Repurchased registered shares held by Bunge-Switzerland or its group companies do not carry any rights to vote at a general meeting of shareholders but are entitled to the economic benefits generally associated with the shares. For information about withholding tax and share repurchases, see “Certain Tax Considerations—Swiss Tax Considerations.”
Capital distributions may also take the form of a distribution of cash or property that is based upon a reduction of Bunge-Switzerland’s share capital recorded in the commercial register. Such a capital reduction requires the approval of shareholders holding a majority of the votes cast at a general meeting (whereby abstentions, broker nonvotes, blank or invalid ballots shall be disregarded for purposes of establishing the majority). A special audit report must confirm that creditors’ claims remain fully covered despite the reduction in the share capital recorded in the commercial register. On or before the approval by the general meeting of shareholders of the capital reduction, the Board of Directors must give public notice of the capital reduction resolution in the Swiss Official Gazette of Commerce and notify creditors that they may request, within thirty days, satisfaction of or security for their claims (to the extent that
the coverage of creditors' claims prior to the capital reduction has been reduced). The obligation to provide security does not apply if the reduction of the share capital does not jeopardize the satisfaction of the creditors' claims. If an unqualified special audit report is available, the law presumes that creditors' claims are not jeopardized. The presumption may be rebutted by creditors in exceptional circumstances.
Bunge-Switzerland is expected to declare any dividends and other capital distributions in U.S. dollars.
Shareholder Approval of Business Combinations
Bunge-Bermuda: The Companies Act provides for compromises or arrangements between a company and its creditors or any class of them or between a company and its shareholders or any class of them. A compromise or arrangement relating to the common shareholders of a company is effected by the relevant Bermuda company applying for the consent of the Bermuda Court to seek, and subsequently obtaining, the approval of a majority in number representing 75% or more in value of the members present and voting either in person or by proxy at the meeting. If such a majority agrees to the compromise or arrangement, the compromise or arrangement will be sanctioned by the Bermuda Court and will be binding on the company and all of the members. Bunge-Bermuda’s Bermuda counsel has advised that where the statutory procedures have been complied with, the Bermuda Court is likely to sanction such a compromise or arrangement that has been approved by the requisite votes of shareholders in the absence of bad faith, fraud or unequal treatment of shareholders.
Bermuda companies may also engage in a business combination through the direct acquisition by an acquirer of the share capital of the Bermuda company. The Companies Act provides that when an offer is made for the shares of a Bermuda company by another company (the “transferee”) and, within four months of the offer, the holders of not less than 90% of those shares (other than shares held at the date of the offer by, or by a nominee for, the transferee) approve the offer, the transferee may, at any time within two months beginning with the date when such 90% approval is obtained, give notice to any dissenting shareholder to transfer their shares on the same terms as the original offer. The transferee shall be entitled and bound to acquire the shares of dissenting shareholders within one month of such notice, unless the Bermuda Court has ordered otherwise.
The Companies Act also allows the holders of not less than 95% of the shares of any class of a company (referred to as the “purchasers”) to give notice to the remaining shareholders of such class of their intention to acquire the shares of the remaining shareholders on the terms set forth in the notice. When such notice is given, the purchasers are entitled to acquire the shares of the remaining shareholders and are bound by the terms set forth in the notice, unless a remaining shareholder applies to a Bermuda Court for an appraisal of the value of the shares to be purchased from him or her within one month of receiving the notice. Within one month of the Bermuda Court appraising the value of the shares, which appraisal may not be appealed, the purchasers are entitled to acquire the remaining shares at the price fixed by the Bermuda Court or cancel the acquisition notice.
Under Bermuda law, two or more companies can amalgamate and continue as one company (the “amalgamated company”). The Companies Act provides for a Bermuda exempted company to amalgamate with (i) a Bermuda local company, (ii) a Bermuda exempted company or (iii) a foreign corporation. The statutory threshold for approval of an amalgamation is 75% of shareholders voting at a special general meeting or such lower majority as is stipulated in the bye-laws of the company.
Under Bermuda law, two or more companies can merge and continue as one of such companies (the “surviving company”). The Companies Act provides for a Bermuda exempted company to merge with (i) a Bermuda local company, (ii) a Bermuda exempted company or (iii) a foreign corporation. In each case, the surviving entity can take the form of any of the merging entities. The statutory threshold for approval of a merger is 75% of shareholders voting at a special general meeting or such lower majority as is stipulated in the bye-laws of the company.
Bunge-Bermuda’s bye-laws provide that any matter submitted to the shareholders at a general meeting for approval, including for the amalgamation, merger or consolidation of the company with another company, or the sale, lease or exchange of all or substantially all of the assets of the company, must be approved by a majority of the votes cast.
Although Bunge-Bermuda’s bye-laws contain the provision described above, Bermuda law does not impose a separate shareholder approval requirement for a sale of substantially all of a company’s assets.
Bunge-Switzerland: Business combinations and other transactions that are binding on all shareholders are governed by the Merger Act. A statutory merger or demerger requires that at least 66 2/3% of the registered shares and a majority of the par value of the registered shares, each as represented at the general meeting of shareholders, vote in favor of the transaction.
Under the Merger Act, a “demerger” may take two forms:
•a legal entity may divide all of its assets and transfer such assets to other legal entities, with the shareholders of the transferring entity receiving equity securities in the acquiring entities and the transferring entity dissolving upon deregistration in the commercial register; or
•a legal entity may transfer all or a portion of its assets to other legal entities, with the shareholders of the transferring entity receiving equity securities in the acquiring entities.
If a transaction under the Merger Act receives all of the necessary consents, all shareholders would be compelled to participate in the transaction. See “—Voting Rights.”
Swiss companies may be acquired by an acquirer through the direct acquisition of the share capital of the Swiss company. With respect to corporations limited by shares, such as Bunge-Switzerland, the Merger Act provides for the possibility of a so-called “cash-out” or “squeeze-out” merger if the acquirer controls 90% of the outstanding registered shares entitled to vote at a general meeting. In these limited circumstances, minority shareholders of the company being acquired may be compensated in a form other than through shares of the acquiring company (for instance, through cash or securities of a parent company of the acquiring company or of another company). Under the Merger Act, a shareholder has the right to request a court to review the adequacy of the compensation. For more information, see “—Appraisal Rights and Compulsory Acquisitions.”
In addition, under Swiss law, the sale of “all or substantially all of its assets” by Bunge-Switzerland may require a resolution of the general meeting of shareholders passed by holders of at least two-thirds of the voting rights and a majority of the par value of the registered shares, each as represented at the general meeting of shareholders. Whether or not a shareholder resolution is required depends on the particular transaction, including whether the following test is satisfied:
•the company sells a core part of its business, without which it is economically impracticable or unreasonable to continue to operate the remaining business;
•the company’s assets, after the divestment, are not invested in accordance with the company’s statutory business purpose; and
•the proceeds of the divestment are not earmarked for reinvestment in accordance with the company’s business purpose but, instead, are intended for distribution to shareholders or for financial investments unrelated to the company’s business.
If all of the foregoing apply, a shareholder resolution would likely be required.
Special Vote Required for Combinations with Interested Shareholders
Bunge-Bermuda: The Companies Act provides for compromises or arrangements between a company and its creditors or any class of them or between a company and its shareholders or any class of them. A compromise or arrangement relating to the common shareholders of a company is effected by the relevant Bermuda company applying for the consent of the Bermuda Court to seek, and subsequently obtaining, the approval of a majority in number representing 75% or more in value of the members present and voting either in person or by proxy at the meeting. If such a majority agrees to the compromise or arrangement, the compromise or arrangement will be sanctioned by the Bermuda Court and will be binding on the company and all of the members. Bunge-Bermuda’s Bermuda counsel has advised that where the statutory procedures have been complied with, the Bermuda Court is likely to sanction such a compromise or arrangement that has been approved by the requisite votes of shareholders in the absence of bad faith, fraud or unequal treatment of shareholders.
Bermuda companies may also engage in a business combination through the direct acquisition by an acquirer of the share capital of the Bermuda company. The Companies Act provides that when an offer is made for the shares of a Bermuda company by another company (the “transferee”) and, within four months of the offer, the holders of not less than 90% of those shares (other than shares held at the date of the offer by, or by a nominee for, the transferee) approve the offer, the transferee may, at any time within two months beginning with the date when such 90% approval is obtained, give notice to any dissenting shareholder to transfer their shares on the same terms as the original offer. The transferee shall be entitled and bound to acquire the shares of dissenting shareholders within one month of such notice, unless the Bermuda Court has ordered otherwise.
The Companies Act also allows the holders of not less than 95% of the shares of any class of a company (referred to as the “purchasers”) to give notice to the remaining shareholders of such class of their intention to acquire the shares of the remaining shareholders on the terms set forth in the notice. When such notice is given, the purchasers are entitled to acquire the shares of the remaining shareholders and are bound by the terms set forth in the notice, unless a remaining shareholder applies to a Bermuda Court for an appraisal of the value of the shares to be purchased from him or her within one month of receiving the notice. Within one month of the Bermuda Court appraising the value of the shares, which appraisal may not be appealed, the purchasers are entitled to acquire the remaining shares at the price fixed by the Bermuda Court or cancel the acquisition notice.
Under Bermuda law, two or more companies can amalgamate and continue as one company (the “amalgamated company”). The Companies Act provides for a Bermuda exempted company to amalgamate with (i) a Bermuda local company, (ii) a Bermuda exempted company, or (iii) a foreign corporation. The statutory threshold for approval of an amalgamation is 75% of shareholders voting at a special general meeting or such lower majority as is stipulated in the bye-laws of the company.
Under Bermuda law, two or more companies can merge and continue as one of such companies (the “surviving company”). The Companies Act provides for a Bermuda exempted company to merge with (i) a Bermuda local company, (ii) a Bermuda exempted company or (iii) a foreign corporation. In each case, the surviving entity can take the form of any of the merging entities. The statutory threshold for approval of a merger is 75% of shareholders voting at a special general meeting or such lower majority as is stipulated in the bye-laws of the company.
Bunge-Bermuda’s bye-laws provide that any matter submitted to the shareholders at a general meeting for approval, including for the amalgamation, merger or consolidation of the company with another company, or the sale, lease or exchange of all or substantially all of the assets of the company, must be approved by a majority of the votes cast.
Although Bunge-Bermuda’s bye-laws contain the provision described above, Bermuda law does not impose a separate shareholder approval requirement for a sale of substantially all of a company’s assets.
Bunge-Switzerland: Under Swiss law, there is generally no prohibition of business combinations with interested shareholders. Any transactions of a company with interested shareholders must be done at arm's length terms and may not be unduly discriminatory to other shareholders. In certain circumstances, shareholders and members of the board of directors of Swiss companies, as well as certain persons associated with them, must refund any payments they receive that are not made on an arm’s length basis.
Mandatory Bid Rules
Bunge-Bermuda: Mandatory bid rules do not apply to Bunge-Bermuda.
Bunge-Switzerland: Swiss mandatory bid rules do not apply to Bunge-Switzerland. Pursuant to the Swiss Federal Act on Financial Market Infrastructures and Market Conduct in Securities and Derivatives Trading (the “FMIA”), the scope of application of the mandatory bid rules and the cancellation of remaining equity securities pursuant to the FMIA only apply to public takeover offers to equity securities of companies with (i) registered office in Switzerland whose equity securities are at least partly listed on a stock exchange in Switzerland or (ii) registered office abroad whose equity securities are at least in part listed in Switzerland. Bunge-Switzerland will not be listed on a stock exchange located in Switzerland and accordingly, the mandatory bid rules described above are not applicable to Bunge-Switzerland.
Other Anti-Takeover Measures
Bunge-Bermuda: Bermuda law does not expressly prohibit companies from issuing share purchase rights or adopting a shareholder rights plan. However, there is little case law on the enforceability of such plans under Bermuda law. In the adoption of such a plan, the following principles should be observed: (1) the directors take bona fide actions in the best interest of the company as a whole, (2) the powers of the directors are used for a proper purpose, (3) the directors exercise their powers fairly between shareholders and (4) the plan does not penalize any existing shareholders. Under Bunge-Bermuda’s bye-laws, Bunge-Bermuda’s Board of Directors could authorize, without shareholder approval, the issuance of a preferred share purchase right to be attached to each issued and outstanding common share with such terms and for such purposes, including the influencing of takeovers, as determined by the Board of Directors.
The Board of Directors of Bunge-Bermuda is also authorized, without obtaining any vote or consent of the holders of any class or series of shares unless expressly provided by the terms of a class or series, to issue from time to time any other classes or series of shares with the designations and relative powers, preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or terms or conditions of redemption as it considers fit. The Board of Directors could authorize the issuance of preference shares with terms and conditions that could discourage
a takeover or other transaction that holders of some or a majority of the common shares might believe to be in their best interests or in which holders might receive a premium for their shares over the then market price of the shares.
For other provisions that could be considered to have an anti-takeover effect, in addition to “— Subscription Rights and Advance Subscription Rights” above, see “— Special Meetings of Shareholders,” “— Election of Directors; Staggered Terms of Directors,” “— Removal of Directors,” “— Amendment of Governing Documents”, “— Director Nominations; Proposals of Shareholders”, “— Voting Rights” and “Transfer and Registration of Ownership of Shares” below.
Bunge-Switzerland: Bunge-Switzerland does not have a shareholder rights plan. Rights plans generally discriminate in the treatment of shareholders by imposing restrictions on any shareholder who exceeds a level of ownership interest without the approval of the Board of Directors. Anti-takeover measures such as rights plans that are implemented by the Board of Directors would be restricted under Swiss corporate law by the principle of equal treatment of shareholders and the general rule that new shares may only be issued based on a shareholders’ resolution. However, upon completion of the Redomestication, Bunge-Switzerland’s articles of association will include a capital band provision, according to which the Board of Directors is authorized, at any time during a five-year period, to limit or withdraw the subscription rights of the existing shareholders in various circumstances, including (1) following a shareholder or a group of shareholders acting in concert having accumulated shareholdings in excess of 15% of the share capital registered in the commercial register without having submitted to all other shareholders a takeover offer recommended by the Board of Directors; or (2) for the defense of an actual, threatened or potential takeover offer that the Board of Directors, upon consultation with an independent financial adviser retained by it, has not recommended or will not recommend to the shareholders to accept on the basis that the Board of Directors does not find such takeover bid to be financially fair to the shareholders.
For other provisions that could be considered to have an anti-takeover effect, in addition to “—Subscription Rights and Advance Subscription Rights” and “—Special Vote Required for Combinations with Interested Shareholders” above, see “—Special Meetings of Shareholders,” “—Board and Committee Composition; Management,” “—Election of Directors; Staggered Terms of Directors,” “—Removal of Directors,” “—Amendment of Governing Documents” and “—Director Nominations; Proposals of Shareholders” below.
Appraisal Rights and Compulsory Acquisitions
Bunge-Bermuda: Under the Companies Act, a dissenting shareholder of a company participating in an amalgamation or merger (other than an amalgamation or merger between a company and its wholly-owned subsidiary or between two or more subsidiaries of the same holding company) may, within one month of the notice of a shareholders’ meeting to approve such amalgamation or merger, apply to the Bermuda Court to appraise the fair value of his or her shares. In connection with the compulsory transfer of shares to a 90% shareholder of a Bermuda company as described under “— Shareholder Approval of Business Combinations,” a minority shareholder may, within one month of notice of such 90% shareholder approval, apply to the Bermuda Court objecting to that transfer. In connection with the compulsory transfer of shares to a 95% shareholder of a Bermuda company, a minority shareholder may, within one month of receiving notice of the compulsory transfer, apply to the Bermuda Court to appraise the value of his or her shares.
Bunge-Switzerland: For business combinations effected in the form of a statutory merger or demerger and subject to Swiss law, the Merger Act provides that if the equity rights have not been adequately preserved or compensation payments in the transaction are unreasonable, a shareholder may request a competent court to determine a reasonable amount of compensation.
Election of Directors
Bunge-Bermuda: Bunge-Bermuda’s bye-laws provide that the number of directors of Bunge-Bermuda shall not be less than 7 nor more than 15. The board has the exclusive power to set the exact number of directors within that range, by the affirmative vote of at least 66% of the directors then in office. The board currently has 11 directors. The Companies Act does not contain provisions specifically related to classified boards of directors.
Bunge-Bermuda’s bye-laws provide that directors may be elected at a general meeting by a plurality of the votes cast by the shareholders present in person or by proxy at the meeting.
Bunge-Switzerland: Bunge-Switzerland's articles of association provide that the number of directors of Bunge-Switzerland shall be not less than 7 or more than 15. Within that range, Bunge-Switzerland's Board of Directors has the authority to propose nominees for election by the general meeting of shareholders. Bunge-Switzerland’s articles of association provide that the general meeting of shareholders has the inalienable power to elect the members of the Board of Directors, along with the chair of the Board of Directors. Each director is elected individually and holds a
term of office until the completion of the next annual general meeting. Re-election is possible. If the annual general meeting is held later than six months after the end of the financial year, the term of office shall nevertheless continue until completion of the next annual general meeting. Bunge-Switzerland’s articles of association provide that directors are elected at a general meeting of shareholders by the majority of the votes cast at the general meeting (whereby abstentions, broker nonvotes, blank or invalid ballots shall be disregarded for purposes of establishing the majority). In an election in which the number of candidates exceeds the number of the respective positions that are on the agenda at the general meeting of shareholders, the candidates shall be elected by a plurality of the votes cast at the general meeting of shareholders, such that the candidates receiving the most affirmative votes (up to the number of candidates to be elected) shall be elected and a majority of the votes cast shall not be a prerequisite to the election. In the event of a tie, the acting chair shall have the casting vote.
Under the Swiss Code, board members may at any time, with or without cause and with immediate effect, resign from office.
Bunge-Switzerland's articles of association provide that directors may not hold more than ten (10) additional mandates of which no more than four (4) may be in listed companies.
Vacancies on Board of Directors
Bunge-Bermuda: Bunge-Bermuda’s bye-laws provide that the board shall have the power to appoint a director to fill a vacancy on the board. Bunge-Bermuda’s bye-laws provide that the board shall have the power to appoint persons to fill newly created directorships, provided that any such appointment shall require the affirmative vote of at least 66% of the directors then in office.
Bunge-Switzerland: The Swiss Code provides that a vacancy or a newly created directorship as proposed by Bunge-Switzerland’s Board of Directors may only be filled upon approval by shareholders at a general meeting.
Bunge-Switzerland’s articles of association provide that if the office of the chair of the Board of Directors is vacant, the Board of Directors shall appoint a new chair from among its members for a term of office extending until completion of the next annual general meeting.
Removal of Directors
Bunge-Bermuda: Bunge-Bermuda’s bye-laws provide that directors may be removed for “cause,” and without cause. In either case, removal of a director requires the affirmative vote of a majority of the shareholders present in person or represented by proxy at a general meeting, provided that notice for any meeting convened for the purpose of removing a director shall contain a statement of the intention to do so and be served on such director not less than 14 days before the meeting, and at such meeting such director shall be entitled to be heard on the motion for such director’s removal.
Bunge-Switzerland: Under the Swiss Code, directors may at any time, with or without cause, be removed from office by resolution of the shareholders at a general meeting of shareholders, provided that a proposal for such resolution has been put on the agenda for the meeting in accordance with the requirements of the Swiss Code and Bunge-Switzerland’s articles of association.
Board and Committee Composition
Bunge-Bermuda: Bunge-Bermuda’s bye-laws stipulate the following with respect to the composition of its Board of Directors and its committees:
•the shareholders elect the members of Bunge-Bermuda's Board of Directors at the general meeting; and
•Bunge-Bermuda's Board of Directors shall determine its own chairman and committee composition.
Bunge-Switzerland: Bunge-Switzerland's articles of association stipulate the following with respect to the composition of its Board of Directors and its committees:
•the shareholders elect the members of Bunge-Switzerland's Board of Directors, the chair of Bunge-Switzerland's Board of Directors and the members of the compensation committee individually at the general meeting; and
•except for the election of the chair of Bunge-Switzerland's Board of Directors and the members of the compensation committee by the shareholders at the general meeting, Bunge-Switzerland's shall determine its own organization.
Duties of the Board of Directors
Bunge-Bermuda: The Companies Act includes a statutory duty of care, requiring directors to act honestly and in good faith with a view to the best interests of the company and to exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. In addition to the statutory duty of care, judicial precedent in Bermuda has defined the duties of a director as being the exercise of reasonable skill, care and diligence, to take actions in the bona fide best interests of the company, to exercise powers for proper purposes and to observe general standards of loyalty, good faith, and the avoidance of a conflict of duty and self-interest. In the absence of a developed body of Bermuda law in this regard, the principles outlined by English common law are highly persuasive in Bermuda courts. The standard of skill and care expected of a director of a Bermuda company may be summarized as follows.
Historically, the standard of care expected of directors in Bermuda was entirely subjective. In recent years the English and Commonwealth common law authorities have moved towards an objective test for the standard of skill and care that should be exercised by directors. It is likely that Bermuda courts will follow these authorities. In consequence, it is probable that the standard of care required to be met by the director of a Bermuda company is that of a reasonably diligent person having both (1) the general knowledge, skill and experience that may reasonably be expected of a person carrying out the same functions as are carried out by that director in relation to that company, and (2) the specific knowledge, skill and experience that such director actually has. In consequence, there is a minimum objective standard based upon the functions given to the director in question but the standard may be raised where the director in question has more knowledge, skill and experience than would normally be expected. In addition, and based on a growing body of judicial precedent in England and the Commonwealth, the responsibilities of directors require that they take reasonable steps to place themselves in a position to guide and monitor the management of the company without relying blindly on the judgment of others. The foregoing notwithstanding, the duty of care is not absolute and it is still proper for directors to delegate management functions, especially in large companies such as Bunge-Bermuda.
Under the Companies Act, a director must observe the statutory duty of care, which requires such director to act honestly and in good faith with a view to the best interests of the company and to exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. Directors are also subject to common law fiduciary duties which require directors to act in good faith and in the best interests of the company and to exercise the powers and fulfill the duties of the office honestly and within the powers set forth in the company’s memorandum and bye-laws. Further, directors must not put themselves in a position of conflict with the company.
Bunge-Switzerland: A director of a Swiss company is bound to performance standards as specified in the Swiss Code. Under these standards, a director must act in accordance with the duties imposed by statutory law, in accordance with the company’s articles of association and in the best interest of the company. A director is generally disqualified from participating in a decision that directly affects him or her. A director must generally safeguard the interest of the company in good faith, adhere to a duty of loyalty and a duty of care and, absent special circumstances, extend equal treatment to all shareholders in like circumstances. The members of the Board of Directors of Bunge-Switzerland are liable to Bunge-Switzerland, its shareholders and, in bankruptcy, its creditors for damage caused by the violation of their duties. So long as the majority of the Board of Directors is disinterested and acts on an informed basis and with the belief that its actions are in the best interest of the company, a decision made by the Board of Directors would be protected by a judicially developed business judgment rule (based on which courts exercise restraint in reviewing business decisions of a company's Board of Directors); at least as long as no special statutory duties of the Board of Directors are triggered, such as by the company's overall indebtedness or liquidity situation.
Pursuant to Bunge-Switzerland’s organizational regulations, the Board of Directors is entrusted with the ultimate direction of the company, including determining the principles of business strategy and the related policies, the overall supervision of the group companies and the supervision and control of the executive management team.
To the extent that the Swiss Code allows the delegation by the Board of Directors to executive management, and such delegation is actually made by virtue of Bunge-Switzerland’s organizational regulations, the responsibility of the Board of Directors is limited to the due election, instruction and supervision of the executive management.
Indemnification of Directors and Officers; Insurance
Bunge-Bermuda: Under the Companies Act, a company may exempt its directors and officers, or indemnify them in respect of, any loss arising or liability attaching to them by virtue of any rule of law in respect of any negligence, default, breach of duty or breach of trust, except in cases where such liability arises from fraud or dishonesty of which such director or officer may be guilty in relation to the company or any of its group companies.
The bye-laws of Bunge-Bermuda provide that Bunge-Bermuda shall indemnify its officers and directors in respect of their actions and omissions, except in respect of their fraud or dishonesty. Bunge-Bermuda has entered into indemnification agreements with its directors and executive officers that provide for indemnification and expense reimbursement to the fullest extent permitted by law.
The Companies Act permits a company to purchase and maintain insurance for the benefit of any officer or director in respect of any loss or liability attaching to him in respect of any negligence, default, breach of duty or breach of trust, whether or not the company may otherwise indemnify such officer or director. Bunge-Bermuda has purchased and maintains a directors’ and officers’ liability policy for such a purpose.
Bunge-Switzerland: We believe, based on the interpretation of leading Swiss legal scholars, that, under Swiss law, the company may indemnify its directors and officers unless the indemnification results from a breach of their duties that constitutes gross negligence or intentional breach of duty of the director or officer concerned. Bunge-Switzerland’s articles of association make indemnification of directors and officers and advancement of expenses to defend claims against directors and officers mandatory on the part of Bunge-Switzerland to the fullest extent allowed by law. Under Bunge-Switzerland’s articles of association, a director or officer may not be indemnified if such person is found, in a final judgment or decree not subject to appeal, to have committed an intentional or grossly negligent breach of his or her statutory duties as a director or officer. Swiss law permits the company, or each director or officer individually, to purchase and maintain insurance on behalf of such directors and officers. Bunge-Switzerland may obtain such insurance from one or more third party insurers or captive insurance companies. Bunge-Switzerland also plans to enter into indemnification agreements with each of its directors and executive officers, upon the completion of the redemption, that will provide for indemnification and expense advancement and include related provisions meant to facilitate the indemnitee’s receipt of such benefits. The agreements provide that Bunge-Switzerland will indemnify each such director and executive officer if such director or executive officer acted in good faith and reasonably believed he was acting in the best interest of Bunge-Switzerland and, in addition, with respect to any criminal proceeding, he had no reasonable cause to believe that his conduct was unlawful. The agreements provide that expense advancement is provided subject to an undertaking by the indemnitee to repay amounts advanced if it is ultimately determined that he is not entitled to indemnification. The disinterested members of the Board of Directors of Bunge-Switzerland or an independent counsel will determine whether indemnification payment should be made in any particular instance. In making such determination, the board or the independent counsel, as the case may be, must presume that the indemnitee is entitled to such indemnification, and Bunge-Switzerland has the burden of proof in seeking to overcome such presumption. If the board or the independent counsel determines that the director or executive officer is not entitled to indemnification, the agreements provide that such person is entitled to seek an award in arbitration with respect to his right to indemnification under his agreement.
Limitation on Director Liability
Bunge-Bermuda: Under the Companies Act, a company may indemnify its directors against any liability which by virtue of any rule of law would otherwise be imposed on them in respect of any negligence, default, breach of duty or breach of trust, except in cases where such liability arises from fraud or dishonesty of which such director may be guilty in relation to the company or any of its group companies.
The Companies Act renders void any provision in the bye-laws or any contract between a company and any such director exempting him or her from or indemnifying him or her against any liability in respect of any fraud or dishonesty of which he or she may be guilty in relation to the company. Further, a Bermuda court may not enforce a provision purporting to limit a director’s liability if to do so was contrary to public policy, such as, if the provision attempted to relieve a director of criminal liability. The Bunge-Bermuda bye-laws provide that the shareholders waive all claims or rights of action that they might have, individually or by or in the right of Bunge-Bermuda, against any of Bunge-Bermuda’s directors or officers for any action taken or failure to act in the performance of such director’s or officer’s duties, except in respect of any fraud or dishonesty of such director or officer.
Bunge-Switzerland: Swiss law does not permit a company to exempt any member of its Board of Directors from any liability for damages suffered by the company, the shareholders or the company’s creditors caused by intentional or negligent violation of that director’s duties. However, the general meeting of shareholders may pass a resolution discharging the members of the Board of Directors from liability for certain limited actions. Such release is effective only for facts that have been disclosed to the shareholders and only vis-à-vis the company and those shareholders who have consented to the resolution or who acquired shares subsequently with knowledge of the resolution.
Directors’ Conflicts of Interest
Bunge-Bermuda: As a matter of the common law applied in Bermuda, the director of a Bermuda company should seek to avoid placing himself in a position where there is a conflict, or a possible conflict, between the duties he owes to the company and either his personal interest or other duties that he owes to a third party, and if a director is in any way, directly or indirectly, interested in a proposed transaction or arrangement with the company, he must declare the nature and extent of that interest to the other directors at the first opportunity. The duty extends to not making personal profit from opportunities that result from directorship.
This common law duty of a director to avoid conflicts of interest generally is not breached in respect of matters that have been declared by the director at the appropriate time and (i) authorized by the directors generally or (ii) authorized by the provisions of the company’s memorandum of association and bye-laws. Bunge-Bermuda’s bye-laws provide that a director who is directly or indirectly interested in a contract or proposed contract or arrangement with the company shall declare the nature of such interest as required by the Companies Act and, following a declaration being made pursuant to the bye-laws, and unless disqualified by a majority of the board present at the relevant board meeting, a director may vote in respect of any contract or proposed contract or arrangement in which such director is interested and may be counted in the quorum at such meeting.
Bunge-Switzerland: Under the Swiss Code, a director is required to safeguard the interests of the company and to adhere to a duty of loyalty and a duty of care. The Swiss Code expressly requires members of the Board of Directors to inform each other immediately and fully of any conflicts of interest affecting them. It is then the responsibility of the Board of Directors to take the measures necessary to safeguard the interests of the company. Generally, a material conflict of interest disqualifies that director from participating in any board discussions and decisions affecting his or her interest. Breach of these principles may also entail personal liability of the directors to the company. In addition, the Swiss Code requires a director to return to the company payments made to a director if such payments are not made on an arm’s length basis or if the recipient of the payment was acting in bad faith.
Bunge-Switzerland's Board of Directors has a written policy with respect to related person transactions pursuant to which such transactions are reviewed, approved or ratified.
Shareholders’ Suits
Bunge-Bermuda: Under Bermuda law, a court will generally refuse to interfere with the management of a company on behalf of minority shareholders who are dissatisfied with the conduct of a company’s affairs by its Board of Directors. However, each shareholder is entitled to have the affairs of the company properly conducted in accordance with law. Therefore, if those who control the company persistently disregard the requirements of law or of the company’s memorandum of association or bye-laws, the court may grant relief. Bermuda courts ordinarily would be expected to follow English precedent, which would permit the court to intervene in any of the following circumstances: (i) where the act complained of is alleged to be beyond the corporate power of the company or illegal; (ii) where the act complained of is alleged to constitute a fraud against the minority shareholders by those controlling the company; provided that the majority shareholders have used their controlling position to prevent the company from taking action against the wrongdoers; (iii) where an act requires approval by a greater percentage of the company’s shareholders than actually approved it; or (iv) where such an action is necessary in order that there not be a violation of the company’s memorandum of association or bye-laws.
Under the Companies Act, a shareholder is entitled to complain to the court that the affairs of the company are being conducted in a manner which is oppressive or unfairly prejudicial to the shareholders, or some of them, and seek a winding-up of the company or an alternative remedy.
An individual shareholder may seek to bring an action on behalf of the company to enforce the company’s rights, and judgment in such a case would be in favor of the company.
An individual shareholder may be permitted to bring an action on behalf of himself and his fellow shareholders to remedy a wrong done to the company or to compel the company to conduct its affairs in accordance with the rules governing it.
A shareholder also may be permitted to bring an action in his own name on his own behalf against a Bermuda company or another shareholder. In any such action, however, a loss suffered by the company will not be regarded as a direct loss suffered by the individual shareholder. Remedies for such an action are generally limited to declarations or injunctions.
Bunge-Switzerland: Under Swiss law, each shareholder is entitled to file an action for damage caused to the company. The general meeting may resolve that the company shall bring the action and entrust the Board of Directors or a representative thereof with the conduct of the proceedings. The claim of the shareholder is for performance to the company. If the shareholder, based upon the factual and legal situation, had sufficient cause to file an action, the judge has discretion to impose all costs the plaintiff incurred in prosecuting the action on the company.
Shareholders who suffer a direct loss due to an intentional or negligent breach of a director’s or senior officer’s duties may sue in their personal capacity for monetary compensation.
In addition, under the Swiss Code, each shareholder may petition the competent Swiss court to have a decision of the general meeting of shareholders declared invalid on the grounds that the decision violates the company's articles of association or the law.
Shareholder Consent to Action Without Meeting
Bunge-Bermuda: The Companies Act provides that anything which may be done by resolution of a company at a general meeting or a meeting of any class of members may also be done by resolution in writing. Bunge-Bermuda’s bye-laws require unanimous written consent, meaning that a resolution in writing be signed by or on behalf of all members who at the date of the resolution would be entitled to attend a general meeting and vote on the resolution. Bunge-Bermuda’s bye-laws prohibit resolutions in writing (i) to remove the auditor pursuant to section 89(5) of the Companies Act and (ii) to remove a director before the expiration of their term of office.
Bunge-Switzerland: Bunge-Switzerland's articles of association provide that shareholders are not permitted to act by written consent in lieu of a general meeting of shareholders.
Annual Meetings of Shareholders
Bunge-Bermuda: The Companies Act and Bunge-Bermuda’s bye-laws require that a general meeting of shareholders be held at least annually. Bunge-Bermuda’s bye-laws provide that the annual meeting can be held at any location as specified in the notice of the meeting. At such meeting, elections will be held for directors whose terms have expired and such other business may be transacted as may properly be brought before such meeting. The shareholders are also required to appoint an auditor at the annual general meeting (or, if necessary, at a subsequent special general meeting). In addition, the Companies Act and Bunge-Bermuda’s bye-laws require, subject to waiver by all of the members and directors of Bunge-Bermuda, that the financial statements required by the Companies Act be laid before Bunge-Bermuda at the general meeting.
Bunge-Switzerland: Under the Swiss Code and Bunge-Switzerland’s articles of association, Bunge-Switzerland must hold an annual, ordinary general meeting of shareholders within six months after the end of its fiscal year for the purpose, among other things, of approving the annual (standalone and consolidated) financial statements and the annual report, annually electing the chair of the Board of Directors and the directors, the members of the compensation committee, and annually approving the maximum aggregate compensation payable to the Board of Directors and the members of the executive management team. The invitation to general meetings must be published in the Swiss Official Gazette of Commerce at least 20 calendar days prior to the relevant general meeting of shareholders. The notice of a meeting must state the items on the agenda and the proposals of the Board of Directors and the shareholders who requested that a meeting be held and/or an item be put on the agenda and, in case of elections, the name of the nominees. No resolutions may be passed at a shareholders' meeting concerning agenda items for which proper notice was not given. This does not apply, however, to proposals made during a shareholders' meeting to convene an extraordinary meeting or to initiate a special investigation. No previous notification will be required for proposals concerning items included on the agenda or for debates as to which no vote is taken.
In addition to being required to comply with the notice provisions under the Swiss Code, Bunge-Switzerland is subject to the rules of the SEC that regulate the solicitation of proxies. Bunge-Switzerland is required to file with the SEC its proxy statement related to a general meeting of the shareholders, together with a form of proxy card used by Bunge-Switzerland and certain other soliciting material furnished to Bunge-Switzerland's shareholders in connection with such meeting.
Annual general meetings of shareholders may be convened by the Board of Directors or, under certain circumstances, by the auditor. A general meeting of shareholders can be held in Switzerland or abroad.
Special Meetings of Shareholders
Bunge-Bermuda: The Companies Act and Bunge-Bermuda’s bye-laws provide that a special general meeting of Bunge-Bermuda may be called by the chairman or any two directors or any director and the secretary or the Board of Directors as a whole. In addition, the Board of Directors must convene a special general meeting upon request by one or more shareholders holding at least one-tenth of the Bunge-Bermuda shares having the right to vote at general meetings of Bunge-Bermuda at the time of the request.
Bunge-Switzerland: An extraordinary general meeting of Bunge-Switzerland may be called upon the resolution of the Board of Directors or, under certain circumstances, by the auditor. In addition, the Board of Directors is required to convene an extraordinary general meeting of shareholders if so resolved by the general meeting of shareholders, or if so requested by shareholders holding an aggregate of at least 5% of the registered shares, specifying the items for the agenda and their proposals. If the Board of Directors does not comply with the request to publish the notice of the extraordinary general meeting within a reasonable period of time, but at the latest within 60 days, the requesting shareholders may request the competent court to order that the meeting be convened.
Shareholders who hold, alone or together, at least 0.5 percent of the share capital or votes and are insofar recorded in the share register may request that an item be included on the agenda of a general meeting of shareholders. See “—Director Nominations; Proposals of Shareholders” for more information.
Record Dates for Shareholder Meetings
Bunge-Bermuda: Bunge-Bermuda’s bye-laws provide that the Board of Directors may fix any date as the record date for determining the shareholders entitled to receive notice of and to vote at any general meeting.
Bunge-Switzerland: Bunge-Switzerland expects to set the record date for each general meeting of shareholders on a date not more than 20 calendar days prior to the date of each general meeting and announce the date of the general meeting of shareholders prior to the record date.
Director Nominations; Proposals of Shareholders
Bunge-Bermuda: Bunge-Bermuda’s bye-laws permit shareholder proposals to be brought before a general meeting. Notice of any such proposal must be given in writing to the secretary of Bunge-Bermuda by any member of Bunge-Bermuda on the date of such notice: (i) for consideration at an annual general meeting, not later than 120 days before the first anniversary of the date on which the previous annual general meeting proxy statement was circulated; or (ii) for consideration at a special general meeting, prior to the later of (x) 120 days before the date of the special general meeting and (y) the date which is 10 days after the first public announcement or notice of the special general meeting.
Bunge-Bermuda’s bye-laws require that a shareholder desiring to nominate directors for consideration by the shareholders at any annual general meeting must give written notice of such intent, which notice must be given to the secretary of Bunge-Bermuda not later than 120 days before the first anniversary of the date on which the previous annual general meeting proxy statement was circulated. Notice of any nomination of a person for election as a director at a special general meeting must be given in writing to the secretary of Bunge-Bermuda prior to the later of 120 days before the date of the special general meeting and the date which is 10 days after the first public announcement or notice of the special general meeting.
Bunge-Switzerland: Under Bunge-Switzerland’s articles of association, shareholders who hold, alone or together, at least 0.5 percent of the share capital or votes and are insofar recorded in the share register may request that an item be included on the agenda of a general meeting of shareholders. Such shareholder may also nominate one or more directors for election. A request for inclusion of an item on the agenda must be in writing and received by Bunge-Switzerland at least 120 but not more than 150 calendar days prior to the meeting. To nominate a nominee, the shareholder must, no earlier than 150 calendar days and no later than 120 calendar days prior to the first anniversary of the date (as stated in the Bunge-Switzerland proxy materials) on which the Bunge-Switzerland definitive proxy statement for the prior year’s annual general meeting was first released to Bunge-Switzerland’s shareholders, deliver a notice to, and such notice must be received by, Bunge-Switzerland at its registered office; provided, however, that if the annual general meeting is not scheduled to be held within a period beginning 30 days before such anniversary date and ending 30 days after such anniversary date, the notice shall be given in the manner provided herein by the later of the close of business on the date that is 180 days prior to such other meeting date or the tenth day following the date that Bunge-Switzerland first makes public disclosure regarding such other meeting date. The request must specify the
relevant agenda items and proposals, together with evidence of the required shares recorded in the share register, as well as any other information as would be required to be included in a proxy statement pursuant to the rules of the SEC.
Adjournment of Shareholder Meetings
Bunge-Bermuda: Bunge-Bermuda’s bye-laws provide that the chairman of any shareholder meeting may, with the consent of a majority of the shareholders present and entitled to vote at the meeting, adjourn the meeting. New notice of the date, time, and place for the resumption of the meeting must be given if the meeting is not adjourned to a specific date and time.
Bunge-Switzerland: Under the Swiss Code, a general meeting of shareholders for which a notice of meeting has been duly published may not be adjourned without publishing a new notice of meeting.
Voting Rights
Bunge-Bermuda: The holders of common shares of Bunge-Bermuda are entitled to one vote per share. Any matter submitted to shareholders at a general meeting requires the affirmative vote of a majority of the votes cast unless otherwise required by the Companies Act or the bye-laws. Bunge-Bermuda’s bye-laws provide that any matter submitted to the shareholders at a general meeting for approval requires the approval of a majority of the votes cast (other than in the election of directors and as set forth below).
The rights attached to any separate class or series of shares, unless otherwise provided by the terms of the shares of that class or series, may be varied only with the consent in writing of the holders of all of the outstanding shares of that class or series or by a resolution passed at a separate general meeting of holders of shares equal to 75% of the issued and outstanding shares of that class or series. The necessary quorum for that meeting is the presence of at least two persons, in person or by proxy, of holders of at least one-third of the shares of that class or series. Each holder of shares of the class or series present, in person or by proxy, will have one vote for each share of the class or series of which he is the holder. Outstanding shares will not be deemed to be varied by the creation or issuance of additional shares that rank in any respect prior to or equivalent with those shares.
Under the Companies Act and the Bunge-Bermuda bye-laws, any merger, amalgamation or other business combination not approved by the board must be approved by the Board of Directors and by a resolution of the members including the affirmative votes of a majority of the votes cast.
Bunge-Switzerland: Each Bunge-Switzerland registered share carries one vote at a general meeting of shareholders. Voting rights may be exercised by shareholders registered in Bunge-Switzerland’s share register, through the independent voting rights representative elected by shareholders at each annual general meeting, their legal representative or, on the basis of a written proxy, by any other representative who need not be a shareholder.
Shareholders wishing to exercise their voting rights who hold their shares through a broker, bank or other nominee should follow the instructions provided by such broker, bank or other nominee or, absent instructions, contact such broker, bank or other nominee for instructions. Shareholders holding their shares through a broker, bank or other nominee will not automatically be registered in Bunge-Switzerland's share register. If any such shareholder wishes to be registered in Bunge-Switzerland's share register, such shareholder should contact the broker, bank or other nominee through which it holds Bunge-Switzerland shares.
Bunge-Switzerland’s articles of association do not limit the number of registered shares that may be voted by a single shareholder.
Treasury shares, whether owned by Bunge-Switzerland or one of Bunge-Switzerland’s controlled subsidiaries, will not be entitled to vote at general meetings of shareholders.
Pursuant to the Swiss Code, shareholders have the exclusive right to determine the following matters:
•adoption and amendment of Bunge-Switzerland’s articles of association;
•election of members of the board of directors, its chair, the members of the compensation committee, the independent voting rights representative, and the statutory auditor;
•approval of the annual business report, the stand-alone statutory financial statements and the consolidated financial statements;
•approval on the allocation of profit shown on the balance sheet contained in the stand-alone statutory financial statements of the company, in particular the determination of dividend and other capital distributions to shareholders (including by way of repayment of statutory capital reserve (such as in the form of qualifying capital contribution reserves);
•discharge of the members of the board of directors from liability for previous business conduct to the extent such conduct is known to the shareholders; and
•the approval of the compensation of the board of directors and the executive management team pursuant to the articles of association, and the advisory vote on the report (established under Swiss law) pertaining to the compensation of the company's board of directors and executive management in the prior fiscal year;
•the delisting of Bunge-Switzerland equity securities;
•the approval of the report on non-financial matters pursuant to article 964c CO; and
•any other resolutions that are submitted to a general meeting of shareholders pursuant to law, Bunge-Switzerland’s articles of association or by voluntary submission by the board of directors (unless a matter is within the exclusive competence of the board of directors pursuant to the Swiss Code).
Pursuant to Bunge-Switzerland’s articles of association, the shareholders generally pass resolutions by the affirmative vote of a majority of the votes cast at the meeting (broker nonvotes, abstentions and blank and invalid ballots will be disregarded), unless otherwise provided by law or Bunge-Switzerland’s articles of association. In an election in which the number of candidates exceeds the number of the respective positions that are on the agenda at the general meeting, the candidates are elected by a plurality of the votes cast at the general meeting, such that the candidates receiving the most affirmative votes (up to the number of candidates to be elected) are elected and a majority votes cast shall not be a prerequisite to the election.
In addition, the NYSE requires a shareholder vote for certain matters such as:
•the approval of equity compensation plans (or certain amendments to such plans);
•the issuance of shares equal to or in excess of 20% of the voting power of the shares outstanding before the issuance of such shares (subject to certain exceptions, such as public offerings for cash and certain bona fide private placements);
•certain issuances of shares to related parties; and
•issuances of shares that would result in a change of control.
For these types of matters, the minimum vote which will constitute shareholder approval for NYSE listing purposes is the approval by a majority of the votes cast, provided that the total vote cast on the proposal represents over 50% in interest of all securities entitled to vote on the proposal.
The Swiss Code requires the affirmative vote of at least two-thirds of the voting rights and a majority of the par value of the registered shares, each as represented at a general meeting to approve the following matters:
•the amendment to or the modification of the purpose of Bunge-Switzerland;
•the combination of shares listed on a stock exchange;
•an increase in share capital through the conversion of equity surplus, against contributions in kind or by way of set-off with a receivable and the granting of special privileges;
•the limitation or withdrawal of subscription rights;
•the introduction of conditional share capital or the introduction of a capital band;
•the restriction of the transferability of registered shares and the cancellation of such a restriction;
•the introduction of shares with privileged voting rights;
•the change of currency of the share capital;
•the introduction of the casting vote of the acting chair in the general meeting;
•the delisting of Bunge-Switzerland’s equity securities;
•the relocation of the place of incorporation of Bunge-Switzerland;
•the introduction of an arbitration provision in the articles of association; and
•the dissolution of Bunge-Switzerland.
The same supermajority voting requirements apply to resolutions in relation to transactions among corporations based on the Merger Act, including a merger, demerger or conversion of a corporation (other than a cash-out or certain squeeze-out mergers, in which minority shareholders of the company being acquired may be compensated in a form other than through shares of the acquiring company, for instance, through cash or securities of a parent company of the acquiring company or of another company—in such a merger, an affirmative vote of 90% of the outstanding registered shares is required). Swiss law may also impose this supermajority voting requirement in connection with the sale of “all or substantially all of its assets” by Bunge-Switzerland. See “—Compulsory Acquisitions; Appraisal Rights” and “—Shareholder Approval of Business Combinations.”
Amendment of Governing Documents
Bunge-Bermuda: Bermuda law provides that the memorandum of association and bye-laws of a company may be amended by a resolution passed at a general meeting of shareholders of which due notice has been given. Bunge-Bermuda bye-laws provide that no bye-law shall be rescinded, altered or amended, and no new bye-law shall be made, unless it shall have been approved by a resolution of the Board of Directors and by a resolution of the shareholders. In the case of the bye-laws relating to the number and tenure of directors, approval of business combinations and amendment of bye-laws, the required resolutions must include the affirmative vote of at least 66% of directors then in office and by a resolution of the members including the affirmative votes of a majority of the votes cast.
Under Bermuda law, the holders of an aggregate of not less than 20% in par value of Bunge-Bermuda’s issued and outstanding share capital or any class thereof have the right to apply to the Bermuda Court for an annulment of any amendment of the memorandum of association adopted by shareholders at any general meeting, other than an amendment which alters or reduces Bunge-Bermuda’s share capital as provided in sections 45 and 46 of the Companies Act. Where such an application is made, the amendment becomes effective only to the extent that it is confirmed by the Bermuda Court. An application for an annulment of an amendment of the memorandum of association must be made within 21 days after the date on which the resolution altering Bunge-Bermuda’s memorandum of association is passed and may be made on behalf of persons entitled to make the application by one or more of their number as they may appoint in writing for the purpose. No application may be made by shareholders that voted in favor of the amendment.
Bunge-Switzerland: Under the Swiss Code and Bunge-Switzerland’s articles of association, Bunge-Switzerland’s articles of association may only be amended by a resolution of its shareholders at a general meeting. See “—Voting Rights.” Other than on the basis of an authorization of the general meeting of shareholders, Bunge-Switzerland’s Board of Directors may not effect amendments to Bunge-Switzerland’s articles of association on its own. Under Bunge-Switzerland’s articles of association, the Board of Directors may pass and amend organizational regulations. Under Swiss law, shareholders may not pass or amend organizational regulations but may pass resolutions amending the articles of association to effectively supersede provisions in the organizational regulations.
Quorum Requirements
Bunge-Bermuda: The presence at the start of the meeting of at least two persons representing, in person or by proxy, more than one-half of the issued and outstanding Bunge-Bermuda common shares constitutes a quorum for the transaction of business except as otherwise provided by the Companies Act.
Bunge-Switzerland: The presence of shareholders, in person or by proxy, holding at least a majority of the registered shares recorded in Bunge-Switzerland’s share register and generally entitled to vote at a meeting, is a quorum for the transaction of business. The Board of Directors has no authority to waive the quorum requirements stipulated in the articles of association.
Say on Pay
Bunge-Bermuda: Bunge-Bermuda is required to hold non-binding shareholder advisory votes on executive compensation required by SEC rules. Bunge-Bermuda holds these advisory votes on an annual basis.
Bunge-Switzerland: Bunge-Switzerland is required to hold non-binding shareholder advisory votes on executive compensation required by SEC rules. Bunge-Switzerland holds these advisory votes on an annual basis. In addition, under Swiss law, Bunge-Switzerland is required to hold annual binding shareholder votes on the prospective maximum aggregate amount of compensation of each of Bunge-Switzerland's Board of Directors (for the period between annual meetings) and the executive management team (for the fiscal year commencing after the annual general meeting at which ratification is sought). Shareholders are further required to vote at each annual general meeting, on an advisory basis, on the compensation report (established under Swiss law) regarding the compensation of the members of the Board of Directors and the executive management team in the preceding fiscal year.
ESG Matters
Bunge-Bermuda: The Companies Act and Bunge-Bermuda’s bye-laws do not include ESG requirements.
Bunge-Switzerland: Bunge-Switzerland will be required to establish a report on non-financial matters covering the following matters: (1) environmental matters, in particular the CO2 goals; (2) social issues; (3) employee-related issues;(4) respect for human rights; and (5) combating corruption. The report must contain the information required to understand the business performance, the business result, the state of the undertaking and the effects of its activity on the above non-financial matters.
More particularly, the report must include: (1) a description of the business model; (2) a description of the policies adopted in relation to the matters referred to above, including the due diligence applied; (3) a presentation of the measures taken to implement these policies and an assessment of the effectiveness of these measures; (4) a description of the main risks related to the above matters and how the undertaking is dealing with these risks; in particular (a) risks that arise from the undertaking's own business operations, and (b) provided this is relevant and proportionate, risks that arise from its business relationships, products or services; and (5) the main performance indicators for the undertaking's activities in relation to the above matters.
Bunge-Switzerland's Board of Directors will be required to submit the report to shareholders for approval by the annual general meeting, for the first time in 2024 in relation to financial year 2023.
Inspection of Books and Records; Special Investigation
Bunge-Bermuda: Shareholders of a Bermuda company have the right to inspect or obtain copies of the minutes of general meetings of the company. Shareholders may also inspect the share register on any business day, subject to reasonable restrictions imposed by the Board of Directors.
Bunge-Switzerland: Under the Swiss Code, a shareholder has a right to inspect the share register with regard to its, his or her own shares and otherwise to the extent necessary to exercise its, his or her shareholder rights. No other person has a right to inspect the share register. The books and correspondence of a Swiss company may be inspected with the express authorization of the general meeting of shareholders or by resolution of the Board of Directors and subject to the safeguarding of the company’s business secrets. At a general meeting of shareholders, any shareholder is entitled to request information from the Board of Directors concerning the affairs of the company. Shareholders may also ask the auditor questions regarding its audit of the company. The Board of Directors and the auditor must answer shareholders’ questions to the extent necessary for the exercise of shareholders’ rights and subject to prevailing business secrets or other material interests of Bunge-Switzerland.
In addition, if the shareholders’ inspection and information rights as outlined above prove to be insufficient, any shareholder may propose to the general meeting of shareholders that specific facts be examined by a special commissioner in a special investigation. If the general meeting of shareholders approves the proposal, Bunge-Switzerland or any shareholder may, within three months after the general meeting of shareholders, request the court at Bunge-Switzerland’s registered office to appoint a special commissioner. If the general meeting of shareholders rejects the request, one or more registered shareholders representing at least 5% of the share capital or voting rights may request the court to appoint a special commissioner. The court will issue such an order if the petitioners can demonstrate that the Board of Directors, any member of the board or an officer of Bunge-Switzerland infringed the law or Bunge-Switzerland’s articles of association and thereby damaged the company or the shareholders. The costs of the investigation would generally be allocated to Bunge-Switzerland and only in exceptional cases to the petitioners.
Transfer and Registration of Shares
Bunge-Bermuda: Under Bunge-Bermuda’s bye-laws the directors may decline to register a transfer of a share which is not fully paid.
Bunge-Bermuda’s bye-laws expressly provide for the issuance of fractional shares which may be dealt with to the same extent as whole shares.
Bunge-Switzerland: No restrictions apply to the transfer of Bunge-Switzerland registered shares. So long as and to the extent that Bunge-Switzerland's shares are intermediated securities within the meaning of the Swiss Intermediated Securities Act, (i) any transfer of Bunge-Switzerland's shares is effected by a corresponding entry in the securities deposit account of a bank or a depository institution, (ii) no Bunge-Switzerland's shares can be transferred by way of assignment, and (iii) a security interest in any Bunge-Switzerland's share cannot be granted by way of assignment. Any person who acquires Bunge-Switzerland's shares may submit a request to Bunge-Switzerland to be entered into the share register as a shareholder with voting rights, provided such persons expressly declare that they have acquired the shares in their own name and for their own account, that there is no agreement on the redemption of the shares and that they bear the economic risk associated with the shares. Bunge-Switzerland's Board of Directors may record nominees who hold shares in their own name, but for the account of third parties, as shareholders of record with voting rights in the share register of the Company. Beneficial owners of shares who hold shares through a nominee exercise the shareholders' rights through the intermediation of such nominee. Bunge-Switzerland’s share register will initially be kept by Computershare Inc., which acts as transfer agent and registrar. The share register reflects only record owners of Bunge-Switzerland shares. Swiss law does not recognize fractional share interests. Bunge-Bermuda has not presently issued fractional shares so no change is required for fractional shares based on Swiss law.
Rights upon Liquidation
Bunge-Bermuda: Upon a liquidation of Bunge-Bermuda, after creditors have been paid the full amounts owing to them, the holders of Bunge-Bermuda’s common shares would be entitled to receive, pro rata, any remaining assets available for distribution to the holders of common shares. The liquidator may deduct from the amount payable in respect of those common shares any liabilities the holder has to or with Bunge-Bermuda. The assets received by the holders of Bunge-Bermuda common shares in liquidation may consist in whole or in part of property. That property is not required to be of the same kind for all shareholders. The shareholders may resolve that the company be wound up by the court, or be wound up voluntarily, with the vote of holders of at least 75% of the voting shares of the company. The board may also present a petition to the court for the company to be wound up.
Bunge-Switzerland: Bunge-Switzerland’s duration is unlimited. Bunge-Switzerland may be dissolved at any time with the approval of shareholders holding two-thirds of the voting rights and a majority of the par value of the registered shares, each as represented at a general meeting. Dissolution by m is possible if Bunge-Switzerland becomes bankrupt, or for cause at the request of shareholders holding at least 10% of Bunge-Switzerland’s share capital. Under Swiss law, any surplus arising out of liquidation, after the settlement of all claims of all creditors, will be distributed to shareholders in proportion to the paid-up par value of registered shares held, subject to Swiss withholding tax requirements of 35%, all or part of which can potentially be reclaimed under the relevant tax rules in Switzerland or double taxation treaties concluded between Switzerland and foreign countries. Bunge-Switzerland's shares carry no privilege with respect to such liquidation surplus.
Enforcement of Civil Liabilities Against Foreign Persons
Bunge-Bermuda: Bunge-Bermuda has been advised by its Bermuda counsel, Conyers Dill & Pearman Limited, that a judgment for the payment of money rendered by a court in the United States based on civil liability would not be automatically enforceable in Bermuda. There is no treaty between Bermuda and the United States providing for the reciprocal enforcement of foreign judgments. Bunge-Bermuda has also been advised by Conyers Dill & Pearman Limited that a final and conclusive judgment obtained in a court in the United States under which a sum of money is payable as compensatory damages may be the subject of an action in the Bermuda Court under the common law doctrine of obligation. Such an action should be successful upon proof that the sum of money is due and payable, and without having to prove the facts supporting the underlying judgment, as long as: (i) the court that gave the judgment was competent to hear the action in accordance with private international law principles as applied by the courts in Bermuda; and (ii) the judgment is not contrary to public policy in Bermuda, was not obtained by fraud or in proceedings contrary to natural justice of Bermuda and is not based on an error in Bermuda law.
Bunge-Switzerland: Swiss counsel has advised Bunge-Switzerland that it is uncertain that Swiss courts would enforce (1) judgments of U.S. courts obtained in actions against Bunge-Switzerland or other persons that are predicated upon the civil liability provisions of U.S. federal securities laws or (2) original actions brought against Bunge-Switzerland or other persons predicated upon the Securities Act. The enforceability in Switzerland of a foreign judgment rendered against Bunge-Switzerland or such other persons is subject to the limitations set forth in such international treaties by which Switzerland is bound and the Swiss Federal Private International Law Act. In particular, and without limitation to the foregoing, a judgment rendered by a foreign court may only be enforced in Switzerland if:
•such foreign court had jurisdiction,
•such judgment has become final and non-appealable,
•the court procedures leading to such judgment followed the principles of due process of law, including proper service of process, and
•such judgment does not violate Swiss law principles of public policy.
In addition, enforceability of a judgment by a non-Swiss court in Switzerland may be limited if Bunge-Switzerland can demonstrate that it or such other persons were not effectively served with process.
We are furnishing this proxy statement to our shareholders in connection with the solicitation of proxies by Bunge-Bermuda’s Board of Directors for use at a meeting of Bunge-Bermuda shareholders to consider the Redomestication and any adjournment or postponement of the meeting. We are first mailing this proxy statement and accompanying form of proxy to shareholders beginning on or about [●].
Time, Place, and Date
The shareholders meeting will be held online via live webcast at [●], commencing at [●] local time, on [●].
Purpose of the Meeting
At the meeting, Bunge-Bermuda’s Board of Directors will ask the shareholders to vote to approve:
•the Redomestication, which will be effected by the Scheme of Arrangement, pursuant to which Bunge-Bermuda would merge with Bunge-MergerCo, and each issued and outstanding common share of Bunge-Bermuda would be exchanged for one share of Bunge-Switzerland and, in addition, Bunge-Switzerland would issue [●] Treasury Shares to Bunge-Bermuda for future use to satisfy Bunge-Switzerland’s obligation to deliver shares in connection with awards granted under our equity incentive plans and for such other purposes as Bunge-Switzerland's Board of Directors may determine. Bunge-Switzerland will assume Bunge-Bermuda’s existing obligation to deliver shares under such equity incentive plans, warrants or other rights.
•a motion to adjourn the meeting to a later date to solicit additional proxies if there are insufficient votes at the time of the meeting to approve the Redomestication.
•any other matters that properly come before the meeting and any adjournments or postponements of the meeting.
Bunge-Bermuda’s Board of Directors has unanimously approved the Redomestication and the adjournment proposal and unanimously recommends that you vote “FOR” both of the proposals.
Record Date; Voting Rights; Vote Required for Approval
The board has fixed the close of business on [●] as the record date for the shareholders meeting.
Only holders of record of Bunge-Bermuda common shares on the record date are entitled to notice of and to vote at the meeting or any adjournment or postponement of the meeting. You will not be the holder of record of shares that you hold in “street name.” Instead, the depository (for example, Cede & Co.) or other nominee will be the holder of record of such shares.
On the record date of the shareholders meeting, approximately [●] Bunge-Bermuda common shares were issued and entitled to be voted at the meeting. Each Bunge-Bermuda common share entitles the holder to one vote.
The presence of two or more persons at the meeting representing in person or by proxy more than 50% of our total issued and outstanding voting common shares throughout the relevant meeting will constitute a quorum. Abstentions and “broker non-votes” will be counted toward the presence of a quorum at, but will not be considered votes cast on any of the proposals brought before, the meeting. Broker non-votes are shares held by banks or brokers for which voting instructions have not been received from the beneficial owners or the persons entitled to vote those shares and for which the bank or broker does not have discretionary voting power under rules applicable to broker-dealers. If you own shares through a bank or brokerage firm and you do not instruct your bank or broker how to vote, your bank or broker will not have discretion to vote on the proposal.
Assuming the presence of a quorum, the Redomestication must be approved by the affirmative vote of holders of Bunge-Bermuda common shares representing a majority in number and at least 75% of the Bunge-Bermuda common shares present in person or by proxy at the meeting and entitled to vote on the matter. The adjournment proposal must be approved by the affirmative vote of holders of Bunge-Bermuda common shares representing a majority of the Bunge-Bermuda shares present in person or by proxy at the meeting and entitled to vote on the matter.
Our directors and executive officers have indicated that they intend to vote their shares in favor of both of the proposals. On the record date, our directors and executive officers and their affiliates beneficially owned less than one percent of the issued and outstanding Bunge-Bermuda common shares.
Proxies
A proxy card is being sent to each shareholder as of the record date. If you properly received a proxy card, you may grant a proxy to vote on the proposals by marking your proxy card appropriately, executing it in the space provided, dating it and returning it to us. We may accept your proxy by any form of communication permitted by Bermuda law and Bunge-Bermuda’s articles of association. Shareholders of record who do not hold their shares through a bank, broker or nominee may grant a proxy to vote on the Internet at [●] or by telephone by calling the number listed on the proxy card or voting direction form. Please have your proxy card or voting direction form in hand when calling or going online. To vote by mail, please sign, date and mail your proxy card or voting direction form in the envelope provided. If you hold your shares in the name of a bank, broker or other nominee, you should follow the instructions provided by your bank, broker or nominee when voting your shares.
If you have timely submitted a properly executed proxy card or provided your voting instructions by telephone or on the Internet and clearly indicated your votes, your shares will be voted as indicated.
If you have timely submitted a properly executed proxy card or provided your voting instructions by telephone or on the Internet and have not clearly indicated your votes, your shares will be voted “FOR” both of the proposals. If any other matters properly come before the meeting, the persons named in the proxy card will vote the shares represented by all properly executed proxies in accordance with their best judgment, unless authority to do so is withheld in the proxy.
You may abstain on either or both of the proposals by marking “ABSTAIN” with respect to either or both of the proposals.
Under New York Stock Exchange rules, brokers who hold shares in street name for customers have the authority to vote on “routine” proposals when they have not received instructions from beneficial owners, but are precluded from exercising their voting discretion with respect to proposals for “non-routine” matters. Proxies submitted by brokers without instructions from customers for these non-routine matters are referred to as “broker non-votes.” The Redomestication proposal is a non-routine matter under New York Stock Exchange rules.
You may revoke your proxy at any time prior to its exercise by:
•giving written notice of the revocation to the Corporate Secretary of Bunge-Bermuda;
•appearing at the meeting, notifying the Corporate Secretary of Bunge-Bermuda and voting in person;
•revoking the proxy by telephone or the Internet; or
•properly completing and executing a later-dated proxy and delivering it to the Corporate Secretary of Bunge-Bermuda at or before the meeting.
Your presence without voting at the meeting will not automatically revoke your proxy, and any revocation during the meeting will not affect votes previously taken. If you hold your shares in the name of a bank, broker or other nominee, you should follow the instructions provided by your bank, broker or nominee in revoking your previously granted proxy.
If you do not appoint a proxy and you do not vote at the meeting, you will still be bound by the outcome. You are therefore strongly urged to attend and vote at the meeting in person or by proxy.
The accompanying proxy is being solicited on behalf of the Board of Directors of Bunge-Bermuda. The expenses of preparing, printing and mailing the proxy and the materials used in the solicitation will be borne by Bunge-Bermuda. In addition to solicitation by mail, Bunge-Bermuda will make arrangements with brokerage houses and other custodians, nominees and fiduciaries to send the proxy materials to beneficial owners, and Bunge-Bermuda will, upon request, reimburse those brokerage houses and custodians for their reasonable related expenses. Bunge-Bermuda has retained [●] for a fee of $[●], plus expenses, to aid in the solicitation of proxies from its shareholders and to verify certain records related to the solicitations. To the extent necessary in order to ensure sufficient representation at its meeting, Bunge-Bermuda or its proxy solicitor may solicit the return of proxies by personal interview, mail, telephone,
facsimile, Internet or other means of electronic transmission. The extent to which this will be necessary depends upon how promptly proxies are returned. We urge you to send in your proxy without delay.
Bunge-Bermuda shareholders (including any beneficial owners of such shares that give voting instructions to a custodian or clearing house that subsequently votes on the proposal) who vote either for or against the proposal or who the Bermuda Court is satisfied have a substantial economic interest in the Scheme of Arrangement should note that they are entitled to appear in person or by counsel at the Bermuda Court hearing on [●] at which Bunge-Bermuda will seek the sanction of the Redomestication. In addition, the Bermuda Court has wide discretion to hear from interested parties. Bunge-Bermuda has agreed that it will not object to the participation by any shareholder in the Bermuda Court hearing on the grounds that such person does not have a substantial economic interest in the Scheme of Arrangement
| | |
SECURITY OWNERSHIP OF DIRECTORS, EXECUTIVE OFFICERS AND PRINCIPAL SHAREHOLDERSCERTAIN BENEFICIAL OWNERS |
The following table sets forth information with respect to persons or entities who are known to BungeBunge-Bermuda to beneficially own 5% or more of our common shares, each member of our Board, each NEO and all directors and executive officers as a group as of March 14, 2022.[●].
All holders of our common shares are entitled to one vote per share on all matters submitted to a vote of holders of common shares, and the voting rights attached to common shares held by our directors, executive officers or major shareholders do not differ from those that attach to common shares held by any other holder.
Under Rule 13d-3 of the Exchange Act, "beneficial ownership" includes shares for which the individual, directly or indirectly, has or shares voting or investment power, whether or not the shares are held for the individual's benefit.
| | | | | | | | | | | | | | | | | | | | |
| Amount and Nature of Beneficial Ownership |
| | (Number of Shares) | | |
| Beneficial Owner | Direct or Indirect(1) | Voting or Investment Power(2) | | Right to Acquire(3) | | Percent of Class(4) |
Capital World Investors(5) | 17,289,145 | | — | | | — | | | 12.2% |
The Vanguard Group(6) | 13,409,035 | | — | | | — | | | 9.5% |
BlackRock, Inc.(7) | 10,328,486 | | — | | | — | | | 7.3% |
T. Rowe Price Associates, Inc.(8) | 7,941,982 | | — | | | — | | | 5.6% |
| | | | | | |
| Non-Employee Directors | | | | | | |
| Sheila Bair | 5,596 | | — | | | 1,617 | | | * |
| Carol Browner | 20,025 | | — | | | 1,617 | | | * |
| Paul Fribourg | 51,044 | | 1,051,204 | | | 1,617 | | | * |
| J. Erik Fyrwald | 26,985 | | — | | | 1,617 | | | * |
| Bernardo Hees | 11,496 | | — | | | 1,617 | | | * |
| Kathleen Hyle | 30,277 | | — | | | 3,351 | | | * |
| Michael Kobori | — | | — | | | 841 | | | * |
| Kenneth Simril | — | | — | | | 841 | | | * |
| Henry "Jay" Winship | 23,883 | | — | | | 1,617 | | | * |
| Mark Zenuk | 14,822 | | — | | | 1,617 | | | * |
| | | | | | |
| Named Executive Officers | | | | | | |
| Gregory Heckman | 368,268 | | — | | | 623,332 | | | * |
| John Neppl | 34,571 | | — | | | 24,332 | | | * |
| Brian Zachman | 63,230 | | — | | | 50,866 | | | * |
| Christos Dimopoulos | 26,128 | | — | | | 58,978 | | | * |
| Raul Padilla | 179,294 | | — | | | — | | | * |
| All directors and executive officers as a group (19 persons) | 987,040 | | 1,051,204 | | | 922,242 | | | 2.2% |
| | | | | | | | | | | | | | | | | | | | |
| Amount and Nature of Beneficial Ownership |
| | (Number of Shares) | | |
| Beneficial Owner | Direct or Indirect(1) | Voting or Investment Power(2) | | Right to Acquire(3) | | Percent of Class(4) |
Capital World Investors(5) | — | | — | | | — | | | — | |
The Vanguard Group(6) | — | | — | | | — | | | — | |
BlackRock, Inc.(7) | — | | — | | | — | | | — | |
T. Rowe Price Associates, Inc.(8) | — | | — | | | — | | | — | |
| | | | | | |
| Non-Employee Directors | | | | | | |
| Sheila Bair | — | | — | | | — | | | — | |
| Carol Browner | — | | — | | | — | | | — | |
| Paul Fribourg | — | | — | | | — | | | — | |
| J. Erik Fyrwald | — | | — | | | — | | | — | |
| Bernardo Hees | — | | — | | | — | | | — | |
| Kathleen Hyle | — | | — | | | — | | | — | |
| Michael Kobori | — | | — | | | — | | | — | |
| Kenneth Simril | — | | — | | | — | | | — | |
| Henry "Jay" Winship | — | | — | | | — | | | — | |
| Mark Zenuk | — | | — | | | — | | | — | |
| | | | | | |
| Named Executive Officers | | | | | | |
| Gregory Heckman | — | | — | | | — | | | — | |
| John Neppl | — | | — | | | — | | | — | |
| Christos Dimopoulos | — | | — | | | — | | | — | |
| Julio Garros | — | | — | | | — | | | — | |
| Joseph Podwika | — | | — | | | — | | | — | |
| All directors and executive officers as a group (19 persons) | — | | — | | | — | | | — | |
| *Indicates beneficial ownership less than 1.0%. | | | | | | |
(1)These shares are held individually or jointly with others, or in the name of a bank, broker or nominee for the individual's account or in a family trust. Excludes restricted stock units that remain unvested.
(2)This column includes other shares over which directors and executive officers have or share voting or investment power, including shares directly owned by corporate entities with whom they are presumed to share voting and/or investment power. Mr. Fribourg disclaims beneficial ownership of any shares to which he does not have a pecuniary interest.
(3)This column includes shares which non-employee directors and executive officers have a right to acquire through the vesting of restricted stock units or the exercise of stock options granted under our Equity Incentive Plansequity incentive plans that have vested or will vest within 60 days of March 14, 2022.[●].
(4)Applicable percentage ownership is based on 141,862,412[●] common shares issued and outstanding as of March 14, 2022.[●].
(5)[Based on the information filed with the SEC on Schedule 13G/A on February 11, 2022:[●]: Capital World Investors reported beneficial ownership of 17,289,145[●] shares, sole voting power as to 17,236,610[●] of the shares and sole dispositive power as to 17,289,145[●] of the shares. The principal business address of Capital World Investors is 333 South Hope Street, 55th Floor, Los Angeles, California 90071.]
(6)[Based on information filed with the SEC on Schedule 13G/A on February 9, 2022:[●]: The Vanguard Group reported beneficial ownership of 13,409,035[●] shares, shared voting power as to 119,140[●] of the shares, sole dispositive power as to 13,109,631[●] of the shares and shared dispositive power as to 299,404[●] of the shares. The principal business address of The Vanguard Group is 100 Vanguard Blvd., Malvern, PA 19355.]
(7)[Based on information filed with the SEC on Schedule 13G/A on February 3, 2022:[●]: BlackRock, Inc. reported beneficial ownership of 10,328,486[●] shares, sole voting power as to 8,983,572[●] of the shares and sole dispositive power as to 10,328,486[●] of the shares. The principal business address of BlackRock, Inc. is 55 East 52nd Street, New York, NY 10055.]
(8)[Based on the information filed with the SEC on Schedule 13G/A on February 14, 2022:[●]: T. Rowe Price Associates, Inc. reported beneficial ownership of 7,941,982[●] shares, sole voting power as to 3,490,088[●] of the shares and sole dispositive power as to 7,941,982[●] of the shares. The principal business address of T. Rowe Price Associates, Inc. is 100 E. Pratt Street, Baltimore, MD 21202.
| | |
CERTAIN RELATIONSHIPS AND RELATED PERSON TRANSACTIONS |
Policy for the Review and Approval of Related Person Transactions
Various policies and procedures, including our Code of Conduct, Corporate Governance Principles, Conflict of Interest Policy, and annual questionnaires and/or certifications completed by our directors and executive officers, require disclosure of and/or otherwise identify transactions or relationships that may constitute conflicts of interest or may require disclosure under applicable SEC rules as "related person transactions". Our Corporate Governance and Nominations Committee has adopted a written policy for the review and approval of related person transactions. This policy is designed to operate in conjunction with and as a supplement to the provisions of our Code of Conduct. These transactions are also reviewed in the context of making annual independence determinations regarding directors. See "Corporate Governance - Board Independence" on page 17 of this proxy statement for further information.Under the policy, our legal department will review all actual and proposed related person transactions presented to or identified by it and then submit any transaction in which a related person is reasonably likely to have a direct or indirect material interest to the Corporate Governance and Nominations Committee for review and approval or ratification. In determining whether to approve or ratify a related person transaction, the Corporate Governance and Nominations Committee will consider all the available and relevant facts and circumstances, including, but not limited to, (a) whether the transaction was the product of fair dealing, (b) the terms of the transaction and whether similar terms would have been obtained from an arm's length transaction with a third party and (c) the availability of other sources for comparable products or services. The policy also identifies certain types of transactions that our Board has identified as not involving a direct or indirect material interest and are, therefore, not considered related person transactions for purposes of the policy. For purposes of the policy, the terms "related person" and "transaction" have the meanings contained in Item 404 of Regulation S-K of the SEC.
| | |
DELINQUENT SECTION 16(A) REPORTS |
Section 16(a) of the Exchange Act requires the Company’s directors and executive officers and persons who own more than 10% of the Company’s common shares to file reports of their ownership in the equity securities of the Company and its subsidiaries and of changes in that ownership with the SEC. SEC regulations also require the Company to identify in this proxy statement any person subject to this requirement who failed to file any such report on a timely basis. To our knowledge, based solely on a review of the filed reports and written representations that no other reports are required, we believe that each of the Company’s directors and executive officers complied with all such filing requirements during 2021.
]
| | |
PROPOSAL 2 — ADVISORY VOTE TO APPROVE NAMED EXECUTIVE OFFICER COMPENSATIONMARKET PRICE AND DIVIDEND INFORMATION |
Pursuant(a) Market Information
Our common shares trade on the New York Stock Exchange under the ticker symbol "BG". On [●], the last full trading day before we announced the Redomestication, Bunge-Bermuda common shares closed at $[●] per share. Shareholders are encouraged to obtain recent stock quotes for Bunge-Bermuda common shares. We intend to file an application with the New York Stock Exchange to list the Bunge-Switzerland shares that holders of Bunge-Bermuda common shares will receive in the Redomestication. Following completion of the Redomestication, Bunge-Switzerland shares will trade on the New York Stock Exchange under the symbol “BG.”
(b) Approximate Number of Holders of Common Stock
To our knowledge, based on information provided by Computershare Investor Services LLC, our transfer agent, as [●], 2022, we had [●] Bunge-Bermuda common shares issued and outstanding, which were held by approximately [●] registered holders.
(c) Dividends
Bunge-Bermuda has historically paid dividends to holders of its common shares on quarterly basis, and Bunge-Switzerland expects to continue to pay cash distributions to holders of Bunge-Switzerland common shares on a quarterly basis. Any future determination to pay distributions will, subject to the
rulesprovisions of
applicable law, be at the
SEC, we are required to provide shareholders with a non-binding advisory "say-on-pay" vote to approve the compensationdiscretion of our
Named Executive Officers ("NEOs") as disclosed in the Compensation Discussion & Analysis ("CD&A"), accompanying compensation tables and related narrative disclosures on pages 35 through 54 of this proxy statement. The Board
recognizes the importance of our shareholders' opportunity to cast an advisory say-on-pay vote as a means of expressing views regarding the compensation of our NEOs. Between 2014, when we began our annual shareholder engagement program, and 2020, an average of 86% of votes cast were in favor of our executive compensation program. In 2021, 94.4% of the shares voted on the say-on-pay proposal were voted "for" the proposal. Our compensation philosophy is to pay-for-performance, support our business goals, align the interests of management and our shareholders, and offer competitive compensation arrangements to attract, retain and motivate high-caliber executives. Our Human Resources and Compensation Committee regularly reviews our executive compensation program to ensure alignment with our business strategy and compensation philosophy. Additionally, our executive compensation program has been designed to appropriately balance risks and rewards and discourage excessive risk-taking by our executives.
For the reasons highlighted above, and more fully discussed in the CD&A, the Board unanimously recommends that shareholders vote in favor of the following advisory resolution:
"RESOLVED, that the shareholders approve the compensation of the NEOs as disclosed pursuant to Item 402 of Regulation S- K, including the CD&A, the accompanying compensation tables and related narrative disclosure in this Proxy Statement."
You may vote "for" or "against" this proposal, or you may abstain from voting. Although the vote on this Proposal 2 is advisory and non-binding, the Human Resources and Compensation Committee and the Board will review the voting results on the proposal and will considerdepend upon then existing conditions, including our financial condition, results of operations, contractual and other relevant legal or regulatory restrictions, capital requirements, business prospects and other factors our Board deems relevant. Following the Redomestication, future declaration and payment of Bunge-Switzerland distributions will be subject to shareholder views in connection with our executive compensation program.approval.
| | | | | |
R | OUR BOARD RECOMMENDS THAT SHAREHOLDERS VOTE FOR THE APPROVAL OF THE NON-BINDING ADVISORY VOTE TO APPROVE NAMED EXECUTIVE OFFICER COMPENSATION. |
| | |
COMPENSATION DISCUSSION AND ANALYSIS |
This CD&A provides an overview of our executive compensation program and an analysis of the decisions made with respect to the compensation of our Named Executive Officers ("NEOs") in 2021.
Named Executive Officers
For 2021, our NEOs were as follows:
| | | | | | | | | | | | | | |
| | | Name | Title as of December 31, 2021 |
| | | | |
| | | Gregory Heckman | Chief Executive Officer |
| | | | |
| | | | |
| | | John Neppl | Executive Vice President, Chief Financial Officer |
| | | | |
| | | | |
| | | Brian Zachman | President, Global Risk Management |
| | | | |
| | | | |
| | | Christos Dimopoulos | President, Global Supply Chains |
| | | | |
| | | | |
| | | Raul Padilla | Special Advisor to the CEO (1)
|
| | | | INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM |
(1) In MarchThe financial statements of Bunge Limited as of December 31, 2021 Bunge announced Mr. Padilla's retirement and in April 2021 he was named Special Advisor to the CEO.
| | |
COMMITMENT TO SHAREHOLDERS |
Shareholder Engagement
Strong governance, driven by best practice2020, and feedback from shareholders. We annually submit our executive compensation program to a shareholder advisory say-on-pay vote. We value the opinions of our shareholders as expressed through this vote and other communications. Through our robust engagement outreach program, we receive valuable feedback on the issues that are most important to our shareholders, including our executive compensation program, governance, sustainability, director skills and diversity, corporate responsibility and our business and strategic direction. Since we began our shareholder outreach, our non-executive Board Chair and members of our senior management team have engaged with institutional investors representing approximately 40 - 50% of our issued and outstanding shares annually.
2021 Say-on-Pay Vote
At our 2021 Annual General Meeting, over 94% of the votes cast on our annual say-on-pay vote were in favor of our executive compensation program. We attribute this favorable support to our response to shareholder feedback, as well as the Human Resources and Compensation Committee's consideration of competitive market practices, and its goal of linking executive pay and performance. The following enhancements to our compensation programs went into effect in 2021:
•Applied distinct metrics to the short-term and long-term incentive plans
◦Short-term incentive plan: Funded based on Adjusted Profit Before Taxes before certain incentive payouts ("Adj PBT(I)"), then modified by objectives driven by operational performance, Environmental, Social and Governance ("ESG") and Human Capital Management ("HCM") goals
◦Long-term incentive plan: Return on Invested Capital ("ROIC") was replaced with Adjusted Return on Invested Capital ("AROIC") to account for mark-to-market timing differences and to adjust for readily marketable inventories
•Re-weighted the long-term incentive to have a greater portion (60%) tied to performance and aligned Earnings Per Share ("EPS") and AROIC targets to our externally stated goals
•Added Relative Total Shareholder Return ("RTSR") as a modifier to the long-term incentive
Pay and Performance
Performance drives pay. The Human Resources and Compensation Committee actively monitors the relationship between pay and performance, and strives to maintain a strong relationship between the two.
| | | | | | | | | | | | | | | | | | | | |
Bunge's executive compensation philosophy is built upon a strong foundation of linking pay with performance | | 1 | | Align the interests of executives with long-term interests of shareholders | | The majority of each executive's pay opportunity is delivered in the form of performance-based incentives with multi-year vesting |
| | | | | |
| | | | | |
| 2 | | Drive business goals and strategies | | Incentive plan targets are directly tied to strategic business goals and initiatives, and are based upon metrics that drive long-term value creation |
| | | | | |
| | | | | |
| 3 | | Reward profitable growth and increased shareholder value | | Performance metrics balance earnings growth and returns on investment and the pay mix delivers a majority of pay through equity, resulting in realized compensation in-line with the creation of long-term shareholder value |
In 2021, we added certain performance-based ESG and HCM goals as a component of the annual incentive bonuses paid to our executive team and over 5,500 of our employees. The resulting payout is now directly impacted by our attainment of certain diversity and sustainability targets.
In addition, we are committed to clarity of compensation disclosures and maintaining strong compensation governance practices to support the pay-for-performance principles of our executive compensation program. Our culture closely aligns the program with the interests of our shareholders.
| | | | | | | | | | | | | | |
WHAT WE DO | | WHAT WE DON'T DO |
| | | | |
P | We Do award more than 50% of target total compensation for our NEOs and 76% for our CEO in long-term equity-based incentives
| | O | We Don't allow repricing of stock options or buy out underwater stock options without shareholder approval
|
P | We Dohave long-term incentives that are majority performance-based
| | O | We Don't have single trigger change of control provisions
|
P | We Do use multiple performance metrics for short-term and long-term awards
| | O | We Don't have golden parachute excise tax gross ups
|
P | We Do have comprehensive disclosure of metrics and goals following each performance period
| | O | We Don't allow hedging or pledging of Company shares or holding company shares in margin accounts
|
P | We Do have robust share ownership guidelines for directors, executive officers and other senior leaders
| | O | We Don't allow transactions by directors, officers and Company insiders in Company stock without pre-clearance
|
P | We Doconduct an annual compensation risk assessment for employee incentive plans
| | O | We Don't have excessive executive perquisites
|
P | WeDo have a clawback policy
| | | |
Pay Structure and Highlights
Highly performance leveraged and focused on long-term equity incentives.In furtherance of aligning our executive compensation program with shareholders' interests, it is our practice to deliver the majority of NEO compensation in the form of performance-based equity awards with multi-year vesting. In addition, we have a longstanding history of delivering the majority of long-term incentives in performance-based restricted stock units ("PBRSUs") that are only earned upon achievement of pre-established financial goals. For 2021, the Human Resources and Compensation Committee decided to eliminate stock option awards and re-weight the long-term incentive mix to have a greater portion tied to performance-based awards: 60% PBRSUs and 40% time-based restricted stock units ("TBRSUs") for all NEOs. The Human Resources and Compensation Committee will continue to revisit this mix annually.
Key Elements of 2021 Executive Compensation
| | | | | | | | | | | | | | | | | | | | | | | | | | |
Pay Element | | Pay Philosophy | | Components | | Performance Link |
| | | | | | | | |
Base Salary | | Varies based on experience, skill level, individual contributions and geographic circumstances | | Cash
100% | | Sustained individual performance |
| | | | | | | | |
Annual Incentive Plan ("AIP")(1)
| | Driven by achievement of the company and individual performance against strategic priorities | | Cash
100%
| | Financial — 80% | | Adj PBT(I)
+/- Scorecard Objectives Modifier |
| | | |
| | | |
| | | | | |
| | | Individual / Strategic Goal — 20% |
| | | | | | | | |
Long-Term Incentive Plan
("LTIP") | | Aligns interests of executives with shareholders and drives achievement of sustained long-term value creation | | PBRSUs
60% | | 3-Year Cumulative EPS — 50% |
| | | | | |
| | | 3-Year Average AROIC — 50% |
| | | | | |
| | | 3-Year RTSR — +/-25% Modifier |
| | | | | | |
| | TBRSUs
40% | | Stock Price Appreciation |
(1)In place of the AIP, leaders of agribusiness supply chains and risk management are eligible for the annual Risk Management & Optimization Award ("RM&O") incentive award. Details regarding the RM&O incentive award are set forth on page 45 of this proxy statement.
Target Mix of Executive Compensation
Our CEO’s target total compensation (base salary, target annual cash incentive and target value of equity awards at grant) includes a mix of pay that is heavily weighted to long-term, equity-based incentives (76%). On average, our NEOs other than our CEO have 58% of total compensation targeted to be paid in long-term, equity-based incentives.
| | | | | | | | |
CEO Target Total Compensation Mix(1)
| | Other NEO Target Total Compensation Mix(1)
|
| | |
Role of the Human Resources and Compensation Committee
Ensure strong governance and adherence to pay for performance principles. The Human Resources and Compensation Committee is composed entirely of non-employee independent directors and is responsible for the governance of our executive compensation program, including but not limited to designing, reviewing and overseeing administration of the program. Each year, the Human Resources and Compensation Committee reviews and approves all compensation decisions relating to the NEOs. Generally, all decisions with respect to determining the amount or form of NEO compensation are made by the Human Resources and Compensation Committee in accordance with the methodology described below.
When making compensation decisions, the Human Resources and Compensation Committee analyzes data from the comparator groups described on page 40 of this proxy statement, as well as tally sheets prepared by our human resources department for each of the NEOs.In addition to reviewing data from the comparator groups and tally sheets, the Human Resources and Compensation Committee also considers several factors that it deems important in setting target total direct compensation for each NEO:
•Individual responsibilities, experience and achievements of the NEO and potential contributions towards our performance;
•Input and recommendations from the independent compensation consultant;
•Recommendations from the CEO and Chief Human Resources and Communications Officer (for officers other than themselves); and
•Historical relationship between pay and performance against the peer group.
The differences in target compensation levels among our NEOs are primarily attributable to the differencesthree years in the median range of compensation for similar positions in the comparator groups and the factors described above.
Role of Executive Officers
Assist in executing on our pay for performance strategy. The CEO assists the Human Resources and Compensation Committee in setting the strategic direction of our executive compensation program, evaluates the performance of the NEOs (excluding himself) and makes recommendations to the Human Resources and Compensation Committee regarding their compensation in consultation with the Chief Human Resources and Communications Officer. Although it gives significant weight to the CEO's recommendations, the Human Resources and Compensation Committee retains full discretion in making compensation decisions. The CEO is not present during the deliberations on his compensation. The CEO and the Chief Human Resources and Communications Officer also participate in developing and recommending the performance criteria and measures for our NEOs under our annual and equity incentive plans for consideration by the Human Resources and Compensation Committee.
No other executive officers participated in the executive compensation process for 2021. Our human resources department, under the supervision of the Chief Human Resources and Communications Officer, also supports the Human Resources and Compensation Committee in its work and implements our executive compensation program.
Role of Independent Compensation Consultant
Provide independent advice toward the fulfillment of the Human Resources and Compensation Committee's mission. Pursuant to its charter, the Human Resources and Compensation Committee is empowered to hire outside advisors as it deems appropriate to assist in the performance of its duties. The Human Resources and Compensation Committee has sole authority to retain or terminate any such advisors and to approve their fees.
The Human Resources and Compensation Committee has retained Semler Brossy Consulting Group ("Semler Brossy") as its independent compensation consultant to provide information, analysis and objective advice regarding our executive compensation program. Management has no role in the Human Resources and Compensation Committee selecting Semler Brossy. The Human Resources and Compensation Committee periodically meets with Semler Brossy to review our executive compensation program and discuss compensation matters. For 2021, Semler Brossy performed the following functions at the Human Resources and Compensation Committee's request:
•Assisted the Human Resources and Compensation Committee in its review and assessment of the peer group for the purpose of providing competitive market information for the design of executive compensation programs;
•Compared each element of the NEOs' target total direct compensation opportunity with the corresponding compensation elements for the comparator groups to assess competitiveness;
•Prepared an analysis of pay and performance relative to the peer group to support the Human Resources and Compensation Committee's goal of aligning our executive compensation program with shareholders' interests;
•Prepared the compensation risk assessment in relation to our executives;
•Advised the Human Resources and Compensation Committee on competitive pay practices for non-employee director compensation;
•Prepared presentations for the Human Resources and Compensation Committee on general U.S. trends and practices in executive compensation;
•Supported the Human Resources and Compensation Committee in its review of this CD&A; and
•Advised the Human Resources and Compensation Committee on the design of executive incentive programs and arrangements.
The Human Resources and Compensation Committee reviews its relationship with Semler Brossy annually. The process includes a review of the quality of the services provided, the fee structure for the services, and the factors impacting Semler Brossy's independence under the rules of the SEC and the listing standards of the NYSE. In March 2022, the Human Resources and Compensation Committee concluded that no conflict of interest exists that would prevent Semler Brossy from independently advising the Human Resources and Compensation Committee.
Competitive Market Positioning
Opportunities to earn superior pay for superior performance. We use various methods to determine the elements of our executive compensation program and review current compensation practices and levels. Our executive compensation program strives to provide a mix of base salary, target annual cash incentive awards and target annual long-term equity-based incentive award values (referred to, in aggregate, as target total direct compensation) that is aligned with the program's principles and objectives and is competitive with compensation provided by a peer group of selected publicly traded companies.
The Human Resources and Compensation Committee, in consultation with its independent compensation consultant, Semler Brossy, selects several peer companies having one or more of the following characteristics:
| | | | | | | | | | | | | | |
Peer Group Composition | | 2021 Peer Group (n=17) |
| | | | |
Industry | | •Agricultural, Chemicals, Fertilizers
•Food Processing
•Raw Materials
•Logistics/Distribution
| | •Air Products and Chemicals, Inc.
•Alcoa Corporation
•Archer-Daniels-Midland Company
•Conagra Brands, Inc.
•Corteva, Inc.
•Dow Inc.
•FedEx Corporation
•General Mills, Inc.
•International Paper Company
•Kellogg Company
•The Mosaic Company
•Nutrien Ltd.
•PPG Industries, Inc.
•Sysco Corporation
•Tyson Foods, Inc.
•US Foods Holding Corp.
•WestRock Company
|
| | | |
Revenue | | •Revenue targeted between 0.2 to 1.5x Bunge
•Preference for companies with more than 25% of revenue generated outside the United States
| |
| | | |
Market Capitalization | | •Market Capitalization targeted between 0.5 to 3.0x Bunge
| |
Bunge has few direct competitors, so we have built a peer group comprising companies in relevant and adjacent industries that have similar global operations, scale and are of similar size to Bunge. These peers generally represent companies from which Bunge may attract talent and, therefore, provide the best comparison for the purpose of determining appropriate compensation levels.
The ratio of market capitalization relative to revenue in commodities-based businesses such as ours regularly results in our placing in the top quartile in revenue and the lower quartile in market capitalization within our peer group.
Bunge position (I) vs. 2021 Peer Group
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| 0 | | | 25 | | 50 | | 75 | | | 100 |
| | | | | | | | | | | | | | | | |
Revenue(1) | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | 86th Percentile | | |
| | | | | | | | | | | | | | | | |
Market Capitalization(1) | | | | | | | | | | | | | | | | |
| | 11th Percentile | | | | | | | | | | | | |
(1)Based on data as ofperiod ended December 31, 2021.
The Human Resources and Compensation Committee periodically reviews the composition of the peer group and, as appropriate, updates it to ensure continued relevance and to reflect mergers, acquisitions or other business-related changes that may occur. For 2021, the composition of the companies comprising the peer group remained unchanged.
In determining NEO compensation, the Human Resources and Compensation Committee reviews a market analysis preparedincorporated by Semler Brossy, which includes equally weighted general industry and peer group compensation data provided by Willis Towers Watson and McLagan. This data enables the Human Resources and Compensation Committee to compare the competitiveness of NEO compensation based on their individual responsibilities and scope
against comparable positions within our peer group and a broader general industry group of public companies. We refer to the peer group and other data sources collectively as the "comparator groups."
As an initial guideline, the Human Resources and Compensation Committee generally seeks to set target total direct compensation levels for the NEOs at levels that are competitive with the median of the comparator groups. Our executive compensation program retains the flexibility to set target total direct compensation above or below the median of the comparator groupsreference in the Human Resources and Compensation Committee's reasonable discretion to recognize factors such as market conditions, job responsibilities, experience, skill sets and ongoing or potential contributions to Bunge. In addition, actual compensation earned in any annual period may be at, above, or below the median depending on the individual's and Bunge's performance for the year.
| | |
PRINCIPAL ELEMENTS OF OUR EXECUTIVE COMPENSATION PROGRAM |
Base Salary
Compensation for responsibilities, skill and experience. A portion of annual cash compensation is paid as base salary to provide NEOs with a competitive level of pay for the execution of their key responsibilities. Base salaries for the NEOs are reviewed on an annual basis, and in connection with a promotion, individual performance or other change in responsibilities. The Human Resources and Compensation Committee establishes base salaries for the NEOs based on several factors, including:
•Evaluation of the executive's scope of responsibilities;
•Experience, contributions, skill level and pay compared to comparable executives in the comparator groups;
•Input and recommendations from Semler Brossy; and
•Recommendations from the CEO, in consultation with the Chief Human Resources and Communications Officer, for each NEO, other than the CEO.
No NEOs received a base salary increase in 2021. There is no set schedule for base salary increases. Salary increases are periodically provided based on competitive factors or in connection with an increase in responsibilities. Base salaries are generally targeted at approximately the median level for comparable executives in the comparator groups. The Human Resources and Compensation Committee set the base salaries of the NEOs in 2021 as follows:
| | | | | |
Executive | Base Salary
(as of 12/31/2021)
|
Gregory Heckman | $1,200,000 |
John Neppl | $700,000 |
Brian Zachman | $650,000 |
Christos Dimopoulos(1)
| $655,500 |
Raul Padilla(2)
| $745,341 |
(1)Amounts shown have been converted from Swiss francs to U.S. dollars at the exchange rate of 1.0925 U.S. dollars per Swiss franc as of December 31, 2021.
(2) Amounts shown have been converted from Brazilian reals to U.S. dollars at the exchange rate of 0.1771 U.S. dollars per Brazilian real as of December 31, 2021.
The base salary earned by each NEO is set forth in the "Salary" column of the Summary Compensation Table on page 55 of this proxy statement.
Annual Incentive Plan
Drive achievement of short-term progress toward long-term value creation.The Human Resources and Compensation Committee provides certain NEOs an opportunity to earn cash incentive awards under our Annual Incentive Plan ("AIP"), an annual, performance-based incentive plan that is directly related to the achievement of overall Company financial and predetermined strategic measures, aligned with our long-term strategy and goals. This same plan is available to a broad group of employees.
Target annual cash incentive award opportunities under the AIP are established by the Human Resources and Compensation Committee using analyses of comparable executives in the comparator groups and based on a percentage of each respective NEO's base salary. The Human Resources and Compensation Committee generally sets target annual cash incentive opportunities to be competitive with the median level for comparable executives in the comparator groups.
The following target annual incentive awards were established for the NEOs in 2021:
| | | | | | | | |
| Executive | 2021 Target Annual Incentive Percent of Base Salary | 2021 Target Annual Incentive Award Opportunity |
| Gregory Heckman | 160% | $1,920,000 |
| John Neppl | 100% | $700,000 |
Brian Zachman(1) | N/A | N/A |
Christos Dimopoulos(1) | N/A | N/A |
Raul Padilla(2)(3) | 125% | $310,559 |
(1)Messrs. Zachman and Dimopoulos participate in the RM&O incentive and, therefore, are not eligible for the AIP.
(2)Mr. Padilla's calculated award percent reflects proration to account for his transition to Special Advisor to the CEO in April 2021.
(3)Amounts shown have been converted from Brazilian reals to U.S. dollars at the exchange rate of 0.1771 U.S. dollars per Brazilian real as of December 31, 2021.
No NEO received an increase in target annual incentive award opportunity for 2021. The actual annual incentive awards earned by each NEO may be above, at, or below the established target level based on Bunge's financial performance and the respective NEO's individual performance goals attained for the relevant year. In order to receive a partial incentive award under the AIP, a threshold level must be attained before a payout is made. Incentive opportunities are also subject to caps on the amounts that can be earned. For 2021, the NEOs were eligible to receive a payout ranging from 0% to 240% of their target annual incentive award opportunity shown in the far-right column in the table above. In order to earn a 240% payout, both financial and individual performance must be achieved at maximum levels of 250% and 200% of target, respectively.
For 2021, the Human Resources and Compensation Committee established the following performance weightings for NEOs under the AIP:
| | | | | | | | | | | | | | |
| Executive | | Financial Performance | | Individual Performance |
| | | |
| Adj PBT(I) +/- Modifiers | | Strategic Objectives |
| Gregory Heckman | | 80% | | 20% |
| John Neppl | | 80% | | 20% |
Brian Zachman(1) | | N/A | | N/A |
Christos Dimopoulos(1) | | N/A | | N/A |
| Raul Padilla | | 80% | | 20% |
(1)Messrs. Zachman and Dimopoulos participate in the RM&O incentive and, therefore, are not eligible for the AIP.
Financial Performance
Maintain focus on One Bunge and overall Company performance. The annual incentive is heavily weighted (80%) toward the achievement of financial performance. For 2021, the AIP underwent a redesign, moving away from setting specific financial targets that are based on a set of assumptions, to a funding approach. The funding approach calculates a share of profit that is then allocated based on the individual incentive targets for each of the more than 5,500 employees in the plan. The funding approach will serve to remove a significant portion of variability in pay outcomes and align with overall results for shareholders. The main funding mechanism is Adj PBT(I). This may then be modified up or down by the scorecard objectives, which are driven by operational performance and ESG and HCM goals.
The AIP funding rate is evaluated annually by the Human Resources and Compensation Committee and set at a level that ensures 1) the range of outcomes is competitive to market, including payouts consistent with standard levels of probability, 2) no payout is generated unless cost of capital is achieved and 3) alignment of the target payout with our externally stated baseline earnings. The AIP funding rate for 2021 was set at 5% of Adj PBT(I), +/- 3% based on the modifiers, as established by the Human Resources and Compensation Committee on February 17, 2021.
| | | | | | | | | | | | | | | | | |
5%
Adj PBT(I) | +/- | 3%
Modifier | Focus Area | Scorecard Objectives | |
Operational Performance | Quality of earnings relative to internal and external benchmarks | |
SG&A cost reduction | |
Growth of specialty platforms | |
ESG and HCM | Achievement of Sustainability Index | |
Increase in diversity at the leadership level | |
The modifiers are quantifiable targets designed to advance progress in key strategic areas. In determining the impact of the modifiers, the Human Resource and Compensation Committee considered the following:
•Quality of earnings relative to internal and external benchmarks — working capital usage; structural versus positioning results; and earnings mix
◦In 2021 , the Company performed as expected with the given market conditions, resulting in no impact to the modifier
•SG&A cost reduction — cost savings targets versus business plan
◦In 2021 , the Company exceeded SG&A cost reduction goals; savings associated with travel restrictions as a result of the COVID-19 pandemic were given less weighting when determining the level of impact to the modifier
•Growth in specialty platforms — economic EBIT in growth businesses versus business plan
◦In 2021 , the refined and specialty oils platforms realized a more than 200% improvement in Economic Earnings Before Interest and Tax, resulting in a positive impact to the full modifier for this objective
•Achievement of Sustainability Index — emissions reduction; palm oil traceability to plantation; palm oil sourced from No Deforestation, No Peat, No Exploitation suppliers; and soy monitorable direct sourcing
◦In 2021 , two out of four sustainability targets were met while the others maintained at baseline, resulting in no impact to the modifier
•Increase in diversity at the leadership level — increase in female diversity at senior director levels
◦In 2021 , although effort was undertaken to maintain the baseline in workforce representation, only one out of four targets were met, resulting in a partial reduction of the modifier
Based on these accomplishments, The Human Resources and Compensation Committee certified the following actual results on January 20, 2022:
| | | | | | | | | | | | | | |
Funding Mechanism | | | Funding Rate |
| | | | |
Adj PBT(I) | | | 5.00% |
Modifier (Scorecard Objectives) | | | |
| Operational Performance | Quality of earnings relative to internal and external benchmarks | | — |
| SG&A cost reduction | | +0.25% |
| Growth of specialty platforms | | +0.50% |
| ESG and HCM | Achievement of Sustainability Index | | — |
| Increase in diversity at the leadership level | | -0.25% |
| | | | |
| | Final Funding Rate | | 5.50% |
Once the final funding rate is determined, it is multiplied by the Adj PBT(I) to come up with the total funding amount. This amount is divided by the Aggregate AIP Financial Performance Target, which is the sum of the total payout under the financial performance measure if each of the AIP participants were to achieve target payout based on their respective percent of base salary.
| | | | | | | | | | | | | | | | | | | | |
Adj PBT(I) | x | Final Funding Rate | ÷ | Aggregate AIP
Financial Performance Target | = | Payout of Financial Performance |
The following table shows the implied Adj PBT(I) that would have resulted in Threshold, Target and Maximum payouts of the financial performance for the 2021 AIP with the 5.50% Final Funding Rate applied (dollar amounts are in millions of USD):
| | | | | | | | | | | | | | | | | |
Performance Metric
| Threshold (30% Payout) | Target (100% Payout) | Maximum (250% Payout) | Actual | Results |
| | | | | |
Implied Adj PBT(I)(1) | $236 | $788 | $1,970 | $2,449 | 311% |
| | | | | |
| | | Payout of Financial Performance | 250% |
(1) Based on an Aggregate AIP Financial Performance Target of $43M | (capped at max) |
As noted in the 2021 Financial and Strategic Highlights on page 5 of this proxy statement, Bunge experienced its best performance year on record. In turn, the calculated result of the financial performance component of the annual incentive award was above our maximum payout and, therefore, capped at 250%.Amounts used to determine performance of financial results are derived from our audited financial statements. Under the terms of the AIP, the Human Resources and Compensation Committee may adjust actual results achieved, in its discretion, if it determines that such adjustment is appropriate to reflect unusual, unanticipated or non-recurring items or events. Consistent with past practice and according to pre-established principles, in calculating payouts for 2021 AIP awards, the Human Resources and Compensation Committee chose to exclude certain gains and charges as disclosed in our earnings release filed on Form 8-K on February 9, 2022. These gains and charges were associated with (1) gain on the sale of our share of the Rotterdam Oils Refinery and an oils packaging facility in Mexico, (2) gain on the sale of a portfolio of interior grain elevators located in the United States, (3) impairment charge on classification as held-for-sale of our wheat milling business in Mexico, and (4) fixed asset impairment charge related to our share of an oils facility in China. No discretionary adjustments were made in response to the COVID-19 pandemic.
Individual Performance
Reward successful execution of strategic initiatives. In addition to financial performance, each NEO was evaluated on the achievement of individual performance objectives that relate to the achievement of specific aspects of our business plans and strategies, as well as other initiatives relating to the NEO's position.
The individual performance component of the awards provides the Human Resources and Compensation Committee an opportunity to reward NEOs for achievement of performance objectives that drive overall Company success. These objectives are reviewed and approved by the Human Resources and Compensation Committee at the beginning of each year. For 2021, the individual objectives for our NEOs were aligned to three focus areas:
•Operational Performance & Financial Discipline — drive SG&A cost improvement, develop an enterprise risk management scorecard, complete rewiring initiatives and implement the new operating model (system, process, policy and culture) and evolve and standardize our approach to counterparty risk;
•Growth — deliver on the business plan for Proteins, develop value creation plans (digital, origination, renewable feedstocks and carbon footprint) and accomplish year-on-year growth with strategic customers; and
•People & Purpose — develop frameworks, priorities and proof points to position Bunge in ESG, deliver on annual sustainability-linked loan commitments, drive actions to increase employee engagement and drive development actions for all executive and vice president succession candidates.
2021 Annual Incentive Award Determinations
The Human Resources and Compensation Committee reviews and approves the annual incentive awards based on audited financial results achieved against business results and individual performance as described above. The Human Resources and Compensation Committee seeks to set rigorous goals at the beginning of the year and evaluates preliminary payouts at year-end to ensure appropriate alignment of pay and performance.
The table below sets forth the actual annual incentive awards paid to each NEO for performance achieved in 2021:
| | | | | | | | |
| Executive | 2021 Calculated Award Percent of Target | 2021 Actual Award Total Value |
| Gregory Heckman | 240% | $4,608,000 |
| John Neppl | 235% | $1,645,000 |
Brian Zachman(1) | N/A | N/A |
Christos Dimopoulos(1) | N/A | N/A |
Raul Padilla(2)(3) | 220% | $683,229 |
(1)Messrs. Zachman and Dimopoulos participate in the RM&O incentive and, therefore, are not eligible for the AIP.
(2)Mr. Padilla's calculated award percent reflects proration to account for his transition to Special Advisor to the CEO in April 2021.
(3)Amounts shown have been converted from Brazilian reals to U.S. dollars at the exchange rate of 0.1771 U.S. dollars per Brazilian real as of December 31, 2021.
The actual amount awarded to each NEO is also set forth in the "Non-Equity Incentive Plan Compensation" column of the Summary Compensation Table on page 55 of this proxy statement.Annual Risk Management & Optimization Incentive Awards
As the leaders of Global Risk Management and Supply Chains respectively, Messrs. Zachman and Dimopoulos had responsibility for optimizing the financial contribution derived from managing the related physical and financial flows within our Agribusiness segment. This financial contribution results from optimizing the risk created from managing the timing differences of procuring from farmers when they are willing to sell and selling to customers when they are ready to buy. Accordingly, they participated in a separate performance-based annual cash incentive award opportunity in 2021—the RM&O incentive award.
| | | | | | | | | | | | | | |
| Executive | | Financial Performance | | Risk Management & Optimization |
| | | |
| Adj PBT(I) +/- Modifiers | | Risk Adjusted Profit |
Gregory Heckman(1) | | N/A | | N/A |
John Neppl(1) | | N/A | | N/A |
| Brian Zachman | | 25% | | 75% |
| Christos Dimopoulos | | 25% | | 75% |
Raul Padilla(1) | | N/A | | N/A |
(1)Messrs. Heckman, Neppl and Padilla participate in the AIP and, therefore, are not eligible for the RM&O incentive.
A portion of this award opportunity reflects their roles as executive leaders in contributing to the overall success of the Company and is linked directly to the achievement of the same financial performance results as described for the AIP above: Adj PBT(I), modified by our achievement of scorecard objectives. The remainder of this award opportunity reflects the direct impact of each NEO on the earnings from trading, merchandising and positioning to maximize the earnings at risk in our asset base. The performance metric used for the RM&O incentive award is Risk Adjusted Profit, which we define as the aggregate contribution generated from optimizing the physical and financial flows of our Agribusiness value chains after applying working capital and risk capital charges to take into account the quality of earnings generated relative to the amount of capital utilized during the year. The award opportunity is intended to align the compensation we provide for these positions with the compensation provided to comparable executives in commodity-based environments in the comparator groups. The award is subject to a minimum necessary to be achieved before a payout under the award will occur. The award is also subject to a maximum for which the payout may not exceed. The following target RM&O incentive awards were established by the Human Resources and Compensation Committee for the below NEOs in 2021:
| | | | | | | | |
| Executive | 2021 Target RM&O Percent of Base Salary | 2021 Target RM&O Award Opportunity |
Gregory Heckman(1) | N/A | N/A |
John Neppl(1) | N/A | N/A |
| Brian Zachman | 350% | $2,275,000 |
Christos Dimopoulos(2) | 300% | $1,966,500 |
Raul Padilla(1) | N/A | N/A |
(1)Messrs. Heckman, Neppl and Padilla participate in the AIP and, therefore, are not eligible for the RM&O incentive.
(2)Amounts shown have been converted from Swiss francs to U.S. dollars at the exchange rate of 1.0925 U.S. dollars per Swiss franc as of December 31, 2021.
No NEO received an increase in target RM&O award opportunity for 2021. The actual annual incentive awards earned by each NEO may be above, at, or below the established target level based on Bunge's financial performance and the respective NEO's RM&O performance attained for the relevant year. Incentive opportunities are also subject to caps on the amounts that can be earned. For 2021, Messrs. Zachman and Dimopoulos were eligible to receive a payout ranging from 0% to 250% of their target RM&O award opportunity shown in the far-right column in the table above.
2021 RM&O Award Determinations
The Human Resources and Compensation Committee reviews and approves the RM&O incentive award based on the results achieved against the audited financials and risk metrics as described above. The Human Resources and Compensation Committee seeks to set rigorous goals at the beginning of the year and evaluates payouts at year-end to ensure appropriate alignment of pay and performance. The actual performance against RM&O goals are not disclosed as the Human Resources and Compensation Committee believes that disclosure could cause competitive harm to the Company.
In order to drive long-term value creation and ensure results are sustainable, the Human Resources and Compensation Committee requires that a portion of the RM&O incentive award payout be deferred in the form of restricted stock units over a three-year period and be at risk based on future performance of the Agribusiness value
chains. The restricted stock units are eligible to be paid out in three annual installments commencing on the first anniversary of the grant date of the units, subject to reduction or forfeiture in the event of: (i) a cumulative annual risk management loss for the respective value chains during the deferral period; (ii) an executive's voluntary resignation of employment; or (iii) an executive's termination of employment by the Company for "cause."
The table below sets forth the actual RM&O incentive awards paid to each NEO for performance achieved in 2021:
| | | | | | | | | | | | | | | | | | | | |
| Payout for 2021 Actual RM&O | | | Payout Mix for 2021 Actual RM&O |
| Executive | Percent of Target | Total Value | | | Cash | Deferral |
| | | | | | |
Gregory Heckman(1) | N/A | N/A | | | N/A | N/A |
John Neppl(1) | N/A | N/A | | | N/A | N/A |
| Brian Zachman | 250% | $5,687,500 | | | $3,554,688 | $2,132,812 |
Christos Dimopoulos(2) | 220% | $4,326,357 | | | $2,777,710 | $1,548,647 |
Raul Padilla(1) | N/A | N/A | | | N/A | N/A |
(1)Messrs. Heckman, Neppl and Padilla participate in the AIP and, therefore, are not eligible for the RM&O incentive.
(2)Amounts shown have been converted from Swiss francs to U.S. dollars at the exchange rate of 1.0925 U.S. dollars per Swiss franc as of December 31, 2021.
The actual amount awarded to each NEO is also set forth in the "Non-Equity Incentive Plan Compensation" column of the Summary Compensation Table on page 55 of this proxy statement.Long-Term Incentive Plan
Aligns majority of pay with shareholder interests.The long-term equity-based incentive element of our executive compensation program is designed to incentivize actions that will drive sustainable, long-term value creation by providing NEOs with a continuing stake in our long-term success and to serve as an important component of retention. We further emphasize equity ownership by senior executives through the share ownership guidelines described on page 52 of this proxy statement.Pursuant to the Equity Incentive Plan, the Human Resources and Compensation Committee primarily grants long-term incentive awards to NEOs in the form of PBRSUs and TBRSUs that vest upon continued service over a specified period of time.
Grants are generally made in the first quarter of each year, when compensation decisions for the year are made and after the public release of our year-end audited financial results. In limited, special situations, equity awards may be granted at other times in the event of a new hire, promotion, for retention purposes or to recognize exceptional performance.
The mix of long-term incentives for the 2021 annual grant cycle for the NEOs was 60% PBRSUs and 40% TBRSUs.
The Human Resources and Compensation Committee targets the value of the long-term incentive awards granted to the NEOs to provide total compensation opportunities that approximate the median of comparable executives in the comparator groups. The Human Resources and Compensation Committee also considers the following factors in determining the type and amount of long-term incentive awards:
•feedback from shareholder engagement;
•input and recommendation from its independent compensation consultant;
•potential shareholder dilution;
•share overhang (defined as the number of shares available for grant, plus outstanding stock option and restricted stock unit awards);
•run rate (defined as the number of shares granted divided by the number of common shares outstanding); and
•projected cost and accounting expense on our earnings.
In 2021, the Human Resources and Compensation Committee granted the following long-term incentive award amounts to NEOs:
| | | | | |
Executive | 2021 Total LTIP
Target Value
|
Gregory Heckman | $10,000,000 |
John Neppl | $2,000,000 |
Brian Zachman | $1,500,000 |
Christos Dimopoulos | $1,000,000 |
Raul Padilla(1)
| $2,600,000 |
(1)Mr. Padilla's equity award will prorate upon his departure, at which time he will forfeit two-thirds of his outstanding, unvested shares under this award.
In determining the number of units granted in 2021, the Human Resources and Compensation Committee adopted the method of using the average of the high and low prices of our common shares on the date of grant to align the value of the grant with the number of shares granted on a specific date. The actual amount awarded to each NEO is also set forth in the "Stock Awards" and "Option Awards" columns of the Summary Compensation Table on page 55 of this proxy statement.Performance-Based Restricted Stock Unit Awards
Reward achievement of long-term value drivers, EPS and AROIC, and stock price appreciation.PBRSUs are tied to our long-term performance to ensure that NEO pay is directly linked to the achievement of sustained long-term operating performance. Reflective of the desire to balance earnings growth and efficient use of capital, the Human Resources and Compensation Committee has chosen to measure performance in an equal mix of three-year cumulative EPS and three-year average AROIC for Bunge as a whole, with a relative TSR modifier. In 2021, the Human Resources and Compensation Committee replaced ROIC with AROIC to account for mark-to-market timing differences and adjust for readily marketable inventories. The Human Resources and Compensation Committee considers EPS and AROIC key drivers of shareholder value and fundamental to long-term value creation.
On February 18, 2021, the Human Resources and Compensation Committee approved the grant of PBRSUs to the NEOs for the 2021-2023 performance period. Payouts of the PBRSUs, if any, will generally be subject to the NEO's continued employment through the vesting date (generally, the third anniversary of the grant date) and will be based (i) 50% on our achievement of cumulative EPS targets and (ii) 50% on our achievement of average AROIC targets established by the Human Resources and Compensation Committee on the grant date. Once the achievement of the financial targets has been calculated, up to an additional 25% may be added or subtracted from the results depending on Bunge's three-year performance relative to the S&P 500 Industrials comparator group. In the event that the RTSR would result in a positive modifier, but Total Shareholder Return of Bunge is negative over the three-year period, the RTSR modifier will not be applied. In no event will the RTSR modifier result in an overall PBRSU achievement greater than the maximum payout attached to the award, which for the 2021 grant is 200% of the award target. Upon vesting, each PBRSU is settled with a Bunge common share. In addition, dividend equivalents are paid in our common shares on the date that PBRSUs are otherwise paid out, based on the number of shares vesting. However, in no event will dividend equivalents be paid on any shares in excess of the target award granted.
In setting the 2021-2023 targets, the Human Resources and Compensation Committee considered multiple factors, including:
•our externally stated goals;
•investor expectations;
•peer and broader market historical performance;
•industry economic factors;
•our historical and potential performance; and
•typical distributions of payouts over time.
The resulting EPS and AROIC targets are established at levels that are intended to incentivize achievement of our long-term strategic plans and the continuous improvement of returns above our cost of capital.
Given performance targets for the 2021-2023 cycle are based on our policy to not provide specific earnings guidance, performance targets are not disclosed prior to the end of the performance period as the Human Resources and Compensation Committee believes that disclosure would cause competitive harm to the Company.
As mentioned above, the Human Resources and Compensation Committee targeted to deliver 60% of the value of the 2021 long-term incentive award in PBRSUs. Information regarding the fair market value and number of PBRSUs that the NEOs may earn at the end of the 2021-2023 performance period, subject to satisfaction of the performance metrics described above, is shown in the Grants of Plan Based Awards Table on page 57 of this proxy statement.2019-2021 PBRSU Award Determinations. Each year, following the end of a three-year PBRSU performance cycle, the Human Resources and Compensation Committee reviews and certifies the performance attained based on our reported audited financial statements, subject to the Human Resources and Compensation Committee's discretion under the Equity Incentive Plan to adjust such results for non-recurring charges and other one-time events. In February 2022, the Human Resources and Compensation Committee reviewed and certified achievement of the performance metrics for the PBRSUs granted on March 12, 2019 for the 2019-2021 performance period. Fifty percent of the 2019-2021 awards vest based on three-year cumulative diluted EPS from continuing operations and 50% on three-year average ROIC.
The following tables show the results for the 2019-2021 performance cycle:
| | | | | | | | | | | | | | | | | |
| Performance Metric | Threshold
(30%) | Target
(100%) | Maximum
(200%) | Actual(1) | Results |
| | | | | |
| EPS | $5.30 | $8.83 | $12.36 | $24.40 | 200% |
| ROIC | 4.2% | 5.4% | 7.0% | 11.2% | 200% |
| | | | | |
| Weighted average payout of performance metrics | 200% |
(1)Adjusted for non-recurring charges and other one-time events subject to the Human Resources and Compensation Committee's discretion.
Based on the Human Resources and Compensation Committee's determination that performance was at the levels set forth above, and without making any discretionary adjustments in response to the COVID-19 pandemic, PBRSUs were paid out at 200% for the 2019-2021 performance period.
Time-Based Restricted Stock Unit Awards
Reward stock price appreciation and continued service. For 2021, the Human Resources and Compensation Committee granted TBRSUs with 40% weighting for all NEOs to promote alignment with shareholder interests as the ultimate value received will be a function of stock price performance. TBRSUs also help us maintain competitive compensation levels and retain executive talent through a multi-year vesting schedule. TBRSUs generally vest in full on the third anniversary of the date of grant.
On February 18, 2021, the Human Resources and Compensation Committee approved the grant of TBRSUs to the NEOs effective March 15, 2021. Information regarding the grant date fair value and the number of TBRSUs awarded to each NEO is set forth in the Grants of Plan Based Awards Table on page 57 of this proxy statement.Retirement and Executive Benefits
Competitively address basic health, welfare and retirement income needs. We provide employees with a wide range of retirement and other employee benefits that are designed to assist in attracting and retaining employees critical to our long-term success and to reflect the competitive practices of the companies in the peer group. NEOs are eligible for retirement benefits under the following plans: (i) Bunge U.S. Pension Plan (closed to new hires effective December 31, 2017); (ii) Bunge Excess Benefit Plan; (iii) Bunge U.S. supplemental executive retirement plan ("SERP"); (iv) Bunge
Retirement Savings Plan; (v) Bunge Excess Contribution Plan; and (vi) Bunge Supplemental Excess Contribution Plan. Our executive compensation program also provides NEOs with limited perquisites and personal benefits. The Human Resources and Compensation Committee, in consultation with Semler Brossy, periodically reviews the benefits provided to the NEOs to ensure competitiveness with market practices.
Retirement Plans
The U.S. Pension Plan is a tax qualified retirement plan that covers substantially all U.S.-based salaried and non-union hourly employees who were hired before January 1, 2018. Employees hired on or after January 1, 2018 receive a fixed contribution of 5% of base salary, bonus and any overtime to their 401(k) each year in lieu of pension benefits. All plan participants whose benefits are limited by the Internal Revenue Code, including the NEOs, are eligible to participate in the Excess Benefit Plan. In addition, each U.S.-based NEO is eligible to participate in the SERP. The U.S. Pension Plan, Excess Benefit Plan and SERP are described in the narrative following the Pension Benefits Table on page 60 of this proxy statement and the estimated annual normal retirement benefits payable to the NEOs (determined on a present value basis) are set forth in the Pension Benefits Table on page 60 of this proxy statement.Each non-U.S.-based NEO is eligible to participate in a statutory retirement plan that covers substantially all employees who are employed in the country where the NEO is based. Amounts contributed by Bunge to such plans are set forth in the "All Other Compensation" column of the Summary Compensation Table on page 55 of this proxy statement.401(k) Plan and Excess Contribution Plan
The Retirement Savings Plan is a tax qualified retirement plan that covers substantially all U.S.-based salaried and non-union hourly employees. Each U.S.-based NEO is eligible to participate in the plan. All employees whose benefits are limited by the Internal Revenue Code, including the NEOs, are eligible to participate in the Excess Contribution Plan. In addition, each U.S.-based NEO is eligible to participate in the Supplemental Excess Contribution Plan. The Retirement Savings Plan, the Excess Contribution Plan and the Supplemental Excess Contribution Plan are described in the narrative following the Nonqualified Deferred Compensation Table on page 62 of this proxy statement.Company matching contributions allocated to the NEOs under the Retirement Savings Plan, the Excess Contribution Plan and the Supplemental Excess Contribution Plan are shown in the "All Other Compensation Total" column of the Summary Compensation Table on page 55 of this proxy statement.Health and Welfare Plans
Active employee benefits such as medical, dental, life insurance and disability coverage are available to U.S. employees through our flexible benefits plan. Employees contribute toward the cost of the flexible benefits plan by paying a portion of the premium costs on a pre-tax basis. Long-term disability coverage can be paid on a pre- or post-tax basis at the employee's option.
Perquisites and Executive Benefits
It is the Human Resources and Compensation Committee's practice to limit special perquisites and executive benefits provided to the Company's executives. The Human Resources and Compensation Committee periodically reviews the perquisites provided to our executive officers under our executive compensation program. Under the current policy, we provide U.S.-based executive officers, including the NEOs, with a limited annual perquisite allowance of $9,600. Non-U.S. NEOs are provided with an automobile allowance in accordance with Company programs and local market practices.
Severance and Change of Control Benefits
Focus executives on shareholder interests during periods of uncertainty.Our executive compensation program is designed to provide for the payment of severance benefits to our NEOs upon certain types of employment terminations. Providing severance and change of control benefits assists us in attracting and retaining executive talent and reduces the personal uncertainty that executives are likely to feel when considering a corporate transaction. These arrangements also provide valuable retention incentives that encourage executives to complete such
transactions, thus enhancing long-term shareholder value. The NEOs are provided with severance benefits under individual arrangements.
Mr. Heckman’s employment agreement and Mr. Neppl's offer letter include change of control severance protections. Specifically, they contain a "double trigger" vesting requirement for the payment of severance benefits, meaning that both (1) a change of control must occur, and (2) their employment must also be terminated under certain specified circumstances before they are entitled to any severance payment. All unvested equity awards are also subject to double trigger vesting upon a change of control. The terms of Mr. Heckman’s employment agreement and Mr. Neppl's offer letter are set forth under the Potential Payments Upon Termination of Employment or Change of Control table beginning on page 63 of this proxy statement.To enhance retention and align with market practice, we have entered into change of control severance agreements with each of the NEOs, other than Mr. Heckman and Mr. Neppl, whose employment agreements contained such a provision. The change of control severance agreements also contain a "double trigger" vesting requirement for the payment of severance benefits. All unvested equity awards are also subject to double trigger vesting upon a change of control. The change of control severance agreements include an 18-month non-competition covenant.
None of our employment agreements, change of control severance agreements or other compensation arrangements provide for a golden parachute excise tax gross up.
The terms of the individual arrangements and a calculation of the estimated severance benefits payable to each NEO under their respective arrangements are set forth under the Potential Payments Upon Termination of Employment or Change of Control table beginning on page 63 of this proxy statement.
The Human Resources and Compensation Committee maintains and is committed to a policy of strong corporate governance. The principal governance elements of our executive compensation program are described in further detail below.
Executive Compensation Recoupment Policy
Mitigate unnecessary risk-taking that may have adverse impact on Bunge. The Human Resources and Compensation Committee has adopted a recoupment policy ("clawback") with respect to executive compensation. The policy provides that, if the Board or an appropriate committee thereof determines that an executive officer or other senior executive has engaged in any fraud or misconduct that caused or was a significant contributing factor to having to restate all or a portion of its financial statement(s), the Board or committee shall take such actions as it deems appropriate to remedy the misconduct and prevent its recurrence.
The actions that may be taken against a particular executive include:
•requiring reimbursement of any bonus or incentive compensation paid to the executive;
•causing the cancellation of any equity-based awards granted to the executive; and
•seeking reimbursement of any gains realized on the disposition or transfer of any equity-based awards, if and to the extent that, (i) the amount of compensation was calculated based upon the achievement of certain financial results that were subsequently reduced due to a restatement, (ii) the executive engaged in fraud or misconduct that caused or significantly contributed to the restatement and (iii) the amount of the compensation that would have been awarded to or received by the executive had the financial results been properly reported would have been lower than the amount actually awarded or received.
Any recoupment under this policy is in addition to any other remedies that may be available to Bunge under applicable law.
Share Ownership Guidelines
Ensure appropriate level of long-term wealth tied to shareholder returns. To further align the interests of senior management with our shareholders, the Board maintains share ownership guidelines that require executive officers to hold significant amounts of our common shares. Executive officers are expected to meet minimum ownership guidelines by April 30 following the fifth anniversary of the date the executive is hired or appointed to a covered title, as applicable. The guideline applicable to senior executives is based on a multiple of base salary.
•CEO – 6x base salary
•Other NEOs – 3x base salary
•Other Senior Executives - 2x base salary
The Human Resources and Compensation Committee reviews the progress of the NEOs toward meeting the ownership guidelines annually. In the event of financial hardship or other good cause, the Human Resources and Compensation Committee may approve exceptions to the share ownership guidelines as the Human Resources and Compensation Committee deems appropriate. For a description of the ownership guidelines applicable to our non-employee directors, see "Director Compensation" on page 30 of this proxy statement.The following count towards meeting the ownership guideline: (i) shares beneficially owned by the executive directly or indirectly and (ii) 50% of the value of unvested TBRSUs. Starting in 2021, vested unexercised stock options no longer count toward achievement of the guidelines, along with unvested stock options and unearned PBRSUs.
Executive officers, including the NEOs, are required to hold a minimum of 50% of the shares net of taxes acquired through long-term incentive plans (including stock options, PBRSUs and TBRSUs) until the guidelines are met. If the initial ownership period has lapsed, and the minimum ownership guideline is not met, executive officers are required to hold 100% of net shares acquired until the guideline is met. Compliance with the executive share ownership guidelines is reviewed annually. As of December 31, 2021, all NEOs have satisfied the stock ownership guideline or are still within the five-year transition period and have held 100% of the net shares acquired through our equity incentive plans.
To further encourage a long-term commitment to our sustained performance, executive officers are prohibited from hedging, pledging or using their common shares as collateral for margin loans.
Tax Deductibility of Compensation
Optimize tax deductibility in keeping with compensation philosophy.Section 162(m) of the Internal Revenue Code (and the regulations promulgated thereunder) precludes a public corporation from taking an income tax deduction in any one year for compensation exceeding $1 million payable in any year to the corporation’s chief executive officer and other “covered employees,” as defined in Section 162(m). Prior to January 1, 2018, an exception to this deduction limit was available for “performance-based” compensation that was approved by shareholders and otherwise satisfied certain requirements under Section 162(m). As a result of the enactment of U.S. tax reform legislation, the performance-based compensation exception is no longer available for taxable years beginning after December 31, 2017, unless such compensation qualifies for certain transition relief for binding written contracts that were in effect on November 2, 2017. The tax reform legislation also expanded the definition of “covered employees” to include the CFO and certain former NEOs who were disclosed in our proxy statement after January 1, 2017.
While our executive compensation program has sought to maximize the tax deductibility of compensation payable to the NEOs to the extent permitted by law, the Human Resources and Compensation Committee retained the flexibility and discretion to make compensation decisions that are based on factors other than Section 162(m) when necessary or appropriate (as determined by the Human Resources and Compensation Committee in its sole discretion) to enable Bunge to continue to attract, retain, reward and motivate its highly-qualified executives. The Human Resources and Compensation Committee does not intend to change the pay-for-performance approach of our executive pay program due to the enactment of tax reform.
We believe our compensation programs are designed to establish an appropriate balance between risk and reward in relation to our overall business strategy. To that end, the Human Resources and Compensation Committee has conducted a compensation risk assessment, with the assistance of management and Semler Brossy, the Human Resources and Compensation Committee's independent compensation consultant. Semler Brossy prepared a risk assessment of the executive programs.
The Human Resources and Compensation Committee focused its assessment on our executive compensation program, as these are the employees whose actions are most likely to expose us to significant business risk. The relevant features of the executive compensation program that mitigate risk are as follows:
•The program utilizes annual and long-term financial performance goals that are tied to key measures of short-term and long-term performance that drive shareholder value, and targets are set with a reasonable amount of stretch that should not encourage imprudent risk-taking.
•The Human Resources and Compensation Committee sets target awards under the executive compensation program following the receipt of advice and benchmarking analysis provided by Semler Brossy.
•The annual incentive and long-term equity-based compensation program awards are tied to several performance metrics to reduce undue weight on any one measure.
•The annual incentive program's performance metric targets a share of profit to align with overall results for shareholders while maintaining performance orientation through scorecard factors and individual performance allocations.
•The use of non-financial performance factors in determining the actual payout of annual incentive compensation serves as a counterbalance to the quantitative performance metric.
•The executive compensation program is designed to deliver a significant portion of compensation in the form of long-term incentive opportunities, which focuses executives on our long-term success and discourages excessive focus on annual results.
•The equity incentive program uses a mix PBRSUs and TBRSUs that vest over several years to ensure that employees are focused on maximizing long-term shareholder value and financial performance and to mitigate the risks associated with the exclusive use of stock price-based awards.
•The performance metrics for the PBRSUs are based on overall Bunge performance over a three-year period, reducing incentives to maximize one segment's results and focusing on sustainable performance over a three-year cycle rather than any one year.
•Maximum awards that may be paid out under the annual incentive and equity incentive programs are subject to appropriate caps and the Human Resources and Compensation Committee retains the discretion to reduce payouts under the plans.
•We have adopted share ownership guidelines that further align the long-term interests of executives with those of our shareholders, as well as restrictions on hedging, holding our common shares in a margin account and using our common shares as collateral for loans, which seek to discourage a short-term stock price focus.
•We have adopted an executive compensation recoupment policy for senior executives, as discussed in "Executive Compensation Recoupment Policy" on page 51 of this proxy statement.The Human Resources and Compensation Committee reviewed and discussed the findings of the risk assessment and believes that our compensation programs are appropriately balanced and do not motivate employees to take risks that are reasonably likely to have a material adverse effect on Bunge.
| | |
HUMAN RESOURCES AND COMPENSATION COMMITTEE REPORT |
The Human Resources and Compensation Committee has reviewed and discussed the preceding "Compensation Discussion and Analysis" with management. Based on such review and discussions, the Human Resources and Compensation Committee recommended to the board that this Compensation Discussion and Analysis be included in this proxy statement for the year ended December 31, 2021.
Members of the Human Resources and Compensation Committee
J. Erik Fyrwald, Chair
Bernardo Hees
Kenneth Simril
Henry "Jay" Winship
| | |
EXECUTIVE COMPENSATION TABLES |
Summary Compensation Table
The following table sets forth the compensation of our CEO, our CFO and the other three most highly compensated executive officers who were serving as executive officers as of December 31, 2021.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Name and Position Held | Year | Salary ($) (1) | | Bonus
($) | | Stock Awards ($)(2)(3) | Option Awards ($)(2) | Non-Equity Incentive Plan Compensation ($)(4) | | Change in Pension Value & Non-Qualified Deferred Compensation Earnings ($)(5) | All Other Compensation Total ($)(6) | | Total ($)(7) |
| Gregory Heckman | 2021 | $1,200,046 |
| $— | | $9,991,055 | $— | $4,608,000 | | $— | $349,126 | | $16,148,227 |
| Chief Executive Officer | 2020 | $1,200,046 | | $— | | $3,891,160 | $2,698,150 | $4,608,000 | | $— | $128,086 |
| $12,525,442 |
| 2019 | $1,129,983 |
| $1,000,000 | | $7,133,136 | $4,411,200 | $3,038,397 | | $— | $22,014 |
| $16,734,730 |
| | | | | | | | | | | | | |
| | | | | | | | | | | | | |
| John Neppl | 2021 | $700,027 | | $— | | $1,990,250 | $— | $1,645,000 | | $— | $116,766 | | $4,452,043 |
| Chief Financial Officer | 2020 | $700,027 | | $— | | $1,240,040 | $216,445 | $1,680,000 | | $— | $73,170 | | $3,909,682 |
| 2019 | $416,410 | | $500,000 | | $1,225,440 | $— | $647,882 | | $— | $25,531 | | $2,815,263 |
| | | | | | | | | | | | | |
| | | | | | | | | | | | | |
| Brian Zachman | 2021 | $650,000 | | $— | | $3,645,342 | $— | $5,687,500 | | $— | $193,264 | | $10,176,106 |
| President, Global Risk Management | 2020 | $650,000 | | $— | | $1,527,216 | $163,075 | $5,687,500 | | $320,948 | $122,540 | | $8,471,279 |
| 2019 | $627,917 | | $3,350,000 | | $1,115,635 | $247,225 | $1,642,680 | | $1,270,881 | $16,825 | | $8,271,163 |
| | | | | | | | | | | | | |
| | | | | | | | | | | | | |
| Christos Dimopoulos | 2021 | $655,500 | (9) | $— | | $2,373,493 | $— | $4,326,357 | (9) | $— | $94,720 | (9) | $7,450,070 |
| President, Global Supply Chains | 2020 | $679,560 | | $— | | $973,602 | $106,740 | $4,077,360 | | $— | $96,158 | | $5,933,420 |
| 2019 | $617,940 | | $— | | $752,405 | $166,315 | $1,712,930 | | $— | $108,016 | | $3,357,606 |
| | | | | | | | | | | | | |
| | | | | | | | | | | | | |
| Raul Padilla | 2021 | $744,860 | (8) | $— | | $2,587,325 | $— | $683,229 | (8) | $11,394 | $6,763 | (8) | $4,033,571 |
| President, Global Operations | 2020 | $806,992 | | $— | | $1,603,500 | $281,675 | $2,421,025 | | $82,118 | $22,018 | | $5,217,328 |
| 2019 | $1,009,786 | | $— | | $2,094,050 | $368,590 | $2,104,759 | | $113,956 | $105,888 | | $5,797,029 |
(1)Actual salary payments during 2021. Annual base salary rates as of December 31, 2021 are described on page 41 of this proxy statement.(2)The amounts shown reflect the aggregate full grant date fair value for equity awards for financial reporting purposes in accordance with ASC Topic 718 (without any reduction for risk of forfeiture) as determined based on applying the assumptions used in Bunge's audited financial statements. See Note 26 to the audited consolidated financial statements in our Annual Report on Form 10-K for the year ended December 31, 2021 regarding assumptions underlying the valuation of equity awards. Amounts reported for these awards may not represent the amounts that the listed officers ultimately realize from the awards. Whether, and to what extent, a listed officer realizes value will depend on our actual operating performance, stock price fluctuations and the listed officer's continued employment.
(3)Based on the full grant date value of the PBRSUs granted on March 15, 2021, the following are the maximum payouts, assuming the maximum level of performance is achieved: Mr. Heckman: $11,965,240; Mr. Neppl: $2,377,200; Mr. Zachman: $1,822,520; Mr. Dimopoulos: $1,188,600; and Mr. Padilla: $3,090,360. For additional information on these awards, see "Long-term Incentive Compensation" beginning on page 47 of this proxy statement.(4)Incentive compensation awards under the AIP for the 2021 fiscal year that were paid in March 2022. In lieu of the awards under the AIP for 2021, Messrs. Zachman and Dimopoulos received an RM&O incentive award in connection with their services to our Agribusiness segment as described in more detail under “Annual Risk Management & Optimization Incentive Awards” on page 45 of this proxy statement. For each incentive award, a portion was granted in restricted stock units and subject to recovery, with the remainder paid in cash. Based on performance achieved, Mr. Zachman's cash payment was $3,554,688 and Mr. Dimopoulos's cash payment was $2,777,710. (5)The aggregate change in the actuarial present value of the accumulated pension benefit as shown in the Pension Benefits Table from year to year. Importantly, the change in pension value is not currently paid to an executive as compensation, but is a measurement of the change in actuarial present value from the prior year. For Mr. Zachman, no value is included in accordance with SEC's rules as total change in present value was ($80,720). For information about the assumptions used, see the Pension Benefits Table on page 60 of this proxy statement. There are no above market or preferential earnings with respect to non-qualified deferred compensation arrangements. Messrs. Heckman, Neppl and Dimopoulos do not participate in the pension plan.(6)The following table provides details about each component of the "All Other Compensation" column:
| | | | | | | | | | | | | | | | | |
| Name | Registrant Contributions for Qualified 401(k) Plan
($) | Registrant Contributions for Non-Qualified Plan
($) | Tax Gross-Ups ($) | Perquisites and Other Personal Benefits ($)(a) | Total
($) |
| Gregory Heckman | $26,100 | $313,426 | $— | $9,600 | $349,126 |
| John Neppl | $24,983 | $82,183 | $— | $9,600 | $116,766 |
| Brian Zachman | $25,900 | $157,764 | $— | $9,600 | $193,264 |
| Christos Dimopoulos | $— | $71,122 | $— | $23,598 | $94,720 |
| Raul Padilla | $— | $— | $— | $6,763 | $6,763 |
| | | | | |
| (a) For Messrs. Heckman, Neppl and Zachman, represents $9,600 annual perquisite allowance. For Messrs. Padilla and Dimopoulos, represents an automobile allowance in connection with their overseas employment. |
(7)As required by SEC rules, "Total" represents the sum of all columns in the table.
(8)Amounts shown have been converted from Swiss francs to U.S. dollars at the exchange rate of 1.0925 U.S. dollars per Swiss franc as of December 31, 2021.
(9)Amounts shown have been converted from Brazilian reals to U.S. dollars at the exchange rate of 0.1771 U.S. dollars per Brazilian real as of December 31, 2021.
Grants of Plan Based Awards Table
The following table sets forth information with respect to awards under our Annual Incentive Plan, Risk Management & Optimization incentive program and Long-Term Incentive Plan for the fiscal year ended December 31, 2021.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Grant Date | Estimated Future Payouts Under Non-Equity Incentive Plan Awards(1) | | Estimated Future Payouts Under Equity Incentive Plan Awards(2) | All Other Stock Awards: Number of Shares or Units | Closing Price on Grant Date | Grant Date Fair Value of Stock and Option Awards (3) |
| Name | Threshold
($) | Target
($) | Maximum
($) | | Threshold
(#) | Target
(#) | Maximum
(#) | (#) | ($) | ($) |
| Gregory Heckman | | | | | | | | | | | |
| 2021 AIP | | $115,200 | $1,920,000 | $4,608,000 | | | | | | | |
| 2021 LTIP—PBRSUs | 3/15/2021 | | | | | 11,325 | 75,500 | 151,000 | | $79.24 | $6,010,555 |
| 2021 LTIP—TBRSUs | 3/15/2021 | | | | | | | | 50,000 | $79.24 | $3,980,500 |
| | | | | | | | | | | |
| | | | | | | | | | | |
| John Neppl | | | | | | | | | | | |
| 2021 AIP | | $42,000 | $700,000 | $1,680,000 | | | | | | | |
| 2021 LTIP—PBRSUs | 3/15/2021 | | | | | 2,250 | 15,000 | 30,000 | | $79.24 | $1,194,150 |
| 2021 LTIP—TBRSUs | 3/15/2021 | | | | | | | | 10,000 | $79.24 | $796,100 |
| | | | | | | | | | | |
| | | | | | | | | | | |
| Brian Zachman | | | | | | | | | | | |
| 2021 RM&O | | $170,625 | $2,275,000 | $5,687,500 | | | | | | | |
2020 RM&O—Deferral(4) | 3/15/2021 | | | | | | | | 26,790 | $79.24 | $2,132,752 |
| 2020 LTIP—PBRSUs | 3/15/2021 | | | | | 1,725 | 11,500 | 23,000 | | $79.24 | $915,515 |
| 2020 LTIP—TBRSUs | 3/15/2021 | | | | | | | | 7,500 | $79.24 | $597,075 |
| | | | | | | | | | | |
| | | | | | | | | | | |
| Christos Dimopoulos | | | | | | | | | | | |
2021 RM&O(5) | | $147,488 | $1,966,500 | $4,916,250 | | | | | | | |
2020 RM&O—Deferral(4) | 3/15/2021 | | | | | | | | 17,314 | $79.24 | $1,378,368 |
| 2020 LTIP—PBRSUs | 3/15/2021 | | | | | 1,125 | 7,500 | 15,000 | | $79.24 | $597,075 |
| 2020 LTIP—TBRSUs | 3/15/2021 | | | | | | | | 5,000 | $79.24 | $398,050 |
| | | | | | | | | | | |
| | | | | | | | | | | |
| Raul Padilla | | | | | | | | | | | |
2021 AIP(6) | | $18,634 | $310,559 | $745,342 | | | | | | | |
| 2021 LTIP—PBRSUs | 3/15/2021 | | | | | 2,925 | 19,500 | 39,000 | | $79.24 | $1,552,395 |
| 2021 LTIP—TBRSUs | 3/15/2021 | | | | | | | | 13,000 | $79.24 | $1,034,930 |
(1)Represents the range of annual cash incentive award opportunities under our AIP and RM&O incentive awards. The minimum potential payout for each of the listed officers was zero. For AIP, the threshold award represents 6% of the target award value (that is, the result if only the lowest weighted metric met the threshold) and the maximum award represents 240% of the target award value (that is, the result if the highest weighted metric achieves a maximum 250% and the lowest weighted metric achieves a maximum of 200%). For RM&O incentive awards, the threshold award represents 7.5% of the target award value (that is, the result if only the lowest weighted metric met the threshold) and the maximum award represents 250%. The performance period began on January 1, 2021 and ended on December 31, 2021. For additional discussion, see "Annual Incentive Plan" on page 42 of this proxy statement.(2)Represents the range of shares that may be released at the end of the January 1, 2021 – December 31, 2023 performance period for PBRSUs awarded under the 2016 Equity Incentive Plan. The minimum potential payout for each of the listed officers under the PBRSUs is zero. The threshold award represents 15% of the target award value (that is, the result if only the lowest weighted metric met the threshold) and the maximum award represents 200% of the target award value. Payment of the award is subject to the achievement of certain financial metrics during the performance period. For additional discussion, see "Performance-Based Restricted Stock Unit Awards" on page 47 of this proxy statement.(3)This column shows the full grant date fair value of PBRSUs and TBRSUs under ASC Topic 718. Generally, the full grant date fair value is the amount we would expense in our financial statements over the award's vesting period. See Note 26 to the audited consolidated financial statements in our Annual Report on Form 10-K regarding assumptions underlying valuation of equity awards.
(4)Represents the range of award opportunity under a performance incentive for achievement in the annual RM&O incentive award for Messrs. Zachman and Dimopoulos. Mr. Zachman was awarded 50% of the risk component of $2,132,813 and Mr. Dimopoulos was awarded 50% of the risk component of $1,548,647, which was converted to restricted stock units on March 15, 2022 and will vest ratably on March 15, 2023, March 15, 2024 and March 15, 2025. These restricted stock units are at risk based on future performance of the Agribusiness value chains.
(5)Amounts shown have been converted from Swiss francs to U.S. dollars at the exchange rate of 1.0925 U.S. dollars per Swiss franc as of December 31, 2021.
(6)Amounts shown have been converted from Brazilian real to U.S. Dollars at the exchange rate of 0.1771 U.S. dollars per Brazilian real as of December 31, 2021.
Outstanding Equity Awards Table
The following table sets forth information with respect to all outstanding equity awards as of December 31, 2021.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | Option Awards(1) | | | | Stock Awards(2) |
| Name | Date of Grant | | Number of Securities Underlying Unexercised Options Exercisable
(#) | Number of Securities Underlying Unexercised Options Unexercisable
(#) | Option Exercise Price
($) | Option Expiration Date | | | | Equity Incentive Plan Awards: Number of Unearned Shares, Units or other Rights That Have Not Vested
(#) | Equity Incentive Plan Awards: Market or Payout Value of Unearned Shares, Units or other Rights That Have Not Vested
($) |
| Gregory Heckman | 05/16/2019 | | 320,000 | 160,000 | $53.43 | 05/16/2029 | | | | | |
| 03/10/2020 | (3) | 151,666 | 303,334 | $42.76 | 03/10/2030 | | | | 192,622 | $17,983,190 |
| 03/15/2021 | (4)(9) | | | | | | | | 204,743 | $19,114,806 |
| | | | | | | | | | | |
| | | | | | | | | | | |
| John Neppl | 06/03/2019 | (5) | | | | | | | | 5,078 | $474,082 |
| 03/10/2020 | (3)(6) | 12,166 | 24,334 | $42.76 | 03/10/2030 | | | | 49,735 | $4,643,260 |
| 03/15/2021 | (4)(9) | | | | | | | | 40,744 | $3,803,860 |
| | | | | | | | | | | |
| | | | | | | | | | | |
| Brian Zachman | 03/12/2019 | (7) | 18,332 | 9,168 | $51.89 | 03/12/2029 | | | | 8,793 | $820,914 |
| 03/10/2020 | (3)(6) | 9,166 | 18,334 | $42.76 | 03/10/2030 | | | | 37,031 | $3,457,214 |
| 03/10/2020 | (8) | | | | | | | | 10,027 | $936,121 |
| 03/15/2021 | (4)(9) | | | | | | | | 31,065 | $2,900,228 |
| 03/15/2021 | (10) | | | | | | | | 27,288 | $2,547,608 |
| | | | | | | | | | | |
| | | | | | | | | | | |
| Christos Dimopoulos | 02/29/2012 | | 750 | — | $67.63 | 02/28/2022 | | | | | |
| 03/05/2013 | | 1,800 | — | $74.33 | 03/04/2023 | | | | | |
| 02/28/2014 | | 2,700 | — | $79.47 | 02/27/2024 | | | | | |
| 02/27/2015 | | 3,450 | — | $81.68 | 02/26/2025 | | | | | |
| 03/01/2016 | | 5,300 | — | $50.07 | 03/01/2026 | | | | | |
| 03/08/2017 | | 6,500 | — | $81.00 | 03/08/2027 | | | | | |
| 02/28/2018 | | 5,800 | — | $75.99 | 02/28/2028 | | | | | |
| 03/12/2019 | (7) | 12,332 | 6,168 | $51.89 | 03/12/2029 | | | | 6,043 | $564,174 |
| 03/10/2020 | (3)(6) | 6,000 | 12,000 | $42.76 | 03/10/2030 | | | | 24,860 | $2,320,930 |
| 03/10/2020 | (8) | | | | | | | | 5,831 | $544,382 |
| 03/15/2021 | (4)(9) | | | | | | | | 20,371 | $1,901,837 |
| 03/15/2021 | (10) | | | | | | | | 17,635 | $1,646,404 |
| | | | | | | | | | | |
| | | | | | | | | | | |
| Raul Padilla | 02/29/2012 | | 37,500 | — | $67.63 | 02/28/2022 | | | | | |
| 03/05/2013 | | 30,000 | — | $74.33 | 03/04/2023 | | | | | |
| 02/28/2014 | | 33,000 | — | $79.47 | 02/27/2024 | | | | | |
| 02/27/2015 | | 37,500 | — | $81.68 | 02/26/2025 | | | | | |
| 03/01/2016 | | 66,500 | — | $50.07 | 03/01/2026 | | | | | |
| 03/08/2017 | | 51,000 | — | $81.00 | 03/08/2027 | | | | | |
| 02/28/2018 | | 46,500 | — | $75.99 | 02/28/2028 | | | | | |
| 03/12/2019 | (7) | 27,332 | 13,668 | $51.89 | 03/12/2029 | | | | 13,740 | $1,282,766 |
| 03/10/2020 | (3)(6) | 15,833 | 31,667 | $42.76 | 03/10/2030 | | | | 64,554 | $6,026,761 |
| 03/15/2021 | (4)(9) | | | | | | | | 52,963 | $4,944,626 |
(1)Represents unexercised options as of December 31, 2021. Options vest in one-third installments on the first, second and third anniversaries of their respective date of grant. All options have a 10-year term.
(2)Value of unvested restricted stock units using a share price of $93.36, the closing price of our common shares on December 31, 2021. PBRSUs for the 2019-2021 performance cycle are not included in the table, as they are considered earned as of December 31, 2021. Includes dividend equivalents accrued on outstanding restricted stock units.
(3)Payment amount of the PBRSUs will be determined as of December 31, 2022 based on satisfaction of performance targets for the 2020-2022 performance period. Awards are subject to continued service through the third anniversary of the date of grant. Assumes maximum performance is attained.
(4)Payment amount of the PBRSUs will be determined as of December 31, 2023 based on satisfaction of performance targets for the 2021-2023 performance period. Awards are subject to continued service through the third anniversary of the date of grant. Assumes maximum performance is attained.
(5)TBRSUs that will vest 33% on each June 3 of 2020, 2021 and 2022, subject to continued service.
(6)TBRSUs that will vest in full on March 10, 2023, subject to continued service.
(7)TBRSUs that will vest in full on March 12, 2022, subject to continued service.
(8)TBRSUs that will vest 33% on each March 30 of 2021, 2022 and 2023, subject to recovery base on future performance of the Agribusiness line.
(9)TBRSUs that will vest in full on March 15, 2024, subject to continued service.
(10)PBRSUs that will vest 33% on each March 15 of 2022, 2023 and 2024, subject to recovery base on future performance of Agribusiness line.
Option Exercises and Stock Vested Table
The following table sets forth information with respect to the exercise of stock options during 2021 and vesting of restricted stock units during 2021.
| | | | | | | | | | | | | | | | | |
| Option Awards | | Stock Awards |
| Name | Number of Shares
Acquired on
Exercise
(#) | Value Realized
Upon Exercise
($)(1) | | Number of Shares Acquired on Vesting (#)(2) | Value Realized
Upon
Vesting
($) |
| Gregory Heckman | — | $— | | 212,170 | $22,927,090 |
| John Neppl | — | $— | | 24,714 | $2,576,736 |
| Brian Zachman | — | $— | | 34,752 | $3,613,539 |
| Christos Dimopoulos | — | $— | | 23,680 | $2,446,952 |
| Raul Padilla | 30,000 | $209,908 | | 59,522 | $6,431,947 |
(1)The value realized upon exercise is calculated as the product of (a) the number of our common shares for which the stock options were exercised and (b) the excess of the market price of our common shares on the NYSE upon the exercise of the applicable stock option over the applicable exercise price per share of the stock option.
(2)Represents TBRSUs awarded in 2018, 2019 and 2020 that vested in whole or in part during 2021 and PBRSUs awarded in 2019 with a performance period ended December 31, 2021. The value realized upon vesting was determined by multiplying the number of shares vested by the market price of our common shares on the NYSE on the vesting date.
Pension Benefits Table
The following table sets forth pension benefit information with respect to each defined benefit pension plan as of December 31, 2021.
| | | | | | | | | | | | | | |
| Name | Plan Name | Number of Years of
Credited Service
(#) | Present Value of
Accumulated Benefits
($)(1) | Payments During Last
Fiscal Year
($) |
Gregory Heckman(2) | Pension Plan | — | — | — |
| SERP | — | — | — |
| Excess Plan | — | — | — |
| | | | |
| | | | |
John Neppl(2) | Pension Plan | — | — | — |
| SERP | — | — | — |
| Excess Plan | — | — | — |
| | | | |
| | | | |
| Brian Zachman | Pension Plan | 12.8(3) | $465,086 | — |
| SERP | — | — | — |
| Excess Plan | 12.8(3) | $1,046,023 | — |
| | | | |
| | | | |
Christos Dimopoulos(2) | Pension Plan | — | — | — |
| SERP | — | — | — |
| Excess Plan | — | — | — |
| | | | |
| | | | |
| Raul Padilla | Pension Plan | 3.8 | $195,217 | — |
| SERP | 3.8 | $493,252 | — |
| Excess Plan | 3.8 | $1,025,790 | — |
(1)Amounts were calculated as of December 31, 2021, using assumptions that were used for our audited consolidated financial statements based on the earliest age that an individual could receive an unreduced pension benefit. See Note 19 to the audited consolidated financial statements in the Form 10-K for material assumptions.
(2)Mr. Heckman, Mr. Neppl and Mr. Dimopoulos do not participate in the defined benefit plans.
(3)Reflects credit for past Bunge service from August 1999 through May 2012.
Retirement Plan Benefits
The listed officers are eligible to receive retirement benefits under the pension plan, the SERP and the excess benefit plan. Information regarding each of these plans is set forth below.
The Pension Plan
The pension plan is a tax-qualified retirement plan that covers substantially all of our U.S.-based salaried and non-union hourly employees. The pension plan was closed to new hires as of January 1, 2018. The pension plan pays benefits at retirement to participants who terminate employment or retire from Bunge after meeting the eligibility requirements for a benefit. The pension plan provides pension benefits based on: (i) the participant's highest average salary for 60 consecutive months within the 120 consecutive months prior to termination of employment ("final average salary") and (ii) the participant's length of service.
A participant's annual benefit is calculated as (i) 1% of his or her final average salary multiplied by his or her years of benefit service and (ii) 0.5% of his or her final average salary over the average of the social security wage base multiplied by years of benefit service to a maximum of 35 years. For purposes of the pension plan, average social security wage base means the average of the social security wage base during the 35-year period preceding the participant's social security retirement age. For purposes of the pension plan, a participant's salary for a year is deemed to include base salary and 50% of any award under our annual incentive plans for that year. Because the pension plan is a tax-qualified retirement plan, a participant's salary is restricted by the compensation limit imposed by the Internal Revenue Code. For 2021, this salary limit was $290,000. If a participant's salary exceeds this limit, such amounts are subject to the non-tax-qualified retirement plans described below.
Participants are entitled to an annual pension benefit for life, payable in equal monthly installments. Participants may earn increased pension benefits by working additional years. The normal retirement age under the pension plan at which a participant may receive an unreduced normal retirement benefit is age 65.
Participants who complete 10 or more years of service with the Company may elect to receive an early retirement benefit following attainment of age 55. Benefits payable to a participant who retires between ages 60 and 62 are subject to a 0.4% reduction for each month before age 62 and a 0.5% reduction for each month between ages 55 and 59. Participants who have 10 years of service and retire on or after age 62 are eligible to receive an unreduced early retirement benefit.
The present value estimates shown in the Pension Benefits Table assume payment in the form of a single life annuity of the listed officer's accrued benefit under the pension plan, based on a participant's salary and service through December 31, 2021 (the pension plan measurement date for financial reporting purposes) and commencing on the earliest date that benefits are available unreduced. The present value assumes a discount rate of 3.05% and mortality as set forth in the Mercer Industry Longevity Experience Study generational annuitant-only sex-distinct mortality table with no collar for the Consumer Goods and Food and Drink industry projected using the mortality projection scale implied by the Social Security Administration's rates of mortality (MSS-2021).
The Excess Benefit Plan
The excess benefit plan, a non-tax-qualified retirement plan, is designed to restore retirement benefits that cannot be paid from the pension plan due to the Internal Revenue Code limits described above. The benefit provided under the excess benefit plan will equal the difference between (i) the benefit that would have been earned under the pension plan, without regard to any Internal Revenue Code limitations, and (ii) the actual benefit payable from the pension plan. All listed officers participating in the pension plan are potentially eligible to participate in the excess benefit plan, provided that their pension plan benefits are limited by the Internal Revenue Code.
Benefits payable under the excess benefit plan are payable to participants following termination of employment on the later of the first day of the month following the participant's (i) six month anniversary of termination of employment or (ii) 65th birthday, or if the participant has 10 years of service, the first day of the month following the participant's 62nd birthday, in accordance with the applicable restrictions set forth in Section 409A of the Internal Revenue Code. All amounts under the excess benefit plan are paid out of the Company's general assets.
The present value estimates shown in the Pension Benefits Table for accumulated benefits under the excess benefit plan are determined using the same payment, discount rate and mortality assumptions as were used to estimate the values shown for the pension plan.
SERP
We have adopted a SERP, a non-tax-qualified retirement plan, to attract, retain and reward certain key employees whose benefits under the pension plan and the excess benefit plan are limited by the definition of compensation in the pension plan and further limited by the Internal Revenue Code. The Board designates those key employees eligible to participate in the SERP.
A participant's SERP benefit equals the amount that his or her benefit would equal if the pension plan (i) included 100% of such participant's bonus compensation when calculating his or her benefit and (ii) was administered without regard to any Internal Revenue Code limitation over any amounts payable to such participant under the pension plan and/or excess benefit plan, as applicable.
Benefits payable under the SERP are paid coincident with and in the same distribution form and manner as the payment of the participant's benefit under the excess benefit plan, subject to applicable restrictions set forth in Section 409A of the Internal Revenue Code. All amounts under the SERP are paid out of the Company's general assets.
The present value estimates shown in the Pension Benefits Table for accumulated benefits under the SERP are determined using the same payment, discount rate and mortality assumptions as were used to estimate the values shown for the pension plan.
Non-Qualified Deferred Compensation Table
The following table sets forth certain information with respect to our non-qualified deferred compensation plans as of December 31, 2021.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | Non-qualified Deferred Compensation |
| Name | Executive
Contributions
in Last FY
($) | | Registrant
Contributions
in Last FY
($)(1) | | Aggregate
Earnings in
Last FY
($) | | Aggregate
Withdrawals/
Distributions
($)(2) | | Aggregate
Balance at
Last FYE
($) |
| Gregory Heckman | $— | | $313,426 | | $26,207 | | $— | | $450,694 |
| John Neppl | $— | | $82,183 | | $17,960 | | $— | | $150,685 |
| Brian Zachman | $— | | $157,764 | | $36,840 | | $58,859 | | $285,956 |
| Christos Dimopoulos | $— | | $71,122 | | $— | | $37,048 | | $— |
| Raul Padilla | $— | | $— | | $10,564 | | $— | | $126,786 |
(1)The amount set forth is included in the "All Other Compensation" column of the Summary Compensation Table on page 55 of this proxy statement.(2)For Messrs. Zachman and Dimopoulos, includes a portion of the RM&O award for performance year 2019 that was mandatorily deferred and paid on March 15, 2021.
401(k) Plan
We sponsor a 401(k) Plan, a tax-qualified retirement plan that covers substantially all of Bunge's U.S.-based salaried and non-union hourly employees. Participants may contribute up to 50% of their compensation on a before-tax basis into their 401(k) Plan accounts. In addition, we match an amount equal to 100% for each dollar contributed by participants on the first 3% of their regular earnings and 50% for each dollar contributed on the next 2% of their regular earnings.
Because the 401(k) Plan is a tax-qualified retirement plan, the Internal Revenue Code limits the "additions" that can be made to a participant's 401(k) plan account each year (for 2021, $64,500 including catch-up contributions). "Additions" include Company matching contributions and before-tax contributions made by a participant. In addition, the Internal Revenue Code limits the amount of annual compensation that may be taken into account in computing benefits under the 401(k) Plan. In 2021, this compensation limit was $290,000. Participants may also direct the investment of their 401(k) Plan accounts into several investment alternatives, including a Bunge common share fund.
Excess Contribution Plan
We sponsor an excess contribution plan, which is a non-tax-qualified defined contribution plan that is designed to restore retirement benefits that cannot be paid from the 401(k) Plan due to Internal Revenue Code limits. Participants in the 401(k) Plan are eligible to participate in the excess contribution plan, provided that their 401(k) Plan benefits are limited by the Internal Revenue Code.
The amounts shown as "Registrant Contributions" represent Company matching contributions made under the excess contribution plan to the listed officers and are also reported in the "All Other Compensation" column of the Summary Compensation Table. The benefit provided under the excess contribution plan is equal to the difference between the benefit that would have been earned under the 401(k) Plan, without regard to any Internal Revenue Code limits, and the actual benefit provided under the 401(k) Plan. A participant's account balance is credited with the same investment return as the investment alternatives he or she selected under the 401(k) Plan (including the Bunge common share fund).
Payments are made from our general assets in a lump sum cash payment following a participant's termination of employment, subject to applicable restrictions set forth in Section 409A of the Internal Revenue Code.
Supplemental Excess Contribution Plan
We sponsor a supplemental excess contribution plan, which is an unfunded, non-tax-qualified defined contribution plan that is designed to supplement retirement benefits for designated employees whose participation in the 401(k) Plan is limited due to Internal Revenue Code limits. The Human Resources and Compensation Committee of the Board designates those key employees who are eligible to participate in the supplemental excess contribution plan, provided that their 401(k) Plan benefits are limited by the Internal Revenue Code.
The amounts shown as "Registrant Contributions" represent Company matching contributions made under the supplemental excess contribution plan to the listed officers and are also reported in the "All Other Compensation" column of the Summary Compensation Table. The benefit provided under the supplemental excess contribution plan is equal to the difference between the benefit that would have been earned under the 401(k) Plan, without regard to any Internal Revenue Code limits, and the actual benefit provided under the 401(k) Plan. A participant's account balance is credited with the same investment return as the investment alternatives he or she selected under the 401(k) Plan (including the Bunge common share fund).
Payments are made from our general assets in a lump sum cash payment following a participant's termination of employment, subject to applicable restrictions set forth in Section 409A of the Internal Revenue Code.
Deferred Compensation Plan
We maintain a deferred compensation plan, which is a non-tax-qualified deferred compensation plan that is designed to provide participants with an opportunity to defer receipt of current income into the future on a tax-deferred basis. Amounts deferred into the deferred compensation plan are shown as "Executive Contributions" and are reported in the Summary Compensation Table and, in the case of PBRSUs, have previously been reported.
Eligible employees (including the listed officers) who meet the minimum base salary level may participate in the deferred compensation plan. For 2021, the minimum base salary level required to participate in the deferred compensation plan was $290,000.
The deferred compensation plan allows participants to voluntarily defer from 1% to 10% of their base salary and 10% to 100% of their annual incentive compensation and PBRSUs. Gains and losses are credited based on a participant's election of a variety of deemed investment choices.
Subject to the applicable restrictions set forth in Section 409A of the Internal Revenue Code, a participant may elect to defer receipt of income for any period not less than 36 months from the date of deferral and will receive a distribution of his or her account following the end of his or her elected deferral period or death. Subject to applicable restrictions set forth in Section 409A of the Internal Revenue Code, participants may elect to receive payment of their deferred account balance in a lump sum or in up to 25 annual installments. Distributions of a participant's account are made in cash and from our general assets.
Potential Payments Upon Termination of Employment or Change of Control
We have entered into certain agreements and maintain certain plans that will require us to provide compensation to the listed officers in the event of certain terminations of employment. The amount of compensation payable to the listed officer in each situation is shown in the table below. The amounts assume that the respective termination of employment event occurred on December 31, 2021.
These amounts are estimates only and do not necessarily reflect the actual amounts that would be paid to the listed officers, which would only be known at the time that they become eligible for payment. The amounts are in addition to: (i) vested or accumulated benefits generally under our defined benefit pension plans, 401(k) plans, and non-qualified deferred compensation plans, which are set forth in the disclosure tables above; (ii) benefits paid by insurance providers under life and disability insurance policies; and (iii) benefits generally available to U.S.-based salaried employees, such as accrued vacation.
Unless stated otherwise, the value of unvested and accelerated stock options shown in the tables below have been determined by multiplying (i) the number of unvested stock options that would have been accelerated by (ii) the difference between (x) the exercise price of the stock option and (y) $93.36, which was the closing price of our common shares on December 31, 2021. Likewise, the value of unvested restricted stock unit awards shown in the
tables below have been determined by multiplying (i) the number of unvested restricted stock units that would have been accelerated by (ii) the closing price of our common shares on December 31, 2021.
| | | | | | | | | | | | | | | | | |
| Name / Event of Termination | Cash Severance
($) | Continuation of Benefits
($) | Accelerated Vesting of Equity
($) | Excise Tax Gross-up or Cut-back
($) | Total ($)(1)(2)(3) |
Gregory Heckman(4) | | | | | |
| Termination "For Cause" | $— | $— | $— | $— | $— |
| Termination "Without Cause" or "For Good Reason" | $6,240,000 | $25,588 | $24,902,004 | $— | $31,167,592 |
| Termination Related to Change of Control | $6,240,000 | $25,588 | $35,402,536 | $— | $41,668,124 |
| Death, Disability or Retirement | $— | $— | $28,912,321 | $— | $28,912,321 |
| | | | | |
| | | | | |
John Neppl(5) | | | | | |
| Termination "For Cause" | $— | $— | $— | $— | $— |
| Termination "Without Cause" or "For Good Reason" | $1,400,000 | $— | $3,039,544 | $— | $4,439,544 |
| Termination Related to Change of Control | $2,800,000 | $— | $4,680,466 | $— | $7,480,466 |
| Death, Disability or Retirement | $— | $— | $4,537,279 | $— | $4,537,279 |
| | | | | |
| | | | | |
Brian Zachman(6) | | | | | |
| Termination "For Cause" | $— | $— | $— | $— | $— |
| Termination "Without Cause" or "For Good Reason" | $1,300,000 | $— | $3,427,532 | $— | $4,727,532 |
| Termination Related to Change of Control | $2,600,000 | $— | $7,487,847 | $— | $10,087,847 |
| Death, Disability or Retirement | $— | $— | $4,180,468 | $— | $4,180,468 |
| | | | | |
| | | | | |
Christos Dimopoulos(7) | | | | | |
| Termination "For Cause" | $— | $— | $— | $— | $— |
| Termination "Without Cause" or "For Good Reason" | $1,638,750 | $— | $2,296,255 | $— | $3,935,005 |
| Termination Related to Change of Control | $3,277,500 | $— | $4,888,592 | $— | $8,166,092 |
| Death, Disability or Retirement | $— | $— | $2,816,824 | $— | $2,816,824 |
| | | | | |
| | | | | |
Raul Padilla(8) | | | | | |
| Termination "For Cause" | $— | $— | $— | $— | $— |
| Termination "Without Cause" or "For Good Reason" | $1,055,900 | $— | $5,741,235 | $— | $6,797,135 |
| Termination Related to Change of Control | $2,111,800 | $— | $9,016,954 | $— | $11,128,754 |
| Death, Disability or Retirement | $— | $— | $7,086,478 | $— | $7,086,478 |
(1)Total does not include vested amounts or accumulated benefits through December 31, 2021, including vested stock options, accumulated retirement benefits and amounts under deferred compensation plans, as those amounts are set forth in the disclosure tables above.
(2)PBRSUs for the 2019-2021 performance cycle are not included in the table, as they are considered earned as of December 31, 2021.
(3)For disclosure purposes only, we have assumed that target performance measures were achieved for performance-based awards as of December 31, 2021.
(4)Mr. Heckman's severance terms are summarized in the Heckman Employment Agreement, on page 65 of this proxy statement.(5)For purposes of this table, Mr. Neppl’s compensation for 2021 is as follows: base salary equal to $700,000 and a target annual bonus equal to $700,000. Pursuant to Mr. Neppl’s employment offer letter dated May 7, 2019, if his employment is terminated by the Company without “Cause” or he resigns for “Good Reason,” he is entitled to a payment equal to 12 months of his then base salary, plus 12 months of his target AIP award. In addition, Mr. Neppl will receive his prorated AIP award for the year in which his employment is terminated based on the Company and individual performance goals achieved for the performance period. Such benefits would be contingent upon delivery of a release of any employment related claims against the Company in a form mutually agreeable to Mr. Neppl and the Company.
(6)For purposes of this table, Mr. Zachman's compensation for 2021 is as follows: base salary equal to $650,000 and a target annual bonus equal to $650,000. Pursuant to Mr. Zachman's employment offer letter dated December 28, 2018, if his employment is terminated by the Company without “Cause” or he resigns for “Good Reason,” he is entitled to a payment equal to 12 months of his then base salary, plus 12 months of his target AIP award. Such benefits would be contingent upon delivery of a release of any employment related claims against the Company in a form mutually agreeable to Mr. Zachman and the Company.
(7)For purposes of this table, Mr. Dimopoulos’s compensation for 2021 is as follows: base salary equal to $655,500 and a target annual bonus equal to $983,250. Pursuant to Mr. Dimopoulos’s offer letter dated October 29, 2018, if his employment is terminated by the Company without “Cause,” he is entitled to a payment equal to 12 months of his then salary, plus 12 months of his target AIP award. In addition, Mr. Dimopoulos will receive his prorated AIP award for the year in which his employment is terminated based on the Company and individual performance goals achieved for the performance period. Such benefits would be contingent upon delivery of a release of any employment related claims against the Company in a form mutually agreeable to Mr. Dimopoulos and the Company. Amounts shown have been converted from Swiss francs to U.S. dollars at the exchange rate of 1.0925 U.S. dollars per Swiss franc as of December 31, 2021.
(8)For purposes of this table, Mr. Padilla's compensation for 2021 is as follows: base salary equal to $745,341 and a target annual bonus equal to $310,559. Pursuant to Mr. Padilla's employment offer letter dated July 1, 2010, if his employment is terminated under circumstances that would call for severance pay under the Company's severance program, he is entitled to the greater of (i) the standard severance benefits of the Company at the time of termination or (ii) a payment equivalent to 12 months of his then base salary, plus 12 months of his target AIP award. In addition, if the termination is not performance related, Mr. Padilla will receive his prorated AIP award for the year in which his employment is terminated. Such benefits would be contingent upon delivery of a release of any employment related claims against the Company in a form mutually agreeable to Mr. Padilla and the Company. Amounts shown have been converted from Brazilian reals to U.S. dollars at the exchange rate of 0.1771 U.S. dollars per Brazilian real as of December 31, 2021.
Additional Information Regarding Potential Payments Upon Termination of Employment or Change of Control
Heckman Employment Agreement
Mr. Heckman’s employment agreement, effective April 25, 2019, will end on April 25, 2022; provided, that the term will be extended for additional one-year periods unless either party provides written notice not to extend within 90 days prior to the expiration date.
The agreement provides that in the event of Mr. Heckman’s termination without “Cause” or his resignation for “Good Reason,” his severance will be equal to:
•two times the sum of the highest base salary paid to him over the 12-month period immediately prior to his termination of employment and his target annual incentive bonus for the year in which the termination occurs, payable in monthly installments over 24 months (“the severance period”);
•a pro rata portion of the annual incentive bonus he would have been entitled to receive for the performance period had he remained employed;
•retirement treatment with respect to any vesting or service condition under any outstanding equity-based awards;
•reimbursement of COBRA benefits for up to 18 months (to cease if Mr. Heckman becomes eligible for group health benefits under a plan of a new employer); and
•without duplication of the above, any other benefits due to other senior executives upon termination.
In the event of Mr. Heckman's resignation for "Good Reason" or termination without "Cause" during a "Change of Control Period,” he will be entitled to the same severance benefit as set forth above, except that any vesting or service condition under any outstanding equity-based awards will be deemed fully satisfied (with any performance-based requirements to be deemed satisfied at target) and any stock options shall remain exercisable for the remainder of their term.
If Mr. Heckman is terminated for "Cause" or resigns without "Good Reason," he is eligible to receive only any unpaid but accrued base salary, accrued but unused paid time off, and reimbursement of incurred and unreimbursed expenses.
If Mr. Heckman's employment terminates due to his death or “Disability," he (or, if applicable, his estate) will be entitled to any unpaid but accrued base salary, accrued but unused paid time off, reimbursement of incurred and unreimbursed expenses, and unpaid but earned annual incentive bonus. In addition, he (or his estate) will be entitled to receive a pro rata bonus due for the year in which such death or Disability occurs.
Mr. Heckman has also agreed to non-competition and non-solicitation covenants that will apply for at least 24 months following his termination of employment and customary confidentiality restrictions. In the event that Mr. Heckman breaches any of the covenants, we may cease any further severance payments. Mr. Heckman must also execute and deliver a general mutual release of claims against the Company.
The following definitions are provided in Mr. Heckman's employment agreement for certain of the terms used in this description:
"Cause" means Mr. Heckman's termination of employment for any of the following reasons: (a) any willful act or omission or any act of gross negligence that constitutes a material breach of the agreement; (b) willful and continued failure or refusal to substantially perform his duties (other than any such failure resulting from his disability or incapacity), provided that Bunge’s failure to achieve performance or strategic targets, goals or initiatives shall not be the sole factor in determining his failure to substantially perform his duties; (c) conviction of, or a plea of nolo contendere to, a felony, or any misdemeanor or similar offense involving moral turpitude (other than any traffic-related offense); (d) any willful commission of any act of fraud, forgery, theft (unless de minimis), misappropriation or embezzlement; or (e) any other willful misconduct that is materially injurious to the financial condition, business or reputation of, or is otherwise materially injurious to, Bunge and its subsidiaries.
"Good Reason" means a resignation by Mr. Heckman for any of the following reasons: (a) a failure to pay material compensation that is due and payable; (b) a material diminution in his total direct compensation; (c) a material diminution of his authority, responsibilities or positions under the agreement; (d) any relocation at Bunge’s request of his principal place of employment to a location more than 50 miles outside of his principal place of employment; and (e) any material breach by Bunge of its obligations to him under the agreement or any other material written agreement.
"Disability" means a medically determinable physical or mental impairment that has rendered Mr. Heckman unable to substantially perform each of the essential duties of his position for a continuous period of not less than 180 days.
"Change of Control" means the occurrence of any of the following events: (a) the acquisition by any person of 35% or more of Bunge's common shares; (b) a merger, amalgamation or consolidationeffectiveness of Bunge a disposition of all or substantially all of Bunge's assets or the acquisition of assets of another corporation, except if it would result in continuity of Bunge's shareholders of more than 50% of the then outstanding common shares and outstanding voting securities, as the case may be; or (c) a change in a majority of the members of the Board of Directors without approval of the existing Board members.
"Change of Control Period" means the period beginning on the date of the Change of Control and ending 24 months later, and can include the 12-month period immediately preceding such Change of Control, if Mr. Heckman is terminated without Cause during this 12-month period and there is a reasonable basis to conclude such termination was at the request or direction of the acquirer.
Change of Control Severance Agreements
We have change of control severance agreements with each of the NEOs, other than Mr. Heckman and Mr. Neppl, whose existing employment agreement and offer letter, respectively, contain a change of control provision. The change of control severance agreements provide for cash severance benefits in the event that an executive’s employment is terminated by us or a successor without “cause” or by the executive for “good reason,” in each case before the second anniversary of a “change of control” of the Company, as those terms are defined in the agreements.
The change of control severance agreements provide that, upon a qualifying termination, the executive would be entitled to a lump sum payment equal to (i) 24 months of the executive’s base salary in effect immediately prior to the termination date, and (ii) an amount equal to two times the executive’s annual target bonus for the year in which the termination occurs.
In addition, the executive will be entitled to receive accelerated vesting of all outstanding equity awards, with any stock options remaining exercisable for the remainder of their full term, and with unvested performance-based equity awards deemed vested at the greater of (i) actual performance or (ii) target levels with respect to performance goals or other vesting criteria.
As a condition to receiving the severance benefits, an executive must timely execute and deliver a general release of claims against the Company. Executives are bound by an 18-month non-competition covenant. The agreements do not provide for a tax gross-up.
Equity Acceleration Under the Equity Incentive Plans
Under the 2009 Equity Incentive Plan and the 2016 Equity Incentive Plan, a participant's equity award will be subject to the following treatment upon a termination of employment (except as otherwise may be provided under an individual award agreement or employment agreement):
•In the event of a termination of employment due to death, disability or retirement (age 65 or age 55 with 10 years of service), an individual's stock options granted (i) under the 2009 Equity Incentive Plan will become fully vested and immediately exercisable and (ii) under the 2016 Equity Incentive Plan will vest pro rata through the date of termination. Disability has the same meaning as under our long-term disability plan for all awards except incentive stock options, for which disability means permanent and total disability within the meaning of Section 22(e)(3) of the Internal Revenue Code.
•In the event of a termination of employment without "cause," all stock options granted (i) under the 2009 Equity Incentive Plan that would have vested in the 12-month period following termination of employment will immediately vest and become exercisable and (ii) under the 2016 Equity Incentive Plan will vest pro rata through the date of termination.
Generally, for all terminations of employment other than for Cause or voluntary resignation, all TBRSU and PBRSU awards vest pro rata through the date of termination (for PBRSUs, subject to satisfaction of applicable performance goals and a minimum one-year service period).
Upon a change of control of the Company, outstanding equity awards under the 2009 Equity Incentive Plan and the 2016 Equity Incentive Plan will be subject to the terms and conditions of the Heckman Employment Agreement and the change of control severance agreements, respectively.
The pay ratio information is provided pursuant to Section 953(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act and Item 402(u) of Regulation S-K. We note that, due to our permitted use of reasonable estimates and assumptions in preparing this pay ratio disclosure, the disclosure may involve a degree of imprecision, and thus this pay ratio disclosure is a reasonable estimate calculated in a manner consistent with Item 402(u) of Regulation S-K.
The median employees remain unchanged from last year as there has been no change in our employee population or employee compensation arrangements that we reasonably believe would significantly impact our 2021 pay ratio disclosure. Similarly, there has been no change in our median employees’ circumstances that we reasonably believe would result in a significant change to our fiscal year 2021 pay ratio disclosure.
Median Employee to CEO Pay Ratio
For 2021, we calculated annual total compensation for the median employee using the same methodology as for our NEOs as described in the 2021 Summary Compensation Table within this Proxy Statement. The annual total compensation for Mr. Heckman, our CEO, was $16,148,227 (the same amount as reported under the 2021 Summary Compensation Table above) and the median annual total compensation of all of our employees (other than our CEO), was $56,216 adjusted for cost of living. For the cost-of-living adjustment, we used the World Bank's Purchasing Power Parity conversion factor for GDP. This adjustment takes into account the local cost of an equivalent basket of goods, which embeds the exchange rate and inflation into the comparison such that the basket of goods is priced the same in both countries.
Based on this information, our CEO's annual total compensation is 287 times that of the median of the annual total compensation of all employees.
In addition, the ratio of the annual total compensation of our CEO to the median of the annual total compensation of all employees without any cost-of-living adjustment is 661 times the median employee. This is based on the foreign exchange rate only as of December 31, 2021.
| | |
PROPOSAL 3 — APPOINTMENT OF INDEPENDENT AUDITOR AND AUTHORIZATION OF THE AUDIT COMMITTEE OF THE BOARD TO DETERMINE THE INDEPENDENT AUDITOR'S FEES |
General
Our Board has recommended and asks that you appoint Deloitte & Touche LLP as our independent auditor for the fiscal year ending December 31, 2022 and authorize the Audit Committee of the Board to determine the independent auditor's fees. You would be acting based on the recommendation of our Audit Committee. Deloitte & Touche LLP has audited our annual financial statements since 2002. Pursuant to Bermuda law and our Bye-laws, an auditor is appointed at the annual general meeting or at a subsequent general meeting in each year and shall hold office until a successor is appointed.
The affirmative vote of a majority of the votes cast on the proposal is required to make such appointment. If you do not appoint Deloitte & Touche LLP, our Board will reconsider its selection of Deloitte & Touche LLP and make a proposal for a new independent auditor.
Representatives of Deloitte & Touche LLP are expected to access the virtual Annual General Meeting and will have the opportunity to make a statement if they desire to do so. We also expect that they will be available to respond to questions.
Fees
The chart below sets forth the aggregate fees for professional services rendered by the Deloitte & Touche LLP for services performed in each of 2021 and 2020, and breaks down these amounts by category of service:
| | | | | | | | | | | |
| | 2021 | | 2020 |
| Audit Fees | $14,971,060 | | $14,469,788 |
| Audit-Related Fees | $343,981 | | $287,353 |
| Tax Fees | $140,000 | | $170,780 |
| All Other Fees | $41,240 | | $1,648 |
| Total | $15,496,281 | | $14,929,569 |
Audit Fees
Audit fees are fees billed for the audit of our annual consolidated financial statements, the audit of ourLimited’s internal control over financial reporting and the reviews of our quarterly financial statements. Additionally, audit fees include comfort letters, statutory audits, consents and other services related to SEC matters.
Audit-Related Fees
For 2021 and 2020, audit-related fees include fees for audits in conjunction with acquisitions and divestitures, statutory attestation services, work related to employee benefit plans and certain other agreed-upon procedures engagements.
Tax Fees
Tax fees in 2021 and 2020 primarily relate to tax compliance services, tax planning advice and tax due diligence. Tax compliance services are services rendered based upon facts already in existence or transactions that have already occurred to document, compute and review amounts to be included in tax filings.
All Other Fees
For other professional services, minimal fees in 2020 were paid to Deloitte & Touche LLP, and fees incurred in 2021 relate to a subscription to a comprehensive database of accounting and financial disclosure-related literature and certain local market marketing and advertising advisory services.
Pre-Approval Policies and Procedures
The Audit Committee has adopted a policy for pre-approval of all audit services, audit-related services, tax services and other services provided by our independent auditor. Pre-approval is detailed as to particular types of services and is subject to specific fee levels. The independent auditor and management are required to periodically report to the Audit Committee regarding the services that have been provided to us in accordance with this pre-approval policy.
All of the services relating to the fees described in the table above were pre-approved by our Audit Committee. In making its recommendation to appoint Deloitte & Touche LLP as our independent auditor for the fiscal year ending December 31, 2022, the Audit Committee has considered whether the services providedaudited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their reports. Such financial statements are compatible with maintainingincorporated by reference in reliance upon the independencereports of Deloitte & Touche LLPsuch firm given their authority as experts in accounting and has determined that such services do not interfere with Deloitte & Touche LLP's independence.
| | | | | |
R | OUR BOARD RECOMMENDS THAT, BASED ON THE RECOMMENDATION OF THE AUDIT COMMITTEE, YOU VOTE FOR THE APPOINTMENT OF DELOITTE & TOUCHE LLP TO SERVE AS OUR INDEPENDENT AUDITOR FOR THE FISCAL YEAR ENDING DECEMBER 31, 2022 AND THE AUTHORIZATION OF THE AUDIT COMMITTEE OF THE BOARD TO DETERMINE THE INDEPENDENT AUDITOR'S FEES. |
auditing.
Our Audit Committee is composed of four independent directors, all of whom are financially literate. In addition, our Board has determined that Messrs. Simril and Winship each qualify as an "audit committee financial expert" as defined under Item 407 of Regulation S-K of the Securities Act of 1933, as amended. The Audit Committee operates under a written charter which reflects NYSE listing standards and SEC requirements regarding audit committees. A copy of the charter is available through the "Investors — Governance" section of our website at www.bunge.com.
The Audit Committee's primary role is to assist the Board in fulfilling its responsibility for oversight of (1) the quality and integrity of our financial statements and related disclosures, (2) our compliance with legal and regulatory requirements, (3) our independent auditor's qualifications, independence and performance and (4) the performance of our internal audit and control functions.
Our management is responsible for the preparation of our financial statements, our financial reporting process and our system of internal controls. Our independent auditor is responsible for performing an audit of the financial statements in accordance with the standards of the Public Company Accounting Oversight Board, which we refer to as the PCAOB, and issuing an opinion as to the conformity of those audited financial statements to U.S. generally accepted accounting principles and for auditing the effectiveness of our internal control over financial reporting. The Audit Committee monitors and oversees these processes.
The Audit Committee has sole authority over the selection of our independent auditor and manages our relationship with the independent auditor (who report directly to the Audit Committee). Deloitte & Touche LLP has served as our independent auditor since 2002. Each year, the Audit Committee evaluates the performance, qualifications and independence of the independent auditor. The Audit Committee is also involved in the selection of the lead audit partner. The Audit Committee pre-approves all audit, audit-related services, tax services and other services provided by the independent auditor and the fees for those services pursuant to written policies and procedures.
The Audit Committee meets with management and the independent auditor periodically to consider the adequacy of our internal controls. The Audit Committee also receives regular updates from our internal audit function, which has unrestricted access to the Audit Committee.
The Audit Committee has reviewed and discussed with management and Deloitte & Touche LLP the audited financial statements as of and for the year ended December 31, 2021 and Deloitte’s evaluation of our internal control over financial reporting. The Audit Committee has also discussed with the independent auditor the matters required to be discussed pursuant to PCAOB Auditing Standard No. 1301 (Communications with Audit Committees). In addition, the Audit Committee has received the written disclosures and the letter from Deloitte required by the applicable requirements of the PCAOB regarding Deloitte's communications with the Audit Committee concerning independence and has discussed with them their independence from Bunge and its management. The Audit Committee also considered whether the non-audit services provided by Deloitte & Touche LLP to us during 2021 were compatible with their independence as auditor.
Based on these reviews and discussions, the Audit Committee has recommended to the Board, and the Board has approved, the inclusion of the audited financial statements in our Annual Report on Form 10-K for the year ended December 31, 2021 for filing with the Securities and Exchange Commission.
Members of the Audit Committee
Henry "Jay" Winship, Chair
Sheila Bair
Kenneth Simril
Mark Zenuk
| | |
PROPOSAL 4 — APPROVAL OF AMENDMENTS TO OUR BYE-LAWS TO ELIMINATEFUTURE SHAREHOLDER SUPERMAJORITY APPROVAL REQUIREMENTS |
The Board is submitting for shareholder approval and adoption a proposal to amend our Bye-laws to replace certain provisions1 requiring the affirmative vote by shareholders of greater than a simple majority of the votes cast with a requirement that such votes instead be decided by a simple majority of votes cast (the “Shareholder Supermajority Approval Elimination Amendment”). The Board has recommended that shareholders vote in favor of the Shareholder Supermajority Approval Elimination Amendment. The proposed Shareholder Supermajority Approval Elimination Amendment is set forth in Appendix C of this proxy statement, with deletions indicated by strikeouts and additions indicated by underlining.
At our 2021 annual general meeting, shareholders voted on a shareholder proposal requesting that the Board take the necessary steps to eliminate any shareholder supermajority approval requirement for matters presented to shareholders. A greater than 89% majority of shareholders approved the proposal. We seek out and highly value the perspectives of our shareholders and have a strong record of responsiveness to shareholder concerns. Consistent with these practices, following the 2021 annual meeting, our Board carefully considered arguments in favor and against the elimination of supermajority shareholder approval requirements.
The Board considered several arguments in favor of shareholder supermajority approval requirements, including that such requirements help preserve and maximize long-term value for all shareholders, particularly minority shareholders, against the possible actions of one or more large shareholders that may not be in the interest of minority shareholders, and ensure that certain critical and important actions, such as the removal of a director without cause, or significant, fundamental corporate changes, only occur with broad shareholder consensus.
The Board recognizes that there are different perspectives on this matter and considered potential advantages of eliminating shareholder supermajority approval requirements based on feedback we heard from shareholders, including that a simple majority vote requirement would give Bunge shareholders a greater voice in Company matters critical to shareholder interests. After carefully weighing all of these considerations, the Board determined that changing shareholder supermajority approval requirements to a simple majority standard would be in the best interest of Bunge and its shareholders.
If approved, the Shareholder Supermajority Approval Elimination Amendment would replace certain provisions in Bunge’s Bye-laws that currently require the affirmative vote by shareholders of greater than a simple majority of the votes cast with a requirement that such votes instead be decided by a simple majority of votes cast. These provisions related to the following matters:
•The removal of directors without cause;
•Bunge’s ability to engage in any business combinations, as such term is defined in the Bye-laws; and
•The amendment or rescission of bye-law provisions, or the adoption of any new bye-law provision having such effect.
There are a few instances where the Companies Act 1981 of Bermuda (the “Act”) requires, for the action to be valid, that a certain majority of members votes in favor of the resolution. This proposal does not impact such provisions under the Act applicable to Bunge. These provisions are as follows:
•Unless the Bye-laws specify, 75% of the class in writing or simple majority of votes cast by the class in general meeting (where the quorum is 1/3 of the issued shares of the class) must approve a variation of class rights (section 47);
•A general meeting of the Company (other than an annual general meeting) will be deemed to be have been properly called, notwithstanding its having been called by shorter notice than that specified in the Act, if it is agreed by a majority in number of the members having a right to attend and vote at the meeting, being a majority together holding at least 95% in nominal value of the shares giving a right to attend and vote at such meeting (section 75);
1 There are default provisions under the Companies Act 1981 of Bermuda that require approval by a majority greater than a simple majority of votes cast. See the bullet-pointed list in the sixth paragraph of this proposal.
•All members of the Company (whether or not entitled to attend and vote) and all directors must agree to waive the presentation of accounts and the appointment of an auditor (section 88);
•Approval by at least 2/3 of votes cast is required to remove an auditor before the expiration of the auditor (section 89(5));
•Holders of at least 90% of the total voting rights of all members must approve a loan to a director or to provide a guarantee or any security in respect of such a loan (section 96);
•75% in value of members or class of members present and voting must approve a compromise between the Company and its shareholders (section 99); and
•90% in value of those whose shares are being acquired must approve the acquisition of shares of shareholders dissenting from a scheme or contract approved by majority (section 102).
The above description is qualified in its entirety by the actual text of the Shareholder Supermajority Approval Elimination Amendment, which is set forth in Appendix C.
If the Shareholder Supermajority Approval Elimination Amendment is not approved, the existing supermajority vote requirements contained in the Bye-laws will remain in effect.
The Board believes that this proposal further evidences its commitment to robust corporate governance practices and accountability to Bunge’s shareholders.
The affirmative votes of not less than 66% of all votes attaching to all shares entitling a holder to attend and vote on this proposal are necessary for approval of the proposed Shareholder Supermajority Approval Elimination Amendment. This means that if you abstain from voting on this proposal, your vote will count against this proposal. Unless such vote is received, the Shareholder Supermajority Approval Elimination Amendment will not be adopted and the existing provisions will remain in effect.
| | | | | |
R | OUR BOARD RECOMMENDS THAT SHAREHOLDERS VOTE FOR THE APPROVAL OF AMENDMENTS TO OUR BYE-LAWS TO ELIMINATE SHAREHOLDER SUPERMAJORITY APPROVAL REQUIREMENTS. |
| | |
PROPOSAL 5 - SHAREHOLDER PROPOSAL REGARDING SHAREHOLDER RIGHT TO ACT BY WRITTEN CONSENT |
Proposal 5 - Shareholder Right to Act by Written Consent
Bunge has received notice from Kenneth Steiner, 14 Stoner Avenue, 2M, Great Neck, New York 11021, that he intends to present, through his proxy John Chevedden, a separate proposal for voting at the Annual General Meeting. John Chevedden has submitted documentation indicating that Steiner is the beneficial owner of at least $2,000 worth of Bunge common shares. The shareholder proposal will be voted on at the Annual General Meeting only if properly presented by or on behalf of Kenneth Steiner. All statements contained in the shareholder proposal and supporting statement are the sole responsibility of the proponent of the shareholder.
Shareholder Proposal
Shareholders request that our board of directors take the necessary steps to permit written consent by the shareholders entitled to cast the minimum number of votes that would be necessary to authorize an action at a meeting at which all shareholders entitled to vote thereon were present and voting. This includes that one shareholder shall be able to perform the ministerial function of asking for a record date.
This proposal topic won impressive 85%-support at the 2021 Conagra annual meeting without any special effort by the shareholder proponent.
A reasonable shareholder right to act by written consent can make shareholder engagement more meaningful. If management is insincere in its shareholder engagement, a right for shareholders to act by written consent in our bylaws can make management think twice about insincerity.
A shareholder right to act by written consent in our bylaws will help ensure that management engages with shareholders in good faith because shareholders will have a viable Plan B by calling by acting by written consent. Our bylaws give no assurance that shareholder engagement will continue.
This is a best practice governance shareholder proposal in the same spirit as the 2021 shareholder simple majority vote proposal to reform our undemocratic 67% shareholder voting requirements that won 89% support.
Please vote yes:
Shareholder Right to Act by Written Consent - Proposal 5
| | | | | |
Q | OUR BOARD RECOMMENDS THAT SHAREHOLDERS VOTE AGAINST THE ADOPTION OF THE RIGHT TO ACT BY WRITTEN CONSENT THAT IS NOT UNANIMOUS |
| | |
Board of Directors Statement in Opposition to the Shareholder Proposal
|
The Board of Directors recommends a vote “Against” the foregoing proposal for the following reasons:
|
Bunge’s shareholders have an existing right to call a special meeting of shareholders in an informed, transparent and equitable manner.
The Board is committed to strong corporate governance and responsiveness to Bunge’s shareholders. The Board believes in maintaining policies and practices that serve the best interests of all shareholders. After careful consideration, the Board has determined that the proposal is not in the best interests of Bunge and its shareholders. Currently, any matter that either we or our shareholders wish to present for a vote must be presented at an annual or special meeting of shareholders, absent unanimous written consent by shareholders. The proposal would deprive the right of all shareholders to be consulted on important matters concerning their investment in Bunge.
|
| | |
The Board believes that a written consent right is unnecessary given the current ability of our shareholders holding at least 10% of the issued and outstanding common shares to call a special meeting of shareholders to consider proposals between regular annual meetings.
Further, a majority of S&P 500 companies either do not permit shareholders to act by written consent or require that any shareholder action by written consent be unanimous. As such, the kind of shareholder action by written consent requested by the proponent is not the prevailing market practice and supports the Board’s view that the adoption of this proposal is unnecessary.
We have a robust shareholder engagement program and our shareholders have indicated that a 10% special meeting right is preferable to a written consent right.
Bunge’s extensive shareholder engagement provides shareholders with effective access to management and the Board. Over the past several years, our independent Board Chair and management have engaged with investors representing approximately 40% to 50% of our issued and outstanding shares. Our shareholder outreach program enables us to regularly engage with our shareholders to gain valuable insights into current and emerging issues that matter most to them, including corporate governance matters, executive compensation, sustainability, and diversity and inclusion. Feedback from these discussions is relayed to the Board and is a key element in the development of our governance, compensation and sustainability policies, as well as the ongoing evaluation of our business strategy and performance.
Although shareholders possess a variety of views, our shareholders have expressed that the right to act by written consent was unnecessary in light of our shareholders’ current right to call special meetings. Further, our shareholder right to call special meetings allows shareholders to propose actions without waiting for our next annual meeting. The Board believes that having a special meeting right at a 10% ownership threshold strikes the right balance for Bunge, as it is a low enough threshold to provide a meaningful right for shareholders to act between annual meetings, yet high enough to prevent a single shareholder (or small group of shareholders) from acting without broad shareholder support.
Furthermore, Bunge’s shareholders can hold our directors accountable through our annual elections and our majority voting standard. Bunge encourages shareholders to share their perspectives on governance matters and other topics. Methods for communicating with the Board are described in this proxy statement under the section entitled “Communications with Our Board.”
Bunge’s current practices are designed to ensure that prior notice and an opportunity to be heard precede all shareholder votes and that shareholders have an opportunity to discuss and consider all points of view on a proposed matter.
In particular, the Board believes that a shareholder meeting allows for an important deliberative process in a transparent, informed and equitable forum because the date, place and time of the meeting are required to be given to shareholders in advance with adequate notice to permit participation of all shareholders. This process ensures that accurate and complete information, as required in the proxy statement and any soliciting materials, are widely distributed to shareholders in advance of the meeting and shareholders are given adequate time to consider the arguments presented by all sides as well as the opportunity to discuss the proposed action’s merits in an open forum with members of management, other shareholders, and the Board. Further, the Board, who owe a fiduciary duty to all shareholders, have the opportunity to provide a recommendation to shareholders regarding the proposed action.
In contrast, if implemented, the written consent process (referred to under Bermuda law and Bunge’s Bye-laws as “written resolution”) would enable a limited group of shareholders to act in favor of their own proposed actions at any time and as frequently as they choose, without a meeting and without ever providing advance notice to other shareholders. Actions taken by written consent could disenfranchise shareholders by depriving many shareholders of the critical opportunities to receive notice, assess, discuss, deliberate, and vote on the merits of proposed actions. In general, shareholders are not entitled to receive advance notice of a proposed action to be taken by written consent and, thus, may not be given sufficient time or opportunity to evaluate the proposed action and to consider differing points of view.
|
| | |
Further, the Board would not have the opportunity to analyze and provide a recommendation with respect to a proposed action by written consent. As currently contemplated by the written consent proposal, any proponents of an action by written consent may not need to satisfy any holding requirements with respect to our common shares, which may allow market participants engaging in short-term speculation to potentially determine the outcome of any particular issue. The lack of basic procedural safeguards in the written consent process may facilitate the exertion of inappropriate influence by shareholders with special interests that may be inconsistent with the long-term best interests of Bunge and shareholders.
Action by written consent would expend significant Company resources and cause shareholder confusion and is not consistent with prevailing market practice.
Permitting shareholder action by written consent that is not unanimous could cause confusion to shareholders and disruption to Bunge. Under the proposal, multiple groups of shareholders could solicit written consents on a range of issues at the same time, some of which may be duplicative or conflicting. Additionally, proposals advanced by short-term or special-interest investors would expend significant administrative and financial Company resources in defending against such actions, while providing little or no corresponding benefit to shareholders.
The Board has demonstrated a strong commitment to corporate governance best practices.
The Board believes that Bunge’s strong corporate governance practices and shareholder rights provide the appropriate means to advance shareholders’ interests and, as such, the proposal is unnecessary, counterproductive and potentially harmful. Our corporate governance program includes the following leading practices:
•Independent, non-executive Board Chair;
•Strong shareholder engagement annually representing 40 - 50% of our issued and outstanding shares;
•Ability of holders of 10% or more of our issued and outstanding common shares to call a special meeting;
•Declassified Board;
•Majority voting for directors;
•Nine out of 11 Board nominees are independent, and only independent directors serve on the Audit, Human Resources and Compensation, and Corporate Governance and Nominations Committees;
•Use of an independent compensation consultant to the Human Resources and Compensation Committee;
•Commitment to Board refreshment, with nine of 11 director nominees having joined the Board within the past five years;
•Director retirement age of 72;
•Non-management directors meet regularly in executive sessions;
•Diverse Board with broad range of key skills, qualifications and experience;
•Annual Board review of Company strategy;
•Active risk oversight by full Board and committees;
•Board commitment to sustainability and corporate citizenship;
•Robust Board self-assessment and director nomination processes;
•Board takes active role in management succession planning;
•No Board members serve on an excessive number of outside public boards;
•Long standing investor outreach program; and
•No poison pill.
More information about our governance practices can be found starting on page 15.
In light of our existing right of shareholders to call special meetings with at least 10% ownership threshold, as well as the Board’s continuing commitment to effective corporate governance, the Board believes that adoption of the shareholder proposal is unnecessary and not in the best interests of Bunge and its shareholders. We firmly believe that our existing corporate governance practices strike the right balance and ensure shareholders have appropriate means to express their views to the Board and fellow shareholders.
|
|
For the foregoing reasons, the Board recommends that you vote AGAINST this proposal. |
| | |
SHAREHOLDER PROPOSALS FOR THE 2023 ANNUAL GENERAL MEETING OF SHAREHOLDERS |
To be considered for inclusion in Bunge's proxy statement for our Annual General Meeting of Shareholders in 2023, presently anticipated to be held on May 11, 2023, shareholder proposals must be received by Bunge no later than December [•],1, 2022. In order to be included in our sponsored proxy materials, shareholder proposals will need to comply with the SEC's Rule 14a-8. If you do not comply with Rule 14a-8, we will not be required to include the proposal in the proxy statement and the proxy card we will mail to our shareholders. Shareholder proposals should be sent to our Corporate Secretary at 1391 Timberlake Manor Parkway, St. Louis,Chesterfield, Missouri 63017, U.S.A., Attention: Corporate Secretary.
Shareholders may also make proposals that are not intended to be included in our proxy statement for the 2023 Annual General Meeting pursuant to our Bye-laws. Nomination of candidates for election to the Board or other business may be proposed to be brought before the 2023 Annual General Meeting by any person who is a registered shareholder on the date of the giving of the notice of such proposals and on the record date for the determination of shareholders entitled to receive notice of and vote at the 2023 Annual General Meeting. Notice must be given in writing and in proper form in accordance with our Bye-laws to the Corporate Secretary of Bunge at Bunge's registered office at Bunge Limited, Clarendon House, 2 Church Street, Hamilton HM 11, Bermuda, with a copy to us at 1391 Timberlake Manor Parkway, St. Louis,Chesterfield, Missouri 63017, U.S.A., Attention: Corporate Secretary, no later than December [•],1, 2022.
In addition, shareholders may submit proposals on matters appropriate for shareholder action at the Annual General Meeting of Shareholders in accordance with Sections 79 and 80 of the Companies Act 1981 of Bermuda. To properly submit such a proposal, either at least 100 shareholders or any number of shareholders who represent at least 5% of the total voting rights of our voting shares must notify us in writing of their intent to submit a proposal. In accordance with Bermuda law, any such shareholder proposal to be voted on at the 2023 Annual General Meeting and at future annual general meetings must be received by us no later than six weeks prior to the annual general meeting date. Please deliver any such proposal to Bunge Limited, Clarendon House, 2 Church Street, Hamilton HM 11, Bermuda, Attention: Corporate Secretary, with a copy to us at 1391 Timberlake Manor Parkway, St. Louis,Chesterfield, Missouri 63017, U.S.A., Attention: Corporate Secretary.
The SEC permits a single proxy statement to be sent to any household at which two or more shareholders reside if they appear to be members of the same family. Each shareholder continues to receive a separate proxy card. This procedure, referred to as householding, reduces the volume of duplicate information shareholders receive and reduces mailing and printing expenses. A number of brokerage firms have instituted householding.
As a result, if you hold your shares through a broker and you reside at an address at which two or more shareholders reside, you will likely be receiving only one proxy statement unless any shareholder at that address has given the broker contrary instructions. However, if any such beneficial shareholder residing at such an address wishes to receive a separate proxy statement in the future, or if any such beneficial shareholder that elected to continue to receive separate proxy statements wishes to receive a single proxy statement in the future, that shareholder should contact their broker or send a request to our Corporate Secretary at 1391 Timberlake Manor Parkway, Chesterfield, Missouri 63017, U.S.A., Attention: Corporate Secretary. We will deliver, promptly upon written or oral request to the corporate secretary, a separate copy of this proxy statement to a beneficial shareholder at a shared address to which a single copy of the documents was delivered.
| | |
WHERE YOU CAN FIND MORE INFORMATION ABOUT THIS PROXY STATEMENT AND THE ANNUAL GENERAL MEETING |
Bunge-Bermuda files annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy any document Bunge-Bermuda files at the SEC’s public reference rooms located at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference rooms. These SEC filings are also available to the public on the SEC’s web site at: http://www.sec.gov. Copies of these reports, proxy statements and other information can also be inspected at the offices of the New York Stock Exchange at 20 Broad Street, New York, New York 10005.
Bunge-Bermuda’s web site is located at http://www.bunge.com. Bunge-Bermuda’s Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and other filings with the SEC are available, free of charge, through its web site, as soon as reasonably practicable after those reports or filings are electronically filed with or furnished to the SEC. Information Abouton Bunge-Bermuda’s web site or any other web site is not incorporated by reference in this Proxy Statementproxy statement and does not constitute a part of this proxy statement.
Why did I receive this Proxy Statement?
Bunge Limited has furnished these proxy materialsSEC rules and regulations permit Bunge-Bermuda to “incorporate by reference” the information Bunge-Bermuda files with the SEC. This means that Bunge-Bermuda can disclose important information to you because our Boardby referring you to those documents. Some documents or information, such as that called for by Item 7.01 of DirectorsForm 8-K, are deemed furnished and not filed in accordance with SEC rules. None of those documents and none of that information is soliciting yourincorporated by reference into this proxy statement. The information incorporated by reference is considered to vote atbe part of this proxy statement. Information that Bunge-Bermuda files later with the Annual General Meeting on May 12, 2022. In lightSEC will automatically update and supersede this information.
Bunge-Bermuda incorporates by reference the documents listed below and any filings Bunge-Bermuda will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of public health concerns regarding the COVID-19 outbreak, and in orderSecurities Exchange Act of 1934 (excluding any information “furnished” but not “filed”) following the date of this document, but prior to provide expanded access, this year’s Annual General Meeting will again be a virtual meetingthe date of shareholders, which will be conducted via live audio webcast. There will not be a physicalthe shareholder meeting. We have designed the virtual meeting to offer the same participation opportunities as an in-person meeting.The documents incorporated by reference are:
This proxy statement contains information about the items being voted on at the Annual General Meeting and important information about us. Our 2021 Annual Report, which includes our 2021•Bunge-Bermuda’s Annual Report on Form 10-K is also being furnished togetherfor the fiscal year ended December 31, 2021;
•Bunge-Bermuda's Quarterly Reports on Form 10-Q for the quarters ended March 31, 2022, June 30, 2022 and September 30, 2022; and
•Bunge-Bermuda's Current Reports on Form 8-K filed with the SEC on March 18, 2022, March 31, 2022 May 5, 2022, May 16, 2022, August 9, 2022, August 24, 2022, November 16, 2022, November 17, 2022, December 6, 2022 and December 8, 2022.
You can request a free copy of the above filings or any filings subsequently incorporated by reference into this proxy statement. If you received printed versionsstatement by writing or calling:
Corporate Secretary
1391 Timberlake Manor Parkway
Chesterfield, Missouri 63017, U.S.A.
Attention: Corporate Secretary
Telephone: (636) 292-3014
In order to ensure timely delivery of these materialsdocuments, you should make such request by mail, these materials also include the proxy card or voting instruction form for the Annual General Meeting. We are making these proxy materials first available to shareholders on or about March [•[●], 2022..
We have sent these materialsnot authorized anyone to each person who is registered as a holder of our common sharesgive any information or make any representation about the Redomestication or about us that differs from or adds to the information in this proxy statement or in the register of members (such owners are often referreddocuments incorporated by reference. Therefore, you should not rely upon any information that differs from or is in addition to as "holders of record"the information contained in this proxy statement or "registered holders")in the documents incorporated by reference.
The information contained in this proxy statement speaks only as of the closedate on the cover, unless the information specifically indicates that another date applies.
IN THE SUPREME COURT OF BERMUDA
CIVIL JURISDICTION
COMMERCIAL COURT
2023: No. [●]
IN THE MATTER OF BUNGE LIMITED
AND IN THE MATTER OF THE COMPANIES ACT 1981, SECTION 99
SCHEME OF ARRANGEMENT
(under section 99 of business on March 14, 2022, the record dateCompanies Act 1981)
Between
BUNGE LIMITED
(an exempted company incorporated with limited liability
under the laws of Bermuda with registration number 20791)
and
THE SCHEME SHAREHOLDERS
(as hereinafter defined)
PART I
PRELIMINARY
DEFINITIONS
1.In this Scheme, unless the context otherwise requires or unless otherwise expressly provided for, the Annual General Meeting.following expressions shall bear the following meanings:
We have requested that banks, brokerage firms and other nominees who hold our common shares on behalf of the owners of the common shares (such owners are often referred to as "beneficial shareholders" or "street name holders") as of the close of business on March 14, 2022 forward either
| | | | | |
| Agreement and Plan of Merger | The Agreement and Plan of Merger among Bunge Bermuda, Bunge Switzerland and Bermuda MergerCo dated [●] |
| Allowed Proceeding | Any Proceeding by a Scheme Shareholder to enforce its rights under the Scheme where any party fails to perform its obligations under the Scheme |
| Bermuda MergerCo | Horizon Merger Company Limited, an exempted company limited by shares incorporated under the laws of Bermuda with registration number [●] |
| Bunge Bermuda | Bunge Limited, an exempted company incorporated with limited liability under the laws of Bermuda with registration number 20791 |
| Bunge Bermuda Common Shares | Common shares of US$0.01 par value each of Bunge Bermuda |
| Bunge Options | Options to acquire Bunge Bermuda Common Shares under the Bunge Bermuda stock plans |
| Bunge Switzerland | [●], a Swiss corporation to be established prior to the Effective Time |
| Bunge Switzerland Shares | Registered common shares of US$[0.01] par value each of Bunge Switzerland |
| Business Day | Any day on which banks are open for business in Bermuda, New York and Zurich |
| Companies Act | The Companies Act 1981 of Bermuda |
| | | | | |
| Effective Time | The date and time on which a copy of the Order of the Supreme Court sanctioning the Scheme and making such facilitating orders as are appropriate pursuant to Section 99 of the Companies Act shall have been delivered to the Registrar of Companies in Bermuda for registration, at which time this Scheme shall become effective |
| Explanatory Statement | The explanatory statement of Bunge Bermuda in connection with the Scheme representing the explanatory statement issued pursuant to Section 100 of the Companies Act and including a notice of the Scheme Meeting |
| Proceeding | Any process, suit, action, legal or other proceeding including without limitation any arbitration, mediation, alternative dispute resolution, judicial review, adjudication, demand, execution, restraint, forfeiture, reentry, seizure, lien, enforcement of judgment, enforcement of any security or enforcement of any letters of credit |
| Prohibited Proceeding | Any Proceeding against Bunge Bermuda or Bunge Switzerland or their property in any jurisdiction whatsoever other than an Allowed Proceeding |
| Proxy Statement | The proxy statement of the Company initially filed on [●] 2023 with the U.S. Securities and Exchange Commission and in connection with this Scheme including the Explanatory Statement and including a notice of the Scheme Meeting |
| Record Date | The close of business (Bermuda time) on [●] 2023 |
| Register of Members | The Bunge Bermuda register of members |
| Scheme | This scheme of arrangement in respect of Bunge Bermuda under Section 99 of the Companies Act in its present form or with or subject to any modifications, additions or conditions that are consented to by Bunge Bermuda and that the Supreme Court may approve or impose |
| Scheme Consideration | One Bunge Switzerland Share to be issued and allotted by Bunge Switzerland in exchange for each Scheme Share held immediately prior to the Effective Time by a Scheme Shareholder |
| | | | | |
| Scheme Meeting | The meeting of the Scheme Shareholders convened at the direction of the Supreme Court at which the Scheme will be voted upon or any postponement or adjournment thereof |
| Scheme Shareholders | Holders of Scheme Shares appearing in the Bunge Limited register of members immediately prior to the Effective Time (including Bunge Bermuda in respect of Bunge Bermuda Common Shares held in treasury) |
| Scheme Shares | Bunge Bermuda Common Shares in issue immediately prior to the Effective Time (including Bunge Bermuda Common Shares held in treasury) |
| Supreme Court | The Supreme Court of Bermuda |
| US$ | United States dollars, the lawful currency of the United States of America |
INTERPRETATION
B.In this Scheme, unless the context otherwise requires or otherwise expressly provides:
1)references to Recitals, Parts, clauses and sub-clauses are references to the Recitals, Parts, clauses and sub-clauses respectively of this Scheme;
2)references to a person include references to an individual, firm, partnership, company, corporation, other legal entity, unincorporated body of persons or any state or state agency;
3)references to a statute or a printed copystatutory provision include the same as subsequently modified, amended or reenacted from time to time;
4)references to an agreement, deed or document shall be deemed also to refer to such agreement, deed or document as amended, supplemented, restated, verified, replaced and/or novated (in whole or in part) from time to time and to any agreement, deed or document executed pursuant thereto;
5)the singular includes the plural and vice versa and words importing one gender shall include the other gender;
6)headings to Recitals, Parts, clauses and sub-clauses are for ease of these materials, together with a proxy cardreference only and shall not affect the interpretation of this Scheme; and
7)to the extent that there shall be any conflict or voting instruction form, to those beneficial shareholders. We have agreed to payinconsistency between the reasonable expensesterms of the banks, brokerage firms and other nominees for forwarding these materials.
Finally, we have provided for these materials to be sent to persons who have interests in our common shares through participation in the Bunge share funds of the Bunge Retirement Savings Plan, the Bunge Savings Planthis Scheme and the Explanatory Statement, then the terms of this Scheme shall prevail.
BUNGE BERMUDA
C.Bunge Savings Plan—Supplement A. Although these persons are not eligible to vote directly at the Annual General Meeting, they may, however, instruct the trusteesBermuda was incorporated with limited liability in Bermuda on 18 May 1995 as an exempted company limited by shares with registration number 20791.
D.As of the plans on how to vote the common shares represented by their interests. The enclosed proxy card will also serve as voting instructions for the trustees of the plans. If you do not provide voting instructions for shares held for you in any of these plans, the trustees will vote these shares in the same ratio as the shares for which voting instructions are provided.
Shareholders who owned our common shares as of the close of business on the record date for the Annual General Meeting are entitled to access and vote at the Annual General Meeting and adjournments or postponements of the Annual General Meeting. The share register will not be closed between the record date and the date of the Annual General Meeting. A pollScheme Meeting, Bunge Bermuda will have an authorised share capital of US$4,210,000 divided into (i) 400,000,000 common shares of par value US$0.01 each ("Bunge Bermuda Common Shares"), of which [149,800,163] have been issued and are fully paid up or credited as fully paid up, and the remainder remain unissued; and (ii) 21,000,000 preference shares of par value US$0.01 each, none of which are issued and outstanding.
E.On the Record Date there were in aggregate (1) [149,800,163] issued and outstanding Bunge Bermuda Common Shares, including [●] Bunge Bermuda Common Shares held in treasury by Bunge Bermuda, and (2) [●] Bunge Options of which [●] have vested and may be exercisable in full or in part.
AT THE EFFECTIVE TIME, ALL BUNGE OPTIONS AND OTHER AWARDS ISSUED, OR BENEFITS AVAILABLE OR BASED ON, BUNGE BERMUDA COMMON SHARES THEN OUTSTANDING UNDER THE PLANS LISTED ON EXHIBIT [●] TO THE AGREEMENT AND PLAN OF MERGER SHALL REMAIN OUTSTANDING AND, AFTER THE EFFECTIVE TIME, BE DEEMED TO PROVIDE FOR THE ISSUANCE OR PURCHASE OF, OR OTHERWISE RELATE TO, THE BUNGE SWITZERLAND SHARES.
THE PURPOSE OF THE SCHEME
F.The purpose of the Scheme is to effect the redomestication of the parent company of the Bunge group from Bermuda to Switzerland by way of the exchange of each Bunge Bermuda Common Share for one issued, fully paid and non assessable Bunge Switzerland Share and the issuance and allotment of one new Bunge Bermuda Common Share to Bunge Switzerland pursuant to the terms of the Agreement and Plan of Merger. As a step prior to the Scheme, Bunge Bermuda shall subscribe at nominal value for a number of Bunge Switzerland Shares equal to the number of Scheme Shares, and Bunge Switzerland shall issue such Bunge Switzerland Shares to Bunge Bermuda. Upon the Effective Time, each Bunge Bermuda Common Share issued and outstanding immediately prior to the Effective Time (including Bunge Bermuda Common Shares held in treasury by Bunge Bermuda) shall be cancelled and shall cease to exist. As a result of the Scheme, Scheme Shareholders shall become shareholders of Bunge Switzerland, and Bunge Bermuda shall become a wholly-owned subsidiary of Bunge Switzerland. The Scheme will be taken on each proposaleffected as provided in Part II, Clause 3 below.
G.Bermuda MergerCo proposes to approve the Scheme by shareholder’s written resolution.
H.Bunge Switzerland has agreed to appear at the hearing of the petition to sanction the Scheme and undertakes to be putbound by its terms and to deliver fully paid Bunge Switzerland Shares as provided herein.
PART II
THE SCHEME
Application and effectiveness of the Scheme
1. The compromise and arrangement effected by the Scheme shall apply to the Annual General Meeting.Scheme Shares and shall be binding on the Scheme Shareholders.
What is Notice and Access and why did Bunge elect to use it?
As permitted by regulationsEffect of the SEC, NoticeScheme
2. At the Effective Time all of the right, title and Access provides companies withinterest of the ability to make proxy materials available to shareholders electronically via the internet. We have elected to provide many of our shareholders with a Notice of Internet Availability of Proxy Materials instead of receiving a full set of printed proxy materialsScheme Shareholders in the mail. The notice is a document that provides instructions regarding how to:Scheme Shares shall be subject to the arrangement implemented by the mechanism set out in Clause 3 below.
Exchange of shares and consideration
3. At the later of (i) the Effective Time and (ii) the satisfaction or waiver of the conditions set out in Clause 25 below:
•a)view our proxy materials onBermuda MergerCo will merge with and into Bunge Bermuda, with Bunge Bermuda as the internet;surviving company;
•b)accessBermuda MergerCo’s shares will be converted into one Bunge Bermuda Common Share, which Bunge Bermuda shall issue, allot and contribute to Bunge Switzerland, which shall account for such contribution as a contribution to its capital contribution reserves;
c)all Scheme Shares shall be cancelled and converted into the Annual General Meeting and vote your shares;right of Scheme Shareholders to receive Bunge Switzerland Shares;
d)Bunge Switzerland Shares shall be delivered on a one-for-one basis to Scheme Shareholders representing the Scheme Shares which have been cancelled; and
•e)request printed copiesBunge Bermuda shall contribute to Bunge Switzerland all of these materials, including the proxy card or voting instruction form.Bunge Switzerland Shares to which Bunge Bermuda is entitled pursuant to paragraph (d) above on account of Bunge Bermuda holding Bunge Bermuda Common Shares in treasury, and Bunge Switzerland shall account for such contribution as a contribution to its capital contribution reserves.
On or about March [•], 2022, we began mailingPART III
RECORD DATE AND DETERMINATION OF SCHEME SHAREHOLDERS
Record Date
4. The Scheme Shareholders and the notice to certain beneficial shareholders and posted our proxy materials onnumber of Scheme Shares that they hold for the website referenced inpurposes of voting at the notice. See "NoticeScheme Meeting shall be determined from the Register of Internet AvailabilityMembers as of Proxy Materials" in this proxy statement for more information about where to view our proxy materials on the internet.Record Date.
PART IV
DISTRIBUTIONS
Distribution to Scheme Shareholders
5. As more fully describedsoon as reasonably practical following the completion of the actions pursuant to Clause 3 above, Bunge Bermuda shall cause the Bunge Switzerland Shares comprising the Scheme Consideration to be distributed to the Scheme Shareholders.
Rights of Scheme Shareholders
6. With effect from and including the Effective Time, each Scheme Shareholder shall in accordance with the Scheme cease to have any rights with respect to Scheme Shares, except the right to receive the Scheme Consideration. Upon cancellation of the Scheme Shares and issuance of one new Bunge Bermuda Common Share to Bunge Switzerland, the Register of Members of Bunge Bermuda shall be updated to reflect such cancellation and issuance.
PART V
GENERAL SCHEME PROVISIONS
Effective Time and Notification to Scheme Shareholders
7. The Scheme shall become binding and effective at the Effective Time.
8. Bunge Switzerland shall give notification of the Scheme having become effective by filing a Current Report on Form 8-K with the United States Securities and Exchange Commission.
Stay of Prohibited Proceedings
9. After the Effective Time, none of the Scheme Shareholders shall commence a Prohibited Proceeding in respect of or arising from the Scheme.
10. A Scheme Shareholder may commence an Allowed Proceeding against Bunge Bermuda or Bunge Switzerland after the Effective Time provided that it has first given Bunge Bermuda five Business Days’ prior notice shareholders who receivedin writing of its intention to do so.
Dividends
11. At or after the noticeEffective Time, Bunge Switzerland shall pay from funds on hand at the Effective Time any dividends or other distributions with a record date prior to the Effective Time that may choose to access our proxy materialshave been declared or made by Bunge Bermuda on the website referenced in the notice or may request to receive a printed set of our proxy materials. In addition, the notice and website provide information regarding how you may request to receive proxy materials in printed form by mail or electronically by email on an ongoing basis. The selected delivery choice willBunge Bermuda Common Shares which remain in effect until changed by the shareholder. If you have previously elected to receive our proxy materials electronically, you will continue to receive access to those materials by email unless you elect otherwise.
What does it mean if I receive more than one notice or set of proxy materials?
It means that you have multiple accountsunpaid at the transfer agent and/or with banks and stockbrokers. Please vote all of your common shares. Beneficial shareholders sharing an address who are receiving multiple notices or copies of proxy materials will needEffective Time.In addition, Bunge Switzerland undertakes to contact their broker, bankBunge Bermuda to pay from funds on hand any dividends or other nomineedistributions with a record date after the Effective Time to request that only a single copy of each document be mailed to all shareholders at the shared address in the future. In addition, if you are the beneficial owner, but not the record holder, of our common shares, your broker, bankextent such dividends or other nominee may deliver only one copy of the notice or proxy materials to multiple shareholders who share an address unless that nominee has received contrary instructions from one or more of the shareholders. We will deliver promptly, upon written or oral request, a separate copy of the notice, proxy statement or 2021 Annual Report to a shareholder at a shared address to which a single copy of the documents was delivered. Shareholders who wish to receive a separate copy of these documents should submit their request to our Investor Relations departmentdistributions have already been declared by telephone at (636) 292-3014 or by submitting a written request to 1391 Timberlake Manor Parkway, St. Louis, Missouri 63017, U.S.A., Attention: Investor Relations.
Can I receive future proxy materials electronically?
Shareholders can help us conserve natural resources and reduce the cost of printing and mailing proxy statements and annual reports by opting to receive future mailings electronically. To enroll, please visit our website at www.bunge.com, click on the "Investors—IR Resources—Email Alerts" links and follow the instructions provided.
Information About the Meeting
What proposals are being presented at the Annual General Meeting?
Shareholders are being asked to vote on the following matters at the Annual General Meeting:
•Proposal 1 — election of the 11 directors named in this proxy statement;
•Proposal 2 — the approval of a non-binding advisory vote on the compensation of our named executive officers;
•Proposal 3 — the appointment of Deloitte & Touche LLP as our independent auditor and authorization of the Audit Committee of the Board to determine the auditor's fees;
•Proposal 4 — the approval of certain amendments to our Bye-laws to eliminate shareholder supermajority approval requirements; and
•Proposal 5 — shareholder proposal regarding shareholder right to act by written consent.
Other than the matters set forth in this proxy statement and matters incidentalBunge Bermuda prior to the conduct of the Annual General Meeting, we do not know of any business or proposals to be considered at the Annual General Meeting. If any other business is proposed and properly presented at the Annual General Meeting, the proxies received from our shareholders give the proxy holders the authority to vote on the matter at their discretion.
How do I access the Annual General Meeting and submit questions?
To be admitted to the Annual General Meeting at www.virtualshareholdermeeting.com/BG2022, you must enter the 16-digit control number found on your proxy card or voter instruction form. If you hold your common shares through a brokerage firm, bank or other nominee, you must register in advance using the instructions below.
If you wish to submit a question before or during the Annual General Meeting, you may log in to www.virtualshareholdermeeting.com/BG2022 and enter your name, email address and 16-digit control numberEffective Time.
beginning12. All mandates and other instructions in force at 10:45 a.m. Centralthe Effective Time in relation to the Bunge Bermuda Common Shares (including elections for payment of dividends (if any)) shall cease to be valid as effective mandates or instructions.
Costs
13. Bunge Bermuda shall pay in full all costs, charges, expenses and disbursements reasonably incurred by Bunge Bermuda in connection with the negotiation, preparation and implementation of the Scheme as and when they arise, including the costs of holding the Scheme Meeting, the costs of obtaining the sanction of the Supreme Court and the costs of placing the notices required by the Scheme.
Existing instruments of transfer and certificates
14. As from the Effective Time, all instruments of transfer and certificates validly existing at the Effective Time in respect of a transfer or holding of any Scheme Shares shall as from the Effective Time, cease to have effect as documents or evidence of transfer or title.
Modifications of the Scheme
15. At any hearing before the Supreme Court to sanction the Scheme, Bunge Bermuda may, subject to U.S. securities law constraints, consent on May 12, 2022. Once pastbehalf of all Scheme Shareholders to any modification of the login screen, selectScheme or any terms or conditions that the question topicSupreme Court determines to approve or impose.
Notice
16. Any notice or other written communication to be given under or in relation to the Scheme other than pursuant to Clauses 10 and enter your question 21 shall be given in writing and shall be deemed to have been duly given if:
a)in the ‘‘Ask a Question’’ section atcase of Bunge Bermuda, it is delivered by hand or sent by post, to Clarendon House, 2 Church Street, Hamilton HM 11, Bermuda, marked for the lower left-hand cornerattention of the screen and then click on Submit.Secretary;
Questions pertinent to meeting matters will be addressed duringb)in the Annual General Meeting, subject to time constraints. Questions or comments that relate to proposals that are not properly received before or during at the Annual General Meeting, relate to matters that are not the proper subject for action by shareholders, are irrelevant to our business, relate to material non-public information of the Company, relate to personal concerns or grievances, are derogatory to individuals or that are otherwise in bad taste, are in substance repetitiouscase of a questionScheme Shareholder, its last known address according to Bunge Bermuda; and
c)in the case of any other person, it is delivered by hand or comment madesent by another shareholder,post, to any address set forth for that person in any agreement entered into in connection with the Scheme or are not otherwise suitable for the conduct of the Annual General Meeting as determined in our sole discretion, will not be answered. Additional rules of conduct and procedures may apply during the Annual General Meeting and will be available for youlast known address according to review in advance of the meeting at www.virtualshareholdermeeting.com/BG2022.Bunge Bermuda, or by fax its last known fax number according to Bunge Bermuda.
My shares are held through a brokerage firm, bank17. Any notice or other nominee. How do I register in advance to access, vote and submit questions at the Annual General Meeting?
If you are a registered holder of common shares (i.e., you hold your shares through our transfer agent, Computershare), you do not need to register in advance to access the Annual General Meeting. Please follow the instructions described above and on your proxy card or voter instruction form that you received.
If you hold your common shares through a brokerage firm, bank or other nominee, you should follow the instructions provided by your brokerage firm, bank or other holder of recordwritten communication to be ablegiven under the Scheme shall be deemed to participatehave been served:
a)if delivered by hand, on the first Business Day following delivery;
b)if sent by post, on the second Business Day after posting if the recipient is in the meeting.
What if I have trouble accessing the Annual General Meeting virtually?
The virtual meeting platform is fully supported across browsers (internet Explorer, Firefox, Chrome and Safari) and devices (desktops, laptops, tablets and cell phones) running the most updated versioncountry of applicable software and plugins. You should ensure that you have a strong internet connection wherever you intend to participate in the meeting. We encourage you to access the meeting prior to the start time. You will be able to login beginning at 10:45 a.m., Central Time on May 12, 2022. We will have a technician ready to assist you with any technical difficulties you may have accessing the Annual General Meeting. If you encounter any difficulties accessing the Annual General Meeting, please call the technical support number that will be posteddispatch, otherwise on the virtual meeting platform login page.
If I can't participate in the live Annual General Meeting webcast, can I vote or listen to it later?
You may vote your common shares before the meeting as described below in “How do I vote” and following the instructions on your proxy card or voter instruction form. You do not need to access the webcast to vote if you submitted your vote via proxy in advance of the Annual General Meeting. We do not intend to record the Annual General Meeting; however, we will disclose the results on a Form 8-K that we will file with the SEC within four business days of the Annual General Meeting.
What constitutes a quorum?
The presence at the start of the Annual General Meeting of at least two persons representing, in person or by proxy, more than one-half of our outstanding common shares will constitute a quorum for the transaction of business.
Voting
How many votes do I have?
Every holder of a common share will be entitled to one vote per share for the election of each director and to one vote per share on each other matter presented at the Annual General Meeting. On March 14, 2022, there were 141,862,412 common shares issued and outstanding and entitled to vote at the Annual General Meeting.
How do I vote?
You can exercise your vote in the following ways:seventh Business Day after posting;
•c)By Telephone orif by fax, on the Internet: If you are a shareholder of record, you may appoint your proxy by telephone, or electronically through the internet, by following the instructions on your proxy card. If you are a beneficial shareholder, please follow the instructions on your notice or voting instruction form.Business Day sent; and
•d)By Mail: If you are a shareholderif by advertisement, on the date of record, you may appoint your proxy by marking, dating and signing your proxy card and returningpublication.
18. In proving service, it by mailshall be sufficient proof, in the enclosed postage-paid envelope. If you arecase of a beneficial shareholdernotice sent by post, that the envelope was properly stamped, addressed and received or requested printed copiesplaced in the post.
19. Save in the case of the proxy materials, you can votenotice, written communication or document required to be filed pursuant to Clause 10 above, the accidental omission to send any notice, written communication or other document in accordance with Clauses 16 and 17 above or the non-receipt of any such notice by followinga Scheme Shareholder, shall not affect the instructions on your voting instruction form.provisions of the Scheme.
•At20. Bunge Bermuda shall not be responsible for any loss or delay in the Annual General Meeting: If you are planningtransmission of any notices, other documents or payments posted by or to access the Annual General Meeting, you may vote your common shares during the meeting by visiting www.virtualshareholdermeeting.com/BG2022. To vote, you will need your 16-digit control number included on your proxy card, or on the voter instruction form.
| | |
Your vote is very important. Even if you plan to be present at the Annual General Meeting, we encourage you to vote as soon as possible. |
What if I return my proxy card but do not mark it to show how I am voting?
If you sign and return your proxy card or voting instruction form but do not indicate instructions for voting, your common shares willScheme Shareholders which shall be voted "FOR" each of Proposals 1, 2, 3 and 4 and "AGAINST" Proposal 5. With respect to any other matter which may properly come before the Annual General Meeting, your common shares will be votedposted at the discretionrisk of the proxy holders.Scheme Shareholders.
May I change21. Any notice or revoke my proxy?
You may change or revoke your proxy at any time before it is exercised in one of four ways:
1Notify our Corporate Secretary in writing at the address provided below before the Annual General Meetingother written communication that you are revoking your proxy;
2Use the telephone or the internet to change your proxy;
3Submit another proxy card (or voting instruction form if you hold your common shares in street name) with a later date; or
4If you are a holder of record, or a beneficial holder with a proxy from the holder of record, by accessing and voting at the Annual General Meeting.
You may not revoke a proxy simply by accessing the Annual General Meeting. To revoke a proxy, you must take one of the actions described above. Any written notice of revocation must be sent to the attention of our Corporate Secretary at 1391 Timberlake Manor Parkway, St. Louis, Missouri 63017, U.S.A.
What vote is required in order to approve each proposal?
The affirmative vote of a majority of the votes cast is required to elect eachbe given to all or substantially all Scheme Shareholders shall be effective by filing a Current Report on Form 8-K with the United States Securities and Exchange Commission and shall be deemed to be served upon acceptance by the EDGAR system thereof.
Exercise of Discretion
22. When under any provision of the nomineesScheme a matter is to be determined by Bunge Bermuda, then it will have discretion to interpret such matter under the Scheme in a manner that it considers fair and reasonable, and its decisions will be binding on all concerned.
Governing Law and Jurisdiction
23. At and with effect from the Effective Time, the operative terms of the Scheme shall be governed by, and construed in accordance with, the laws of Bermuda and the Scheme Shareholders hereby agree that the Courts of Bermuda shall have exclusive jurisdiction to hear and determine any suit, action or Proceeding and to settle any dispute which arises out of or is connected with the terms of the Scheme or its implementation or out of any action taken or omitted to be taken under the Scheme or in connection with the administration of the Scheme; and for director (Proposal 1). Assuch purposes, the Scheme Shareholders irrevocably submit to the jurisdiction of the Courts of Bermuda; provided, however, that nothing in this is an uncontested election,clause shall affect the validity of other provisions determining governing law and jurisdiction as between Bunge Bermuda and the Scheme Shareholders, whether contained in any nominee for director who receives a greater numbercontract or otherwise.
24. Subject to the provisions of votes "against" hisClause 25(b) below, the terms of the Scheme and the obligations imposed on Bunge Bermuda hereunder shall take effect subject to any prohibition or her election than votes "for" such electioncondition imposed by any applicable law.
Pre-Conditions to the Scheme
25. The Scheme will not be elected tocompleted unless the Board and the position on the Board that wouldfollowing conditions are satisfied or waived:
a)The articles of association of Bunge Switzerland have been filled byregistered with the director nominee will become vacant.
The affirmative vote of a majority of the votes cast is also required to approve the non-binding advisory vote on executive officer compensation (Proposal 2)commercial register in [•], the appointment of our independent auditor (Proposal 3) and shareholder proposal for shareholder right to act by written consent (Proposal 5). The affirmative vote of not less than 66% of all votes attaching to all shares entitling a holder to attend and vote on this proposal is necessary to amend the Bye-laws (Proposal 4).
Proposal 2 is an advisory vote only and, as discussed in the proposal on page 34 of this proxy statement, the voting results are not binding on us. However, consistent with our record of shareholder engagement, our Board will review the results of the vote and will take them into account in considering the compensation of our executive officers.Switzerland;Pursuant to Bermuda law, (i) common shares which are represented by "broker non-votes" (i.e., common shares held by brokers which are represented at the Annual General Meeting but with respect to which the broker is not empowered to vote on a particular proposal) and (ii) common shares represented at the Annual General Meeting which abstain from voting on any matter, are not included in the determination of the common shares voting on such matter, but are counted for quorum purposes.
Under the rules of the NYSE, if you do not submit specific voting instructionsb)The Bunge Switzerland Shares to your broker, your broker will not have the ability to vote your common sharesbe delivered in connection with Proposals 1, 2, 3, 4the Scheme have been registered with the competent commercial register in [•], Switzerland and 5. Accordingly, if your common shares are held in street name and you do not submit voting instructionsauthorized for listing on the New York Stock Exchange, subject to your broker, your common shares will be treated as broker non-votes for these proposals.official notice of issuance;
How will voting onc)None of Bunge Bermuda, Bermuda MergerCo or Bunge Switzerland is subject to any other business be conducted?
Other thangovernmental decree, order or injunction that prohibits the matters set forth in this proxy statement and matters incident to the conductconsummation of the Annual General Meeting, we do not know of any business or proposalsScheme;
d)Bunge Bermuda receives an opinion from Jones Day, in form and substance reasonably satisfactory to be considered at the Annual General Meeting. If any other business is properly proposed and presented at the Annual General Meeting, the proxies received from our shareholders give the proxy holders the authority to vote on the matter at the discretionit, confirming, as of the proxy holders.
Who will count the votes?
Broadridge will act as the inspector of electionEffective Time, certain U.S. federal income tax matters; and will tabulate the votes.
Deadline for Appointment of Proxies by Telephone or the Internet or Returning Your Proxy Card
e)Bunge Bermuda receives an opinion from Homburger Ltd., in form and substance reasonably satisfactory to it, confirming, as of the Effective Time, certain Swiss tax matters.
Authorisation
26. The Scheme Shareholders should completeauthorise Bunge Bermuda to take all necessary actions and returnto execute all necessary documents on their behalf as shall be required to procure the proxy card as soon as possible. To be valid, your proxy card must be completed in accordance with the instructions on it and received by us no later than 11:59 p.m., Eastern Time, on May 11, 2022. If you appoint your proxy by telephone or the internet, we must receive your appointment no later than 11:59 p.m., Eastern Time, on May 11, 2022. If you participate in the Bunge share fundsdelivery of the Bunge Retirement Savings Plan,Switzerland Shares to the Bunge Savings Plan or the Bunge Savings Plan — Supplement A, you must also submit your voting instructions by this deadline in order to allow the plan trustees time to receive your voting instructions and vote on behalfScheme Shareholders, as provided herein.
Expiry of the plans.Scheme
27. If your common shares are held in street name and you are voting by mail, you should return your voting instruction form in accordance with the instructions on that form or as providedtransactions contemplated by the bank, brokerage firmScheme shall not have occurred on or other nominee who holds our common sharesbefore 5pm Bermuda time on your behalf.
Solicitation of Proxies
Wethe date nine months after the Effective Time, the Scheme will bearterminate and all actions taken under the cost of the solicitation of proxies, including the preparation, printing and mailing of proxy materialsScheme will be reversed or voided, as if they had never occurred, and the notice. Weposition will furnish copies of these proxy materialsrevert to banks, brokers, fiduciaries and custodians holding shares in their names on behalf of beneficial owners so that they may forward these proxy materialsexisting immediately prior to our beneficial owners.
We have retained Innisfree M&A Incorporated to act as proxy solicitor for the Annual General Meeting for a fee of $20,000 plus reasonable out-of-pocket expenses. In addition, we may supplement the original solicitation of proxies by mail with solicitation by telephone and other means by our directors, officers and/or other employees. We will not pay any additional compensation to these individuals for any such services.
| | |
UNITED STATES SECURITIES AND EXCHANGE COMMISSION REPORTS |
A copy of our 2021 Annual Report, which includes our Annual Report on Form 10-K for the fiscal year ended December 31, 2021, as filed with the SEC, is enclosed with these proxy materials. Our Annual Report on Form 10-K is also available to shareholders free of charge on our website at www.bunge.com under the captions "Investors — SEC Filings" or by writing to us at 1391 Timberlake Manor Parkway, St. Louis, Missouri 63017, U.S.A., Attention: Investor Relations.
Effective Time.
We know of no other business that will be brought before the Annual General Meeting. If any other matter or any proposal should be properly presented and should properly come before the meeting for action, the persons named in the accompanying proxy will vote upon such proposal at their discretion and in accordance with their best judgment.
By order of the Board of Directors
| | | | | |
| |
March [•], 2022
| Lisa Ware-Alexander
Vice President, Deputy General Counsel
and Corporate Secretary
|
| | |
APPENDIX A — RECONCILIATION OF NON-GAAP FINANCIAL MEASURES |
This proxy statement contains certain "non-GAAP financial measures" as defined in Regulation G of the Securities Exchange Act of 1934. Bunge has reconciled these non-GAAP financial measures to the most directly comparable U.S. GAAP financial measures below. The non-GAAP financial measures that Bunge uses may not be comparable to similarly titled measures used by other companies.
Adjusted earnings per share is a non-GAAP financial measure and is not intended to replace Net income attributable to Bunge or Net income per common share - diluted, the most directly comparable U.S. GAAP financial measure. Adjusted earnings per share is calculated by excluding from Net income per common share-diluted, certain gains and charges and temporary mark-to-market timing differences, as defined below.
Below is a reconciliation of Net income attributable to Bunge, to adjusted Net income attributable to Bunge and adjusted earnings per share:
| | | | | | | | |
(US$ in millions, except per share data) | | 2021 |
Net income attributable to Bunge | | $ | 2,078 | |
Adjustment for Mark-to-market timing differences (1)
| | 12 |
Adjusted for certain (gains) and charges: | | |
Impairment charges | | 164 |
Gain on sale of assets | | (165) |
Gain on sale of a business | | (119) |
Adjusted Net income available for common shareholders | | $ | 1,970 | |
Weighted-average common shares outstanding - diluted, adjusted (2)
| | 152 |
Adjusted earnings per share - diluted | | $ | 12.93 | |
(1) Mark-to-market timing difference comprises the estimated net temporary impact resulting from unrealized period-end gains/losses associated with the fair valuation of certain forward contracts, readily marketable inventories (RMI), and related futures contracts associated with our committed future operating capacity. The impact of these mark-to-market timing differences, which is expected to reverse over time due to the forward contracts, RMI, and related futures contracts being part of an economically-hedged position, is not representative of the operating performance of our business.
(2) Approximately 1 million outstanding stock options and contingently issuable restricted stock units were not dilutive and not included in the weighted-average number of common shares outstanding for the year ended December 31, 2021.
Cash Flows
Adjusted funds from operations is a non-GAAP financial measure and is not intended to replace Cash provided by (used for) operating activities, the most directly comparable U.S. GAAP financial measure. Adjusted funds from operations is calculated by excluding the following from Cash provided by (used for) operating activities, foreign exchange gain (loss) on net debt, net income attributable to non-controlling interests and redeemable noncontrolling interests, after-tax mark-to-market timing differences, and working capital changes.
Below is a reconciliation of cash provided by (used for) operating activities to adjusted funds from operations:
| | | | | | | | |
(US$ in millions) | | 2021 |
Cash provided by (used for) operating activities | | $ | (2,894) | |
Foreign exchange gain (loss) on net debt | | (78) | |
Beneficial interest in securitized trade receivables | | 5,376 | |
Working capital changes | | (369) | |
Net (income) loss attributable to noncontrolling interests and redeemable noncontrolling interests | | (89) | |
Mark-to-market timing difference, after tax | | 12 | |
Adjusted funds from operations | | $ | 1,958 | |
| | |
APPENDIX B — CATEGORICAL STANDARDS OF DIRECTOR INDEPENDENCE |
In order to qualify as independent, the Board must determine that a director has no material relationship with Bunge.
1.A director will not be independent if:
•the director was employed by Bunge or an immediate family member of the director was an executive officer of Bunge within the preceding three years;
•(i) the director is a current partner or employee of a firm that is Bunge's external auditor; (ii) the director has an immediate family member who is a current partner of such firm; (iii) the director has an immediate family member who is a current employee of such firm and personally works on Bunge's audit; or (iv) the director or the director's immediate family member was within the last three years (but is no longer) a partner or employee of such a firm and personally worked on Bunge's audit within that time;
•a present executive officer of Bunge serves or served on the compensation committee of the Board of directors of a company which employed the director or which employed an immediate family member of the director as an executive officer within the preceding three years;
•the director or the director's immediate family member received, during any 12-month period within the preceding three years, more than $120,000 per year in direct compensation from Bunge other than director and committee fees and pension or other forms of deferred compensation for prior service, provided that such compensation is not contingent on continued service; or
•the director is a current employee, or the director's immediate family member is a current executive officer, of another company and the other company made payments to, or received payments from, Bunge for property or services in an amount which, in any of the last three fiscal years, exceeded the greater of $1,000,000 or 2% of such other company's consolidated gross revenues.
2.In addition, in order to assist it in determining what constitutes a material relationship, the Board has adopted the following categorical standards for relationships that, subject to paragraph (1) above, will not be deemed to impair a director's independence:
•the director or the director's immediate family member is a director or executive officer of, or employed by, another company that sells to or purchases from Bunge agricultural commodity, fertilizer or other products or services in the ordinary course of business, provided that such transactions are on arm's length terms,
•the director or the director's immediate family member holds a beneficial interest in an enterprise which sells to or purchases from Bunge agricultural commodity, fertilizer or other products or services in the ordinary course of business, provided that such transactions are on arm's length terms,
•the director or the director's immediate family member serves as an officer, director or trustee of a charitable, educational or other not-for-profit organization, and Bunge's donations to the organization or commercial relationships with the organization, as the case may be, are less than the greater of $1 million or 2% of that organization's annual gross revenues, and
•transactions or relationships that ended prior to the beginning of Bunge's most recently completed three-year fiscal period.
For purposes of these standards, immediate family members include a director's spouse, parents, children, siblings, mothers- and fathers-in- law, sons- and daughters-in-law, brothers- and sisters-in- law, and anyone (other than domestic employees) who shares the director's home. However, when applying the three-year look back provisions in the categories set forth above, individuals who are no longer immediate family members as a result of legal separation or divorce or those who have died or become incapacitated are not included.
For relationships not covered by the foregoing standards, the determination of whether the relationship is material or not, and therefore whether the director would be independent or not, shall be made by the directors who satisfy the above independence standards. The Board's determination of each director's independence will be disclosed annually in Bunge's proxy statement.
| | |
APPENDIX C - PROPOSED AMENDMENTS TO BYE-LAWS OF BUNGE LIMITED |
(as amended 25 May 2016)
BYE-LAWS
of
BUNGE LIMITED
TABLE OF CONTENTS
| | | | | | | | |
| Bye-Law | | Page |
| | |
| INTERPRETATION | |
| 1. | Interpretation | 1 |
| | |
| BOARD OF DIRECTORS | |
| 2. | Board of Directors | 2 |
| 3. | Management of the Company | 3 |
| 4. | Power to appoint manager | 3 |
| 5. | Power to authorise specific actions | 3 |
| 6. | Power to appoint attorney | 3 |
| 7. | Power to delegate to a committee | 3 |
| 8. | Power to appoint and dismiss employees | 4 |
| 9. | Power to borrow and charge property | 4 |
| 10. | Exercise of power to purchase shares of or discontinue the Company | 4 |
| 11. | Number and Tenure of Directors | 4 |
| 12. | Defects in appointment of Directors | 5 |
| 13. | Alternate Directors | 5 |
| 14. | Removal of Directors | 5 |
| 15. | Vacancies on the Board | 6 |
| 16. | Notice of meetings of the Board | 6 |
| 17. | Quorum at meetings of the Board | 6 |
| 18. | Meetings of the Board | 6 |
| 19. | Unanimous written resolutions | 7 |
| 20. | Contracts and disclosure of Directors’ interests | 7 |
| 21. | Remuneration of Directors and Members of Committees | 7 |
| | |
| OFFICERS | |
| 22. | Officers of the Company | 8 |
| 23. | Appointment of Officers | 8 |
| 24. | Remuneration of Officers | 8 |
| 25. | Duties of Officers | 8 |
| 26. | Chairman of meetings | 8 |
| | | | | | | | |
| 27. | Register of Directors and Officers | 8 |
| | |
| MINUTES | |
| 28. | Obligations of Board to keep minutes | 9 |
| | |
| INDEMNITY | |
| 29. | Indemnification of Directors and Officers of the Company | 9 |
| 30. | Waiver of claim by Member | 9 |
| | |
| MEETINGS | |
| 31. | Notice of annual general meeting | 10 |
| 32. | Notice of special general meeting | 10 |
| 33. | Accidental omission of notice of general meeting | 10 |
| 34. | Meeting called on requisition of Members and Member Proposals | 10 |
| 35. | Nomination of Directors | 11 |
| 36. | Short notice | 12 |
| 37. | Postponement and Cancellation of meetings | 12 |
| 38. | Quorum for general meeting | 12 |
| 39. | Adjournment of meetings | 12 |
| 40. | Written resolutions | 13 |
| 41. | Attendance of Directors | 13 |
| 42. | Voting at meetings | 13 |
| 43. | Voting by poll | 14 |
| 44. | Manner of taking a poll | 14 |
| 45. | Ballot procedures | 14 |
| 46. | Seniority of joint holders voting | 15 |
| 47. | Instrument of proxy | 15 |
| 48. | Representation of corporations at meetings | 15 |
| 49. | Security at General Meetings | 15 |
| | |
| SHARE CAPITAL AND SHARES | |
| 50. | Rights of shares | 16 |
| 51. | Power to issue shares | 18 |
| 52. | Variation of rights, alteration of share capital and purchase of shares of the Company | 19 |
| 53. | Registered holder of shares | 19 |
| 54. | Death of a joint holder | 20 |
| 55. | Share certificates | 20 |
| 56. | Calls on shares | 21 |
| 57. | Forfeiture of shares | 21 |
| | |
| REGISTER OF MEMBERS | |
| 58. | Contents of Register of Members | 22 |
| 59. | Branch Register of Members | 22 |
| 60. | Inspection of Register of Members | 22 |
| 61. | Determination of record dates | 22 |
| | |
| TRANSFER OF SHARES | |
| | | | | | | | |
| 62. | Instrument of transfer | 22 |
| 63. | Restriction on transfer | 23 |
| 64. | Transfers by joint holders | 23 |
| | |
| TRANSMISSION OF SHARES | |
| 65. | Representative of deceased Member | 23 |
| 66. | Registration on death or bankruptcy | 23 |
| | |
| DIVIDENDS AND OTHER DISTRIBUTIONS | |
| 67. | Declaration of dividends by the Board | 24 |
| 68. | Other distributions | 24 |
| 69. | Reserve fund | 24 |
| 70. | Deduction of Amounts due to the Company | 24 |
| | |
| CAPITALISATION | |
| 71. | Issue of bonus shares | 24 |
| | |
| ACCOUNTS AND FINANCIAL STATEMENTS | |
| 72. | Records of account | 25 |
| 73. | Financial year end | 25 |
| 74. | Financial statements | 25 |
| | |
| AUDIT | |
| 75. | Appointment of Auditor | 25 |
| 76. | Remuneration of Auditor | 25 |
| 77. | Vacation of office of Auditor | 25 |
| 78. | Access to books of the Company | 26 |
| 79. | Report of the Auditor | 26 |
| | |
| NOTICES | |
| 80. | Notices to Members of the Company | 26 |
| 81. | Notices to joint Members | 26 |
| 82. | Service and delivery of notice | 27 |
| | |
| SEAL OF THE COMPANY | |
| 83. | The seal | 27 |
| 84. | Manner in which seal is to be affixed | 27 |
| | |
| WINDING-UP | |
| 85. | Winding-up/distribution by liquidator | 27 |
| | |
| BUSINESS COMBINATIONS | |
| 86. | Business Combinations | 28 |
| | |
| ALTERATION OF BYE-LAWS | |
| 87. | Alteration of Bye-laws | 28 |
INTERPRETATION
1. Interpretation
(1) In these Bye-laws the following words and expressions shall, where not inconsistent with the context, have the following meanings respectively:-
(a) “Act” means the Companies Act 1981 as amended or re-enacted from time to time;
(b) “Auditor” includes any individual or partnership or any other person;
(c) “Board” means the board of directors appointed or elected pursuant to these Bye-laws and acting by resolution in accordance with the Act and these Bye-laws or the Directors present at a meeting of Directors at which there is a quorum;
(d) “Company” means Bunge Limited, being the company for which these Bye-laws are approved and confirmed;
(e) “Director” means a director of the Company;
(f) “Group” means the Company and every company and other entity which is for the time being controlled by the Company (for these purposes, “control” means the power to direct the management or policies of the person in question, whether by means of an ownership interest or otherwise);
(g) “Member” means the person registered in the Register of Members as the holder of shares in the Company and, when two or more persons are so registered as joint holders of shares, means the person whose name stands first in the Register of Members as one of such joint holders or all of such persons as the context so requires;
(h) “notice” means written notice as further defined in these Bye-laws unless otherwise specifically stated;
(i) “Officer” means any person appointed by the Board to hold an office in the Company;
(j) “Register of Directors and Officers” means the register of Directors and Officers referred to in these Bye-laws;
(k) “Register of Members” means the principal register and, where applicable, any branch register of Members referred to in these Bye-laws;
(l) “Registration Office” means such place as the Board may from time to time determine to keep a branch register of Members and where (except in cases where the Board otherwise directs) the transfers or other documents of title may be lodged for registration;
(m) “Resident Representative” means any person appointed to act as resident representative and includes any deputy or assistant resident representative;
(n) “Secretary” means the person appointed to perform any or all of the duties of secretary of the Company and includes any deputy or assistant secretary; and
(o) “Treasury Share” means a share of the Company that was or is treated as having been acquired and held by the Company and has been held continuously by the Company since it was so acquired and has not been cancelled.
(2) In these Bye-laws, where not inconsistent with the context:-
(a) words denoting the plural number include the singular number and vice versa;
(b) words denoting the masculine gender include the feminine gender;
(c) words importing persons include companies, associations or bodies of persons whether corporate or not;
(d) the word:-
(i) “may” shall be construed as permissive;
(ii) “shall” shall be construed as imperative; and
(e) unless otherwise provided herein words or expressions defined in the Act shall bear the same meaning in these Bye-laws.
(3) In these Bye-laws, expressions referring to writing or written shall, unless the contrary intention appears, include facsimile, printing, lithography, photography and other modes of representing words in a visible form.
(4) In these Bye-laws headings are used for convenience only and are not to be used or relied upon in the construction hereof.
BOARD OF DIRECTORS
2. Board of Directors
The business of the Company shall be managed and conducted by the Board.
3. Management of the Company
(1) In managing the business of the Company, the Board may exercise all such powers of the Company as are not, by statute or by these Bye-laws, required to be exercised by the Members subject, nevertheless, to these Bye-laws and the provisions of any statute.
(2) No alteration to these Bye-laws made by the Company in general meeting shall invalidate any prior act of the Board which would have been valid if that alteration had not been made.
(3) The Board may from time to time appoint a chief executive officer who shall, subject to the control of the Board, supervise and administer the general business and affairs of the Company.
4. Power to appoint manager
The Board may appoint a person to act as manager of the Company’s day to day business and may entrust to and confer upon such manager such powers and duties as it deems appropriate for the transaction or conduct of such business.
5. Power to authorise specific actions
The Board may from time to time and at any time authorise any person to act on behalf of the Company for any specific purpose and in connection therewith to execute any agreement, document or instrument on behalf of the Company.
6. Power to appoint attorney
The Board may from time to time and at any time by power of attorney appoint any person, whether nominated directly or indirectly by the Board, to be an attorney of the Company for such purposes and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the Board) and for such period and subject to such conditions as it may think fit and any such power of attorney may contain such provisions for the protection and convenience of persons dealing with any such attorney as the Board may think fit and may also authorise any such attorney to sub-delegate all or any of the powers, authorities and discretions so vested in the attorney. Such attorney may, if so authorised under the seal of the Company, execute any deed or instrument under such attorney’s personal seal with the same effect as the affixation of the seal of the Company.
7. Power to delegate to a committee
The Board may delegate any of its powers to a committee appointed by the Board which may consist partly or entirely of non-Directors and every such committee shall conform to such directions as the Board shall impose on them. The quorum necessary for the transaction of business at a meeting of any such committee shall be a majority of the members of the committee then in office. The meetings and proceedings of any such committee shall be governed by the provisions of these Bye-laws regulating the meetings and proceedings of the Board, so far as the same are applicable and are not superseded by directions imposed by the Board.
8. Power to appoint and dismiss employees
The Board may appoint, suspend or remove any manager, secretary, clerk, agent or employee of the Company and may fix their remuneration and determine their duties.
9. Power to borrow and charge property
Subject to the requirements of any exchange on which the shares of the Company are listed, the Board may exercise all the powers of the Company to borrow money and to mortgage or charge its undertaking, property and uncalled capital, or any part thereof, and may issue debentures, debenture stock and other securities whether outright or as security for any debt, liability or obligation of the Company or any third party.
10. Exercise of power to purchase shares of or discontinue the Company
(1) The Board may exercise all the powers of the Company to purchase or acquire all or any part of its own shares pursuant to section 42A of the Act.
(2) The Board may, with the approval of a resolution of the Members, exercise all the powers of the Company to discontinue the Company to a named country or jurisdiction outside Bermuda pursuant to section 132G of the Act.
11. Number and Tenure of Directors
(1) The Board may from time to time determine the total number of directorships, which shall not be less than seven nor more than fifteen. Any increase or decrease in the number of directorships shall require the affirmative vote of not less than 66 percent of the Directors then in office. The Board shall have the authority to appoint persons to fill newly created directorships, provided that any such appointment shall require the affirmative vote of not less than 66 percent of the Directors then in office. In no case shall a decrease in the size of the Board shorten the term of any Director then in office.
(2) No more than two of the Directors shall be employees of the Company or any other entity in the Group.
(3) Directors whose term expires at the 2016 annual general meeting shall be elected for a term expiring at the next annual general meeting. At each annual general meeting thereafter, all Directors shall be elected for a term expiring at the next annual general meeting. In addition, at the direction of and in the sole discretion of the Board, Directors may be elected at any general meeting called for the purpose to fill any newly created directorships on the Board arising under Bye-law 11(1) or any vacancy on the Board arising under Bye-law 15(3) or otherwise. Any person elected or appointed in accordance with these Bye-laws shall hold office for a term expiring at the next annual general meeting, subject to his or her office being vacated pursuant to Bye-law 15(3).
12. Defects in appointment of Directors
All acts done bona fide by any meeting of the Board or by a committee of the Board or by any person acting as a Director shall, notwithstanding that it be afterwards discovered that there was some defect in the appointment of any Director or person acting as aforesaid, or that they or any of them were disqualified, be as valid as if every such person had been duly appointed and was qualified to be a Director.
13. Alternate Directors
No Director may appoint a person or persons to act as a Director in the alternative to himself.
14. Removal of Directors
(1) Subject to any provision to the contrary in these Bye-laws, the Members entitled to vote for the election of Directors may, at any special general meeting convened and held in accordance with these Bye-laws, remove a Director with cause, provided that the notice of any such meeting convened for the purpose of removing a Director shall contain a statement of the intention so to do and a summary of the facts justifying the removal and be served on such Director not less than 14 days before the meeting and at such meeting such Director shall be entitled to be heard on the motion for such Director’s removal.
(2) Subject to any provisions to the contrary in these Bye-laws, the Members may, at any special general meeting convened and held in accordance with these Bye-laws, remove a director without cause by a resolution of the Members including the affirmative votes of not less than 66% of all votes attaching to all shares then in issue entitling the holder to attend and vote on the resolution in question, a majority of the votes cast provided that the notice for any such meeting convened for the purpose of removing a Director shall contain a statement of the intention so to do and be served on such Director not less than 14 days before the meeting and at such meeting such Director shall be entitled to be heard on the motion for such Director’s removal.
(3) A vacancy on the Board created by the removal of a Director under the provisions of subparagraph (1) or sub-paragraph (2) of this Bye-law may be filled by the Members at the meeting at which such Director is removed and, in the absence of such election or appointment, the Board may fill the vacancy.
15. Vacancies on the Board
(1) The Board shall have the power from time to time and at any time to appoint any person as a Director to fill a vacancy on the Board occurring pursuant to subparagraph (3) of this Bye-law.
(2) The Board may act notwithstanding any vacancy in its number.
(3) The office of Director shall be vacated if the Director:-
(a) is removed from office pursuant to these Bye-laws or is prohibited from being a Director by law;
(b) is or becomes bankrupt or makes any arrangement or composition with his creditors generally;
(c) is or becomes of unsound mind or dies;
(d) resigns his office by notice in writing to the Company.
16. Notice of meetings of the Board
(1) A Director may, and the Secretary on the requisition of a Director shall, at any time summon a meeting of the Board.
(2) Notice of a meeting of the Board shall be deemed to be duly given to a Director if it is given to such Director verbally in person or by telephone or otherwise communicated or sent to such Director by post, courier service, cable, telex, telecopier, facsimile, electronic mail or other mode of representing words in a legible and non-transitory form at such Director’s last known address or any other address given by such Director to the Company for this purpose.
17. Quorum at meetings of the Board
The quorum necessary for the transaction of business at a meeting of the Board shall be a majority of the number of Directors then in office.
18. Meetings of the Board
(1) The Board may meet for the transaction of business, adjourn and otherwise regulate its meetings as it sees fit.
(2) Directors may participate in any meeting of the Board by means of such telephone, electronic or other communication facilities as permit all persons participating in the meeting to communicate with each other simultaneously and instantaneously, and participation in such a meeting shall constitute presence in person at such meeting.
(3) Subject to the provisions of the Act and these Bye-laws, a resolution put to the vote at a meeting of the Board shall be carried by the affirmative votes of a majority of the votes cast and, in the case of an equality of votes, the resolution shall fail.
19. Unanimous written resolutions
A resolution in writing signed by all the Directors which may be in counterparts, shall be as valid as if it had been passed at a meeting of the Board duly called and constituted, such resolution to be effective on the date on which the last Director signs the resolution.
20. Contracts and disclosure of Directors’ interests
(1) Any Director, or any Director’s firm, partner or any company with whom any Director is associated, may act in a professional capacity for the Company and such Director or such Director’s firm, partner or such company shall be entitled to remuneration for professional services as if such Director were not a Director, provided that nothing herein contained shall authorise a Director or Director’s firm, partner or such company to act as Auditor of the Company.
(2) A Director who is directly or indirectly interested in a contract or proposed contract or arrangement with the Company shall declare the nature of such interest as required by the Act.
(3) Following a declaration being made pursuant to this Bye-law, and unless disqualified by the chairman of the relevant Board meeting, a Director may vote in respect of any contract or proposed contract or arrangement in which such Director is interested and may be counted in the quorum at such meeting.
(4) If a declaration is made pursuant to this Bye-law by the chairman of the relevant Board meeting, he shall not act as chairman in respect of the conduct of the business at the meeting in which he is interested and the other Directors shall appoint a chairman (who is not so interested) to act as chairman in respect of that business. The chairman so appointed may determine whether to disqualify a Director or not under the provisions of sub-paragraph (3) of this Bye-law. After the business in which he is interested has been concluded, the chairman of the relevant Board meeting shall resume his position as chairman of the meeting.
21. Remuneration of Directors and Members of Committees
The remuneration (if any) of the Directors and of any members of any committees appointed by the Board shall be determined by the Board and shall be deemed to accrue from day to day. The Directors and members of committees may also be paid all travel, hotel and other expenses properly incurred by them in attending and returning from meetings of the Board, any committee appointed by the Board, general meetings of the Company, or in connection with the business of the Company or their duties as Directors or committee members generally.
OFFICERS
22. Officers of the Company
The Officers of the Company shall consist of a Chairman and a Deputy Chairman, a Secretary and such additional Officers as the Board may from time to time determine all of whom shall be deemed to be Officers for the purposes of these Bye-laws.
23. Appointment of Officers
(1) The Board shall appoint a Chairman and a Deputy Chairman, who shall be Directors, for such term as the Board may by resolution determine. The Chairman and Deputy Chairman of the Board shall hold office until their term of office expires whereupon they shall retire from office but shall be eligible for re-election by the Board. The Board may at any time by resolution dismiss the Chairman or Deputy Chairman respectively and may appoint another Director to the vacated office. The Board may by resolution appoint a Director to fill the office of Chairman or Deputy Chairman vacated by the death or resignation of the existing incumbent.
(2) The Secretary and additional Officers, if any, shall be appointed by the Board from time to time.
24. Remuneration of Officers
The Officers shall receive such remuneration as the Board may from time to time determine.
25. Duties of Officers
The Officers shall have such powers and perform such duties in the management, business and affairs of the Company as may be delegated to them by the Board from time to time.
26. Chairman of meetings
Unless otherwise agreed by a majority of those attending and entitled to attend and vote thereat, the Chairman shall act as chairman at all meetings of the Members and of the Board at which such person is present and in his absence the Deputy Chairman, if present, shall act as chairman. In the absence of both of them a chairman shall be appointed or elected by those present at the meeting and entitled to vote.
27. Register of Directors and Officers
The Board shall cause to be kept in one or more books at the registered office of the Company a Register of Directors and Officers and shall enter therein the particulars required by the Act.
MINUTES
28. Obligations of Board to keep minutes
(1) The Board shall cause minutes to be duly entered in books provided for the purpose:-
(a) of all elections and appointments of Officers;
(b) of the names of the Directors present at each meeting of the Board and of any committee appointed by the Board; and
(c) of all resolutions and proceedings of general meetings of the Members, meetings of the Board and meetings of committees appointed by the Board.
(2) Minutes prepared in accordance with the Act and these Bye-laws shall be kept by the Secretary at the registered office of the Company.
INDEMNITY
29. Indemnification of Directors and Officers of the Company
The Directors, Secretary and other Officers (such term to include, for the purposes of Bye-laws 29 and 30, any person appointed to any committee by the Board) for the time being acting in relation to any of the affairs of the Company and the liquidator or trustees (if any) for the time being acting in relation to any of the affairs of the Company and every one of them, and their heirs, executors and administrators, shall be indemnified and secured harmless out of the assets of the Company from and against all actions, costs, charges, losses, damages and expenses which they or any of them, their heirs, executors or administrators, shall or may incur or sustain by or by reason of any act done, concurred in or omitted in or about the execution of their duty, or supposed duty, or in their respective offices or trusts, and none of them shall be answerable for the acts, receipts, neglects or defaults of the others of them or for joining in any receipts for the sake of conformity, or for any bankers or other persons with whom any moneys or effects belonging to the Company shall or may be lodged or deposited for safe custody, or for insufficiency or deficiency of any security upon which any moneys of or belonging to the Company shall be placed out on or invested, or for any other loss, misfortune or damage which may happen in the execution of their respective offices or trusts, or in relation thereto, PROVIDED THAT this indemnity shall not extend to any matter in respect of any fraud or dishonesty which may attach to any of said persons.
30. Waiver of claim by Member
Each Member agrees to waive any claim or right of action such Member might have, whether individually or by or in the right of the Company, against any Director or Officer on account of any action taken by such Director or Officer, or the failure of such Director or Officer to take any action in the performance of his duties with or for the Company, PROVIDED THAT such waiver shall not extend to any matter in respect of any fraud or dishonesty which may attach to such Director or Officer.
MEETINGS
31. Notice of annual general meeting
The annual general meeting of the Company shall be held in each year at such time and place as the Chairman or the Board shall appoint. At least 21 days’ notice of such meeting shall be given to each Member stating the date, place and time at which the meeting is to be held, that the election of Directors will take place thereat (if applicable), and as far as practicable, the other business to be conducted at the meeting.
32. Notice of special general meeting
The Chairman or the Board may convene a special general meeting of the Company whenever in their judgment such a meeting is necessary, upon not less than 21 days’ notice which shall state the date, time, place and the general nature of the business to be considered at the meeting.
33. Accidental omission of notice of general meeting
The accidental omission to give notice of a general meeting to, or the non-receipt of notice of a general meeting by, any person entitled to receive notice shall not invalidate the proceedings at that meeting.
34. Meeting called on requisition of Members and Member Proposals
(1) Notwithstanding anything herein, the Board shall, on the requisition of Members holding at the date of the deposit of the requisition not less than one-tenth of such of the paid-up share capital of the Company as at the date of the deposit carries the right to vote at general meetings of the Company, forthwith proceed to convene a special general meeting of the Company and the provisions of section 74 of the Act shall apply.
(2) In addition to any rights of Members under the Act, business which may be properly moved by a Member at a general meeting, other than the nomination of persons for election as Directors, may be proposed to be brought before any annual general meeting of the Company, or any special general meeting of the Company by any person who: (i) is a Member on the date of the giving of the notice provided for in this Bye-law and on the record date for the determination of Members entitled to receive notice of and vote at such meeting; and (ii) complies with the notice procedures set forth in this Bye-law.
(3) In addition to any other applicable requirements, for business to be proposed by a Member pursuant to paragraph (2) of this Bye-law, notice must be given in writing and in proper form to the Secretary of the Company at the Company’s registered office not later than 120 days before the first anniversary of the date on which the Company’s proxy statement was distributed to Members in connection with the prior year’s annual general meeting. If no annual general meeting was held in the prior year or if the date of the annual general meeting has been changed by more than 30 days from the date contemplated in the prior year’s proxy statement, the notice must be given prior to the later of (i) 150 days prior to the contemplated date of the annual general meeting and (ii) the date which is ten days after the date of the first public announcement or other notification of the actual date of the annual general meeting. In the case of a special general meeting, such notice must be given prior to the later of (i) 120 days before the date of the special general meeting and (ii) the date which is ten days after the date of the first public announcement or other notification of the date of the special general meeting.
(4) To be in proper written form, a notice given to the Secretary pursuant to paragraph (3) of this Bye-law must set forth as to each matter such Member proposes to bring before the general meeting: (i) a brief description of the business desired to be brought before the general meeting and the reasons for conducting such business at the general meeting, (ii) the name and registered address of such Member, (iii) the class or series and number of shares of the Company which are registered in the name of such Member, (iv) a description of all arrangements or understandings between such Member and any other person or persons (including their names) in connection with the proposal of such business by such Member and any material interest of such Member in such business, (v) a
representation that such Member intends to appear in person or by proxy at the General Meeting to bring such business before the general meeting, and (vi) a statement in support of the matter.
35. Nomination of Directors
(1) Only persons who are nominated in accordance with this Bye-law shall be eligible for election as Directors at any general meeting called for the purpose. The Board may nominate persons for election as Directors. Any Member who is a Member both on the record date for the determination of persons entitled to attend and vote at such general meeting and on the date of the giving of the notice provided for in this Bye-law may nominate persons for election as Directors. Where a Member wishes to nominate any person for election as a Director, notice as required by Bye-laws 35(2) and (3) must be given to the Company.
(2) Any notice of a nomination of a person by a Member for election as a Director at an annual general meeting must be given in writing to the Secretary of the Company at the Company’s registered office not later than 120 days before the first anniversary of the date on which the Company’s proxy statement was distributed to Members in connection with the prior year’s annual general meeting. If no annual general meeting was held in the prior year or if the date of the annual general meeting has been changed by more than thirty days from the date contemplated in the prior year’s proxy statement, the notice must be given prior to the later of 150 days prior to the contemplated date of the annual general meeting and the date which is ten days after the date of the first public announcement or other notification of the actual date of the annual general meeting. In the case of any notice of a nomination of a person by a Member for election as a Director at a special general meeting, such notice must be given prior to the later of 120 days before the date of the special general meeting and the date which is ten days after the date of the first public announcement or other notification of the date of the special general meeting.
(3) Such notice must include, as to each person whom the Member nominates for election or re-election as director, all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (including such person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected, and evidence satisfactory to the Company that such nominee has no interests that would limit such nominee’s ability to fulfil their duties of office). The Company may require any nominee to furnish such other information as reasonably may be required by the Company to determine the eligibility of such nominee to serve as a Director of the Company.
36. Short notice
A general meeting of the Company shall, notwithstanding that it is called by shorter notice than that specified in these Bye-laws, be deemed to have been properly called if it is so agreed by (i) all the Members entitled to attend and vote thereat in the case of an annual general meeting; and (ii) by a majority in number of the Members having the right to attend and vote at the meeting, being a majority together holding not less than 95% in nominal value of the shares giving a right to attend and vote thereat in the case of a special general meeting.
37. Postponement and Cancellation of meetings
The Secretary may postpone or cancel any general meeting called in accordance with the provisions of these Bye-laws (other than a meeting requisitioned under these Bye-laws) provided that notice of postponement or cancellation is given to each Member before the time for such meeting. Fresh notice of the date, time and place for the postponed meeting shall be given to each Member in accordance with the provisions of these Bye-laws.
38. Quorum for general meeting
At any general meeting of the Company two or more persons present in person at the start of the meeting and representing in person or by proxy in excess of one-half of such of the paid-up share capital of the Company as at the date of the general meeting carries the right to vote at general meetings of the Company shall form a quorum for the transaction of business, PROVIDED that if the Company shall at any time have only one Member, one Member present in person or by proxy shall form a quorum for the transaction of business at any general meeting of the Company held during such time. If within half an hour from the time appointed for the meeting a quorum is not present, the meeting shall stand adjourned to the same day one week later, at the same time and place or to such other day, time or place as the Secretary may determine.
39. Adjournment of meetings
(1) The chairman of a general meeting may, with the consent of the Members at any general meeting at which a quorum is present (and shall if so directed), adjourn the meeting.
(2) Unless the meeting is adjourned to a specific date, time and place, fresh notice of the date, time and place for the resumption of the adjourned meeting shall be given to each Member in accordance with the provisions of these Bye-laws. No business shall be transacted at any adjourned meeting except business which might lawfully have been transacted at the meeting from which the adjournment took place.
40. Written resolutions
(1) Subject to subparagraph (6) of this Bye-law, anything which may be done by resolution of the Company in general meeting or by resolution of a meeting of any class of the Members of the Company, may, without a meeting and without any previous notice being required, be done by resolution in writing signed by, or, in the case of a Member that is a corporation whether or not a company within the meaning of the Act, on behalf of, all the Members who at the date of the resolution would be entitled to attend the meeting and vote on the resolution.
(2) A resolution in writing may be signed by, or, in the case of a Member that is a corporation whether or not a company within the meaning of the Act, on behalf of, all the Members, or any class thereof, in as many counterparts as may be necessary.
(3) For the purposes of this Bye-law, the date of the resolution is the date when the resolution is signed by, or, in the case of a Member that is a corporation whether or not a company within the meaning of the Act, on behalf of, the last Member to sign and any reference in any Bye-law to the date of passing of a resolution is, in relation to a resolution made in accordance with this Bye-law, a reference to such date.
(4) A resolution in writing made in accordance with this Bye-law is as valid as if it had been passed by the Company in general meeting or by a meeting of the relevant class of Members, as the case may be, and any reference in any Bye-law to a meeting at which a resolution is passed or to Members voting in favour of a resolution shall be construed accordingly.
(5) A resolution in writing made in accordance with this Bye-law shall constitute minutes for the purposes of sections 81 and 82 of the Act.
(6) This Bye-law shall not apply to:-
(a) a resolution passed pursuant to section 89(5) of the Act; or
(b) a resolution passed for the purpose of removing a Director before the expiration of his term of office under these Bye-laws.
41. Attendance of Directors
The Directors of the Company shall be entitled to receive notice of and to attend and be heard at any general meeting.
42. Voting at meetings
(1) Subject to the provisions of the Act and these Bye-laws, any question proposed for the consideration of the Members at any general meeting shall be decided by the affirmative votes of a majority of the votes cast in accordance with the provisions of these Bye-laws and in the case of an equality of votes the resolution shall fail.
(2) Where the number of persons validly nominated for re-election or election as Directors at any general meeting called for the purpose is greater than the number of Directors to be elected, the persons receiving the most affirmative votes (up to the number of Directors to be elected) shall be elected as Directors, and an absolute majority of the votes cast shall not be a prerequisite to the election of such Directors.
(3) No Member shall be entitled to vote at any general meeting unless such Member has paid all the calls on all shares held by such Member.
43. Voting by poll
(1) At any general meeting of the Company, all resolutions and all questions proposed for the consideration of the Members shall be decided on a poll.
(2) Where a poll is taken, subject to any rights or restrictions for the time being lawfully attached to any class of shares, every person present at such meeting shall have one vote for each share entitled to be voted on such matter of which such person is the holder or for which such person holds a proxy and such vote shall be counted in the manner set out in Bye-Law 45 and the result of such poll shall be deemed to be the resolution of the meeting at which the poll was demanded. A person entitled to more than one vote need not use all his votes or cast all the votes he uses in the same way.
44. Manner of taking a poll
A poll taken in accordance with the provisions of Bye-law 43, for the purpose of electing a chairman of the meeting or on a question of adjournment, shall be taken forthwith and a poll demanded on any other question shall be taken at such meeting in such manner and at such time and place as the chairman of the meeting (or acting chairman) may direct and any business other than that upon which a poll is to be taken may be proceeded with pending the taking of the poll.
45. Ballot procedures
Where a vote is taken by poll, each person present and entitled to vote shall be furnished with a ballot paper on which such person shall record his or her vote in such manner as shall be determined at the meeting having regard to the nature of the question on which the vote is taken, and each ballot paper shall be signed or initialled or otherwise marked so as to identify the voter and the registered holder in the case of a proxy. At the conclusion of the poll, the ballot papers shall be examined and counted as the chairman of the meeting may direct and in default of any direction by a committee of not less than two Members or proxy holders appointed by the chairman of the meeting for the purpose and the result of the poll shall be declared by the chairman of the meeting.
46. Seniority of joint holders voting
In the case of joint holders the vote of the senior who tenders a vote, whether in person or by proxy, shall be accepted to the exclusion of the votes of the other joint holders, and for this purpose seniority shall be determined by the order in which the names stand in the Register of Members.
47. Instrument of proxy
(1) A Member may appoint a proxy by (a) instrument in writing in the form, or as near thereto as circumstances admit, of Form “A” in the Schedule hereto or in such other form as the Board may determine from time to time, under the hand of the appointor or of the appointor’s attorney duly authorised in writing, or if the appointer is a corporation, either under its seal, or under the hand of a duly authorised officer or attorney, or (b) such telephonic, electronic or other means as may be approved by the Board from time to time.
(2) The appointment of a proxy must be received by the Company at the registered office or at such other place or in such manner as is specified in the notice convening the meeting or in any instrument of proxy sent out by the Company in relation to the meeting at which the person named in the appointment proposes to vote, and an appointment of proxy which is not received in the manner so permitted shall be invalid.
(3) Delivery of an instrument of proxy shall not preclude a Member from attending and voting in person at the meeting and, in such event, the proxy shall be deemed to be revoked.
(4) A member who is the holder of two or more shares may appoint more than one proxy to represent him and vote on his behalf.
(5) The decision of the chairman of any general meeting as to the validity of any appointment of a proxy shall be final.
48. Representation of corporations at meetings
A corporation which is a Member may, by written instrument, authorise such person as it thinks fit to act as its representative at any meeting of the Members and the person so authorised shall be entitled to exercise the same powers on behalf of the corporation which such person represents as that corporation could exercise if it were an individual Member, and that Member shall be deemed to be present in person at any such meeting attended by its authorized representative. Notwithstanding the foregoing, the chairman of the meeting may accept such assurances as he or she thinks fit as to the right of any person to attend and vote at general meetings on behalf of a corporation which is a Member.
49. Security at General Meetings
The Board and, at any general meeting, the chairman of such meeting may make any arrangement and impose any requirement or restriction it or he considers appropriate to ensure the security of a general meeting including, without limitation, requirements for evidence of identity to be produced by those attending the meeting, the searching of their personal property and the restriction of items that may be taken into the meeting place. The Board and, at any general meeting, the chairman of such meeting are entitled to refuse entry to a person who refuses to comply with these arrangements, requirements or restrictions.
SHARE CAPITAL AND SHARES
50. Rights of shares
(1) At the date these Bye-laws are adopted, the share capital of the Company shall be divided into two classes: 240,000,000 common shares having a par value of US$0.01 each (the ACommon “Common Shares@”), and 10,000,000 preference shares having a par value of US$0.01 each (the APreference “Preference Shares@”).
(2) The holders of Common Shares shall, subject to the provisions of these Bye-laws (including, without limitation, the rights attaching to the Preference Shares):
(a) be entitled to one vote per share;
(b) be entitled to such dividends as the Board may from time to time declare;
(c) in the event of a winding-up or dissolution of the Company, whether voluntary or involuntary
or for the purpose of a reorganisation or otherwise or upon any distribution of capital, be entitled to the surplus assets of the Company; and
(d) generally be entitled to enjoy all of the rights attaching to shares.
(3) All the rights attaching to a Treasury Share shall be suspended and shall not be exercised by the Company while it holds such Treasury Share and, except where required by the Act, all Treasury Shares shall be excluded from the calculation of any percentage or fraction of the share capital, or shares, of the Company.
(4) Subject to these Bye-laws and the requirements of any exchange on which the shares of the Company are listed, and without prejudice to any special rights previously conferred on the holders of any existing shares or class of shares, the Board shall have the full power to issue any unissued shares of the Company on such terms and conditions as it may, in its absolute discretion, determine.
(5) The Board is authorized to provide for the issuance of the Preference Shares in one or more series, and to establish from time to time the number of shares to be included in each such series, and to fix the designation, powers, preferences and rights of the shares of each such series and the qualifications, limitations or restrictions thereof (and, for the avoidance of doubt, such matters and the issuance of such Preference Shares shall not be deemed to vary the rights attached to the Common Shares). The authority of the Board with respect to each series shall include, but not be limited to, determination of the following:
(a) the number of shares constituting that series and the distinctive designation of that series;
(b) the dividend rate on the shares of that series, whether dividends shall be cumulative, and, if so, from which date or dates, and the relative rights of priority, if any, of payment of dividends on shares of that series;
(c) whether that series shall have voting rights, in addition to the voting rights provided by law, and, if so, the terms of such voting rights, provided that no share shall carry the right to more than one vote;
(d) whether that series shall have conversion or exchange privileges (including, without limitation, conversion into Common Shares), and, if so, the terms and conditions of such conversion or exchange, including provision for adjustment of the conversion or exchange rate in such events as the Board shall determine;
(e) whether or not the shares of that series shall be redeemable, and, if so, the terms and conditions of such redemption, including the manner of selecting shares for redemption if less than all shares are to be redeemed, the date or dates upon or after which they shall be redeemable, and the amount per share payable in case of redemption, which amount may vary under different conditions and at different redemption dates;
(f) whether that series shall have a sinking fund for the redemption or purchase of shares of that series, and, if so, the terms and amount of such sinking fund;
(g) the right of the shares of that series to the benefit of conditions and restrictions upon the creation of indebtedness of the Company or any subsidiary, upon the issue of any additional shares (including additional shares of such series or any other series) and upon the payment of dividends or the making of other distributions on, and the purchase, redemption or other acquisition by the Company or any subsidiary of any outstanding shares of the Company;
(h) the rights of the shares of that series in the event of voluntary or involuntary liquidation, dissolution or winding up of the Company, and the relative rights of priority, if any, of payment on shares of that series; and
(i) any other relative participating, optional or other special rights, qualifications, limitations or restrictions of that series.
51. Power to issue shares
(1) Any Preference Shares of any series which have been redeemed (whether through the operation of a sinking fund or otherwise) or which, if convertible or exchangeable, have been converted into or exchanged for shares of any other class or classes shall have the status of authorized and unissued Preference Shares of the same series and may be reissued as a part of the series of which they were originally a part or may be reclassified and reissued as part of a new series of Preference Shares to be created by resolution or resolutions of the Board or as part of any other series of Preference Shares, all subject to the conditions and the restrictions on issuance set forth in the resolution or resolutions adopted by the Board providing for the issue of any series of Preference Shares.
(2) At the discretion of the Board, whether or not in connection with the issuance and sale of any of its shares or other securities, the Company may issue securities, contracts, warrants or other instruments evidencing any shares, option rights, securities having conversion or option rights, or obligations on such terms, conditions and other provisions as are fixed by the Board.
(3) The Board shall, in connection with the issue of any share, have the power to pay such commission and brokerage as may be permitted by law.
(4) The Company shall not give, whether directly or indirectly, whether by means of loan, guarantee, provision of security or otherwise, any financial assistance for the purpose of a purchase or subscription made or to be made by any person of or for any shares in the Company, except as permitted by the Act.
(5) The Company may from time to time do any one or more of the following things:
(a) accept from any Member the whole or a part of the amount remaining unpaid on any shares held by such Member, although no part of that amount has been called up;
(b) pay dividends in proportion to the amount paid up on each share where a larger amount is paid up on some shares than on others; and
(c) issue its shares in fractional denominations and deal with such fractions to the same extent as its whole shares and shares in fractional denominations shall have in proportion to the respective fractions represented thereby all of the rights of whole shares including (but without limiting the generality of the foregoing) the right to vote, to receive dividends and distributions and to participate in a winding up.
52. Variation of rights, alteration of share capital and purchase of shares of the Company
(1) Subject to the provisions of sections 42 and 43 of the Act any preference shares may be issued or converted into shares that, at a determinable date or at the option of the Company, are liable to be redeemed on such terms and in such manner as the Company before the issue or conversion may by resolution of the Board determine.
(2) If at any time the share capital is divided into different classes of shares, the rights attached to any class (unless otherwise provided by the terms of issue of the shares of that class) may, whether or not the Company is being wound-up, be varied with the consent in writing of the holders of three-fourths of the issued shares of that class or with the sanction of a resolution passed by a majority of the votes cast at a separate general meeting of the holders of the shares of the class in accordance with section 47(7) of the Act. The rights conferred upon the holders of the shares of any class issued with preferred or other rights shall not, unless otherwise expressly provided by the terms of issue of the shares of that class, be deemed to be varied by the creation or issue of further shares ranking pari passu therewith.
(3) The Company may from time to time if authorized by resolution of the Members change the currency denomination of, increase, alter or reduce its share capital in accordance with the provisions of sections 45 and 46 of the Act. Where, on any alteration of share capital, fractions of shares or some other difficulty would arise, the Board may deal with or resolve the same in such manner as it thinks fit including, without limiting the generality of the foregoing, the issue to Members, as appropriate, of fractions of shares and/or arranging for the sale or transfer of the fractions of shares of Members.
(4) The Company may from time to time purchase its own shares for cancellation or acquire them as Treasury Shares in accordance with the Act on such terms as the Board shall think fit.
53. Registered holder of shares
(1) The Company shall be entitled to treat the registered holder of any share as the absolute owner thereof and accordingly shall not be bound to recognise any equitable or other claim to, or interest in, such share on the part of any other person.
(2) Any dividend or other monies payable in cash in respect of shares may be paid by cheque or warrant sent through the post directed to the Member at such Member’s address in the Register of Members or, in the case of joint holders, to such address of the holder first named in the Register of Members, or to such person and to such address as the holder or joint holders may in writing direct, or by direct bank transfer to such bank account as such holder or joint holders or person entitled thereto may direct. Every such cheque or warrant shall be made payable to the order of the person to whom it is sent or to such persons as the holder or joint holders may direct and payment of the cheque or warrant shall be a good discharge to the Company. Every such cheque or warrant shall be sent at the risk of the person entitled to the money represented thereby.
(3) Any dividend or other monies payable in respect of a share which has remained unclaimed for 12 years from the date when it became due for payment shall, if the Board so resolves, be forfeited and cease to remain owing by the Company. The payment of any unclaimed dividend or other monies payable in respect of a share may (but need not) be paid by the Company into an account separate from the Company’s own account. Such payment shall not constitute the Company a trustee in respect of it.
(4) The Company shall be entitled to cease sending dividend warrants and cheques by post or otherwise to a Member if those instruments have been returned undelivered to, or left uncashed by, that Member on at least two consecutive occasions, or, following one such occasion, reasonable enquiries have failed to establish the Member’s new address. The entitlement conferred on the Company by this Bye-law in respect of any Member shall cease if the Member claims a dividend or cashes a dividend cheque or warrant.
54. Death of a joint holder
Where two or more persons are registered as joint holders of a share or shares then in the event of the death of any joint holder or holders the remaining joint holder or holders shall be absolutely entitled to the said share or shares and the Company shall recognise no claim in respect of the estate of any joint holder except in the case of the last survivor of such joint holders.
55. Share certificates
(1) Every Member shall be entitled to a certificate under the seal of the Company (or a facsimile thereof) specifying the number and, where appropriate, the class of shares held by such Member and whether the same are fully paid up and, if not, how much has been paid thereon. The Board may by resolution determine, either generally or in a particular case, that any or all signatures on certificates may be printed thereon or affixed by mechanical means.
(2) The Company shall be under no obligation to complete and deliver a share certificate unless specifically called upon to do so by the person to whom such shares have been allotted.
(3) If any such certificate shall be proved to the satisfaction of the Board to have been worn out, lost, mislaid, stolen or destroyed the Board may cause a new certificate to be issued and request a bond or an indemnity for the lost, mislaid, stolen or destroyed certificate if it sees fit. If a share certificate is defaced, worn out, lost or destroyed, it may be renewed on such terms (if any) as to evidence and indemnity and payment of any exceptional out-of-pocket expenses reasonably incurred by the Company in investigating evidence and preparing the requisite form of indemnity as the Board may determine but otherwise free of charge, and (in the case of defacement or wearing out) on delivery up of the old certificate.
56. Calls on shares
(1) The Board may from time to time make such calls as it thinks fit upon the Members in respect of any monies (whether on account of the nominal value of the shares or by way of premium) unpaid on the shares allotted to or held by such Members (and not made payable at fixed times by the conditions of allotment thereof) and, if a call is not paid on or before the day appointed for payment thereof, the Member may at the discretion of the Board be liable to pay the Company interest on the amount of such call at such rate as the Board may determine, from the date when such call was payable up to the actual date of payment. The joint holders of a share shall be jointly and severally liable to pay all calls in respect thereof.
(2) A person on whom a call is made shall remain liable for calls made on him even if the shares in respect of which the call was made are subsequently transferred.
(3) Any sum which by the terms of issue of a share becomes payable upon allotment or at any fixed date, whether on account of the nominal value of the share or by way of premium, shall for all the purposes of these Bye-laws be deemed to be a call duly made and payable on the date on which, by the terms of issue, the same becomes payable, and in case of non-payment all the relevant provisions of these Bye-laws as to payment of interest, costs, charges and expenses, forfeiture or otherwise shall apply as if such sum had become payable by virtue of a call duly made and notified.
(4) The Directors, may, if they think fit, receive from any Member willing to advance the same all or any part of the money unpaid upon the shares held by such Member beyond the sums actually called up thereon as a payment in advance of calls, and such payment in advance of calls shall extinguish so far as the same shall extend, the liability upon the shares in respect of which it is advanced, and upon the money so received or so much thereof as from time to time exceeds the amount of the calls then made upon the shares in respect of which it has been received the Company may pay interest at such rate as the Member paying such sum and the Directors by resolution shall agree provided that the Member shall not thereby be entitled to participate in respect thereof in a dividend subsequently declared. The Directors may also at any time repay the amount so advanced upon giving to such Member one month’s notice in writing.
57. Forfeiture of shares
(1) If any Member fails to pay, on the day appointed for payment thereof, any call in respect of any share allotted to or held by such Member, the Board may, at any time thereafter during such time as the call remains unpaid, direct the Secretary to forward to such Member a notice in the form, or as near thereto as circumstances admit, of Form “B” in the Schedule hereto.
(2) If the requirements of such notice are not complied with, any such share may at any time thereafter before the payment of such call and the interest due in respect thereof be forfeited by a resolution of the Board to that effect, and such share shall thereupon become the property of the Company and may be disposed of as the Board shall determine.
(3) A Member whose share or shares have been forfeited as aforesaid shall, notwithstanding such forfeiture, be liable to pay to the Company all calls owing on such share or shares at the time of the forfeiture and all interest due thereon.
REGISTER OF MEMBERS
58. Contents of Register of Members
The Board shall cause to be kept in one or more books a Register of Members and shall enter therein the particulars required by the Act.
59. Branch Register of Members
Subject to the Act, the Company may keep an overseas branch register of Members, and the Board may make and vary such regulations as it determines in respect of the keeping of any such register and maintaining a Registration Office in connection therewith.
60. Inspection of Register of Members
The Register of Members shall be open to inspection on every business day, subject to such reasonable restrictions as the Board may impose, so that not less than two hours in each business day be allowed for inspection. The Register of Members may, after notice has been given by advertisement in an appointed newspaper (or national newspaper in the jurisdiction of a branch register) to that effect, be closed for any time or times not exceeding in the whole thirty days in each year.
61. Determination of record dates
Notwithstanding any other provision of these Bye-laws, the Board may fix any date as the record date for:-
(a) determining the Members entitled to receive any dividend or other distribution; and
(b) determining the Members entitled to receive notice of and to vote at any general meeting of the Company.
TRANSFER OF SHARES
62. Instrument of transfer
(1) An instrument of transfer shall be in the form or as near thereto as circumstances admit of Form “C” in the Schedule hereto or in such other common form as the Board may accept. Such instrument of transfer shall be signed by or on behalf of the transferor and transferee provided that, in the case of a fully paid share, the Board may accept the instrument signed by or on behalf of the transferor alone. The Board may also accept mechanically executed transfers. The transferor shall be deemed to remain the holder of such share until the same has been transferred to the transferee in the Register of Members.
(2) The Board may refuse to recognise any instrument of transfer unless it is accompanied by the certificate in respect of the shares to which it relates and by such other evidence as the Board may reasonably require to show the right of the transferor to make the transfer.
63. Restriction on transfer
(1) The Board may in its absolute discretion and without assigning any reason therefor refuse to register the transfer of a share which is not fully paid.
(2) If the Board refuses to register a transfer of any share the Secretary shall, within two weeks after the date on which the transfer was refused, send to the transferor and transferee notice of the refusal.
64. Transfers by joint holders
The joint holders of any share or shares may transfer such share or shares to one or more of such joint holders, and the surviving holder or holders of any share or shares previously held by them jointly with a deceased Member may transfer any such share to the executors or administrators of such deceased Member.
TRANSMISSION OF SHARES
65. Representative of deceased Member
In the case of the death of a Member, the survivor or survivors where the deceased Member was a joint holder, and the legal personal representatives of the deceased Member where the deceased Member was a sole holder, shall be the only persons recognised by the Company as having any title to the deceased Member’s interest in the shares. Nothing herein contained shall release the estate of a deceased joint holder from any liability in respect of any share which had been jointly held by such deceased Member with other persons. Subject to the provisions of section 52 of the Act, for the purpose of this Bye-law, legal personal representative means the executor or administrator of a deceased Member or such other person as the Board may in its absolute discretion decide as being properly authorised to deal with the shares of a deceased Member.
66. Registration on death or bankruptcy
Any person becoming entitled to a share in consequence of the death or bankruptcy of any Member may be registered as a Member upon such evidence as the Board may deem sufficient or may elect to nominate some person to be registered as a transferee of such share, and in such case the person becoming entitled shall execute in favour of such nominee an instrument of transfer in the form, or as near thereto as circumstances admit, of Form “D” in the Schedule hereto. On the presentation thereof to the Board, accompanied by such evidence as the Board may require to prove the title of the transferor, the transferee shall be registered as a Member but the Board shall, in either case, have the same right to decline or suspend registration as it would have had in the case of a transfer of the share by that Member before such Member’s death or bankruptcy, as the case may be.
DIVIDENDS AND OTHER DISTRIBUTIONS
67. Declaration of dividends by the Board
The Board may, subject to these Bye-laws and in accordance with section 54 of the Act, declare a dividend to be paid to the Members, in proportion to the number of shares held by them, and such dividend may be paid wholly or partly in cash or wholly or partly in specie in which case the Board may fix the value for distribution in specie of any property.
68. Other distributions
The Board may declare and make such other distributions (in cash or in specie) to the Members as may be lawfully made out of the assets of the Company.
69. Reserve fund
The Board may from time to time before declaring a dividend set aside, out of the surplus or profits of the Company, such sum as it thinks proper as a reserve to be used to meet contingencies or for equalising dividends or for any other special purpose.
70. Deduction of Amounts due to the Company
The Board may deduct from the dividends or distributions payable to any Member all monies due from such Member to the Company on account of calls or otherwise.
CAPITALISATION
71. Issue of bonus shares
(1) The Board may, subject to these Bye-laws, resolve to capitalise any part of the amount for the time being standing to the credit of any of the Company’s share premium or other reserve accounts or to the credit of the profit and loss account or otherwise available for distribution by applying such sum in paying up unissued shares to be allotted as fully paid bonus shares pro rata (except in connection with the conversion of shares of one class to shares of another class) to the Members.
(2) The Company may capitalise any sum standing to the credit of a reserve account or sums otherwise available for dividend or distribution by applying such amounts in paying up in full partly paid shares of those Members who would have been entitled to such sums if they were distributed by way of dividend or distribution.
ACCOUNTS AND FINANCIAL STATEMENTS
72. Records of account
The Board shall cause to be kept proper records of account with respect to all transactions of the Company and in particular with respect to:-
(a) all sums of money received and expended by the Company and the matters in respect of which the receipt and expenditure relates;
(b) all sales and purchases of goods by the Company; and
(c) the assets and liabilities of the Company.
Such records of account shall be kept at the registered office of the Company or, subject to section 83 (2) of the Act, at such other place as the Board thinks fit and shall be available for inspection by the Directors during normal business hours.
73. Financial year end
The financial year end of the Company may be determined by resolution of the Board and failing such resolution shall be 31st December in each year.
74. Financial statements
Financial statements as required by the Act shall be made available to every Member as required by the Act and shall be laid before the Members in general meeting.
AUDIT
75. Appointment of Auditor
Subject to section 88 of the Act, at the annual general meeting or at a subsequent special general meeting in each year, an independent representative of the Members shall be appointed by them as Auditor of the accounts of the Company. No Member, Director, Officer or employee of the Company shall, during his or its continuance in that capacity, be eligible to act as an Auditor of the Company.
76. Remuneration of Auditor
The remuneration of the Auditor shall be fixed by the Board or in such manner as the Members may determine.
77. Vacation of office of Auditor
If the office of Auditor becomes vacant by the resignation or death of the Auditor, or by the Auditor becoming incapable of acting by reason of illness or other disability at a time when the Auditor’s services are required, the Board shall, as soon as practicable, convene a special general meeting to fill the vacancy thereby created.
78. Access to books of the Company
The Auditor shall at all reasonable times have access to all books kept by the Company and to all accounts and vouchers relating thereto, and the Auditor may call on the Directors or Officers of the Company for any information in their possession relating to the books or affairs of the Company.
79. Report of the Auditor
(1) Subject to any rights to waive laying of accounts or appointment of an Auditor pursuant to section 88 of the Act, the accounts of the Company shall be audited at least once in every year.
(2) The financial statements provided for by these Bye-laws shall be audited by the Auditor in accordance with generally accepted auditing standards. The Auditor shall make a written report thereon in accordance with generally accepted auditing standards and the report of the Auditor shall be submitted to the Members in general meeting.
(3) The generally accepted auditing standards referred to in subparagraph (2) of this Bye-law may be those of a country or jurisdiction other than Bermuda. If so, the financial statements and the report of the Auditor must disclose this fact and identify the standards used.
NOTICES
80. Notices to Members of the Company
A notice may be given by the Company to any Member either by delivering it to such Member in person or by sending it to such Member’s address in the Register of Members or to such other address given for the purpose. For the purposes of this Bye-law, a notice may be sent by post, courier service, cable, telex, telecopier, facsimile, electronic mail or other mode of representing words in a legible and non-transitory form. The Company shall be under no obligation to send a notice or other document to the address shown for any particular Member in the Register of Members if the Directors consider that the legal or practical problems under the laws of, or the requirements of any regulatory body or stock exchange in, the territory in which that address is situated are such that it is necessary or expedient not to send the notice or document concerned to such Member at such address and may require a Member with such an address to provide the Company with an alternative acceptable address for delivery of notices by the Company.
81. Notices to joint Members
Any notice required to be given to a Member shall, with respect to any shares held jointly by two or more persons, be given to whichever of such persons is named first in the Register of Members and notice so given shall be sufficient notice to all the holders of such shares.
82. Service and delivery of notice
(1) Subject to subparagraph (2) of this Bye-law, any notice shall be deemed to have been served at the time when the same would be delivered in the ordinary course of transmission and, in proving such service, it shall be sufficient to prove that the notice was properly addressed and prepaid, if posted, and the time when it was posted, delivered to the courier or to the cable company or transmitted by telex, facsimile, electronic mail or other method as the case may be.
(2) Postal notice shall be deemed to have been served five days after the date on which it is deposited, with postage prepaid, in the United States or Bermuda post or in the post of the jurisdiction in which the Company has its principal place of business for the time being.
(3) Every person who by operation of law, transfer or other means shall become entitled to any share shall be bound by every notice in respect of such share which, prior to his name and address being entered in the Register of Members, shall have been duly given to the person entered in the Register of Members as the holder of such share.
SEAL OF THE COMPANY
83. The seal
The seal of the Company shall be in such form as the Board may from time to time determine. The Board may adopt one or more duplicate seals for use outside Bermuda.
84. Manner in which seal is to be affixed
The seal of the Company shall not be affixed to any instrument except attested by the signature of a Director and the Secretary or any two Directors, or any person appointed by the Board for the purpose, provided that any Director, Officer or Resident Representative, may affix the seal of the Company attested by such Director, Officer or Resident Representative’s signature to any authenticated copies of these Bye-laws, the incorporating documents of
the Company, the minutes of any meetings or any other documents required to be authenticated by such Director, Officer or Resident Representative.
WINDING-UP
85. Winding-up/distribution by liquidator
If the Company shall be wound up the liquidator may, with the sanction of a resolution of the Members, divide amongst the Members in specie or in kind the whole or any part of the assets of the Company (whether they shall consist of property of the same kind or not) and may, for such purpose, set such value as he deems fair upon any property to be divided as aforesaid and may determine how such division shall be carried out as between the Members or different classes of Members. The liquidator may, with the like sanction, vest the whole or any part of such assets in trustees upon such trusts for the benefit of the Members as the liquidator shall think fit, but so that no Member shall be compelled to accept any shares or other securities or assets whereon there is any liability.
BUSINESS COMBINATIONS
86. Business Combinations
(1) Subject to paragraph (2), the The Company shall not engage in any Business Combination unless such Business Combination has been approved by the Board and by a resolution of the Members including the affirmative votes of not less than 66% of all votes attaching to all shares then in issue entitling the holder to attend and vote on the resolution in question a majority of the votes cast.
(2)Paragraph (1) shall not apply in respect of any Business Combination approved by the Board, and in respect of any Business Combination approved by the Board which the Act requires to be approved by the Members, the necessary general meeting quorum and Members’ approval shall be as set out in Bye-laws 38 and 42 respectively.
(32) In this Bye-law, “Business Combination” means:
(a) any amalgamation, merger, consolidation or similar transaction involving the Company;
(b) any sale or other disposition of all or substantially all of the assets of the Company or of all or substantially all of the assets of any company or other entity in the group.
ALTERATION OF BYE-LAWS
87. Alteration of Bye-laws
(1) Subject toparagraphsparagraph (2), (3) and 4, no Bye-law shall be rescinded, altered or amended and no new Bye-law shall be made until the same has been approved by a resolution of the Board and by a resolution of the Members.
(2) Bye-laws 11, 86 and 87 shall not be rescinded, altered or amended, and no new Bye law Bye-law shall be made which would have the effect of rescinding, altering or amending the provisions of such Bye-Laws, until the same has been approved by a resolution of the Board including the affirmative vote of not less than 66 percent of the Directors then in office and by a resolution of the Members including the affirmative votes of not less than 66% of all votes attaching to all shares then in issue entitling the holder to attend and vote on the resolution in question a majority of the votes cast.
(3) Bye-law 14 shall not be rescinded, altered or amended and no new Bye-law shall be made which would have the effect of rescinding, altering or amending the provisions of such Bye-laws, until the same has been approved by a resolution of the Board including the affirmative vote of not less than a simple majority of the Directors then in office and by a resolution of the Members including the affirmative votes of not less than 66% of all votes attaching to all shares then in issue entitling the holder to attend and vote on the resolution in question.
(4) Bye-laws 50(3), 50(4) and 51(2) shall not be rescinded, altered or amended and no new Bye-law shall be made which would have the effect of rescinding, altering or amending the provisions of such Bye-laws, until the same has been approved by a resolution of the Board including the affirmative vote of not less than a simple majority of the Directors then in office and by a resolution of the Members including the affirmative votes of not less than 66% of votes cast on the resolution.
******
***
*
Schedule - FORM A (Bye-law 47)
BUNGE LIMITED
P R O X Y
I/We
of
the holder(s) of share(s) in the above-named company (the “Company”) hereby appoint or failing him/her or failing him/her as my/our proxy to vote on my/our behalf at the general meeting of the Company to be held on the day of , , and at any adjournment thereof.
Dated this day of ,
*GIVEN under the seal of the above-named
*Signed by the above-named
Witness
*Delete as applicable.
Schedule - FORM B (Bye-law 57)
NOTICE OF LIABILITY TO FORFEITURE FOR NON PAYMENT OF CALL
You have failed to pay the call of [amount of call] made on the day of , last, in respect of the [number] share(s) [numbers in figures] standing in your name in the Register of Members of Bunge Limited (the “Company”), on the day of , last, the day appointed for payment of such call. You are hereby notified that unless you pay such call together with interest thereon at the rate of per annum computed from the said day of , last, on or before the day of , next at the place of business of the Company the share(s) will be liable to be forfeited.
Dated this day of ,
[Signature of Secretary]
By order of the Board
Schedule - FORM C (Bye-law 62)
TRANSFER OF A SHARE OR SHARES
| | | | | |
FOR VALUE RECEIVED | [amount]
|
| [transferor]
|
hereby sell assign and transfer unto | [transferee] |
of | [address] |
| [number of shares] |
shares of Bunge Limited | |
| |
Dated:
| |
| |
| |
| (Transferor) |
| |
In the presence of: | |
| |
| |
| |
(Witness) | |
| |
| |
| (Transferee) |
| |
| |
In the presence of: | |
| |
| |
| |
(Witness) | |
Schedule - FORM D (Bye-law 66)
TRANSFER BY A PERSON BECOMING ENTITLED ON DEATH/BANKRUPTCY
OF A MEMBER
I/We having become entitled in consequence of the [death/bankruptcy] of [name of the deceased Member] to [number] share(s) standing in the register of members of Bunge Limited in the name of the said [name of deceased Member] instead of being registered myself/ourselves elect to have [name of transferee] (the “Transferee”) registered as a transferee of such share(s) and I/we do hereby accordingly transfer the said share(s) to the Transferee to hold the same unto the Transferee his or her executors administrators and assigns subject to the conditions on which the same were held at the time of the execution thereof; and the Transferee does hereby agree to take the said share(s) subject to the same conditions.
WITNESS our hands this day of , | | | | | |
Signed by the above-named | ) |
[person or persons entitled] | ) |
in the presence of: | ) |
| |
Signed by the above-named | ) |
[transferee] | ) |
in the presence of: | ) |
| | | | | | | | |
| At Bunge, our purpose is to connect farmers to consumers to deliver essential food, feed and fuel to the world.
| |
| | |
|
1391 Timberlake Manor Parkway | St. Louis, Missouri 63017
314.292.2000 | bunge.com
|
|
|
